Rel: November 15, 2024
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2024-2025 _________________________
CL-2024-0492 _________________________
Ex parte T.M.
PETITION FOR WRIT OF MANDAMUS
(In re: In the matter of T.M., Jr.)
(Jefferson Juvenile Court, Bessemer Division: JU-23-569.01) _________________________
CL-2024-0493 _________________________
(In re: In the matter of Z.M.)
(Jefferson Juvenile Court, Bessemer Division: JU-24-164.01) CL-2024-0492; CL-2024-0493; and CL-2024-0494
_________________________
CL-2024-0494 _________________________
(In re: In the matter of K.M.)
(Jefferson Juvenile Court, Bessemer Division: JU-24-165.01)
PER CURIAM.
T.M. ("the father") has petitioned this court for writs of mandamus
directing the Bessemer Division of the Jefferson Juvenile Court ("the
juvenile court") to vacate its orders entered on March 25, 2024, and May
1, 2024. We grant the petitions in part, deny the petitions in part, and
issue the writs.
Procedural History
The materials before this court show that the Jefferson County
Department of Human Resources ("DHR") initiated an investigation into
allegations that the father had sexually abused Z.M., his eldest daughter,
who was born on May 29, 2008. On January 31, 2024, DHR instituted a
safety plan, pursuant to which Z.M. and her two siblings, K.M., who was
born on December 7, 2011, and T.M., Jr., who was born on April 7, 2007,
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were placed into the home of S.L. ("the maternal aunt"). On February 7,
2024, DHR filed in the juvenile court three separate dependency petitions
relating to Z.M., K.M., and T.M., Jr. ("the children"), respectively. In
those petitions, DHR alleged that the mother of the children was
deceased and that the children were in need of care and supervision due
to the father's alleged sexual abuse of Z.M. On February 28, 2024, the
juvenile court conducted a shelter-care hearing regarding the children,
which the father attended. The father has not provided this court with
the transcript of the shelter-care hearing.
Also on February 28, 2024, the juvenile court entered a shelter-care
order in each of the three dependency actions, awarding the maternal
aunt pendente lite custody of the children and precluding the father from
having any contact with the children. In the shelter-care orders, the
juvenile court directed the father to provide DHR with a copy of the
children's medical-insurance card and the children's "clothing and
personal property." The juvenile court further ordered the father not to
remove any funds from the children's savings accounts. Lastly, the
shelter-care orders provided that the "[Social Security] checks [the
children] receive[] from their mother will follow the children and not
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remain with the father" and that, "[i]f the father receives [the] March
[Social Security] check[s,] [they] shall be given to [the maternal aunt]."
On March 15, 2024, the children's court-appointed guardian ad
litem filed a "motion to compel" in each of the dependency actions,
seeking to enforce the terms of the shelter-care orders. In the motions to
compel, the guardian ad litem asserted that the father had failed to turn
over the March 2024 Social Security checks to the maternal aunt and had
refused to allow the maternal aunt and the children entry into the "family
residence" to obtain the children's clothing and personal property,
including their pets and "memorabilia of their deceased mother." The
guardian ad litem attached to each motion to compel a memorandum
from the maternal aunt requesting that the juvenile court enter an
"emergency restraining order" against the father; the maternal aunt
alleged that the father had refused to allow her and the children access
to the family residence to obtain the children's personal property, that he
had changed the locks on the doors, that it appeared that he was
removing property from the family residence, that he had not turned over
the February 2024 Social Security checks as allegedly ordered, and that
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he had threatened to terminate any insurance policies covering the
children.
The father asserts in his mandamus petitions that the juvenile
court scheduled the motions to compel for a hearing to take place on
March 25, 2024, but he has not provided this court with a copy of the
notices that were issued scheduling that hearing. The hearing proceeded
as scheduled, but the father has not provided this court with a transcript
of the hearing. The father alleges that the juvenile court did not receive
any evidence at the hearing but that it received only arguments of
counsel. The juvenile court summarized the hearing in an order entered
in each of the dependency actions on the same date. According to those
orders, the father was represented by counsel at the hearing; the father's
counsel made objections to the father's cellular telephone being
submitted to the juvenile court as evidence and to the juvenile court's
considering any request that the father turn over the February 2024
Social Security checks, which objections the juvenile court overruled; and
the juvenile court received information indicating that T.M., Jr., was
driving himself and his siblings to school every day.
The juvenile court's orders also provided, in pertinent part:
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"1. The father shall not dispose of or destroy any of the mother's property.
"2. The father shall not change[] the locks to the home.
"3. [T.M., Jr.,] shall continue to have the use of the motor vehicle to take himself and siblings to and from school ever[y] day.
"4. [The maternal aunt] shall accompany [the children] to the home and the father shall not be present.
"5. On April 2, 2024, after school[, the children] and [the maternal aunt] shall go to the father's residence and retrieve their personal care items. Neither the father nor his current paramour shall be present.
"6. [The children] are to remove only their items and those of their mother.
"7. They have [an] hour and [a] half to retrieve their items. …
"8. The father shall maintain [the children] on his health insurance.
"9. The father is to return the $4,500.00 that he received on behalf of [the children] in February. The money follows the children. Father previously stated that money was direct deposit[ed] into their savings account. Therefore, it should be available.
"10. If the father has not done so, please give [the maternal aunt] an insurance card."
(Capitalization, bold typeface, and underlining omitted.)
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On April 4, 2024, the father filed motions to reconsider the March
25, 2024, orders, arguing, among other things, that his right to due
process had been violated because he had not received notice that the
hearing would address the removal of the mother's property from the
family residence, the children's health or medical insurance, or the use of
a motor vehicle and that the portion of the orders requiring him to turn
over the February 2024 Social Security checks was void because the
shelter-care orders had not required him to turn over those checks. The
juvenile court conducted a hearing on the motions to reconsider on April
16, 2024. The father has not provided this court with a transcript of that
hearing. On May 1, 2024, the juvenile court entered an order in each of
the dependency actions denying the motions to reconsider and directing
the father to turn over to the maternal aunt the February 2024 Social
Security checks.
Issue
On June 21, 2024, the father filed in this court petitions for the writ
of mandamus relating to the three dependency actions. In substance, the
father petitions this court to issue writs requiring the juvenile court to
vacate the March 25, 2024, orders because he did not receive adequate
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notice of the claims and issues to be litigated at the March 25, 2024,
hearing.
Ordinarily, a petition for the writ of mandamus arising from a
dependency action must be filed within 14 days of the entry of the
challenged order. See Rule 21(a)(3), Ala. R. App. P., and Ex parte R.W.,
41 So. 3d 800, 804 (Ala. Civ. App. 2009). However, when a petitioner
challenges an order as being void because it was entered in a manner
inconsistent with due process, the 14-day deadline does not apply. See
Ex parte M.F.B., 228 So. 3d 460, 462 (Ala. Civ. App. 2017); see also Ex
parte Murray, 267 So. 3d 328, 332 (Ala. Civ. App. 2018). In these
mandamus petitions, the father essentially argues that the March 25,
2024, orders were entered in a manner inconsistent with due process, see
generally Frahn v. Greyling Realization Corp., 239 Ala. 580, 583, 195 So.
758, 761 (1940) ("It is established by the decisions in this and in Federal
jurisdictions that due process of law means notice, a hearing according to
that notice, and a judgment entered in accordance with such notice and
hearing." ), so his petitions will be considered by this court.
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Standard of Review A petition for the writ of mandamus is the appropriate method for
seeking review of an order that is alleged to be void for lack of due
process. See Ex parte Bashinsky, 319 So. 3d 1240, 1253 (Ala. 2020). "[A]
void court order is a complete nullity." Hodges v. Archer, 286 Ala. 457,
459, 241 So. 2d 324, 326 (1970). As a nullity, a void judgment has no
effect and is subject to attack at any time. Id. "A void order is a complete
nullity, and it is the duty of the court on application of an interested party
to vacate the void order at any time subsequent to its rendition." Person
v. Person, 236 So. 3d 90, 100 (Ala. Civ. App. 2017). If the March 25, 2024,
orders are void, this court must take notice of that fact and issue writs of
mandamus to the juvenile court directing it to vacate the orders.
Discussion
The father has failed to prove that the March 25, 2024, orders were
entered in a manner inconsistent with due process. The father has not
provided this court with the notices setting the March 25, 2024, hearing,
which would apprise this court of the matters to be addressed at that
hearing. See Rule 21(a)(1)(F), Ala. R. App. P. (providing, in pertinent
part, that a petitioner must attach to a petition for the writ of mandamus
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"[a]n appendix including copies of all parts of the record that are essential
to understanding the matters set forth in the petition"). Assuming the
juvenile court indicated in the notices scheduling the March 25, 2024,
hearing that only the matters set forth in the guardian ad litem's motions
to compel would be heard, those motions, which incorporated the
maternal aunt's memorandum, included all the matters adjudicated in
the March 25, 2024, orders, except for the use of the motor vehicle. The
March 25, 2024, orders indicate that, during the March 25, 2024, hearing,
the juvenile court received arguments regarding the use of the motor
vehicle, without objection from the father's counsel; thus, the father
waived any due-process violation regarding the juvenile court's
consideration of that issue. See C.B. v. J.W., 325 So. 3d 829, 835 (Ala.
Civ. App. 2020). The father has not provided this court with a transcript
of the March 25, 2024, hearing that would allow us to conclude otherwise.
Thus, we deny the petitions for the writ of mandamus insofar as the
father seeks an order compelling the juvenile court to vacate the March
25, 2024, orders based on any alleged due-process violations.
We note, however, that, when there is an apparent issue of subject-
matter jurisdiction, "our review … is not limited to grounds specifically
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raised in a mandamus petition." Ex parte T.C., 63 So. 3d 627, 630 (Ala.
Civ. App. 2010), superseded on other grounds by statute, as recognized
in Ex parte F.T.G., 199 So. 3d 82, 86 (Ala. Civ. App. 2015). This court
has a "duty to consider a lack of subject-matter jurisdiction ex mero
motu." Id. In the main opinion in T.J. v. Calhoun County Department of
Human Resources, 116 So. 3d 1168 (Ala. Civ. App. 2013), two members
of this court agreed that juvenile courts, which are courts of limited,
statutory jurisdiction, may dispose of property only in accordance with
the authority expressly vested in juvenile courts by the Alabama Juvenile
Justice Act ("the AJJA"), Ala. Code 1975, § 12-15-101 et seq.
Section 12-15-314(e), Ala. Code 1975, provides that "[w]hen a child
is placed in the legal custody of the Department of Human Resources,"
the juvenile court must order the child's parent to provide child support
if that parent has the resources to do so. Traditionally, child support
includes items and services considered "necessaries" for the health and
welfare of a child. See Ex parte University of S. Alabama, 541 So. 2d 535,
537 (Ala. 1989). "The determination of what are necessaries depends
upon the facts and circumstances of each case," id., but the term generally
refers to food, clothing, shelter, health care, and education. See M.M. v.
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Colbert Cnty. Dep't of Hum. Res., 117 So. 3d 376, 381 (Ala. Civ. App.
2013) ("[T]his court has recognized that parents have the responsibility
to properly provide their children adequate food, clothing, shelter, health
care, education, nurturing, and protection."). Pursuant to that definition,
the juvenile court had jurisdiction over the Social Security funds, the
children's medical insurance, and their clothing, all of which were
necessaries.
The materials before this court do not define what the juvenile court
meant by "personal care" items, and we cannot assume that those items
are necessaries.
" 'In exercising jurisdiction over juvenile cases, a juvenile court may validly render a judgment only as authorized by the AJJA.' J.R.C. [v. Mobile Cnty. Dep't of Hum. Res.], 342 So. 3d [580] at 583 [(Ala. Civ. App. 2021)]. Moreover, because a juvenile court is a statutory court of limited jurisdiction, see W.B.B. v. H.M.S., 141 So. 3d 1062, 1065 n.1 (Ala. Civ. App. 2013), we cannot assume its jurisdiction; instead, every fact essential to its jurisdiction must affirmatively appear of record."
H.A.A. v. B.J.J., 368 So. 3d 876, 882 (Ala. Civ. App. 2022). Therefore, we
issue writs of mandamus directing the juvenile court to vacate that
portion of the March 25, 2024, orders that purports to adjudicate the
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dispute over the children's personal-care items, which was entered
without subject-matter jurisdiction.
We also conclude that the juvenile court did not have the authority
to order the father to maintain the personal property formerly belonging
to the mother before she died and to allow the children to remove that
property from the family residence, to order the father to refrain from
changing the locks on the doors to his house, and to order the father to
allow the children the use of his motor vehicle. The AJJA does not bestow
upon juvenile courts any authority to enter orders controlling the
disposition or use of such personal property, which are not necessaries.
See T.J., supra.
Conclusion
Based on the foregoing, we grant the petitions for a writ of
mandamus, in part, and direct the juvenile court to vacate those
provisions in the March 25, 2024, orders purporting to adjudicate the
disputes over the personal property formerly belonging to the mother, the
father's changing the locks on his house, the use of the father's motor
vehicle, and the children's "personal care" items. We deny the petitions
in all other respects.
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CL-2024-0492 -- PETITION GRANTED IN PART AND DENIED
IN PART; WRIT ISSUED.
CL-2024-0493 -- PETITION GRANTED IN PART AND DENIED
CL-2024-0494 -- PETITION GRANTED IN PART AND DENIED
Moore, P.J., and Edwards, Hanson, and Fridy, JJ., concur.
Lewis, J., concurs in the result in part and dissents in part, with
opinion.
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LEWIS, Judge, concurring in the result in part and dissenting in part.
The main opinion grants the petitions for a writ of mandamus to
the extent that "the March 25, 2024, orders purport[ed] to adjudicate the
disputes over the personal property formerly belonging to the mother, the
father's changing the locks on his house, the use of the father's motor
vehicle, and the children's 'personal care' items." ___ So. 3d at ___. The
main opinion otherwise denies the petitions. I respectfully dissent
insofar as the main opinion grants the petitions with respect to the
children's personal-care items. I otherwise concur in the result.
In T.J. v. Calhoun County Department of Human Resources, 116
So. 3d 1168 (Ala. Civ. App. 2013), two members of this court agreed that
juvenile courts lack jurisdiction "to order the removal of personal
property from the home of a parent." Id. at 1177. In a dissent authored
by Presiding Judge Thompson, which was joined by Judge Thomas,
Judge Thompson wrote that the juvenile court in that case had
jurisdiction to allow T.J.'s children, who had been declared dependent, to
take some of their personal property from T.J.'s home pursuant to § 12-
15-314(a)(4), Ala. Code 1975, which grants juvenile courts the authority
to "[m]ake any other order as the juvenile court in its discretion shall
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deem to be for the welfare and best interests of the child" when a child is
adjudicated dependent.
I agree with the dissent in T.J. that a juvenile court has the
authority to allow dependent children who have been removed from their
home to take their personal property for their use and enjoyment
pursuant to § 12-15-314(a)(4). In this case, though, the children had not
been adjudicated dependent. Therefore, § 12-15-314(a)(4) does not apply.
However, § 12-15-314(e) provides that, "[w]hen a child is placed in the
legal custody of the Department of Human Resources," the juvenile court
must order the child's parent to pay child support if that parent has the
resources to do so. Our supreme court has held that parents have the
obligation to provide "necessaries" for their children. Ex parte University
of S. Alabama, 541 So. 2d 535, 537 (Ala. 1989). "The determination of
what are necessaries depends upon the facts and circumstances of each
case." Id.
Here, T.M. did not provide this court with a transcript of the
hearing wherein the motions to compel were argued. Therefore, I cannot
conclude that, considering the facts and circumstances of these cases, the
juvenile court exceeded its discretion in determining that the provision
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of necessaries included the children's Social Security benefits, medical
insurance, and personal-care items.
The main opinion concludes that the juvenile court has jurisdiction
to order the father to provide the children their clothing but not their
personal-care items. However, I see no basis for such a distinction in
light of the juvenile court's authority to require a parent to support his
or her child by providing "necessaries" for the child. § 12-15-314(e); see
also In re S.A.B., 326 Or. App. 192, 196, 198, 531 P.3d 718, 721, 722
(2003) (holding that a juvenile court had the authority to require a father
to transfer a child's emotional-support dog to the child considering that
Or. Rev. Stat. § 419B.385 provides that " '[t]he court may order the parent
or guardian to assist the court in any reasonable manner in providing
appropriate education or counseling for the ward' " and considering "the
State of Oregon's policy to 'safeguard and promote each child's right to
safety, stability and well-being.' [Or. Rev. Stat. §] 419B.090(3)"). Holding
that a juvenile court lacks jurisdiction to order a parent to provide his or
her children with their personal-care items improperly limits the juvenile
court's discretion to allow for the support of those children during a
traumatic event in their lives. Under the main opinion's holding, a
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juvenile court would be allowed to order a parent to provide a child's
shirts and pants, but the juvenile court would not be permitted to order
a parent to provide a child with such "necessaries" as his or her
toothbrush, schoolbooks, teddy bear, or other items to aid in effecting
normalcy and stability for the child. I would not strain the construction
of the word "necessaries" to limit the discretion of a juvenile court that is
tasked with acting in the best interests of a child.
I note that, in these cases, the juvenile court's orders went beyond
allowing the children to remove their personal property by affecting a
transfer of property previously owned by their deceased mother, ordering
the father to allow the children to have the use of the father's car, and
directing the father not to change the locks on the father's house. I agree
with the main opinion that affecting a transfer of the father's car and the
property of the deceased mother as well as limiting the father's right to
change the locks on his house were outside the jurisdiction of the juvenile
court.
Based on the foregoing, I would issue writs of mandamus to the
juvenile court instructing it to vacate those provisions of its orders
affecting a transfer of the property of the children's deceased mother,
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ordering the father to allow the children to use the father's car, and
directing the father not to change the locks on his house. I would deny
the petitions in all other respects.