Rel: January 31, 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, 2023-2024 _________________________
CL-2023-0286 _________________________
M.C.A.
v.
Etowah County Department of Human Resources and O.P.
Appeal from Etowah Juvenile Court (JU-21-9.01)
_________________________
CL-2023-0287 _________________________
Etowah County Department of Human Resources and O.P. CL-2023-0286 and CL-2023-0287
Appeal from Etowah Juvenile Court (JU-21-10.01)
PER CURIAM.
This is the second time these parties have been before this court.
Two children, E.V.A., a daughter, and E.C.A., a son ("the children"),
were born of the marriage of O.P. ("the mother") and M.C.A. ("the
father"). The mother also has a daughter ("the stepdaughter") who was
born as a result of a previous relationship of the mother's and who lived
in the home with the mother, the father, and the children.
The record indicates that in April 2019 the Calhoun County
Department of Human Resources ("the Calhoun County DHR")
investigated allegations that the father had sexually abused the
stepdaughter. A Calhoun County DHR social worker explained that
because the family had not cooperated with the investigation and no
further information could be gathered, the Calhoun County DHR had
taken no action. No criminal charges were filed in Calhoun County with
regard to the father's alleged abuse of the stepdaughter.
Regardless, in May 2019, the mother filed an action in the Calhoun
Circuit Court in which she sought a divorce from the father. On January
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20, 2020, the Calhoun Circuit Court entered a judgment divorcing the
mother and the father. That divorce judgment purports to award the
mother and the father joint custody of the children. However, the terms
of the divorce judgment pertaining to custodial periods with the children
state that the mother and the father will agree to custodial periods but
that, if they cannot agree, the father is awarded visitation with the
children from Thursday to Sunday on alternating weeks and overnight
every Friday. Thus, the divorce judgment awards the mother sole custody
of the children, affords the father periods of visitation with the children,
and awards the mother and the father joint legal custody of the children.
See § 30-3-151, Ala. Code 1975; Whitehead v. Whitehead, 214 So. 3d 367,
371 (Ala. Civ. App. 2016).
In July 2020, the Etowah County Department of Human Resources
("DHR") received a report of inadequate shelter for the children at the
father's home; the children were visiting the father when DHR received
that report. During the course of investigating that inadequate-shelter
report, DHR social workers learned of the allegations of sexual abuse of
the stepdaughter by the father. DHR filed actions requesting that the
Etowah Juvenile court ("the juvenile court") find the children and the
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stepdaughter dependent and sought an award of custody of all three
children. Only the actions pertaining to the children are at issue in these
appeals.
After conducting a dependency hearing at which it received ore
tenus evidence, the juvenile court entered judgments on February 11,
2021, in which it found the children dependent and awarded custody of
them to DHR pending a dispositional hearing. We note that DHR had
placed the children in the mother's home. The father appealed, and this
court affirmed the February 11, 2021, judgments, without an opinion. See
M.C.A. v. Etowah Cnty. Dep't of Hum. Res., 357 So. 3d 656 (Ala. Civ. App.
2021). The father filed petitions for the writ of certiorari to the Alabama
Supreme Court, which denied those petitions. See Ex parte M.C.A., 357
So. 3d 657 (Ala. 2021). On December 20, 2021, this court issued its
certificates of judgment in M.C.A. v. Etowah County Department of
Human Resources, supra.
On January 25, 2022, DHR filed in the juvenile court motions
requesting that custody of the children be returned to the mother. The
juvenile court conducted a hearing over the course of two days at which
it received ore tenus evidence on DHR's motions. On April 5, 2023, the
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juvenile court entered a judgment in each of the actions in which it
awarded custody of the children to the mother, awarded the father
supervised visitation with the children, and terminated DHR's
involvement in the matters. The father filed a postjudgment motion in
each action, which were denied by operation of law. See Rule 59.1, Ala.
R. Civ. P.; and Rule 4(a)(1), Ala. R. App. P. The father timely appealed
both judgments. This court consolidated the appeals.
The father argues in his appellate brief that the juvenile court was
without authority to award custody of the children to the mother and
award him supervised visitation with the children. The father relies, in
part, on portions of the Alabama Juvenile Justice Act ("the AJJA"), § 12-
15-101 et seq., Ala. Code 1975, which provides, in part, that "[a] juvenile
court shall exercise exclusive original jurisdiction of juvenile court
proceedings in which a child is alleged ... to be dependent ...." § 12-15-
114(a), Ala. Code 1975. See § 12-15-102(8), Ala. Code 1975 (defining the
term "dependent child"). A "dependent child" is defined as
"[a] child who has been adjudicated dependent by a juvenile court and is in need of care or supervision and meets any of the following circumstances:
"1. Whose parent, legal guardian, legal custodian, or other custodian subjects the child or
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any other child in the household to abuse, as defined in Section 12-15-301[, Ala. Code 1975,] or neglect as defined in Section 12-15-301, or allows the child to be so subjected.
"2. Who is without a parent, legal guardian, or legal custodian willing and able to provide for the care, support, or education of the child.
"3. Whose parent, legal guardian, legal custodian, or other custodian neglects or refuses, when able to do so or when the service is offered without charge, to provide or allow medical, surgical, or other care necessary for the health or well-being of the child.
"4. Whose parent, legal guardian, legal custodian, or other custodian fails, refuses, or neglects to send the child to school in accordance with the terms of the compulsory school attendance laws of this state.
"5. Whose parent, legal guardian, legal custodian, or other custodian has abandoned the child, as defined in subdivision (1) of Section 12- 15-301.
"6. Whose parent, legal guardian, legal custodian, or other custodian is unable or unwilling to discharge his or her responsibilities to and for the child.
"7. Who has been placed for care or adoption in violation of the law.
"8. Who, for any other cause, is in need of the care and protection of the state."
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§ 12-15-102(8)a.
Initially, DHR alleged that the children were dependent because of
the father's alleged sexual abuse of the stepdaughter, which invoked the
juvenile court's subject-matter jurisdiction. The AJJA also specifies that
if a juvenile court finds a child dependent, it may immediately "make
proper disposition of the case" or may make a custodial disposition of the
child at a later, dispositional hearing. § 12-15-311(a), Ala. Code 1975; see
also Rule 25(A), Ala. R. Juv. P. ("At any adjudicatory hearing in a …
dependency … case …, the juvenile court may proceed immediately to a
dispositional hearing after adjudication or may set a dispositional
hearing for a later date."). In its February 11, 2021, judgments, the
juvenile court found the children dependent, awarded pendente lite
custody of the children to DHR, and scheduled the matter for a future
hearing. Thus, because the February 11, 2021, judgments did not dispose
of the dependency actions, those judgments were adjudicatory and not
dispositional.
In 2022, when DHR asked the juvenile court to return custody of
the children to the mother, DHR took the position that the mother was a
fit parent and capable of properly caring for the children; it contended,
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however, that the children were dependent as to the father. The juvenile
court scheduled the matters for a dispositional hearing pursuant to § 12-
15-311.
Under the AJJA, a juvenile court may make a custodial disposition,
or a custodial award, of a child only if that child is found to be dependent
at the time it enters the dispositional judgment. § 12-15-311(a); see also
§ 12-15-314(a) ("If a child is found to be dependent, the juvenile court may
make any of the following orders of disposition to protect the welfare of
the child .…). Although a juvenile court may find a child dependent at
the time of an adjudicatory hearing, if a dispositional hearing is
conducted on another date, the child must be determined to be dependent
at the time of the entry of the dispositional judgment in order for the
juvenile court to have jurisdiction to enter that judgment. See H.A.S. v.
S.F., 298 So. 3d 1092, 1102 (Ala. Civ. App. 2019); J.P. v. D.P., 260 So. 3d
862, 871 (Ala. Civ. App. 2018). This court has explained:
" 'Juvenile courts are purely creatures of statute and have extremely limited jurisdiction. See Ex parte K.L.P., 868 So. 2d 454, 456 (Ala. Civ. App. 2003). That limited jurisdiction allows a juvenile court to make a disposition of a child in a dependency proceeding only after finding the child dependent. V.W. v. G.W., 990 So. 2d 414, 417 (Ala. Civ. App. 2008) (quoting K.B. v. Cleburne County
8 CL-2023-0286 and CL-2023-0287
Dep't of Human Res., 897 So. 2d 379, 389 (Ala. Civ. App. 2004) (Murdock, J., concurring in the result)) (" '[I]n order to make a disposition of a child in the context of a dependency proceeding, the child must in fact be dependent at the time of that disposition.' ").'
"T.B. v. T.H., 30 So. 3d 429, 431 (Ala. Civ. App. 2009) (some emphasis added)."
M.D. v. S.C., 150 So. 3d 210, 212 (Ala. Civ. App. 2014). The AJJA allows
a juvenile court to award custody of a dependent child to a parent. See §
12-15-314(a)(1).
The father argues on appeal that because it was undisputed that
the mother was a fit parent for the children at the time of the disposition
of the children, the children could not be found to be dependent at that
time. For that reason, he says, the juvenile court was without jurisdiction
to enter a custodial disposition of the children. See § 12-15-311(a); § 12-
15-314(a); H.A.S. v. S.F., supra; and J.P. v. D.P., supra.
In Ex parte L.E.O., 61 So. 3d 1042 (Ala. 2010), petitioners who were
unrelated to the child at issue in that case, but with whom the child had
lived for three years with the permission of the child's mother, filed a
petition seeking to have the child found dependent and seeking an award
of custody of the child. The child's father, who had not seen the child in
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more than three years, opposed the petition. He contended that the
mother had prevented him from visiting the child. However, the father
admitted that he had not sought court intervention in locating the child
and had not made any financial contribution to the support of the child.
The juvenile court in that case entered a judgment finding that the child
was not dependent under former § 12-15-1(10), Ala. Code 1975 (now
amended and renumbered as § 12-15-102(8)a.), which defined the term
"dependent child" and was applicable to that action. The petitioners
appealed, and this court affirmed the juvenile court's judgment, without
an opinion. See L.E.O. v. A.L., 61 So. 3d 1041 (Ala. Civ. App. 2009). On
certiorari review, our supreme court reversed, holding that the evidence
clearly established that the father had abandoned the child and,
therefore, that the child was dependent. Ex parte L.E.O., supra.
In its opinion in Ex parte L.E.O., supra, our supreme court
explained that former § 12-15-1(10) provided that a child was dependent
if he or she met one of a list of factors and, with regard to those factors,
was "in need of care or supervision." 61 So. 3d at 1047. See also § 12-15-
102(8)a. (A "dependent child" is one "who has been adjudicated dependent
by a juvenile court and is in need of care or supervision and meets any of
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the following circumstances …."). The supreme court stated that, in
considering whether a child is "in need of care or supervision" under
former § 12-15-1(10), and now § 12-15-102(8)a., "the juvenile court must
consider whether the child is receiving adequate care and supervision
from those persons legally obligated to care for and/or to supervise the
child." Ex parte L.E.O., 61 So. 3d at 1047. In that case, the supreme court
concluded that the child was dependent because, instead of providing the
child care and supervision, the father had "simply assumed" that the
child was receiving adequate care and support, had "made no effort to
determine who was meeting the child's needs," and had "abdicated his
responsibility to contribute to the financial support of the child." Ex parte
L.E.O., 61 So. 3d at 1049-50.
The father in this case points out in his appellate brief that this
court recently held that a child who has a fit custodial parent who is
capable of protecting the child may not be determined to be dependent
because of the conduct of the noncustodial parent that might otherwise
render the child dependent. See E.D. v. Lee Cnty. Dep't of Hum. Res., 266
So. 3d 740, 744 (Ala. Civ. App. 2018). The father, relying on Ex parte
E.D., supra, argues that, regardless of his conduct, the children could not
11 CL-2023-0286 and CL-2023-0287
be dependent because the mother could properly care for and supervise
them.
In Ex parte E.D., supra, the mother and the father in that case
shared joint custody of their child at the time the Lee County Department
of Human Resources ("the Lee County DHR") sought to have the child
declared dependent as to the father. The Lee County DHR made no
allegation that the child was dependent as to the mother. The mother had
filed in the Lee Juvenile Court an action seeking to modify a previous
custody judgment that had awarded the parents joint custody, and she
also sought and obtained a protection-from-abuse ("PFA") order
prohibiting the father from visiting the child. Ex parte E.D., 266 So. 3d
at 741-42. After a hearing, the Lee Juvenile Court entered a judgment
finding the child dependent only as to the father and awarding the
mother custody of the child.
On appeal in that case, this court discussed the holding in Ex parte
L.E.O., supra, and concluded that "[t]here is no evidence demonstrating
that the child's care or supervision is inadequate. The mother, a person
legally obligated to care for and to supervise the child, has the authority
to take appropriate actions on behalf of the child, and she has done so."
12 CL-2023-0286 and CL-2023-0287
Ex parte E.D., 266 So. 3d at 744. This court reversed the juvenile court's
judgment, holding that because the mother, as a joint custodian, was a
fit custodial parent capable of acting to protect the child, the child could
not be found to be dependent under the AJJA. See Ex parte E.D., 266 So.
3d at 746 ("[B]ecause the child has a custodial parent able to properly
care for and supervise him, the child is not a dependent child."). We note,
however, that this court qualified its holding by explaining:
"This opinion should not be read as holding that a child with joint custodians, only one of whom has been allegedly harming the child, can never be declared dependent. If an otherwise fit joint custodian fails to adequately protect a child from the harm of another joint custodian, the child may be adjudicated dependent and subjected to state protective services under Ex parte L.E.O., [61 So. 3d 1042 (Ala. 2010)]."
Id.
Thus, in Ex parte E.D., supra, this court held that, generally, if a
joint custodian has failed to "properly care for and supervise" a child, but
the child's other joint custodian is capable of providing the child that
proper care, protection, and supervision, the child is not dependent. 266
So. 3d at 746. We have reconsidered the holding of Ex parte E.D., supra,
however, and we conclude that it does not comport with the supreme
court's holding in Ex parte L.E.O., supra. In Ex parte L.E.O., our supreme
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court held that a child is dependent if he or she does not receive "adequate
care and supervision from those persons legally obligated to care for
and/or to supervise the child." 61 So. 3d at 1047 (some emphasis omitted).
"Persons" is a plural form of the word "person." In declaring that a child
is dependent if "those persons" legally obligated to provide care and
supervision for the child fail to do so, our supreme court referred to both
of the child's joint custodians. In other words, under the holding of Ex
parte L.E.O., supra, even if a child has a fit joint custodian, that child can
still be "in need of care or supervision" with regard to the child's other
joint custodian, and, therefore, the child can be a dependent child. To the
extent that Ex parte E.D., supra, fails to follow our supreme court's
holding in Ex parte L.E.O., supra, we overrule Ex parte E.D., supra.
Under § 12-15-314 and Ex parte L.E.O., supra, the juvenile court
had jurisdiction to award custody of the children to the mother, a fit
custodian, if the father's conduct would render the children dependent as
to the father. Rule 25(A), Ala. R. Juv. P., and § 12-15-310(b), Ala. Code
1975, specify that, in dependency actions, a juvenile court must make a
written finding in its judgments regarding whether a child is dependent.
Although it noted that the children had been determined to be dependent
14 CL-2023-0286 and CL-2023-0287
in the February 11, 2021, judgments, the juvenile court in this case failed
to make such a finding in its April 5, 2023, judgments. However,
numerous cases have held that, under certain circumstances, a finding of
dependency may be determined to be implicit in a juvenile court's
judgment. T.E. v. Calhoun Cnty. Dep't of Hum. Res., 344 So. 3d 895, 899
(Ala. Civ. App. 2021); H.C. v. S.L., 251 So. 3d 793, 794 (Ala. Civ. App.
2017); M.W.H. v. R.W., 100 So. 3d 603, 607 (Ala. Civ. App. 2012); L.L.M.
v. S.F., 919 So. 2d 307, 311 (Ala. Civ. App. 2005); O.L.D. v. J.C., 769 So.
2d 299 (Ala. Civ. App. 1999). If the evidence "clearly supports a
dependency determination" in a case in which the judgment contains no
express finding of dependency, such a finding may be held to have been
implicit in the judgment. H.C. v. S.L., 251 So. 3d at 794. "[A]lthough a
finding of the continued dependency of a child may indeed be implicit in
a judgment redisposing of that child's custody, the evidence of record
supporting dependency must so ' "clearly support[] a dependency
determination" ' that no fact-finding is necessary." T.E. v. Calhoun Cnty.
Dep't of Hum. Res., 344 So. 3d at 899. See also O.L.D. v. J.C., 769 So. 2d
at 302 ("In the interest of judicial economy and because the record
supports a finding of dependency, we will not remand this case to the
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trial court for a dependency hearing."). Accordingly, we look to the record
to determine whether a finding of dependency may be implicit in the
juvenile court's April 5, 2023, judgments. See T.E. v. Calhoun Cnty. Dep't
of Hum. Res., supra; O.L.D. v. J.C., supra.
The record shows that in 2020 DHR found the father "indicated" for
the "sexual molestation" of his stepdaughter for actions he took when the
stepdaughter was a young teenager. Those actions included purchasing
lingerie for the stepdaughter and forcing her to model it for him,
encouraging the stepdaughter to allow him to take suggestive
photographs of the stepdaughter in a vehicle, requesting that the
stepdaughter sleep in his bed on a night when the two were alone, and
touching the stepdaughter inappropriately. In response to DHR's 2020
investigation into those incidents, the father did not dispute that he had
taken those actions. Instead, the father attempted to excuse his improper
conduct toward the stepdaughter by stating that he had been "testing"
her to see how she would react if a teenaged boy had exhibited similarly
inappropriate conduct toward her. The record indicates that, based on its
investigation, DHR determined that the father constituted a threat not
16 CL-2023-0286 and CL-2023-0287
only to the stepdaughter, but also to the two children at issue because of
his sexual abuse of the stepdaughter.
The vast majority of the evidence presented at the dispositional
hearing pertained to DHR's 2020 investigation of the sexual-abuse
allegations against the father. However, DHR also presented some
evidence during the dispositional hearing that raises additional concerns
about the father's conduct pertaining to the children. Dannika Edgar, a
DHR social worker, testified that, in 2020, when DHR initially restricted
the father's visitation with the children pursuant to a safety plan, the
father expressed interest in visiting only with his daughter, who was
then approximately seven years old. According to Edgar, the father was
uninterested in visiting with his son, who was then one year old.
In addition, evidence was presented indicating that, after the
juvenile court entered its February 11, 2021, dependency judgments,
which awarded the father supervised visitation with the children, the
father visited the children twice in approximately two years. Edgar
testified that the father had exercised one of those supervised visitations
in February 2021 and the other in the spring of 2022, shortly after the
first day of testimony in the dispositional hearing. Edgar explained that
17 CL-2023-0286 and CL-2023-0287
the father had said that he would prefer not to visit the children at all
rather than exercise supervised visitation with them. Edgar stated that,
between those two visits, the father had not contacted DHR to inquire
about the welfare of the children. Amanda Cook, another DHR social
worker, testified that, near the end of 2022, the father had had some
other visits with the children that were supervised by the father's sister.
The record does not indicate how many visits the father's sister might
have supervised. However, before the end of 2022, the father's sister
refused to be a visitation supervisor for the father. Cook testified that she
did not know the reason for that refusal. The juvenile court noted in its
judgments that it had entered an order on December 8, 2022, directing
the mother and the father to contact a services provider who would
supervise the father's visitation. However, the juvenile court stated that
there was no indication that either parent had contacted that services
provider. At the time of the second day of testimony in the dispositional
hearing, which occurred on April 5, 2023, the father had not visited the
children since November 2022.
During the pendency of the mother's and the father's divorce action,
the mother had obtained a PFA order against the father; it is not clear
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whether that PFA order also encompassed protection for the children.
Regardless, the PFA order expired before the entry of the divorce
judgment and was no longer in effect. DHR presented no evidence
regarding whether the mother has sought another PFA order in any court
or whether she has filed a petition in the Calhoun Circuit Court seeking
to modify the father's visitation under the divorce judgment in a manner
that would protect the children from the possibility of abuse.
Under § 12-15-102(8)a.8., a child is dependent if he or she has been
adjudicated dependent, "is in need of care and supervision," and, "for any
other cause, is in need of the care and protection of the state." Unlike the
mother in Ex parte E.D., supra, the mother in this case does not have in
place a PFA order that prevents the father from visiting the children. In
Ex parte E.D., supra, the mother had filed a petition seeking to modify
the custody judgment between her and the father, and that petition had
been served on the father at the jail at which the father was incarcerated
at the time of the dispositional hearing. Ex parte E.D., 266 So. 3d at 741-
72 and 742 n.3. In the absence of the proper exercise of dependency
jurisdiction by the juvenile court, the issue of the father's contact with
the children would be governed by the divorce judgment, pursuant to
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which, it appears, the father would be allowed unsupervised overnight
contact with the children. The father's litigation strategy in these cases
appears to be to seek reinstatement of unsupervised contact between
himself and the children pursuant to that divorce judgment.
The record contains evidence indicating that the father sexually
abused the stepdaughter when she was a young teenager and that the
children are approaching the age at which that abuse began. The juvenile
court, like DHR, could reasonably be skeptical of the father's explanation
for that sexual abuse and find his explanation to be inappropriate. The
father participated in no services or evaluations that might lead to the
conclusion that the father could and would behave appropriately with the
children. Also, with only limited exceptions, the father refused to visit the
children during the pendency of these actions because the juvenile court
required that those visitations be supervised for the children's protection.
At the time of the second day of testimony in the dispositional hearing,
that refusal had resulted in his having had no contact with the children
for approximately four or five months. That evidence calls into question
the father's intent with regard to the children and demonstrates that his
priority is not the safety, protection, or best interests of the children.
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Therefore, we conclude that the evidence demonstrates that the children
are in need of care and supervision and the protection of the state. § 12-
15-102(8)a.8. Accordingly, we conclude that a determination that the
children were dependent is implicit in the juvenile court's April 5, 2023,
judgments. M.W.H. v. R.W., 100 So. 3d 603, 607 (Ala. Civ. App. 2012)
(" ' [T]his court has held that when the evidence in the record supports a
finding of dependency and when the trial court has made a disposition
consistent with a finding of dependency, in the interest of judicial
economy this court may hold that a finding of dependency is implicit in
the trial court's judgment.' " (quoting J.P. v. S.S., 989 So. 2d 591, 598 (Ala.
Civ. App. 2008))); L.L.M. v. S.F., 919 So. 2d 307, 311 (Ala. Civ. App. 2005)
("Given the factual findings contained in the ... judgment, we conclude
that a finding of dependency was implicit in the trial court's judgment.").
Given the dependency finding implicit in the juvenile court's April 5,
2023, judgments, we hold that the juvenile court had jurisdiction to enter
its April 5, 2023, dependency judgments in these cases. K.A.B. v. J.D.B.,
279 So. 3d 607, 616 (Ala. Civ. App. 2018); M.W.H. v. R.W., 100 So. 3d at
608. We also reject the father's argument that the children could not be
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found to be dependent based on the mother's ability to properly care and
supervise them. Ex parte L.E.O., supra.
The father does not argue on appeal that the evidence pertaining to
his conduct does not support the implicit dependency determination.
Therefore, that issue is waived. See Boshell v. Keith, 418 So. 2d 89, 92
(Ala. 1982) ("When an appellant fails to argue an issue in its brief, that
issue is waived.").
For the foregoing reasons, we affirm the juvenile court's judgments.
CL-2023-0286 -- AFFIRMED.
CL-2023-0287 -- AFFIRMED.
Thompson, P.J., and Moore, Hanson, and Fridy, JJ., concur.
Edwards, J., concurs in the result, without opinion.