M.W. v. C.W.

60 So. 3d 301, 2010 Ala. Civ. App. LEXIS 300, 2010 WL 4151991
CourtCourt of Civil Appeals of Alabama
DecidedOctober 22, 2010
Docket2090857 and 2090858
StatusPublished
Cited by3 cases

This text of 60 So. 3d 301 (M.W. v. C.W.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
M.W. v. C.W., 60 So. 3d 301, 2010 Ala. Civ. App. LEXIS 300, 2010 WL 4151991 (Ala. Ct. App. 2010).

Opinion

MOORE, Judge.

M.W. (“the mother”) appeals from judgments • of the Cleburne Juvenile Court (“the juvenile court”) finding her children, M.N.W. and M.C.W., to be dependent and awarding custody of the children to the children’s paternal grandmother, C.W. (“the paternal grandmother”).

Procedural History

On March 29, 2010, the paternal grandmother filed in the juvenile court petitions for custody of the children, alleging that an emergency situation existed, that the children were dependent, that the children were physically, present in Alabama, and that the children were residing with the paternal grandmother.1 That same day, she also filed a motions for temporary custody of the children. In support of her motions for temporary custody, the paternal grandmother submitted an affidavit stating, in pertinent part:

“I am the paternal grandmother to [the children]. My son, [R.H.], is [the children’s] father. [The father] has a history of drug use, otherwise, [the father] is a good father. At this point, [the father] is not a viable option for custody of the children. [The father] is supporting my Petition for Custody of his children.
“... [The mother] resides in Tallapoo-sa, Georgia. [The mother] was charged with three counts of sodomy and/or sexual abuse to children. She has recently pled guilty to that charge and is awaiting a probation hearing on April 15, 2010. It is my understanding that [the mother] pled guilty to three cases of felony child abuse.... The charges to which [the mother] pled guilty ... involve her having sex- with minor children. On one occasion, her son, [M.H.,] walked in on her during one of these sex acts.
“[The mother] is also awaiting arraignment on two pending felony child-abuse charges in Georgia for physically abusing her son, [M.C.W.]
“I have received information that [the mother] is getting out of jail today and will attempt to take the children back to Georgia with her.
“I attempted to intervene in and gain custody of these children in the State of Georgia prior to the mother going to jail and the children coming to live with me, but was unsuccessful. I have deep fears for these children’s safety ... if they are allowed to go with their mother. She has physically abused [one of the children, M.C.W.] It is also my firm belief that their mother will not be granted probation on April 15, 2010, and she will be sent to prison at that time.
“The children reside with me in my home. [The father] also resides with me in the home. I understand that I will need to supervise his contact with the children, until such time as he is given clearance to be around the children by a qualified mental health professional.
“Failure to grant me temporary custody of my grandchildren would likely result in immediate irreparable harm to them.”

That same day, the juvenile court entered orders awarding the paternal grandmother emergency temporary custody of the children.

[303]*303On April 16, 2010, the mother filed a motion to dismiss the paternal grandmother’s petitions, asserting that the juvenile court lacked jurisdiction; that motion was denied on May 12, 2010. A hearing was held on the paternal grandmother’s dependency petitions on May 5, 2010; no documentary or ore tenus evidence was received at that hearing.2 On May 28, 2010, the juvenile court entered judgments finding the children dependent and awarding custody of the children to the paternal grandmother. The mother filed her notice of appeal on June 8, 2010.

Discussion

On appeal, the mother argues that the juvenile court lacked jurisdiction to determine the dependency of, and award custody of, the children. As noted previously, on March 25, 2010, the Superior Court of Haralson County, Georgia (“the Georgia court”), made a custody determination with regard to the children. Thus, we must determine if the juvenile court had jurisdiction to modify the Georgia court’s previous custody determination.

Section 30-3B-203, Ala.Code 1975, provides:

“Except as otherwise provided in Section 30-3B-204, [Ala.Code 1975,] a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under Section 30-3B-201(a)(1) or (2)[, Ala.Code 1975,] and:
“(1) The court of the other state determines it no longer has continuing, exclusive jurisdiction under Section 30-3B-202[, Ala.Code 1975,] or that a court of this state would be a more convenient forum under Section 30-3B-207[, Ala.Code 1975]; or
“(2) A court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.”

Assuming without deciding that the juvenile court had “jurisdiction to make an initial [custody] determination under Section 30-3B-201(a)(l) or (2),” the requirements set forth in subsections (1) and (2) of § 30-3B-203 were not met. First, with regard to subsection (1) of § 30-3B-203, there is no indication that the Georgia court had determined that “it no longer has continuing, exclusive jurisdiction under Section 30-3B-202[, Ala.Code 1975,] or that a court of this state would be a more convenient forum.” Next, with regard to subsection (2) of § 30-2B-203, the paternal grandmother’s affidavit makes it clear that the mother resides in Georgia. Thus, according to § 30-3B-203, the juvenile court could exercise jurisdiction only “as otherwise provided in Section 30-3B-204[, Ala. Code 1975].”

Section 30-3B-204, Ala.Code 1975, provides, in pertinent part:

“(a) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
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“(c) If there is a previous child custody determination that is entitled to be enforced under this chapter, or a child custody proceeding has been com[304]*304menced in a court of a state having jurisdiction under Sections 30-3B-201 through 30-3B-203, [Ala.Code 1975,] any order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under Sections 30-3B-201 through 30-3B-203. The order issued in this state remains in effect until an order is obtained from the other state within^ the period specified or the period expires.
“(d) A court of this state which has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of a state having jurisdiction under Sections 30-3B-201 through 30-3B-203, shall immediately communicate with the other court.

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Related

T.M. v. B.M. (In re J.M.)
270 So. 3d 1174 (Court of Civil Appeals of Alabama, 2018)
J.D. v. Lauderdale County Department of Human Resources
121 So. 3d 381 (Court of Civil Appeals of Alabama, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
60 So. 3d 301, 2010 Ala. Civ. App. LEXIS 300, 2010 WL 4151991, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mw-v-cw-alacivapp-2010.