R.W. v. G.W.

2 So. 3d 869
CourtCourt of Civil Appeals of Alabama
DecidedJuly 3, 2008
Docket2070540
StatusPublished
Cited by6 cases

This text of 2 So. 3d 869 (R.W. v. G.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
R.W. v. G.W., 2 So. 3d 869 (Ala. Ct. App. 2008).

Opinion

THOMAS, Judge.

R.W. (“the mother”) is the mother of L.M.W. III and B.W. (sometimes hereinafter referred to collectively as “the children”). The DeKalb Juvenile Court terminated the mother’s parental rights to the children on July 3, 2007. She timely appealed to the DeKalb Circuit Court. After an unexplained delay, the DeKalb Circuit Court ordered the DeKalb Juvenile Court to review the record and to determine whether it was adequate to support an appeal to this court pursuant to Rule 28, Ala. R. Juv. P. The DeKalb Juvenile Court certified the record as adequate, and the DeKalb Circuit Court transferred the appeal to this court.

The record reveals that the mother lost custody of both children as a result of her involvement with the Catoosa, Georgia, Department of Family and Children Services (“DFCS”). In April 2005, the Juvenile Court of Catoosa County, Georgia (“the Georgia court”), awarded “permanent custody” of B.W. to L.E.W. and J.W. (“the paternal grandparents”). The judgment awarding the paternal grandparents permanent custody of B.W. stated that reunification with his parents was not the permanency plan for B.W. and that the parents were in agreement with the transfer of custody to the paternal grandparents. According to the judgment, the mother was awarded visitation with B.W., as agreed between her and the paternal grandparents. The judgment further provided that the court would review the case every 3 years until the child reached the age of 18.

In May 2005, the Georgia court awarded G.W. (“the paternal great-aunt”) and her husband, S.W., “temporary custody” of L.M.W. III. According to the judgment awarding the paternal great-aunt and her husband custody of L.M.W. III, the permanency plan for L.M.W. Ill was reunification with his parents. The judgment listed two requirements for reunification: that the mother obtain and maintain stable housing and that she become and remain drug free. The mother was awarded visitation “as agreed to between the custodians and the [mother].” The judgment further stated that it “shall expire on April 8, 2007, unless sooner terminated” by the court.

According to the paternal great-aunt, who testified at the trial in the DeKalb Juvenile Court, in June 2005 the paternal grandmother became ill and B.W. came to live with the paternal great-aunt. When the paternal grandmother recovered from her illness, however, B.W. expressed a desire to continue to live with the paternal great-aunt and L.M.W. III. The paternal grandmother permitted B.W. to remain in the paternal great-aunt’s custody.

In the spring of 2005, when the paternal great-aunt sought custody of L.M.W. Ill, who was then in the custody DFCS she and her husband had relocated to Georgia. However, according to the paternal great-aunt, a few months after receiving custody of L.M.W. III, she and her husband decided that they could no longer live in Georgia and they notified “the courts in Georgia” that they would be moving back to Alabama. The paternal great-aunt testified that “they said that was fine.”

In July 2006, the paternal great-aunt and her husband filed in the DeKalb Juvenile Court what they styled as a “Petition to Domesticate and Modify” the judgment of the Georgia court regarding L.M.W. Ill and a separate “Petition to Domesticate and Modify” the judgment of the Georgia court regarding B.W. The paternal grandparents filed in the DeKalb Juvenile Court a “Consent to Relinquishment of Custody,” [871]*871in which they consented to an award of the custody of B.W. to the paternal great-aunt and her husband.

On August 4, 2006, the paternal great-aunt and her husband filed a petition to terminate the rights of the mother1 in the DeKalb Juvenile Court. After the mother was served, she filed an affidavit of substantial hardship and requested to be appointed counsel. The DeKalb Juvenile Court appointed counsel for the mother on October 10, 2006, and counsel filed an answer on November 20, 2006.

The mother filed a motion to dismiss on March 15, 2007, raising as grounds the lack of in personam jurisdiction over the mother and the lack of subject-matter jurisdiction. After a hearing on the motion before the commencement of the termination trial, the DeKalb Juvenile Court denied the motion to dismiss because, it said, the presence of the children in the State of Alabama was a sufficient basis for jurisdiction over the mother. As noted above, the DeKalb Juvenile Court ultimately terminated the mother’s parental rights, and she appeals, arguing only that the DeKalb Juvenile Court did not have in personam jurisdiction over her.

However, because this court may notice the lack of subject-matter jurisdiction ex mero motu and because the lack of subject-matter jurisdiction renders a judgment entered without it void, see Ex parte Punturo, 928 So.2d 1030, 1033 (Ala.2002), and C.J.L. v. 868 So.2d 451, 452 (Ala.Civ.App.2003), we will consider whether the DeKalb Juvenile Court had subject-matter jurisdiction to entertain the paternal great-aunt’s petitions to modify the existing custody determinations of the Georgia court or the petition to terminate the mother’s parental rights.

“Congress and most state legislatures have passed legislation aimed at determining which of multiple states should litigate and modify child-custody determinations, namely, the Parental Kidnapping Prevention Act (‘the PKPA’), 28 U.S.C. § 1738A, and [the Uniform Child Custody Jurisdiction and Enforcement Act,] Ala.Code 1975, § 30-3B-101 et seq. The PKPA states that continuing jurisdiction remains in a state that has made a child-custody determination provided that the state continues to have jurisdiction under the state’s laws and the child or at least one ‘contestant’ resides in that state. 28 U.S.C. § 1738A(d); see also Holloway v. Holloway, 519 So.2d 531, 532 (Ala.Civ.App.1987).”

C.J.L., 868 So.2d at 452.

As we have previously explained, the Uniform Child Custody Jurisdiction and Enforcement Act (“the UCCJEA”), codified at Ala.Code 1975, § 30-3B-101 et seq., controls decisions regarding whether a court of this state has jurisdiction to make a child-custody determination or to modify another state’s child-custody determination. M.J.P. v. K.H., 923 So.2d 1114, 1116-17 (Ala.Civ.App.2005). A “child-custody determination,” as defined in the UC-CJEA, includes any judgment providing for the legal or physical custody of a child or providing visitation with a child. § 30-3B-102(3). A “child-custody proceeding” is defined in the UCCJEA to include not only divorce actions involving the custody of a child, but also “neglect, ... dependency, ... [and] termination of parental rights” actions in which the issue of child custody is addressed. § 30-3B-102(4).

[872]*872“Section 30-3B-201 of the UCCJEA outlines when a court of this state has jurisdiction to make an initial custody determination:
“ ‘(a) Except as otherwise provided in Section 30-3B-204, a court of this state has jurisdiction to make an initial child custody determination only if:

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Bluebook (online)
2 So. 3d 869, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rw-v-gw-alacivapp-2008.