Ex parte L.J.

REL:09/30/2014

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-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
____________________

1121462
____________________

Ex parte L.J.

PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS

(In re: C.C.

v.

L.J.)

(Limestone Juvenile Court, JU-12-154.01;
Court of Civil Appeals, 2120534)

PER CURIAM.
1121462

This Court granted certiorari review to address the issue

whether a juvenile court may exercise jurisdiction under § 12-

15-114, Ala. Code 1975, a provision of the Alabama Juvenile

Justice Act of 2008, § 12-15-101 et seq., Ala. Code 1975 ("the

2008 AJJA"), over a termination-of-parental-rights claim when

the grounds for the termination do not involve a child alleged

"to have committed a delinquent act, to be dependent, or to be

in need of supervision."

Facts and Procedural History

In July 2012, L.J. ("the mother") filed a petition in the

Limestone Juvenile Court to establish paternity of the child

at issue in this case. In that same petition, the mother also

sought to terminate the parental rights of C.C. ("the

father"). In the petition, the mother stated that the father

had previously filed an action in the circuit court and that

that court had ordered a DNA test that established the

father's paternity but that the father had withdrawn the

petition before the court had issued an order establishing

paternity. In her petition, the mother alleged that the

father had abandoned the child.

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The father, initially acting pro se, filed an answer

generally denying the allegations in the mother's petition,

except for the paternity of the child. Because the issue was

not in dispute, the juvenile court entered an order

determining that the father was the biological father of the

child. The father, acting through counsel, filed an amended

answer and a counterclaim seeking joint legal custody of the

child, with physical custody awarded to the mother; visitation

rights; and establishing child support pursuant to Rule 32,

Ala. R. Jud. Admin.

Following ore tenus proceedings, at which the mother, the

father, and the mother's mother testified, the juvenile court

entered an order finding that the father had "abandoned" the

child as that term is defined in § 12-15-301, Ala. Code 1975,

and by § 12-15-319, Ala. Code 1975. The juvenile court

terminated the father's parental rights, implicitly denying

the father's counterclaim. The father timely appealed to the

Court of Civil Appeals. The juvenile court certified the

record as adequate for an appeal pursuant to Rule 28(A)(1)(a),

Ala. R. Juv. P.

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A majority of the Court of Civil Appeals held that, under

§ 12-15-114, the juvenile court lacked jurisdiction over a

termination-of-parental-rights claim except insofar as that

claim arises out of a proceeding involving an allegation that

the child as to whom parental rights are being terminated is

dependent, delinquent, or in need of supervision. C.C. v.

L.J., [Ms. 2120534, September 6, 2013] So. 3d (Ala.

Civ. App. 2013). Because the mother's petition for the

termination of the father's parental rights did not arise out

of a dependency, delinquency, or child-in-need-of-supervision

proceeding, the Court of Civil Appeals held that the juvenile

court lacked subject-matter jurisdiction and that its judgment

was void. Specifically, the Court of Civil Appeals held that

when the legislature repealed what was § 12-15-30(b), Ala.

Code 1975, removing language giving juvenile courts exclusive

jurisdiction over all termination-of-parental-rights

proceedings and replacing it with more limited jurisdiction

over only certain types of termination-of-parental-rights

proceedings (i.e., those arising out of dependency,

delinquency, or child-in-need-of-supervision proceedings), the

legislature intended to narrow the juvenile court's

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jurisdiction in termination-of-parental-rights cases. Because

the mother, who was the legal custodian of the child, had not

alleged that the child was dependent, i.e., without a parent

willing to provide for the care, support, or education of the

child, the Court of Civil Appeals concluded that the juvenile

court lacked jurisdiction over her petition. The Court of

Civil Appeals dismissed the appeal as being from a void

judgment.

Two members of the Court of Civil Appeals dissented,

opining that the enactment of the 2008 AJJA did not alter the

formerly prevailing law under which a parent could seek to

terminate the parental rights of the other parent in the

juvenile court. C.C. v. L.J., So. 3d at (Pittman,

J., dissenting, with Thompson, P.J., joining). The dissent

notes that former § 26-18-5, Ala. Code 1975, a provision of

the Child Protection Act ("the CPA"), which was amended and

carried forward in the 2008 AJJA as § 12-15-317, Ala. Code

1975, now provides that "'any ... parent... may file a

petition to terminate the parental rights of a parent or

parents of a child,'" ___ So. 3d at ___, and that, although

the proper forum is not set out in § 12-15-317, the remaining

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sections of the 2008 AJJA evidence an intent by the

legislature to provide the juvenile court with jurisdiction

over termination-of-parental-rights proceedings filed by a

parent seeking to terminate the rights of the other parent.

The dissent states:

"Did the enactment of the [2008] AJJA alter the
formerly prevailing law under which parents could
seek termination of parental rights in the juvenile
court? Former § 26-18-5 has been carried forward
into the [2008] AJJA and codified at Ala. Code 1975,
§ 12-15-317, which states that 'any ... parent ...
may file a petition to terminate the parental rights
of a parent or parents of a child.' Although the
proper forum for filing such a petition is not
therein stated, the Code sections that follow leave
no doubt that the legislature intended that juvenile
courts maintain their former exclusive jurisdiction
to hear such matters. Taken together, the succeeding
sections of the [2008] AJJA provide (a) for service
of process by publication to be ordered in
particular circumstances by the juvenile court (§
12–15–318), (b) that termination of parental rights
may be ordered by the juvenile court upon a proper
showing of grounds therefor (§ 12–15–319), and (c)
that additional actions are authorized to be
undertaken by the juvenile court upon a
determination that parents are unwilling or unable
to act as parents (§ 12–15–320). I glean from the
[2008] AJJA's repetitious references to the juvenile
court in connection with disposition of cases in
which termination of parental rights is sought,
including cases in which a parent seeks such
termination, that the legislature had no intent to
deprive the juvenile court of its former exclusive
jurisdiction to adjudicate a termination-of-
parental-rights claim such as that advanced by the
mother in this case."

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So. 3d at (Pittman, J., dissenting). The mother

petitioned this Court for a writ of certiorari. We reverse

and remand.

Discussion

The 2008 AJJA, which became effective January 1, 2009,

revised and reorganized the CPA, § 26-18-1 et seq., Ala. Code

1975. The CPA governed cases involving the termination of

parental rights. The 2008 AJJA also revised and renumbered

an earlier version of the Juvenile Justice Act. Former § 12-

15-30(b)(2), for example, has been revised and is currently

set out in § 12-15-115(a)(1) and (a)(2), Ala. Code 1975.

Essentially, the 2008 AJJA merged the CPA and the former

Juvenile Justice Act.

Under the former Juvenile Justice Act, § 12-15-30(a)

provided that the juvenile court had exclusive original

jurisdiction over proceedings in which a child was alleged to

be dependent, delinquent, or in need of supervision. Former

§ 12-15-30(b)(6) further provided that the juvenile court also

had exclusive original jurisdiction over proceedings for the

"termination of parental rights."

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The CPA was enacted "to provided meaningful guidelines to

be used by the juvenile court in cases involving the

termination of parental rights." § 26-18-2 (repealed). Under

the CPA, § 26-18-5 set out who could file a petition to

terminate parental rights: "A petition may be filed by any

public or private licensed child-placing agency or parent,

with permission of the court, or any interested party." § 26-

18-5 (repealed). The CPA was the first time the legislature

had allowed a parent to initiate such an action. In Ex parte

Johnson, 474 So. 2d 715 (Ala. 1985), this Court held that

former § 26-18-5 evidenced a legislative intent to allow a

parent to initiate a termination petition:

"[T]here is no logical reason to allow only the
state to file a petition to have parental rights
terminated. Why should a parent, who has direct
knowledge and familiarity with a situation, be
required to go to the state to obtain such a result,
when it would be more direct for the parent to file
the petition?"

474 So. 2d at 717.

Under the CPA, a finding of dependency was not required

when one parent sought to terminate the parental rights of

another parent. In Ex parte Beasley, 564 So. 2d 950, 954

(Ala. 1990), we stated:

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"[W]hen one parent seeks to terminate the other
parent's parental rights, a 'finding of dependency'
is not required. As stated above, if a 'finding of
dependency' were a requisite element of proof, the
following illogical result could arise: The
petitioning parent, who is adequately caring for the
child, would have to prove that he or she is not
providing adequate care for the child and,
therefore, could then be estopped from bringing such
an action. We hold, therefore, that, when one
parent seeks to terminate the other parent's
parental rights, a 'finding of dependency' is not
required, and the trial court should determine
whether the petitioner has met the statutory burden
of proof and whether that termination is in the
child's best interest, in light of the surrounding
circumstances.

"The two-prong test that a court must apply in
a parental rights termination case brought by a
custodial parent consists of the following: First,
the court must find that there are grounds for the
termination of parental rights, including, but not
limited to, those specifically set forth in §
26–18-7 [now repealed]. Second, after the court has
found that there exist grounds to order the
termination of parental rights, the court must
inquire as to whether all viable alternatives to a
termination of parental rights have been
considered."

In 2008, when the legislature merged the former Juvenile

Justice Act with the CPA and revised and renumbered both in

the 2008 AJJA, the legislature set out the juvenile court's

jurisdiction in §§ 12-15-114, 12-15-115, and 12-15-116, Ala.

Code 1975.

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Section 12-15-115(a) provides that the juvenile court

shall have original jurisdiction in certain civil cases, such

as cases involving (1) the removal of disabilities of nonage,

(2) judicial consent to marry, (3) commitments, (4) transfers

from the probate court in adoption cases, (5) waivers of

parental consent in abortion cases, (6) paternity, (7)

modification of support, custody, or visitation in previously

filed parentage cases, (8) enforcement of spousal support, (9)

proceedings under the Uniform Child Custody Jurisdiction and

Enforcement Act, and (10) grandparent visitation, when it is

part of a juvenile case. Section 12-15-115(b) provides that

the juvenile court will have original jurisdiction when

emergency medical treatment is necessary and when the child

has been suspended or expelled from a public school. Section

12-15-115 is a revision and renumbering of former §§ 12-15-

30(b)(1), (b)(2), (b)(5), and 12-15-30(c). Section 12-15-116

is a revision and renumbering of former § 12-15-31 and

addresses the juvenile court's original jurisdiction in

criminal cases involving juveniles.

Section 12-15-114 is the provision of the 2008 AJJA that

is before us in the present case; it is a revision and

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renumbering of former § 12-15-30(b)(6). Section 12-15-114

provides:

"(a) A juvenile court shall exercise exclusive
original jurisdiction of juvenile court proceedings
in which a child is alleged to have committed a
delinquent act, to be dependent, or to be in need of
supervision. A dependency action shall not include
a custody dispute between parents. Juvenile cases
before the juvenile court shall be initiated through
the juvenile court intake office pursuant to this
chapter.

"(b) A juvenile court shall not have
jurisdiction over any delinquent act committed by an
individual before his or her 18th birthday for which
a petition has not been filed before the individual
reaches 21 years of age, except when the delinquent
act is an offense having no statute of limitation as
provided in Section 15-3-5[, Ala. Code 1975].

"(c) A juvenile court shall also exercise
exclusive original jurisdiction of proceedings
arising out of the above juvenile court proceedings,
including, but not limited to, each of the
following:

"(1) Proceedings pursuant to the
Interstate Compact on Juveniles and the
Interstate Compact on Placement of Children
pursuant to Chapter 2 of Title 44.

"(2) Proceedings for termination of
parental rights, as this term is defined in
subdivision (10) of Section 12-15-301[,
Ala. Code 1975]."1

1
As the result of an amendment effective October 1, 2010,
§ 12-15-301(10) now defines the term "reasonable efforts,"
which refers to efforts to preserve a family unit. It does not
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We now turn to whether a juvenile court may exercise

jurisdiction under § 12-15-114 over a termination-of-parental-

rights petition when the ground for seeking the termination

dose not involve a child alleged "to have committed a

delinquent act, to be dependent, or to be in need of

supervision."

Section 12-15-114(a) grants the juvenile court exclusive

original jurisdiction over juvenile proceedings where the

child is alleged to be dependent, delinquent, or in need of

supervision. Section 12-15-114(a) states that "a dependency

action shall not include a custody dispute between parents."

Section 12-15-114(c) goes on to provide that the juvenile

court shall also have exclusive original jurisdiction over

proceedings "arising out of the above juvenile court

proceedings," i.e., dependency, delinquency, and child-in-

need-of-supervision proceedings, as set out in subsection (a).

Former § 12-15-30(b)(6) gave the juvenile court jurisdiction

over all termination-of-parental-rights proceedings.

refer to termination proceedings, which is now defined in §
12-15-301(14). Section 12-15-301(14) defines termination of
parental rights as "[a] severance of all rights of a parent to
a child."
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Construing the language in § 12-15-114, the Court of Civil

Appeals concluded that the legislature had limited the

juvenile court's jurisdiction in termination-of-parental-

rights proceedings to those cases "arising out of" dependency,

delinquency, and child-in-need-of-supervision cases. Because

the mother did not allege that the child was dependent, i.e.,

without a fit parent to provide care, the Court of Civil

Appeals held that she, as a custodial parent, could not seek

termination of the other parent's parental rights in the

juvenile court.

"We note that '[t]he intent of the Legislature
is the polestar of statutory construction.' Siegelman
v. Alabama Ass'n of School Bds., 819 So. 2d 568, 579
(Ala. 2001). See also Richardson v. PSB Armor, Inc.,
682 So. 2d 438, 440 (Ala. 1996); Jones v. Conradi,
673 So. 2d 389, 394 (Ala. 1995); Ex parte Jordan, 592
So. 2d 579, 581 (Ala. 1992). '[T]he starting point
for all statutory interpretation is the language of
the statute itself,' and '[i]f the statutory language
is clear, no further inquiry is appropriate.' Federal
Reserve Bank of Atlanta v. Thomas, 220 F.3d 1235,
1239 (11th Cir. 2000). 'If the statutory language is
ambiguous, however, courts may examine extrinsic
materials, including legislative history, to
determine [legislative] intent.' Id. It is also true
that '[i]n attempting to ascertain the legislative
intent of a particular statute or provision therein,
it is permissible to look to the law as it existed
prior to such statute's enactment.' Reeder v. State
ex rel. Myers, 294 Ala. 260, 265, 314 So. 2d 853, 857
(1975). In that connection, 'courts [also] consider
contemporaneous events surrounding enactment of the

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statute.' Baylor v. New Jersey Dep't of Human Servs.,
Div. of Pub. Welfare, 235 N.J. Super. 22, 41, 561
A.2d 618, 628 (1989), aff'd, 127 N.J. 286, 604 A.2d
110 (1990)."

Pinigis v. Regions Bank, 977 So. 2d 446, 450-51 (Ala. 2007).

In Archer Daniels Midland Co. v. Seven Up Bottling Co. of

Jasper, Inc., 746 So. 2d 966, 969 (Ala. 1999), this Court

stated: "[W]hen circumstances surrounding the enactment of a

statute cast doubt on the otherwise clear language of the

statute, we must look to other factors in determining

legislative intent." This Court further stated in Archer

Daniels:

"As the plaintiff correctly points out, § 6–5–60[,
Ala. Code 1975,] is not, on its face, limited to
transactions involving intrastate commerce. We hasten
to add, however, that there is no language in §
6–5–60 that conclusively indicates an intent on the
Legislature's part to regulate transactions involving
the shipment of goods through interstate commerce.
Because the language of § 6–5–60, standing alone, is
not conclusive on the question of legislative intent,
and because other factors, including the legislative
history of Alabama's antitrust statutes, as well as
the state of the law at the time of their enactment,
cast doubt on the original intent of the Legislature,
we find it necessary to look beyond the language of
the statute."

746 So. 2d at 973.

The foregoing rationale applies to this Court's

determination of legislative intent with respect to § 12-15-

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114. As our earlier discussion of the history of the 2008

AJJA indicates, it was well settled prior to the enactment of

the 2008 AJJA that juvenile courts had exclusive original

jurisdiction over all termination-of-parental-rights

petitions. This included a petition filed by a parent seeking

to terminate the parental rights of the other parent of the

child, based on our decision in Ex parte Beasley in which we

held that a finding of dependency was not required in such a

case. We stated in Beasley that it would be illogical for a

parent, who is adequately caring for the child, to have to

prove that he or she is not providing adequate care (i.e.,

that the child is dependent) in order to bring such an action,

because the petitioning parent would then be estopped from

bringing the action. In light of the history of the 2008

AJJA, if the legislature had intended for the circuit court,

as a court of general jurisdiction, to now have jurisdiction

over termination petitions filed by one parent against the

other parent, it would not have done so by legislative

silence. Additionally, it is unlikely that the legislature

would place jurisdiction over termination petitions in two

different courts.

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It is also unlikely that the legislature, in providing

that the juvenile court has jurisdiction of termination

petitions arising out of dependency, delinquency, or child-in-

need-of-supervision proceedings intended to prohibit one

parent from filing a petition seeking to terminate the

parental rights of the other parent. As Judge Pittman noted

in his dissent in C.C. v. L.J., the legislature, in adopting

the entirety of the 2008 AJJA, provided that a parent may

bring a petition to terminate the parental rights of the other

parent of the child. § 12-15-317. If the legislature

intended to foreclose a parent from bringing a termination

petition by first requiring an allegation of dependency, it

would not have also provided for the right to bring such a

termination petition in the 2008 AJJA.

It is also unlikely that the legislature intended to

foreclose a parent from filing a termination petition against

another parent, but then to allow a parent to file a

termination petition against the other parent when a

stepparent wants to adopt the child. In S.N.W. v. M.D.F.H.,

127 So. 3d 1225 (Ala. Civ. App. 2013), the stepfather of the

child filed a petition in the probate court seeking to adopt

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the child. After the case was transferred to the juvenile

court, the mother filed a petition to terminate the biological

father's parental rights in order for the stepfather to adopt

the child. The father argued that the juvenile court lacked

subject-matter jurisdiction under § 12-15-114 to terminate his

parental rights because the underlying action did not begin as

a dependency, delinquency, or child-in-need-of-supervision

proceeding. Without referring to § 12-15-115(a)(4), which

provides the juvenile court with original jurisdiction over

proceedings transferred from the probate court, the Court of

Civil Appeals held that § 26-10A-3, Ala. Code 1975, a

provision of the Alabama Adoption Code, provides that the

probate court has jurisdiction over adoption proceedings and

that it has jurisdiction to transfer a case to the juvenile

court for the limited purpose of terminating parental rights.

The Court of Civil Appeals held that because § 26-10A-3 does

not mandate that the termination-of-parental-rights proceeding

be predicated on a dependency proceeding or a finding of

dependency, the juvenile court had jurisdiction to entertain

the mother's petition to terminate the father's parental

rights so as to allow the stepfather to adopt the child. We

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see no reason for the legislature to have provided that a

parent be allowed to terminate the parental rights of the

other parent simply because a stepparent adoption is involved,

but not allow a parent to bring a termination proceeding when

there is no pending stepparent adoption.

It is unlikely that the legislature intended for a

noncustodial parent to able to bring a termination petition

against the custodial parent while not allowing a custodial

parent to bring such a petition. In T.K. v. M.G., 82 So. 3d 1

(Ala. Civ. App. 2011), a majority of the Court of Civil

Appeals held that a father, who was not the custodial parent,

could bring a dependency petition against the custodial mother

invoking the jurisdiction of the juvenile court under § 12-15-

114. The Court of Civil Appeals concluded that for the

purpose of jurisdiction of the juvenile court, having a fit

noncustodial parent who is willing and able to care for the

child does not preclude a juvenile court from finding that the

child is dependent. It does not follow that the legislature

would prohibit a custodial parent from filing a termination

petition while allowing a noncustodial parent to do so. The

2008 AJJA defines a "dependent child" to include a child who

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"is in need of care or supervision" and "[w]ho is without a

parent, legal guardian, or legal custodian willing and able to

provide for the care, support, or education of the child." §

12–15–102(8)a.2., Ala. Code 1975. So long as the parent is

fit, it should make no difference whether that parent

currently has custody.

We note that, in the present case, the mother filed a

petition in the juvenile court seeking to determine paternity

of the child. Section 12-15-115(a)(6) provides that the

juvenile court has original jurisdiction over petitions to

establish parentage pursuant to the Alabama Uniform Parentage

Act, § 26-17-1 et seq., Ala. Code 1975. Section 12-15-317 of

the 2008 AJJA allows a parent to file a petition to terminate

parental rights, and § 12-15-319 sets out the grounds for

termination, which include abandonment, which the mother

alleges here. If the juvenile court had jurisdiction over

the paternity petition under § 12-15-115 and § 12-15-317

allows a parent to file a petition to terminate the parental

rights of the other parent, then the juvenile court should

have jurisdiction to address the mother's termination petition

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without a finding of dependency. See S.N.W. v. M.D.F.H.,

supra.

While this appeal was pending, the legislature adopted Act

No. 2014-350, Ala. Acts 2014, which amended § 12-15-114 to

read as follows:

"(c) A juvenile court shall also exercise
exclusive jurisdiction over each of the following:

"....

"(2) Proceedings for termination of
parental rights."

In enacting Act No. 2014-350, the legislature stated:

"Section 2. The Legislature finds that its
original intent in the adoption of Act 2008–277, the
Alabama Juvenile Justice Act, was for a juvenile
court to exercise exclusive original jurisdiction in
all termination of parental rights proceedings. The
amendatory language to Section 12–15–114, Code of
Alabama 1975, provided in Section 1, is intended to
be curative and shall apply retroactively for the
purpose of ratifying and confirming the exercise of
original jurisdiction of the juvenile court to hear
and adjudicate termination of parental rights cases
filed in juvenile court on and after January 1, 2009,
and prior to the effective date of this act [April 8,
2014]. Any order of a juvenile court issued while
exercising jurisdiction pursuant to this section
during that time shall be deemed valid in absence of
an adjudication on appeal to the contrary.

"Section 3. The provisions of this act are
severable. If any part of this act is declared
invalid or unconstitutional, that declaration shall
not affect the part which remains.

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"Section 4. This act shall become effective
immediately following its passage and approval by the
Governor, or its otherwise becoming law."

The 2014 amendments to § 12-15-114 bear out the

legislature's intent to not change the juvenile court's

jurisdiction over all termination-of-parental-rights cases.

"'When statutes are amended or replaced by succeeding
legislation, the Legislature often seeks to clarify
previously ambiguous provisions. These subsequent
acts by the Legislature must be considered in trying
to determine the intent of the legislation. 73
Am.Jur.2d, Statutes, § 178.' McWhorter v. State Bd.
of Registration for Prof'l Eng'rs & Land Surveyors,
359 So. 2d 769, 773 (Ala. 1978)."

T-Mobile South, LLC v. Bonet, 85 So. 3d 963, 979 (Ala. 2011).

Based on the foregoing, we conclude that a juvenile court

may exercise jurisdiction under § 12-15-114 over a

termination-of-parental-rights claim when the subject of the

termination was not a child alleged "to have committed a

delinquent act, to be dependent, or to be in need of

supervision." As Judge Pittman noted in his dissent, the 2008

AJJA did not alter the formerly prevailing law under which a

parent could seek termination of parental rights in the

juvenile court. Moreover, the legislature clearly expressed

its intent in its 2014 amendments that under the 2008 AJJA the

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juvenile court have exclusive original jurisdiction over all

termination-of-parental-rights proceedings. Accordingly, we

reverse the judgment of the Court of Civil Appeals and remand

the cause for that court to consider any arguments that may

have been pretermitted by the Court of Civil Appeals'

analysis.

REVERSED AND REMANDED.

Moore, C.J., and Parker, Main, Wise, and Bryan, JJ.,

concur.

Stuart and Murdock, JJ., concur specially.

Bolin and Shaw, JJ., concur in the result.

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MURDOCK, Justice (concurring specially).

I concur in the main opinion. I write separately to offer

three observations.

First, the language of § 12-15-114, Ala. Code 1975,

adopted by the legislature in the 2008 amendments to the

Alabama Juvenile Justice Act affirmatively recognizes

jurisdiction in the juvenile courts in dependency cases and

two other categories of cases; it does not expressly limit

the jurisdiction of juvenile courts to those categories.

Normally, the latter fact would be of little or no

significance, given that the juvenile court is a court of

limited jurisdiction and is dependent for its authority upon

legislative enactment. In this unique case, however, the

latter fact is noteworthy in light of (1) the fact that the

language in the succeeding provisions of the Alabama Juvenile

Justice Act contemplates, as discussed in the main opinion and

in Judge Pittman's dissenting opinion in the Court of Civil

Appeals, that all termination petitions, including those filed

by one parent against the other, will be prosecuted in the

juvenile courts, (2) the fact that it was well settled at the

time of the enactment of the 2008 amendments to the Alabama

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Juvenile Justice Act that juvenile courts had exclusive

original jurisdiction over all termination-of-parental-rights

cases, (3) the fact that a showing of dependency is

unnecessary and "illogical" in termination-of-parental-rights

cases brought by one parent against the other, Ex parte

Beasley, 564 So. 2d 950 (Ala. 1994), and (4) the fact that

"'"[t]he Legislature is presumed to be aware of existing law

and judicial interpretation when it adopts a statute."'" See

Wright v. Childree, 972 So. 2d 771, 778 (Ala. 2006) (quoting

Ex parte Louisville & Nashville R.R., 398 So. 2d 291, 296

(Ala. 1981)). Given these circumstances, if the legislature

had in fact intended in 2008 to move jurisdiction over some,

but not all, types of termination-of-parental-rights cases

from the juvenile courts to the circuit courts, one would

expect it to have been more explicit in saying so rather than

purposing to achieve such a significant result by silence and

default, relying merely on the fact that § 142(b) of the

Alabama Constitution of 1901 makes the circuit court the court

of general jurisdiction.

Second, I read the discussion in the main opinion of T.K.

v. M.G., 82 So. 3d 1 (Ala. Civ. App. 2011), as one intended

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merely to point out the inconsistency between the result

achieved by the Court of Civil Appeals in that case and the

result achieved by the Court of Civil Appeals in the present

case; I do not read the main opinion as embracing the

rationale of the Court of Civil Appeals in T.K.

Indeed, the main opinion concludes its discussion of T.K.

by noting that, by statutory definition, a "'dependent child'"

is one "who 'is in need of care or supervision' and '[w]ho is

without a parent, legal guardian, or legal custodian willing

and able to provide for the care, support, or education of the

child.'" ___ So. 3d at ___ (quoting § 12-15-102(8)a.2., Ala.

Code 1975) (emphasis added). The main opinion then adds: "So

long as the parent is fit, it should make no difference

`whether that parent currently has custody." ___ So. 3d at

___. That is, it should make no difference if the petitioning

parent is the custodial parent or the noncustodial parent. If

the petitioner, in light of all the relevant facts and

circumstances, is a fit, willing, and able parent in relation

to the child in question, then the child by definition is not

a "dependent" child.2

2
In T.K., however, the Court of Civil Appeals found the
child to be "dependent," notwithstanding the fact that there
25
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It was this notion -- that a child cannot be considered

to be "dependent" on the State for care so long as the child

has at least one "fit, willing, and able" parent —- that was

the basis for this Court's holding in Beasley that requiring

a showing of dependency in a termination-of-parental-rights

case brought by one parent against the other, at least where

the petitioning parent is alleged to be a fit, willing, and

able parent, would be "illogical":

"Where the State seeks to terminate parental rights,
the 'finding of dependency' necessarily applies to
the State to protect against an unwarranted intrusion
into parental rights and to comply with the
requirements of due process. ...

"In viewing the 'dependency' issue in the
context of the State's attempt to terminate parental
rights, the State would have standing only where both
parents are found to be unfit or otherwise unable to
discharge the responsibilities of parenthood. ...

"Conversely, when one parent seeks to terminate
the other parent's parental rights, a 'finding of
dependency' is not required. As stated above, if a
'finding of dependency' were a requisite element of
proof, the following illogical result could arise:

was a parent (the petitioning, noncustodial parent) who
alleged to be, and was found to be, a fit, willing, and able
parent for the child. Based on its purported finding that the
child was dependent, the Court of Civil Appeals held that the
case was a dependency case within the jurisdiction of the
juvenile court, rather than a mere custody dispute, which
would have fallen within the jurisdiction of the circuit
court. T.K., 82 So. 3d at 4.
26
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The petitioning parent, who is adequately caring for
the child, would have to prove that he or she is not
providing adequate care for the child and, therefore,
could then be estopped from bringing such an action.
We hold, therefore, that, when one parent seeks to
terminate the other parent's parental rights, a
'finding of dependency' is not required, and the
trial court should determine whether the petitioner
has met the statutory burden of proof and whether
that termination is in the child's best interest, in
light of the surrounding circumstances."

564 So. 2d at 954 (emphasis added). See also Ex parte W.E.,

64 So. 3d 637, 638 (Ala. 2010)(Murdock, J., concurring

specially)("[D]ependency is a status created by law that

either is true of a child or is not. That is, either a child

is dependent or it is not. A child cannot be dependent

vis-à-vis one parent but not dependent as to the other parent.

If the child is not dependent 'as to one parent,' then the

child is not dependent."); Ex parte L.E.O., 61 So. 3d 1042,

1057 (Ala. 2010) (Murdock, J., dissenting)("The issue whether

a child is a 'dependent child' ... begs the question,

dependent on whom? The logical and obvious answer -- and the

answer that has prevented the statute from being considered in

conflict with [substantial] caselaw ... -– is quite simply,

the State.").

27
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Finally, I take particular note of the last reason given

by the main opinion for the conclusion it reaches and how that

final reason serves to buttress the other reasons given for

that conclusion. As the main opinion notes, in § 2 of Act No.

2014-350, Ala. Acts 2014, the legislature explained:

"The Legislature finds that its original intent in
the adoption of Act 2008-277, the Alabama Juvenile
Justice Act, was for a juvenile court to exercise
exclusive original jurisdiction in all termination of
parental rights proceedings. The amendatory language
to Section 12-15-114, Code of Alabama 1975, provided
in Section 1, is intended to be curative and shall
apply retroactively for the purpose of ratifying and
confirming the exercise of original jurisdiction of
the juvenile court to hear and adjudicate termination
of parental rights cases filed in juvenile court on
and after January 1, 2009, and prior to the effective
date of this act [April 8, 2014]."

With this language, the legislature intended to clarify

and confirm the meaning of the 2008 amendments to the Alabama

Juvenile Justice Act. Clarifying or confirming the intent of

some previously adopted statute has been acknowledged and

accepted as an appropriate purpose of a legislative enactment.

Although a subsequent expression by a legislature of the

intended meaning of some prior statute is not binding on this

or any court in fulfilling its responsibility to interpret the

prior statute, a subsequent expression of this nature

28
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certainly should be considered. See, e.g, Cofer v. Ensor, 473

So. 2d 984, 1006 (Ala. 1985) ("'It is presumed that an

amendment is made to effect some purpose, which may be either

to alter the operation and effect of earlier provisions or to

clarify the meaning thereof ....' 82 C.J.S. Statutes § 384,

pp. 897-898 (1953)." (emphasis omitted)); T-Mobile South, LLC

v. Bonet, 85 So. 3d 963, 979 (Ala. 2011) (cited in the main

opinion for the proposition that an enactment in which the

legislature "seeks to clarify" some previous statutory

language must "be considered" by the court). Although I would

be inclined to find sufficient to the task the other reasons

stated by the main opinion for its conclusion, especially when

those other reasons are considered cumulatively, I also fully

agree with the main opinion that the language of the Act No.

2014-350 amendment means that there can be no appreciable

doubt at to that conclusion.

Stuart, J., concurs.

29
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BOLIN, Justice (concurring in the result).

I agree with the majority that the juvenile courts of this

State have jurisdiction over a termination-of-parental rights

petition when the grounds for the petition do not involve a

child alleged "to have committed a delinquent act, to be

dependent, or to be in need of supervision." § 12-15-114(a),

Ala. Code 1975, a provision of the Alabama Juvenile Justice

Act, § 12-15-101 et seq., Ala. Code 1975 ("the AJJA").

However, I believe that Act No. 2014-350, Ala. Acts 2014,

which amended the AJJA and which became effective while this

appeal was pending ("the 2014 amendments"), establishes that

the juvenile courts have jurisdiction over all petitions

seeking the termination of parental rights, even as between

the parents. The legislature, in expressing its intent that

the 2014 amendments apply retroactively, also stated that

those amendments are "curative." That is, the 2014

amendments, in my opinion, remedy any jurisdictional conflict

created by the Court of Civil Appeals' holding that a fit

custodial parent could not bring a termination-of-parental-

rights petition against the other parent because the child of

30
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the fit custodial parent could not be considered "dependent,"

i.e., in need of care and supervision.

I recognize that retroactive application of a statute is

generally not favored, absent an express statutory provision

or clear legislative intent that the enactment apply both

retroactively and prospectively. See Ex parte Bonner, 676 So.

2d 925 (Ala. 1995)(statutory amendment providing for the

waiver of the cost of a bond upon a showing of substantial

hardship applied retroactively); Jones v. Casey, 445 So. 2d

873 (Ala. 1983)(statutory amendment raising the interest rate

on judgments did not apply retroactively). "The general rule

is that retrospective application of a statute is not favored

and legislative intent to make a statute retrospective must be

clearly expressed before the statute will be construed to

operate retrospectively." Kittrell v. Benjamin, 396 So. 2d

93, 94 (Ala. 1981)(statute allowing a sale of property for

division of proceeds applied retroactively).

The United States Supreme Court in Landgraf v. USI Film

Products, 511 U.S. 244 (1994), considered whether an amendment

to the Civil Rights Act of 1991, which permitted a party to

seek compensatory and punitive damages for certain types of

31
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intentional employment discrimination and to demand a jury

trial if such damages are sought, applied to an employment-

discrimination case that was pending on appeal when the

amendment became effective. The Supreme Court in Landgraf

stated: "When a case implicates a federal statute enacted

after the events in suit, the court's first task is to

determine whether Congress has expressly prescribed the

statute's proper reach. If Congress has done so, of course,

there is no need to resort to judicial default rules." 511

U.S. at 280. The Landgraf Court went on to set out the

applicable analysis when the statute contains no such

expressed intent. See also Lindh v. Murphy, 521 U.S. 320

(1997)(discussing Landgraf and the rules of statutory

construction used to ascertain a statute's temporal scope).

In the present case, the legislature expressed its clear

intent that the 2014 amendments apply retroactively.

"[W]hen a lawmaking body thoughtfully considers the
burdens and benefits of retroactively applying a law
and makes clear its intent that the law have legal
consequence in pending cases, courts must follow the
law's intent. See Landgraf v. USI Film Prods., 511
U.S. 244, 272, 114 S.Ct. 1483, 128 L.Ed. 2d 229
(1994). This is especially true in cases that merely
change the jurisdiction from one forum to another.

32
1121462

"'We have regularly applied intervening
statutes conferring or ousting
jurisdiction, whether or not jurisdiction
lay when the underlying conduct occurred or
when the suit was filed. ... Application of
a new jurisdictional rule usually "takes
away no substantive right but simply
changes the tribunal that is to hear the
case."'

"Landgraf, 511 U.S. at 274, 114 S.Ct. 1483 (citing
Hallowell v. Commons, 239 U.S. 506, 36 S.Ct. 202, 60
L.Ed. 409 (1916))."

Dickinson v. Cosmos Broad. Co., 782 So. 2d 260, 269 (Ala.

2000)(retroactive application of federal agency's declaratory

ruling did not violate plaintiffs' due-process rights).

The next question is whether retroactive application is

constitutionally permissible. Retroactive application is

prohibited regardless of legislative intent if so applying the

statute would impair vested rights or create new obligations.

In Harlan v. State, 31 Ala. App. 478, 18 So. 2d 744

(1944), the Court of Appeals explained that a retrospective

law is one that takes away or impairs vested rights acquired

under existing laws or creates a new obligation and imposes a

new duty or attaches a new disability in light of

considerations or transactions already past. In contrast,

"'[r]emedial statutes -- those which do not create, enlarge,

33
1121462

diminish, or destroy vested rights -- are favored by the

courts, and their retrospective operation is not obnoxious to

the spirit and policy of the law.'" Ex parte Burks, 487 So.

2d 905, 907 (Ala. 1985)(quoting Barrington v. Barrington, 200

Ala. 315, 316, 76 So. 81, 82 (1917)). Remedial statutes are

exemplified by those that "'impair no contract or vested

right, ... but preserve and enforce the right and heal defects

in existing laws prescribing remedies.'" Jones v. Casey, 445

So. 2d 873, 875 (Ala. 1983)(quoting Dickson v. Alabama Mach.

& Supply Co., 18 Ala. App. 164, 165, 89 So. 843, 844 (1921)).

A remedial statute "may be applied on appeal, even if the

effective date of that statute occurred while the appeal was

pending, and even if the effective date of the statute was

after the judgment in the trial court." Kittrell v. Benjamin,

396 So. 2d at 95.

The Landgraf Court stated that a statute has retroactive

effects if the statute

"attaches new legal consequences to events completed
before its enactment. The conclusion that a
particular rule operates 'retroactively' comes at the
end of a process of judgment concerning the nature
and extent of the change in the law and the degree of
connection between the operation of the new rule and
a relevant past event. ... [F]amiliar considerations

34
1121462

of fair notice, reasonable reliance, and settled
expectations offer sound guidance."

Landgraf, 511 U.S. at 270.

The Supreme Court in Landgraf also noted jurisdiction-

conferring and jurisdiction-ousting statutes as examples of

statutes often properly applied to pre-enactment events.

"Application of a new jurisdictional rule," the Court

instructed, "usually takes away no substantive right but

simply changes the tribunal that is to hear the case." 511

U.S. at 274. Additionally, "[p]resent law normally governs in

such situations because jurisdictional statutes speak to the

power of the court rather than to the rights or obligations of

the parties." Id.

Three years after Landgraf, the United States Supreme

Court in Lindh v. Murphy, 521 U.S. 320 (1997), applied and

clarified the Landgraf analysis for determining retroactivity.

The Lindh Court further elaborated on the distinction between

procedural and substantive changes. The Supreme Court noted

that if a statute is "merely procedural in a strict sense

(say, setting deadlines for filing and disposition ...), the

natural expectation would be that it would apply to pending

cases." 521 U.S. at 327 (citing Landgraf, 511 U.S. at 275).

35
1121462

But because the Court found that the statutory changes at

issue in Lindh —- the "revisions of prior law to change

standards of proof and persuasion in a way favorable to a

State" —- went "beyond 'mere' procedure to affect substantive

entitlement to relief," it held that the statute did not fall

within the Court's "express (albeit qualified) approval of

applying such statutes to pending cases." 521 U.S. at 327-28.

Instead, the Supreme Court relied on what it held to be a

clear expression of congressional intent that the amendments

to chapter 153 effected by the Antiterrorism and Effective

Death Penalty Act ("the AEDPA") not apply to noncapital cases

that were already pending when the AEDPA was enacted. The

Court explained, "[t]he statute reveals Congress's intent to

apply the amendments to chapter 153 only to such cases as were

filed after the statute's enactment." 521 U.S. at 326.

In Hughes Aircraft Co. v. United States, 520 U.S. 939

(1997), the Supreme Court confirmed that the general

presumption against retroactivity affects jurisdiction-

allocating statutes to the same extent it affects other

legislation. The issue in Hughes Aircraft was a 1986 amendment

to the False Claims Act that expanded the range of

36
1121462

circumstances under which private parties can bring suit "on

behalf of the United States against anyone submitting a false

claim to the Government." 520 U.S. at 941. Congress did not

make its intention regarding retroactivity clear, and, after

conducting the analysis outlined in Landgraf, the Supreme

Court concluded that the 1986 amendment did not apply where

the defendant had submitted the alleged false claims before

1986 and a private person could not have brought suit based on

those claims under the pre-amendment version of the False

Claims Act. 520 U.S. at 946–51.

In rejecting the plaintiff's argument that the 1986

amendment was exempt from the Landgraf presumption against

retroactivity because the statute it amended was a

jurisdictional statute, the Supreme Court clarified Landgraf,

stating:

"The fact that courts often apply newly enacted
jurisdiction-allocating statutes to pending cases
merely evidences certain limited circumstances
failing to meet the conditions for our generally
applicable presumption against retroactivity, not an
exception to the rule itself .... As we stated in
Landgraf:

"'Application of a new jurisdictional rule
usually "takes away no substantive right
but simply changes the tribunal that is to
hear the case." Present law normally

37
1121462

governs in such situations because
jurisdictional statutes "speak to the power
of the court rather than to the rights or
obligations of the parties."'

"Statutes merely addressing which court shall have
jurisdiction to entertain a particular cause of
action can fairly be said merely to regulate the
secondary conduct of litigation and not the
underlying primary conduct of the parties. Such
statutes affect only where a suit may be brought, not
whether it may be brought at all. The 1986 amendment,
however, does not merely allocate jurisdiction among
forums. Rather, it creates jurisdiction where none
previously existed; it thus speaks not just to the
power of a particular court but to the substantive
rights of the parties as well. Such a statute, even
though phrased in 'jurisdictional' terms, is as much
subject to our presumption against retroactivity as
any other."

Hughes Aircraft, 520 U.S. at 951 (citation omitted).

In Republic of Austria v. Altmann, 541 U.S. 677 (2004),

the Supreme Court addressed whether the Federal Service

Immunity Act ("the FSIA") applied to conduct that occurred

prior to the enactment of the FSIA in 1976. The plaintiff in

Altmann sued the Republic of Austria for expropriating, before

and after World War II, paintings owned by her family.

Austria asserted sovereign immunity as a defense. In

answering the question, the Supreme Court looked to the FSIA

and noted that the preamble suggested that it applied to pre-

enactment conduct but that it fell short of an express

38
1121462

prescription of the statute's temporal reach. The Supreme

Court applied Landgraf and asked whether the FSIA affected

substantive rights and would be impermissibly retroactive if

applied to pre-enactment conduct or addressed procedural

matters and may be applied to all pending cases, regardless of

when the underlying conduct occurred. The Court noted that

under Landgraf there is a presumption against retroactivity if

Congress has not expressly stated that the statute is to have

retroactive effect and the statute affects rights,

liabilities, or duties with respect to past conduct. 541 U.S.

at 693-94 (citing Landgraf, 511 U.S. at 280). On the other

hand, the Supreme Court noted that the application of a

statute to future as well as to pending cases would be

sanctioned if the statute merely confers or ousts

jurisdiction. 541 U.S. at 693. The Supreme Court concluded

that, although these principles seemed comprehensive, they did

not provide a clear answer in the case before it, because the

FSIA could not be categorized as exclusively affecting either

substantive rights or procedural matters. 541 U.S. at 694.

The Supreme Court then noted that the purpose of the anti-

retroactivity presumption is "to avoid unnecessary post hoc

39
1121462

changes to legal rules on which parties relied in shaping

their primary conduct" and that that had never been the

purpose of foreign sovereign immunity. 541 U.S. at 696.

Rather, the Supreme Court stated, foreign sovereign immunity

aims to protect foreign states "'from the inconvenience of

suit as a gesture of comity.'" 541 U.S. at 696 (quoting Dole

Food Co. v. Patrickson, 538 U.S. 468, 479 (2003)). The

Supreme Court then looked to the FSIA and the circumstances

surrounding its enactment for any suggestion that it should

not apply to the 1948 conduct by Austria refusing to return

the paintings at issue. 541 U.S. at 697. In holding that the

FSIA applies "to all pending cases regardless of when the

underlying conduct occurred," the Supreme Court relied on

"[t]he FSIA's overall structure" as well as "two of the Act's

principal purposes: clarifying the rules that judges should

apply in resolving sovereign immunity claims and eliminating

political participation in the resolution of such claims." 541

U.S. at 698-99. The Supreme Court also looked to Congress's

understanding of the FSIA as noted in its preamble, which

provides that "'[c]laims of foreign states to immunity should

henceforth be decided by courts of the United States and of

40
1121462

the States in conformity with the principles set forth in'"

the FSIA. 541 U.S. at 697 (quoting 28 U.S.C. § 1602). The

Supreme Court noted that pursuant to this language in the FSIA

"[i]mmunity 'claims' –- not actions protected by immunity, but

assertions of immunity to suits arising from those actions --

are the relevant conduct regulated by the [FSIA]." Id.

In Hamdan v. Rumsfield, 548 U.S. 557 (2006), the Supreme

Court addressed the Detainee Treatment Act of 2005 ("the

DTA"), in particular § 1005(e)(1) of the DTA, which provided

that no court shall have jurisdiction to hear an application

for habeas corpus filed by an alien detained at Guantanamo

Bay. No provision of the DTA stated whether subsection (e)(1)

applied to pending cases. The government argued that this

subsection had the immediate effect, upon enactment, of

repealing federal jurisdiction over detainee actions pending

in any federal court. The Supreme Court decided that

Congress's failure to include language that subsection (e)(1)

applied to pending habeas actions was a deliberate choice. The

Supreme Court refused to dismiss Hamdan's habeas case for lack

of jurisdiction because it was pending when the DTA was

enacted. In response to the Hamdan decision, Congress passed

41
1121462

the Military Commissions Act of 2006 ("the MCA"), which

amended 28 U.S.C. § 2241(e), stripping jurisdiction of the

federal courts over pending habeas corpus petitions and

expressing its intent to apply the amendments in all pending

cases. In Boumediene v. Bush, 553 U.S. 723, 738 (2008), the

Supreme Court stated: "[W]e cannot ignore that the MCA was a

direct response to Hamdan's holding that the DTA's

jurisdiction-stripping provision had no application to pending

cases." Ultimately, the Supreme Court concluded that the

amendments stripping the federal courts of jurisdiction to

hear habeas corpus petitions filed by enemy combatants were an

unconstitutional suspension of the writ of habeas corpus under

Article I, § 9, of the United States Constitution.

In the present case, former § 12-15-30(a), Ala. Code 1975

(repealed), gave the juvenile courts exclusive original

jurisdiction over proceedings for the termination of parental

rights. Former § 26-18-5, Ala. Code 1975 (repealed), a

provision of the Child Protection Act, permitted a parent to

bring a termination-of-parental-rights proceeding, and our

caselaw concluded that the finding of dependency when one

parent sought to terminate the other parent's parental rights

42
1121462

was not necessary. Ex parte Beasley, 564 So. 2d 950 (Ala.

1990). The 2008 amendments to an earlier version of the

Juvenile Justice Act, which resulted in the AJJA, set out the

juvenile court's exclusive original jurisdiction over

termination-of-parental-rights proceedings in § 12-15-114.

Those same 2008 amendments provided a parent with the right to

bring a termination-of-parental-rights action. See § 12-15-

317, Ala. Code 1975. However, § 12-15-114 purported to limit

the juvenile court's jurisdiction to termination proceedings

"arising out of" allegations of delinquency, dependency, or a

child in need of supervision. A majority of the Court of

Civil Appeals essentially concluded in this case that, because

a fit custodial parent could not allege dependency, then the

juvenile court lacked jurisdiction over the petition filed by

L.J. ("the mother") seeking to terminate the parental rights

of C.C. ("the father") under the 2008 amendments. C.C. v.

L.J., [Ms. 2120534, Sept. 6, 2013] So. 3d (Ala. Civ.

App. 2013). The 2014 amendments amended § 12-15-114 to

clarify that the juvenile court had jurisdiction over all

termination-of-parental-rights actions and expressed the

43
1121462

legislature's intent that the amendments were to apply

retroactively.

I discern no constitutional impediment to retroactively

applying the 2014 amendments to § 12-15-114. In addressing

retroactivity, a court is concerned with "familiar

considerations of fair notice, reasonable reliance, and

settled expectations." Landgraf, 511 U.S. at 270. The

juvenile court continues to have exclusive original

jurisdiction over termination-of-parental-rights proceedings

as it did before and after the 2014 amendments. The 2014

amendments do not take away or give the right to a parent to

bring a termination proceeding because § 12-15-317 already

provides for such. I believe that applying the 2014

amendments retroactively gives effect to the clear intent of

the legislature, which included in the 2014 amendments express

language regarding retroactivity, ensuring that the

legislature considered whether the benefits of retroactivity

outweighed any potential unfairness.

The father argues that "legislation that so boldly robs

a father of such a powerful defense [lack of jurisdiction]

clearly affects his substantive, vested rights if applied

44
1121462

retroactively." However, "jurisdictional statutes 'speak to

the power of the court rather than to the rights or

obligations of the parties.'" Landgraf, 511 U.S. at 274

(quoting Republic Nat'l Bank of Miami v. United States, 506

U.S. 80, 100 (Thomas, J., concurring)). Jurisdiction is not

a right possessed by the parties, but is instead the power of

the court. The Supreme Court has "regularly applied

intervening statutes conferring or ousting jurisdiction,

whether or not jurisdiction lay when the underlying conduct

occurred or when the suit was filed." Landgraf, 511 U.S. at

274. The Supreme Court has established the principle that in

determining retroactivity jurisdictional statutes should be

evaluated in the same manner as any other statute. Thus, in

order to determine whether a statute applies to a case that

was filed prior to the enactment of the statute, courts must

determine whether the statute is "procedural" in nature or

whether it affects "substantive entitlement to relief." Lindh,

521 U.S. at 327. Does the statute merely "regulate the

secondary conduct of litigation" or does it affect "the

underlying primary conduct of the parties"? Hughes, 520 U.S.

at 951. Does the statute speak "just to the power of a

45
1121462

particular court," or does it speak to "the substantive rights

of the parties as well"? Hughes, 520 U.S. at 951. In this

case, the 2014 amendments speak to jurisdiction.

The father argues that the 2014 amendments violate the

separation-of-powers doctrine and cites Barrington v.

Barrington, 200 Ala. 315, 76 So. 81 (1917). In Barrington, a

new statute meant to protect women from actual or threatened

violence granted the wife a divorce when she, without support

from the husband, had lived separate and apart from the bed

and board of her husband for five years preceding the filing

for divorce. Although the wife had lived "separate and apart"

from the husband for five years, the new statute authorizing

divorce under such circumstances had not been in effect for

five years at the time she filed for divorce. The husband

demurred, asserting that to permit divorce under the new

statute would constitute a constitutionally prohibited

retroactive application of a statute that was not, on its

face, retroactive. The Court agreed, stating: "We are, upon

these considerations, constrained to hold that the statute in

question authorizes the divorce here sought only upon the

lapse of five years from and after the date of its enactment

46
1121462

–- September 10, 1915." Barrington, 200 Ala. at 318, 76 So. at

84. The statute that was under consideration in Barrington,

however, is readily distinguishable from the 2014 amendments,

which are not only expressly retroactive, but also do not

alter vested rights (i.e., contract or property rights). In

contrast, the new statute in Barrington was not expressly

retroactive, and it did alter vested property rights:

"The legislative act here involved is not
remedial in character, but gives legal effect to
marital conduct and relations, by converting any
complete separation between husband and wife for five
years next before the filing of the bill of
complaint, into an authorized ground of divorce in
favor of the wife, if she has so lived without
support from him. It falls fairly within the class of
acts whose retrospective operation is so strongly
disfavored by the law, and so consistently reprobated
by the courts."

200 Ala. at 316, 76 So. at 82. The Court went on to say:

"Remedial statutes -- those which do not create,
enlarge, diminish, or destroy vested rights –- are
favored by the courts, and their retrospective
operation is not obnoxious to the spirit and policy
of the law.

"But a statute which gives a new legal effect to
conduct or conditions occurring or existing prior to
its enactment, thereby imposing upon any person
unanticipated disabilities or alterations of legal
status, is retrospective in a sense which is odious
to the law, and, as to such operation, is strongly
disfavored by the courts, even though it does not
offend the Constitution by impairing the obligation

47
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of a contract or by creating a crime or punishment ex
post facto. This disfavor has everywhere found
expression in a rigorous rule of construction which
denies retroactive effect to such a statute unless by
its express terms, or by unmistakable implication,
the Legislature must have so intended."

Barrington, 200 Ala. at 316, 76 So. at 82. In the present

case, the 2014 amendments do not give new legal effect to

abandonment by a parent.

In arguing that the 2014 amendments violate the

separation-of-powers doctrine, the father refers this Court to

Justice Mayfield's special concurrence in Barrington, in which

he stated:

"Granting divorces is the exercise of powers and
functions either legislative or judicial. If
legislative, under our Constitution, then only the
Legislature can exercise them, the courts cannot; if
judicial, then only the courts or the judicial
department of the state can exercise the powers.
Assuredly, the power or function to decree divorces
does not belong to both these branches of government.
I take it that there never would have been a doubt on
this subject but for the fact that in England
Parliament has for centuries granted divorces; but
this does not prove that it is the exercise of
legislative powers, because Parliament -- different
in this from all American Legislatures, state or
federal -- exercises both legislative and judicial
powers and functions of the English government. Our
Constitution, like most all other written American
Constitutions, expressly prohibits the Legislature
from exercising judicial powers, and also prohibits
the judicial department from exercising legislative
powers. So it results that granting divorces, under

48
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the law of this state, is the exercise of powers and
functions of the state government, either legislative
or judicial, and that it cannot be the exercise of
both classes of powers. If it be a judicial power and
function, the Legislature cannot usurp it by saying
that the courts shall grant divorces without cause,
and without any issuable fact being alleged or
proven.

"The Legislature may prescribe rules under which
judicial power shall be exercised, but it cannot
authorize courts to proceed to judgment against, or
to adjudicate upon, the rights of parties without
giving them notice of the proceeding and an
opportunity to defend; nor can it deprive the
litigant of his rights, by retrospective legislation
which makes void that which was theretofore valid, or
vice versa. There are some things Legislatures cannot
do. What they do must be within legislative
competency. They cannot recall the past. ...

"The Legislature can say what the law thereafter
shall be, but not what it was theretofore; what it
shall be to-morrow, but not what it was yesterday;
that is not its province or its function. If an act
is done to-day, according to law, the Legislature
cannot say to-morrow that the act was unlawful. If a
contract is made to-day according to law, and is
therefore valid, the Legislature will have no power
to-morrow to say that it was not made according to
law, and is therefore void, and annul it. It can say
that a contract made hereafter, as a former one was
made, shall be void, but it cannot make void a
contract heretofore made and executed, if valid when
made, nor make valid a contract executed in the past,
if it was void when made. This is not within
legislative competency, and therefore needs no
express constitutional inhibition. The Legislature
can no more recall the past than it can make black
white, or white black, or change the laws of physics
or other natural laws. A state Legislature can, of
course, do anything within legislative competency

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which is not inhibited by the state and federal
Constitutions; but it needs no inhibition to prevent
its doing what, in the very nature of things,
according to natural or Divine law, it cannot do. The
Constitution itself could not empower the Legislature
to recall the past, or to change a law of physics.
Why expressly inhibit the doing of a thing which
cannot be done by any human power or agency, much
less authorized?"

200 Ala. at 324-25, 76 So. at 90. As I stated earlier, the

2014 amendments do not give new legal effect to abandonment by

a parent because that conduct is, and has been, subject to the

termination of the abandoning parent's rights.

I agree with Justice Mayfield that the legislature

possesses the power to amend the law, "but it may not do so in

a manner that impinges on the judicial power by retroactively

changing the laws that were incorporated into the judgment

when it became final." Ex parte Jenkins, 723 So. 2d 649, 658

(Ala. 1998). In Plaut v. Spendthrift Farm, 514 U.S. 211

(1995), the Supreme Court acknowledged that Congress possesses

the power to amend existing law even if the amendment affects

the outcome of pending cases. 514 U.S. at 218. The Supreme

Court explained that in such a situation the separation-of-

powers doctrine is violated only when Congress tries to apply

new law to cases that have already reached a final judgment.

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514 U.S. at 226 ("Congress can always revise the judgments of

Article III courts in one sense: When a new law makes clear

that it is retroactive, an appellate court must apply that law

in reviewing judgments still on appeal that were rendered

before the law was enacted, and must alter the outcome

accordingly."). Legislation that would change the law

incorporated into a final judgment rendered by the judiciary

violates the separation-of-powers doctrine. The Supreme Court

recognized that Congress's retroactive extension of a

limitations period does not violate the Due Process Clause by

depriving defendants of a vested right. Plaut, 514 U.S. at

227–29 (stating that Congress may retroactively extend a

limitations period without violating the Due Process Clause

(citing Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 311 n. 8,

316 (1945)(noting that the retroactive extension of a

statutory limitations period did not deprive defendants of a

"vested right"))). Nonetheless, the Supreme Court held that

Congress violated the separation-of-powers doctrine by

commanding the Judiciary to reopen final judgments to

accommodate the extended limitations period. Plaut, 514 U.S.

at 219.

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Plaut involved Congress's reaction to the Supreme Court's

earlier decision in Lampf, Pleva, Lipkind, Prupis & Petigrow

v. Gilbertson, 501 U.S. 350 (1991), in which the Court adopted

a uniform national limitations period for civil actions under

§ 10(b) of the Securities Exchange Act of 1934. After Lampf

was decided, a number of § 10(b) actions were dismissed as

untimely, and Plaut's case was among them. Plaut did not

appeal the dismissal. Some months later, Congress enacted a

complicated statute that rejected the Lampf holding for cases

filed before Lampf was decided and effectively required a

court to reinstate a § 10(b) action on the motion of the

plaintiff if the action would have been considered timely

under the applicable law as of the day before Lampf was

decided. The Supreme Court distilled from prior cases the

principle that Article III grants the federal courts "the

power, not merely to rule on cases, but to decide them,

subject to review only by superior courts in the Article III

hierarchy." Plaut, 514 U.S. at 218-19. The Court concluded

that "[b]y retroactively commanding the federal courts to

reopen final judgments, Congress has violated this fundamental

principle." 514 U.S. at 219. The Supreme Court was careful

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to distinguish the situation in which Congress enacts a law

with retroactive effect while a case is still on appeal,

recognizing that, in that instance, the appellate court must

apply the new law. The Supreme Court stated:

"It is true, as petitioners contend, that
Congress can always revise the judgments of Article
III courts in one sense: When a new law makes clear
that it is retroactive, an appellate court must apply
that law in reviewing judgments still on appeal that
were rendered before the law was enacted, and must
alter the outcome accordingly. See United States v.
Schooner Peggy, 1 Cranch 103 (1801); Landgraf v. USI
Film Products, 511 U.S. 244, 273–280 (1994). Since
that is so, petitioners argue, federal courts must
apply the 'new' law created by § 27A(b) in finally
adjudicated cases as well; for the line that
separates lower court judgments that are pending on
appeal (or may still be appealed), from lower-court
judgments that are final, is determined by statute,
see, e.g., 28 U.S.C. § 2107(a)(30–day time limit for
appeal to federal court of appeals), and so cannot
possibly be a constitutional line. But a distinction
between judgments from which all appeals have been
forgone or completed, and judgments that remain on
appeal (or subject to being appealed), is implicit in
what Article III creates: not a batch of unconnected
courts, but a judicial department composed of
'inferior Courts' and 'one supreme Court.' Within
that hierarchy, the decision of an inferior court is
not (unless the time for appeal has expired) the
final word of the department as a whole. It is the
obligation of the last court in the hierarchy that
rules on the case to give effect to Congress's latest
enactment, even when that has the effect of
overturning the judgment of an inferior court, since
each court, at every level, must 'decide according to
existing laws.' Schooner Peggy, supra, 1 Cranch, at
109. Having achieved finality, however, a judicial

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decision becomes the last word of the judicial
department with regard to a particular case or
controversy, and Congress may not declare by
retroactive legislation that the law applicable to
that very case was something other than what the
courts said it was. Finality of a legal judgment is
determined by statute, just as entitlement to a
government benefit is a statutory creation; but that
no more deprives the former of its constitutional
significance for separation-of-powers analysis than
it deprives the latter of its significance for due
process purposes. See, e.g., Cleveland Bd. of Ed. v.
Loudermill, 470 U.S. 532 (1985); Meachum v. Fano, 427
U.S. 215 (1976).

"To be sure, § 27A(b) reopens (or directs the
reopening of) final judgments in a whole class of
cases rather than in a particular suit. We do not see
how that makes any difference. The separation-of-
powers violation here, if there is any, consists of
depriving judicial judgments of the conclusive effect
that they had when they were announced, not of acting
in a manner -- viz., with particular rather than
general effect -- that is unusual (though, we must
note, not impossible) for a legislature. To be sure,
a general statute such as this one may reduce the
perception that legislative interference with
judicial judgments was prompted by individual
favoritism; but it is legislative interference with
judicial judgments nonetheless. Not favoritism, nor
even corruption, but power is the object of the
separation-of-powers prohibition. The prohibition is
violated when an individual final judgment is
legislatively rescinded for even the very best of
reasons, such as the legislature's genuine conviction
(supported by all the law professors in the land)
that the judgment was wrong; and it is violated 40
times over when 40 final judgments are legislatively
dissolved."

Plaut, 514 U.S. at 226-28 (some emphasis added).

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In Ex parte Jenkins, supra, this Court addressed, among

other things, whether the separation-of-powers doctrine was

violated by the retroactive application of a statute

permitting the reopening of a final judgment of paternity

based on scientific evidence that the adjudged father was in

fact not the biological father. Relying on Plaut, supra, we

held that the Alabama Legislature cannot retroactively amend

Rule 60(b), Ala. R. Civ. P., to change the law of finality

that was incorporated into final judgments before the

legislature's amendment allowing a father to reopen a final

judgment of paternity without regard to the "reasonable time"

requirement of Rule 60(b)(6), Ala. R. Civ. P. The paternity

judgment in that case became final in 1986, approximately

eight years before § 26–17A–1, Ala. Code 1975, became law.

Thus, this Court held that the trial court and the Court of

Civil Appeals erred in applying § 26–17A–1 to change the rules

of finality incorporated into the father's 1986 final judgment

of paternity in Jenkins.

As I stated earlier, the legislature, in expressing its

intent that the 2014 amendments apply retroactively, also

stated that the amendments are "curative." That is, the 2014

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amendments remedy any jurisdictional conflict created by the

Court of Civil Appeals' opinion that a fit custodial parent

could not bring a termination-of-parental-rights petition

against the other parent because the child of a fit custodial

parent could not be considered dependent, i.e., in need of

care and supervision. In Landgraf, 511 U.S. at 267-68, the

Supreme Court stated:

"Retroactivity provisions often serve entirely benign
and legitimate purposes, whether to respond to
emergencies, to correct mistakes, to prevent
circumvention of a new statute in the interval
immediately preceding its passage, or simply to give
comprehensive effect to a new law Congress considers
salutary. However, a requirement that Congress first
make its intention clear helps ensure that Congress
itself has determined that the benefits of
retroactivity outweigh the potential for disruption
or unfairness."

Here, by making its intention abundantly clear, the

Alabama Legislature demonstrated its determination that the

benefits of retroactivity outweighed any potential for

disruption or unfairness. In light of the "modest"

constitutional impediments to retroactive civil litigation,

Landgraf, 511 U.S. at 272, the nature and extent of the change

in the law, and the degree of connection between operation of

the new law and relevant past conduct, applying the 2014

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amendments retroactively comports with the Landgraf Court's

considerations of fair notice, reasonable reliance, and

settled expectations. Accordingly, there is no need to

analyze whether the AJJA, before the enactment of the 2014

amendments, allowed a parent to terminate the parental rights

of the other parent.

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SHAW, Justice (concurring in the result).

I concur in the result. While this case was pending on

appeal, Act No. 2014–350, Ala. Acts 2014, became effective and

retroactively granted the juvenile court subject-matter

jurisdiction in this case. I believe that Act No. 2014-350 is

clear and constitutional and that its application complies

with numerous authorities approving the retroactivity of

statutory law. See, e.g., Dickinson v. Cosmos Broad. Co., 782

So. 2d 260 (Ala. 2000), and Landgraf v. USI Film Prods., 511

U.S. 244 (1994).

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