B.H. v. Tuscaloosa County Department of Human Resources

REL:09/12/2014

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

_________________________

1130813
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Ex parte B.H.

PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS

(In re: B.H.

v.

Tuscaloosa County Department of Human Resources)

(Tuscaloosa Juvenile Court, JU-12-549.01; JU-12-550.01;
and JU-12-566.01;
Court of Civil Appeals, 2120805)

SHAW, Justice.

WRIT DENIED. NO OPINION.

Stuart, Bolin, Murdock, Main, Wise, and Bryan, JJ.,

concur.
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Shaw, J., concurs specially.

Moore, C.J., and Parker, J., dissent.

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SHAW, Justice (concurring specially).

B.H. ("the mother") petitions this Court for certiorari

review of the decision of the Court of Civil Appeals affirming

the judgments of the Tuscaloosa Juvenile Court directing the

mother to pay child support in connection with dependency

actions as to her three children. B.H. v. Tuscaloosa Cnty.

Dep't of Human Res., [Ms. 2120805, January 31, 2014] ___ So.

3d ___ (Ala. Civ. App. 2014). I concur to deny the petition.

In 2008, the mother and the father were divorced by the

Tuscaloosa Circuit Court. The divorce judgment placed sole

custody of the couple's children with the father. The divorce

judgment did not order either party to pay the other child

support.1

In November 2012 the Tuscaloosa County Department of

Human Resources ("DHR") filed petitions in the Tuscaloosa

Juvenile Court seeking a declaration that the mother and

1
The mother indicates that the divorce judgment stated
that "neither party shall pay any child support." Nothing
before us indicates that this statement held anything more
than that the actual parties to the divorce case--the mother
and the father--were not required to pay child support to each
other. Additionally, as explained further, that order could
not impact a later dependency action, over which the circuit
court would have no jurisdiction.
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father's children were dependant. After further proceedings,

the children were declared dependent. Under Ala. Code 1975,

§ 12-15-314, part of the Alabama Juvenile Justice Act, § 12-

15-101 et seq., Ala. Code 1975, which became effective in

2009, when a child is found to be dependent, "the juvenile

court" is empowered by the legislature, among other things, to

"[t]ransfer legal custody" of the child to the Department of

Human Resources or, among others, certain "local public"

agencies. § 12-15-314(a)(3)a and b. The juvenile court in

these cases placed the children in the custody of DHR.

"When a child is placed in the legal custody" of the

Department of Human Resources or certain other departments,

agencies, organizations, entities, or persons, § 12-15-314(e)

requires that, "when the parent ... has resources for child

support, the juvenile court shall order child support." This

child support "shall be paid" to the Department of Human

Resources or to the "department, agency, any other

organization, entity, or person in whose legal custody the

child is placed." Id. In compliance with the mandatory

directives of this Code section, the juvenile court in the

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instant cases ordered the mother and the father to pay child

support to DHR.

According to the Court of Civil Appeals, the mother

argued that the juvenile court's orders requiring the payment

of child support to DHR "constituted invalid modifications of

the circuit court's 2008 divorce judgment in which the circuit

court had waived the requirement that the mother pay child

support to the father." ___ So. 3d at ___ (emphasis added).

I see no modification to the 2008 divorce judgment by the

juvenile court's action: The juvenile court did not order

child support to be paid by the mother to the other party to

the divorce judgment, i.e., the father. Instead, the juvenile

court ordered child support to be paid to DHR, which was not

a party to the divorce proceeding. Although the prior divorce

judgment of the circuit court established the child support

the mother and the father would be required to pay each other

as part of their divorce, it did not, and could not,

"establish" child-support obligations a parent might be

required to pay as part of a later filed dependency action.

The juvenile court, not the circuit court in a divorce action,

has "exclusive original jurisdiction" to determine dependency

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actions, Ala. Code 1975, § 12-15-114, and this includes issues

of both custody and support. See § 12-15-314. The cases

currently pending in the juvenile court are not the prior

divorce action; they are wholly different actions, styled as

between DHR, on the one hand, and the mother, on the other,

and they invoke a wholly different court and jurisdiction,

namely, the "exclusive original jurisdiction" of the juvenile

court.

As the Court of Civil Appeals held, § 12-15-314

specifically empowers the juvenile court to order the mother

and the father to pay child support to DHR. The fact that a

juvenile court is a "lower court" to a circuit court is not

material when it proceeds under the powers explicitly provided

by the legislature; that circuit courts are placed over

juvenile courts in the judicial hierarchy does not invalidate

§ 12-15-314. See Ala. Const. 1901, Art. VI, § 142(b) ("The

circuit court shall exercise general jurisdiction in all cases

except as may otherwise be provided by law." (emphasis

added)). If the circuit court's decision as to child support

in the divorce judgment forecloses the juvenile court from

ordering the payment of child support in these dependency

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cases, then the juvenile court had no power to transfer

custody of the dependent children, because that issue has also

"been litigated, and the circuit court retains jurisdiction

over that issue." ___ So. 3d at ___ (Moore, C.J., dissenting).

I see no support for holding that the Alabama Juvenile Justice

Act essentially has no applicability when the parents of a

purportedly dependent child were previously divorced by a

proceeding in the circuit court.

Finally, as Judge Moore stated in his writing concurring

in the result in the Court of Civil Appeals' opinion, the

caselaw cited on appeal in support of the mother's position,

Ex parte M.D.C., 39 So. 3d 1117 (Ala. 2009), and A.S. v.

W.T.J., 984 So. 2d 1196 (Ala. Civ. App. 2007), did not involve

dependency actions or § 12-15-314. ___ So. 3d at ___.

I see no probability of merit in the argument in the

mother's certiorari petition that the Court of Civil Appeals

erred. Rule 39(f), Ala. R. App. P. Therefore, I concur to

deny the petition.

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MOORE, Chief Justice (dissenting).

B.H. ("the mother) and M.H. ("the father") adopted

J.M.H., I.H., and A.H. ("the children") in 2001. The mother

and the father divorced in 2008. The divorce judgment entered

by the Tuscaloosa Circuit Court ("the circuit court") awarded

the father sole custody of the children and ordered the mother

not to pay child support because she and the father intended

that the mother's parental rights to the children would be

terminated.2

The Tuscaloosa County Department of Human Resources

("DHR") filed the present actions in the Tuscaloosa Juvenile

Court ("the juvenile court"), seeking to declare the children

dependent and to obtain custody over them. In March 2013, by

stipulation of the mother and the father, a referee for the

juvenile court found the children to be dependent and awarded

DHR custody over them. The referee then scheduled a hearing to

determine the mother's and the father's child-support

obligations under § 12-15-314(e), Ala. Code 1975, which

provides:

2
The mother's parental rights had not been terminated when
the present actions were initiated.
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"When a child is placed in the legal custody of the
Department of Human Resources ... and when the
parent, legal guardian, or legal custodian of the
child has resources for child support, the juvenile
court shall order child support in conformity with
the child support guidelines as set out in Rule 32,
Alabama Rules of Judicial Administration."3

The juvenile court then ratified the referee's decisions

according to Rule 2.1(G), Ala. R. Juv. P.,4 and § 12-15-

106(g), Ala. Code 1975.5 The juvenile-court referee then

ordered the mother and the father to pay child support for the

children; the juvenile court ratified the child-support

awards.

The mother appealed the juvenile court's judgments to the

Court of Civil Appeals, alleging that the juvenile court

lacked the jurisdiction to modify the child-support judgment

of the circuit court, which had retained jurisdiction over its

3
The provisions of Rule 32, Ala. R. Jud. Admin.
(referenced in § 12-15-314(e)), are too lengthy to quote here.
They set out the guidelines for child support in actions
seeking to establish or modify child support.
4
Effective July 1, 2014, Rule 2.1 has been rescinded
because the substance of that rule has been codified in § 12-
15-106, Ala. Code 1975.
5
Rule 2.1(G), Ala. R. Juv. P., stated, and § 12-15-106(g),
Ala. Code 1975, states: "The findings and recommendations of
the referee shall become the order of the court when ratified
by the original signature of a judge with authority over
juvenile matters."
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child-support order. The Court of Civil Appeals affirmed the

judgments of the juvenile court on the ground that, when a

circuit court considers custody and child-support obligations

in a divorce action, the circuit court does not retain

exclusive jurisdiction over separate lawsuits such as

dependency actions that are unrelated to the divorce judgment.

B.H. v. Tuscaloosa Cnty. Dep't of Human Res., [Ms. 2120805,

January 31, 2014] ___ So. 3d ___, ___ (Ala. Civ. App. 2014).

The Court of Civil Appeals held that DHR's filings with the

juvenile court regarding dependency and custody triggered the

exclusive jurisdiction of the juvenile court pursuant to § 12-

15-114(a), Ala. Code 1975, which states that a "juvenile court

shall exercise exclusive original jurisdiction of juvenile

court proceedings in which a child is alleged ... to be

dependent."

I agree that the juvenile court obtained exclusive

original jurisdiction over the dependency matters when DHR

filed the present actions in the juvenile court; however, I do

not believe that the juvenile court's jurisdiction over the

dependency matters allowed the juvenile court to modify the

mother's child-support obligations ordered in the divorce

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judgment entered by the circuit court. The juvenile court

would have no jurisdiction over this matter but for the

dependency of the children, and that dependency cannot be

attributed to the mother because, pursuant to a circuit

court's order, she was no longer responsible for the

children's financial well being. The juvenile court entered

its child-support orders pursuant to § 12-15-314(e), which

requires juvenile courts to consult the child-support

guidelines in Rule 32, Ala. R. Jud. Admin., before ordering

child support. The guidelines for Rule 32 are "for use in any

action to establish or modify child support, whether temporary

or permanent." Because the circuit court had already

established the child-support obligations of the mother and

the father, the juvenile court could only modify those

obligations. However, the juvenile court lacked the authority

to modify those obligations, over which the circuit court

retained jurisdiction. See A.S. v. W.T.J., 984 So. 2d 1196,

1202-03 (Ala. Civ. App. 2007)(voiding the juvenile court's

child-support order for lack of subject-matter jurisdiction

and holding that the circuit court not only "acquired subject-

matter jurisdiction over the issue of custody" and "matters

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pertaining to custody," but "it also acquired subject-matter

jurisdiction over matters pertaining to visitation and child

support" when it adjudicated those issues "within its divorce

judgment" (emphasis added)).

A juvenile court's jurisdiction is limited, whereas a

circuit court's jurisdiction is general. See § 12-15-117(a)

(describing the limited nature of the juvenile court's

jurisdiction); Art. VI, § 139(a), Ala. Const. 1901 (providing

that Alabama's "unified judicial system ... shall consist of

... a trial court of general jurisdiction known as the circuit

court"). A juvenile court is a lower court to a circuit court

and, as such, even with exclusive original jurisdiction over

dependency actions, has no authority to order a parent to pay

child support the circuit court has ordered the parent not to

pay. From the moment the circuit court awarded custody to the

father and discharged the mother from her child-support

obligations, the father bore the responsibility to support and

care for the children. The issue whether the mother was

obligated to pay child support has been litigated, and the

circuit court retains jurisdiction over that issue. See Ex

parte Lipscomb, 660 So. 2d 986, 989 (Ala. 1994)(holding that

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"matters of child custody are never res judicata, and the

circuit court retains jurisdiction over the matter for

modification"). Because the juvenile court improperly modified

the circuit court's judgment by ordering the mother to pay

child support in contravention of the circuit court's order,

I respectfully dissent.

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