Rel: September 18, 2026
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
SPECIAL TERM, 2026
CL-2026-0170, CL-2026-0171, CL-2026-0172, CL-2026-0173, CL2026-0174, and CL-2026-0175
H.J. and J.C.
v.
S.L., Jr.; G.H.; Sarah Brazzolotto, in her capacity as guardian ad
litem; and St. Clair County Department of Human Resources
Appeals from St. Clair Juvenile Court
(JU-23-201.03, JU-23-201.06, JU-23-201.08, JU-23-202.03, JU-23-202.06, and JU-23-202.08)
BOWDEN, Judge.
H.J. and J.C. ("the foster parents") appeal from judgments of the
St. Clair Juvenile Court ("the juvenile court") that, among other things,
CL-2026-0170, CL-2026-0171, CL-2026-0172, CL-2026-0173, CL-2026-0174, and CL-2026-0175
awarded custody of N.H. and D.H. ("the children"), who are the children
of S.L., Jr. ("the father"), and G.H. ("the mother"), to their mother. We
reverse the judgments to the extent that they awarded custody of the
children to the mother. We also instruct the juvenile court to vacate
orders that it entered after jurisdiction over the underlying matters was
vested in this court as a result of the foster parents' appeals.
Facts and Procedural History
The St. Clair County Department of Human Resources ("DHR")
commenced dependency actions concerning the children that were
assigned case numbers JU-23-201.03 and JU-23-202.03 ("the .03
dependency actions"). In those actions, the juvenile court found the
children dependent and awarded legal custody of the children to DHR;
physical custody of the children was awarded to the foster parents. DHR
thereafter commenced actions to terminate the parental rights of the
parents that were assigned case numbers JU-23-201.06 and JU-23-202.06 ("the .06 termination actions"). The foster parents intervened in
the .03 dependency actions and the .06 termination actions.
In November 2025, the mother filed motions to dismiss the .06
termination actions. In her motions to dismiss, the mother asked the
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juvenile court to return custody of the children to her. The juvenile court
initially set the mother's motions to dismiss for a hearing on December
9, 2025. Later, it scheduled a hearing on those motions for January 27,
2026.
On January 20, 2026, seven days before the scheduled hearing on
the mother's motions to dismiss, the foster parents commenced actions in
the juvenile court seeking legal custody of the children. The foster
parents' actions were assigned case numbers JU-23-201.08 and JU-23-202.08 ("the .08 custody actions"). In their petitions commencing the .08
custody actions, the foster parents alleged that the children were
dependent and that the juvenile court should award them sole legal
custody or joint legal custody of the children. The foster parents also
alleged that the juvenile court should terminate the parents' parental
rights and then award them permanent legal custody. They asserted that
the termination of the parents' parental rights would be in the best
interests of the children.
The juvenile court held a hearing on the mother's motions to
dismiss as scheduled on January 27, 2026. The juvenile court received
evidence from witnesses that included opinions from those witnesses on
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what they considered to be the best interests of the children. The juvenile
court also made statements concerning the scope of the January 27, 2026,
hearing at the start of the hearing, during the parties' presentation of
evidence, and at the close of the hearing.
At the start of the January 27, 2026, hearing, the juvenile court
noted that the hearing was set "for a hearing on all pending motions,
status, a determination of whether or not dependency still exists, and
then how we are going to proceed going forward." It stated that it would
start with the mother's attorney "because I think what we said, we would
have a hearing on whether or not custody should be returned to your
client, which would mean that I've got to make a finding in order to do
that, that the children are no longer dependent."
The juvenile court also made statements about the scope of the
January 27, 2026, hearing during the parties' presentation of evidence.
During the cross-examination of a witness, the juvenile court stated:
"And just so everybody knows, I'm focused at this point right now, like,
is -- I'm sorry, are [the children] dependent is the key. Are they
dependent? That's my question. I mean, that's ultimately, I think, what
the issue that we're arguing about right now, isn't it?" Later, during
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recross-examination of a witness by the foster parents, the foster parents
referenced a psychologist's report. The reference drew objections. In
response to those objections, the juvenile court stated: "Well, I'm going to
say for what purpose? For what purpose? Are you wanting -- I mean, I'm
going to give you wide leeway, but for what purpose? Because, really,
what I'm focusing on right now is whether or not these children are
dependent." Additionally, during the testimony of Jenna Gardner, the
mother asked Gardner whether she had concerns about the children
being placed with the foster parents; that question drew an objection,
resulting in the following statement from the juvenile court about the
scope of the January 27, 2026, hearing:
"[Counsel for the mother]: Do you have concerns as we
stand here today, with the children being placed in their
current foster placement?
"[Counsel for DHR]: Judge, I'm going to object. This
motion is about return [of] custody to the mother and not
about the foster parents' petition.
"[The Court]: Sustained. I just want to focus on our
dependency. So, sustained."
(Emphasis added.) The foster parents also cross-examined Gardner. The
foster parents asked Gardner about the mother's alleged pregnancy,
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which drew a relevancy objection from DHR. DHR argued that the
testimony was not relevant because "[w]e're here on, I guess, on [counsel
for the mother's] motion to return custody." The juvenile court sustained
the objection.
The juvenile court also commented about the scope of the January
27, 2026, hearing after the close of evidence. At one point, the juvenile
court stated that it was not conducting a dependency hearing but,
instead, a hearing on a motion to return custody. Nonetheless, the
juvenile court indicated that it intended to find that the children were
not dependent and to return custody to the mother. The foster parents
then asked about the transition of the custody of the children back to the
mother. In response, the juvenile court stated:
"[The Court]: So this is what I want to have happen. I want
y'all to sit down because, although, legally, the issue of best
interest was not technically before the Court today, the issue
was whether or not -- was, number one, the status of all the
petitions. Number two, whether or not the children are
dependent. This Court is always concerned with the best
interest of the children. …"
(Emphasis added.)
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Later, in response to the father's statement that he wanted to
invoke his constitutional rights as a parent, the juvenile court
commented:
"And, technically, the issue of dependency, and whether or not
there's going to be a return to custody, technically, is in front
of the court every time we come back. But we were here
specifically because [of an oral motion for the return of
custody made] the last time we were here. So I want to make
sure the kids' best interests are looked out for. I've made some
legal rulings based on the law, based on the evidence that was
submitted today. But I have some concern about the bond that
exists and how that is going to take place, moving from one
place to another. Just like I have the concern, when I issue
orders in the middle of the night, removing children from their
parents' care and putting them into somebody else's care. I
recognize that every time we move a child, even when it's
unnecessary, even when it's [a], quote/unquote, 'good move,' it
causes some level of harm for children. I want to make sure
that we, as a system do the least amount of harm possible.
And with the number of people I have right here, I'm not -- I
hope that y'all can talk about it and really put the kids' best
interests forward. So it's definitely a concern of mine. It's a
fair question."
(Emphasis added.)
The juvenile court entered the same judgment in each action on
January 30, 2026. The January 30, 2026, judgments found that the
children were no longer dependent and returned custody of the children
to the mother. The juvenile court dismissed the .06 termination actions
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and the .08 custody actions; however, it did not dismiss the .03
dependency actions and ordered DHR to continue to provide services to
the mother. It also set the .03 dependency actions for a review hearing
and expressly noted that it was retaining jurisdiction over those matters.
The foster parents filed a motion to alter, amend, or vacate under
Rule 59, Ala. R. Civ. P. ("the first-filed Rule 59 postjudgment motion").
In that motion, the foster parents argued that the juvenile court had
improperly concluded that the children were no longer dependent. They
reasoned that the children were dependent because the father was not
able or willing to provide for the children and, therefore, the children
were dependent under Alabama's "one-parent doctrine." The foster
parents also argued that, because the juvenile court did not find the
children to be dependent, it lacked jurisdiction to make a custodial
disposition of the children. They also argued that the juvenile court had
received limited evidence as to the best interests of the children at the
January 27, 2026, hearing, and they requested that the juvenile court
"set[] a hearing during which the children's custody may be disposed of
with proper consideration of their best interests."
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On February 9, 2026, the juvenile court entered an order setting
the foster parents' first-filed Rule 59 postjudgment motion for a hearing.
That order provided: "MOTION TO ALTER OR AMEND filed by [the
foster parents] is hereby set for hearing at 10:00 a.m. on February 17,
2026. DONE and ORDERED this 9th day of February, 2026."
(Capitalization in original; bold typeface omitted.)
A hearing was held on February 17, 2026. At the start of the
hearing, the juvenile court stated that the parties were present "for a
hearing on a motion to alter, amend, or vacate an order that this Court
entered on January 30[, 2026] …." The juvenile court stated that "part"
of the foster parents' first-filed Rule 59 postjudgment motion was due to
be granted. The juvenile court noted that it agreed with the foster parents
that the children were dependent "as to the father." The juvenile court
stated that, in its opinion, there was "zero evidence" to support a finding
that the children were dependent "as to [the mother]." The foster parents
argued that, if the children are dependent, then the juvenile court was
compelled to hold a hearing on the best interests of the children. The
juvenile court then stated:
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"I think that we had evidence presented at the last hearing
and I am certainly willing to hear any evidence anybody has
today about best interest. My recollection is I heard from two
[DHR] workers who rendered their opinions as to what was
best for these children and whether or not the children were
dependent, whether or not the children should return home. I
heard testimony from a counselor based on her interactions
with the children. And I'm trying to remember, the family,
children, it was her opinion that the children should be
returned home, which I think is implicit that it's in their best
interest. … So I don't -- I mean, I'm certainly willing to do that
and I don't mind cleaning it up in the amended order that I'm
going to enter today that includes a clarification. I'm just
going to set that order aside. There will be a new order issued,
and I will address the best interest. I'm not so sure that that's
necessary but I will do it so that if it goes up on appeal the
appellate court has my thinking and my opinion as to what
those best interests are, even if unnecessary."
The foster parents then requested "to be able to present evidence"
regarding the best interests of the children. In response, the juvenile
court asked what evidence the foster parents would like to proffer with
respect to the best interests of the children. The juvenile court later
stated:
"I feel very confident in a position that if any court in this
State finds that a child is not dependent as to a particular
parent, that that court is not faced with the opportunity to
leave that child in foster care. It goes against Federal law. It
goes against State law. I think that that is something that I
personally would get blistered by the appellate courts."
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Later, the foster parents again requested a hearing on the best interests
of the children. In response the juvenile court stated:
"I'm giving you that opportunity. I gave you that opportunity
kind of, but I understand where you're coming from because I
did hammer down -- I did at that hearing on dependency. So I
agree with you there I'm more than willing to let you proffer
what you believe that I would be able to use to make a finding
of it being in the children's best interest to leave them in the
State's custody. The reason that there's -- part of what I'm
struggling with is like if the state of facts that existed as of
the date of the January 27th [hearing] and that continued to
exist …, unless somebody has evidence to the contrary, like
there is no chance I would have removed those children from
[the mother] under this set of circumstances."
Later, the juvenile court again provided the foster parents with an
opportunity to "proffer anything that you have to offer the Court why it
would be in the best interest to leave custody of these children with the
Sate of Alabama versus Mother." In response, the foster parents argued
that the February 17, 2026, hearing was being held on the first-filed Rule
59 postjudgment motion and that they were not prepared to make an
argument or proffer evidence at the February 17, 2026, hearing, "as we
would in a custody hearing." The juvenile court then asked the foster
parents what witnesses they would like to call. The foster parents named
some witnesses and described some potential testimony, which the
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juvenile court dismissed as not sufficient to compel it to reach a result
different than awarding custody to the mother. Later, the foster parents
and the juvenile court discussed the purpose of the February 17, 2026,
hearing:
"[Counsel for the foster parents]: For purposes of
establishing a record, I just want to assert, again, that today's
hearing is for the motion to alter, amend, or vacate. We are
not prepared for an evidentiary hearing on best interest.
"[The Court]: Let me say this. … [A] part of your motion
to alter, amend, or vacate was based on best interest. I mean,
today's the day.
"[Counsel for the foster parents]: Well --"[The Court]: I'm not saying that you're not prevented.
I'm just saying the Court has been -- it has been, is ready,
willing, and able to hear that evidence. That's a part of your
motion to alter, amend, or vacate.
"[Counsel for the foster parents]: We did not come
prepared to do that.
"[The Court]: I'm saying I set it for that.
"[Counsel for the foster parents]: Well, you set it to hear
our argument on alter, amend, or vacate.
"[The Court]: 100 percent. Was it or was it not part of
the basis for your motion to alter, amend or vacate that the
best interest was not looked at?
"[Counsel for the foster parents]: It was
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"[The Court]: That's what we're here for today.
"[Counsel for the foster parents]: No. We are not here for
an evidentiary hearing on that.
"[The Court]: We are here 100 percent for an evidentiary
hearing on that. That's what I set it for. That's why I set it for
hearing instead of just issuing an order.
"[Counsel for the foster parents]: So on that basis,
Judge, we would object to not holding an evidentiary hearing
on that.
"[The Court]: For the record, like your objection is
overruled, because we are here for an evidentiary hearing
today on that, which is included in my calculus of determining
whether or not I should alter, amend, or vacate the order.
Again, I'm going to say it very clearly, my first inclination
when I read the motion was I was going to grant it and clarify
exactly what I said, make a finding that the children were
dependent as to father, not dependent as to mother, and then
go on about my business. Then I'm like, wait a second, he
argued in here about best interest. I'm going to let them flesh
that out, which, again, is why I didn't just issue an order. I set
it for hearing."
The juvenile court then received testimony regarding whether the foster
parents had returned certain items to DHR.
That same day, February 17, 2026, the juvenile court entered the
same new judgment in each action. Those judgments state, in pertinent
part:
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"This matter was called for hearing on February 17, 2026, on
a Motion to Alter, Amend or Vacate filed by [the foster
parents]. All parties and counsel were present. Evidence was
presented, testimony was heard ore tenus, and arguments
were heard. Upon consideration thereof, it is hereby
ORDERED, ADJUDGED, and DECREED as follows:
"1. Foster Parents' motion is hereby GRANTED. The
Court's order entered on January 30, 2026 is hereby set aside
and held for naught. The provisions set forth below constitute
an AMENDED ORDER of this Court, after considering
evidence, testimony and arguments presented at hearings
before this Court on January 27, 2026, and February 17, 2026.
"2. The [children] made the subject of these
proceedings … [are] no longer dependent as to [the mother].
"3. The [children] remain[] dependent as to [the
father].
"4. The Court finds that it is in the minor child[ren's]
best interests to return [to] and award[s] custody to [the
mother]."
(Capitalization in original.) The February 17, 2026, judgments dismissed
the .06 termination actions and the .08 custody actions. They also ordered
DHR to continue to provide services in the .03 dependency actions and
set the .03 dependency actions for a review hearing.
On February 26, 2026, the foster parents filed a second motion to
alter, amend, or vacate under Rule 59 ("the successive Rule 59
postjudgment motion"). In that motion, the foster parents argued that
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the juvenile court had failed to set or notify the foster parents of a "full
evidentiary hearing." The foster parents argued that the juvenile court
had expanded the scope of the February 17, 2026, hearing to be a "full
evidentiary hearing" to include the topic of the children's best interests,
rather than simply a hearing on their first-filed Rule 59 postjudgment
motion. They argued that such an expansion was done without proper
notice and cited cases indicating that a lack of notice deprives a party of
due process. They also argued that they were entitled to have a full
evidentiary hearing on the issue of the best interests of the children, and
they included a list of witnesses that they indicated that they would call
at such a hearing. Finally, the foster parents argued that the juvenile
court had applied a standard different than the best-interests-of-thechild standard when deciding the cases. They argued that the juvenile
court should have -- but did not -- consider the factors for determining
the best interests of the children set forth in Ex parte Devine, 398 So. 2d
686 (Ala. 1981).
The juvenile court entered an order denying the foster parents'
successive Rule 59 postjudgment motion on February 28, 2026. The foster
parents appealed on March 4, 2026. On March 17, 2026, the juvenile
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court entered orders removing the foster parents as parties to the .03
dependency actions.
The Mother's Motion to Dismiss
The mother filed a motion to dismiss the foster parents' appeals
that we must consider before reaching the merits of the appeals. In her
motion to dismiss, the mother alleges that the foster parents' appeals are
untimely. The mother argues that the successive Rule 59 postjudgment
motion did not suspend the time to appeal because, she argues, it did not
raise arguments different from those that could have been raised in the
first-filed Rule 59 postjudgment motion. Because the successive Rule 59
postjudgment motion did not suspend the time to appeal, the mother
argues, the foster parents' appeals are untimely. The mother's argument
is not persuasive.
An appeal must be timely filed; if it is not timely filed, we must
dismiss it for lack of jurisdiction. Rule 2(1), Ala. R. App. P.; Moultrie v.
Wall, 143 So. 3d 128, 135 (Ala. 2013); Webb v. Jefferson Cnty. Bd. of
Health, [Ms. CL-2025-0387, Dec. 12, 2025] ___ So. 3d ___ (Ala. Civ. App.
2025). Generally, the required period in which to file an appeal from a
juvenile-court judgment is 14 days from the date that the juvenile court
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entered its judgment. See Rule 28(D), Ala. R. Juv. P. The required period
in which to file an appeal changes, however, if a party files a motion
asserting grounds for relief under Rule 59, such as a motion to alter,
amend, or vacate a judgment under Rule 59(e).
When a Rule 59 postjudgment motion is denied in a juvenile case,
a party must file an appeal within 14 days from the date of the entry of
the order denying the Rule 59 postjudgment motion or within 14 days
from the date that the Rule 59 postjudgment motion is denied by
operation of law; otherwise, the appeal is untimely. When a trial court
grants a Rule 59 postjudgment motion and issues a new or amended
judgment, however, a party's successive Rule 59 postjudgment motion
will alter the required period in which to appeal if (1) the trial court takes
some action on a first-filed Rule 59 postjudgment motion that prompts a
"new objection," i.e., one that could not have been raised in the first-filed
Rule 59 postjudgment motion, and (2) the successive Rule 59
postjudgment motion asserts that new objection. Docen v. Docen, 294 So.
3d 767, 771 (Ala. Civ. App. 2019); McGinnis v. Steeleman, 199 So. 3d 69,
72 (Ala. Civ. App. 2015); cf. C & D Logging v. Mobley, 61 So. 3d 1067 (Ala.
Civ. App. 2009)(holding that a party's successive Rule 59 postjudgment
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motion did not alter the required period in which to appeal because,
although the trial court had entered an amended judgment in response
to the party's first-filed Rule 59 postjudgment motion, the party's
successive Rule 59 postjudgment motion asserted the same issues that
had been raised in first-filed postjudgment motion), and Green v. Green,
43 So. 3d 1242, 1244 (Ala. Civ. App. 2009)(holding that a party's
successive Rule 59 postjudgment motion did not alter the required period
in which to appeal because, although the trial court had entered an
amended judgment, the party's successive Rule 59 postjudgment motion
asserted grounds that could have been brought in the first-filed
postjudgment motion).
Here, the foster parents asserted arguments in the successive Rule
59 postjudgment motion that were not and could not have been raised in
the first-filed Rule 59 postjudgment motion. In the successive Rule 59
postjudgment motion, the foster parents argued that findings in the
February 17, 2026, judgments stemmed from a hearing on their first-filed
Rule 59 postjudgment that, they argued, was erroneously not a "full
evidentiary hearing" on the issue of the best interests of the children.
That hearing occurred, of course, after the entry of the January 30, 2026,
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judgments and, therefore, the issues regarding that hearing that the
foster parents raised in the successive Rule 59 postjudgment motion
could not have been raised in the foster parents' first-filed Rule 59
postjudgment motion. The foster parents also argued in the successive
Rule 59 postjudgment motion that the juvenile court had applied an
incorrect standard when determining the best interests of the children.
That argument also could not have arisen before the issuance of the
February 17, 2026, judgments because the juvenile court did not apply
any standard regarding the best interests of the children in the January
30, 2026, judgments, in which it had found that the children were not
dependent and had returned custody of the children to the mother.
Accordingly, the foster parents' successive Rule 59 postjudgment
motion was not an impermissible repetitive postjudgment motion, see
Docen, 294 So. 3d at 771, or a motion to reconsider a denied postjudgment
motion. It was, instead, a successive Rule 59 postjudgment motion
raising new issues that could not have been brought in the first-filed Rule
59 postjudgment motion. The successive Rule 59 postjudgment motion
therefore altered the required period in which to appeal. Specifically, the
foster parents had 14 days from February 28, 2026, which is the date
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their successive Rule 59 postjudgment motion was denied, to appeal the
February 17, 2026, judgments. The foster parents appealed on March 4,
2026. Their appeals were therefore timely, and the mother's motion to
dismiss the foster parents' appeals is denied.
Issues
The foster parents assert three arguments on appeal. They argue
that the juvenile court violated their right to due process by holding an
evidentiary hearing on the issue of the best interests of the children
during the hearing on the first-filed Rule 59 postjudgment motion
without providing them with sufficient notice of that hearing. They argue
that the juvenile court failed to apply the correct best-interests-of-thechild standard when awarding custody of the children. And they argue
that the juvenile court lacked jurisdiction to remove the foster parents as
parties to the .03 dependency actions while their appeals were pending.
The foster parents' arguments do not concern whether the February
17, 2026, judgments improperly dismissed the .06 termination actions or
the .08 custody actions. Furthermore, our holdings in these appeals,
discussed below, do not require a reversal of the February 17, 2026,
judgments to the extent that they dismissed the .06 termination actions
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and the .08 custody actions. Accordingly, the foster parents' appeals
relating to the .06 termination actions and the .08 custody actions are
dismissed as moot. See Reeves v. Reeves, 363 So. 3d 996, 1001 (Ala. Civ.
App. 2021) ("The former husband does not raise any issue in regard to
the claims asserted in case number DR-15-900460.02 or the orders or
judgments relating to those claims; therefore, we dismiss appeal number
2200217, which arises from case number DR-19-900460.02, as moot").
Analysis
I. Whether the juvenile court violated the foster parents' right to due
process
A. As parties to the .03 dependency actions, the foster parents
were entitled to due process in those actions, including the
right to reasonable notice of a dispositional hearing.
The foster parents intervened in the .03 dependency actions;
therefore, they are parties to those actions. "Procedural due process
requires 'notice reasonably calculated, under all circumstances, to
apprise interested parties of the pendency of the action and afford them
an opportunity to present their objections.' Mullane v. Central Hanover
Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950)."
Briner v. City of Midfield, 831 So. 2d 53, 56 (Ala. Civ. App. 2002). "The
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operative test is that ' "the notice as published must reasonably apprise
any interested person of the issues involved in the proceeding." ' North
Alabama Express, Inc. v. United States, 585 F.2d 783, 787 (5th Cir. 1978)
(citation omitted)." Del Vecchio v. Board of Comm'rs of Dothan, [Ms. CL2025-0262, Aug. 29, 2025] ___ So. 3d ___, ___ (Ala. Civ. App. 2025). In
these cases, the notice provided to the foster parents did not reasonably
apprise them of the issues that were ultimately decided at the February
17, 2026, hearing. Specifically, the notice provided by the juvenile court
did not apprise the foster parents that the juvenile court would conduct
a dispositional hearing on February 17, 2026, and issue judgments
disposing of the custody of the children.
In the first-filed Rule 59 postjudgment motion, the foster parents
argued that the juvenile court had improperly concluded that the
children were not dependent and that the juvenile court had received
limited evidence as to the best interests of the children at the January
27, 2026, hearing. They requested, as relief, that the juvenile court set a
hearing to receive evidence regarding the children's best interests before
disposing of their custody. The juvenile court then issued an order on
22
CL-2026-0170, CL-2026-0171, CL-2026-0172, CL-2026-0173, CL-2026-0174, and CL-2026-0175
February 9, 2026, stating only that it was setting a hearing on the foster
parents' first-filed Rule 59 postjudgment motion.
During the hearing on the first-filed Rule 59 postjudgment motion,
the juvenile court indicated that it would grant that motion and would
find the children dependent as to the father but as not to the mother.
That comment indicated that the juvenile court would enter judgments
finding the children to be dependent, even though the children were not
dependent as to the mother. See 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."); M.C.A. v. Etowah
Cnty. Dep't of Hum. Res., 397 So. 3d 962, 968 (Ala. Civ. App. 2024)("In
Ex parte L.E.O., [61 So. 3d 1042 (Ala. 2010),] our supreme court held that
a child is dependent if he or she does not receive 'adequate care and
supervision from those persons legally obligated to care for and/or to
supervise the child.' 61 So. 3d at 1047 (some emphasis omitted). 'Persons'
is a plural form of the word 'person.' "); J.L. v. D.G.H., 402 So. 3d 261, 267
(Ala. Civ. App. 2024)(Moore, P.J., concurring specially)("Ex parte L.E.O.,
[61 So. 3d 1042 (Ala. 2010),] as interpreted by this court, mandates that
a child be adjudicated dependent even if one of two joint custodial parents
23
CL-2026-0170, CL-2026-0171, CL-2026-0172, CL-2026-0173, CL-2026-0174, and CL-2026-0175
can properly provide the child with care and supervision." (emphasis
added)). After finding a child to be dependent, a trial court must then
hold a dispositional hearing. K.R. v. Z.B., 249 So. 3d 523, 527 (Ala. Civ.
App. 2017)(holding that "juvenile court erred in failing to hold a hearing
concerning the issue of the disposition of the custody of the child"). After
indicating that it would find the children dependent, the juvenile court
appears to have immediately conducted a dispositional hearing on
February 17, 2026, rather then set a dispositional hearing for a future
date. It then entered judgments awarding custody of the children to the
mother.
Of course, a juvenile court may proceed immediately to a
dispositional hearing after an adjudicatory hearing. Rule 25(A), Ala. R.
Juv. P.; T.B. v. Cullman Cnty. Dep't of Hum. Res., 6 So. 3d 1195, 1203
(Ala. Civ. App. 2008). But the February 17, 2026, hearing was set as a
postjudgment proceeding, see Rule 59(g), not as an adjudicatory hearing,
and the only issue before the juvenile court -- and the only issue that it
had provided notice to the parties that it would consider -- was whether
to alter, amend, or vacate the January 27, 2026, judgments based on the
arguments asserted in the foster parents' first-filed Rule 59
24
CL-2026-0170, CL-2026-0171, CL-2026-0172, CL-2026-0173, CL-2026-0174, and CL-2026-0175
postjudgment motion. Accordingly, the February 9, 2026, order providing
notice of a hearing on the first-filed Rule 59 postjudgment motion did not
reasonably apprise the foster parents that the juvenile court would
immediately conduct a dispositional hearing after granting that motion.
Although not directly on point, dependency cases discussing the
due process that parents must receive further persuade us that the foster
parents, who are parties to the .03 dependency actions, were not afforded
due process in these cases. In N.J.D. v. Madison County Department of
Human Resources, 110 So. 3d 387 (Ala. Civ. App. 2012), this court noted
that the Alabama Juvenile Justice Act, § 12-15-101 et seq., Ala. Code
1975, provides for three types of hearings: an adjudicatory hearing, a
dispositional hearing, and review hearings. After the father's child in
N.J.D. was removed from the father's home by the Madison County
Department of Human Resources, the child was found dependent after
an adjudicatory hearing. The father then received notice that the trial
court had set a review hearing. However, after conducting the review
hearing, the trial court entered an order awarding legal custody of the
child to a relative. On appeal, this court noted that the father's attorney
had come to the scheduled hearing prepared for a review hearing and
25
CL-2026-0170, CL-2026-0171, CL-2026-0172, CL-2026-0173, CL-2026-0174, and CL-2026-0175
"not for a final dispositional hearing for which [the father's attorney] had
no notice." N.J.D., 110 So. 3d at 394. We held that, "in failing to notify
the father of the nature of the proceedings, the trial court deprived the
father of his right to due process." Id. See also M.E. v. Jefferson Cnty.
Dep't of Hum. Res., 148 So. 3d 737 (Ala. Civ. App. 2014) (holding that
trial court violated mother's right to due process in child-dependency
proceeding when trial court held a permanency hearing even though trial
court had notified mother that the scheduled hearing was a "review
hearing"); A.D.G. v. D.O., 160 So. 3d 783 (Ala. Civ. App. 2014)(holding
that mother's due-process rights were violated when only notice that
mother received about hearing was that hearing was to be a dispositional
hearing and the trial court instead held a permanency hearing); Gilmore
v. Gilmore, 103 So. 3d 833, 835-36 (Ala. Civ. App. 2012) (reversing
judgment after noting that "there was no indication in the record that the
trial court intended to consider the parties' claims seeking a final custody
determination at the February 2, 2012 hearing"). As parties, the foster
parents were entitled to notice of the juvenile court's intent to conduct a
dispositional hearing. See Rule 13(C), Ala. R. Juv. P. (providing, subject
to exceptions not applicable here, that "written notice of all hearings …
26
CL-2026-0170, CL-2026-0171, CL-2026-0172, CL-2026-0173, CL-2026-0174, and CL-2026-0175
shall be provided to all parties in the proceedings, and such notice shall
include the date, time, place, and purpose of the hearings"). And, similar
to the parents in the foregoing cases, their procedural-due-process rights
were violated.
B. The due-process violation was not harmless error
This court will not reverse the judgment of a trial court if the error
complained of is harmless error. Rule 45, Ala. R. App. P.; Professional
Educ. Servs. Grp., LLC v. Ford, [Ms. CL-2025-0215, Feb. 13, 2026] ___
So. 3d ___, ___ (Ala. Civ. App. 2026)(" 'The judgment of the trial court will
not be reversed for harmless error.' " (quoting Coastal Bail Bonds, Inc. v.
Cope, 697 So. 2d 48, 52 (Ala. Civ. App. 1996))). At the February 17, 2026,
hearing, the juvenile court indicated that, based on the evidence received
at the January 27, 2026, hearing, it would have found that it was in the
best interests of the children to remain with the mother. It then
memorialized that finding in its February 17, 2026, judgments, which
provide that it is in the children's best interests to be returned to the
mother. If the January 27, 2026, hearing had been a simultaneous
adjudicatory and dispositional hearing, see T.B., supra, the juvenile
court's holding of a dispositional hearing on February 17, 2026, without
27
CL-2026-0170, CL-2026-0171, CL-2026-0172, CL-2026-0173, CL-2026-0174, and CL-2026-0175
notice to the foster parents and subsequent award of custody may have
been harmless error. But, as indicated above, the juvenile court indicated
on multiple occasions that the January 27, 2026, hearing was not a
dispositional hearing but was, instead, an adjudicatory hearing to
determine the issue of dependency. Cf. K.R., 249 So. 3d at 526 (reversing
judgment awarding custody because "the juvenile court made it clear that
the disposition of the child [would] not [be] considered at that hearing").
Accordingly, we cannot say that the juvenile court's failure to provide
notice to the foster parents of the dispositional hearing on February 17,
2026, was harmless error.
C. Conclusion
The February 17, 2026, judgments are reversed to the extent that
they awarded custody of the children to the mother. The juvenile court is
instructed to hold a dispositional hearing in accordance with § 12-15-311,
Ala. Code 1975, and to enter judgments regarding the disposition of the
children. In making its decision, the juvenile court is not to apply the
parental presumption from Ex parte Terry, 494 So. 2d 628 (Ala. 1986),
which "does not apply if the child or children, the custody of whom is
disputed, have been found to be dependent, as is the case here." P.D. v.
28
CL-2026-0170, CL-2026-0171, CL-2026-0172, CL-2026-0173, CL-2026-0174, and CL-2026-0175
S.S., 67 So. 3d 128, 131-32 (Ala. Civ. App. 2011). We note, however, that
the pendente lite custody award to the mother remains in effect pending
the juvenile court's entry of dispositional judgments. See K.R., supra.
II. Whether the juvenile court applied the correct best-interests-of-the
child standard when awarding custody of the children
Because of our decision to reverse the February 17, 2026, judgments
to the extent that they awarded custody of the children to the mother, we
pretermit discussion of the foster parents' argument regarding whether
the juvenile court applied the correct best-interests-of-the-child standard
when awarding custody.
III. Whether the juvenile court lacked jurisdiction to enter the order
removing the foster parents as parties to the .03 dependency actions
"The question of jurisdiction is fundamental, Reynolds
v. Colonial Bank, 874 So. 2d 497, 502 (Ala. 2003)(citing Mobile
& Gulf R.R. v. Crocker, 455 So. 2d 829, 831 (Ala. 1984)); it is
a question of primary importance in every case. Wilkinson v.
Henry, 221 Ala. 254, 256, 128 So. 362, 364 (1930); Reynolds,
874 So. 2d at 503."
Cleveland v. Armstrong, [Ms. CL-2025-0331, Apr. 3, 2026] __ So. 3d ___,
___ (Ala. Civ. App. 2026)(plurality opinion). " '[W]hen an appeal is taken,
unless it is from a proper Rule 54(b), [Ala. R. Civ. P.,] order, the appeal
divests the lower court of jurisdiction over the case until the appellate
29
CL-2026-0170, CL-2026-0171, CL-2026-0172, CL-2026-0173, CL-2026-0174, and CL-2026-0175
court provides a disposition of the appeal …. ' " Million v. Shumaker, 384
So. 3d 609, 615 (Ala. 2023) (quoting Erskine v. Guin, 384 So. 3d 583, 598
(Ala. 2023)). When a trial court is divested of jurisdiction over a case
because it is on appeal, the trial court can act only in matters entirely
collateral to the appeal. Portis v. Alabama State Tenure Comm'n, 863 So.
2d 1125, 1126 (Ala. Civ. App. 2003).
" 'Collateral' matters are those that 'd[o] not raise any
question going behind the [judgment] appealed from, nor [do
they] raise any question decided by that [judgment].' Osborn
v. Riley, 331 So. 2d 268, 272 (Ala. 1976). More broadly
speaking, collateral matters 'd[o] not involve the "rights and
equities" relative to the question on appeal.' [Reynolds v.]
Colonial Bank, 874 So. 2d [497,] 503 [(Ala. 2003)] (quoting
Osborn, 331 So.2d at 272)."
Vesta Fire Ins. Corp. v. Liberty Nat'l Life Ins. Co., 893 So. 2d 395, 412
(Ala. Civ. App. 2003). The identity of a party to an action is not a
collateral matter to an appeal from that action.
The juvenile court issued the March 17, 2026, orders removing the
foster parents as parties to .03 dependency actions after the foster
parents had appealed the judgments entered in those actions, but the
removal of the foster parents as parties was not collateral matter.
Accordingly, the juvenile court lacked jurisdiction to enter the March 17,
30
CL-2026-0170, CL-2026-0171, CL-2026-0172, CL-2026-0173, CL-2026-0174, and CL-2026-0175
2026, orders removing the foster parents as parties to the .03 dependency
actions.
Conclusion
We dismiss the foster parents' appeals relating to the .06
termination actions and the .08 custody actions. The February 17, 2026,
judgments entered in the .03 dependency actions are reversed to the
extent that they awarded custody of the children to the mother. The
juvenile court is instructed to hold a dispositional hearing in accordance
with § 12-15-311 and to enter judgments regarding the disposition of the
children. In making its decision, the juvenile court is not to apply the
parental presumption from Ex parte Terry, supra. The pendente lite
custody award to the mother remains in effect pending the juvenile
court's entry of dispositional judgments. Finally, we instruct the juvenile
court to vacate its March 17, 2026, orders removing the foster parents as
parties to the .03 dependency actions.
CL-2026-0170 -- REVERSED AND REMANDED WITH
INSTRUCTIONS.
CL-2026-0173 -- REVERSED AND REMANDED WITH
INSTRUCTIONS.
31
CL-2026-0170, CL-2026-0171, CL-2026-0172, CL-2026-0173, CL-2026-0174, and CL-2026-0175
Hanson, J., concurs.
Moore, P.J., and Edwards and Fridy, JJ., concur in the result, with
opinions.
CL-2026-0171 -- APPEAL DISMISSED.
CL-2026-0174 -- APPEAL DISMISSED.
Moore, P.J., and Edwards, Hanson, and Fridy, JJ., concur.
CL-2026-0172 -- APPEAL DISMISSED.
CL-2026-0175 -- APPEAL DISMISSED.
Edwards, Hanson, and Fridy, JJ., concur.
Moore, P.J., concurs in the result, with opinion.
32
CL-2026-0170, CL-2026-0171, CL-2026-0172, CL-2026-0173, CL-2026-0174, and CL-2026-0175
EDWARDS, Judge, concurring in the result in case numbers CL-2026-0170 and CL-2026-0173.
In May 2024, the St. Clair County Department of Human Resources
("DHR") filed in the St. Clair Juvenile Court ("the juvenile court")
dependency petitions relating to N.H. and D.H. ("the children"), the
children of G.H. ("the mother") and S.L., Jr. ("the father"); those petitions
were assigned case numbers JU-23-201.03 and JU-23-202.03,
respectively. The juvenile court apparently found the children dependent
at some point during the proceedings, and DHR provided services to the
mother and to the father. DHR later filed petitions seeking to terminate
the parental rights of the mother and of the father; those petitions were
assigned case numbers JU-23-201.06 and JU-23-202.06. At some point,
H.J. and J.C. ("the foster parents") intervened in DHR's dependency
actions and termination-of-parental-rights actions.
In November 2025, the mother filed motions to dismiss the
termination-of-parental-rights actions in which she requested that the
juvenile court return the children to her custody. Thereafter, the foster
parents commenced separate actions seeking custody of the children;
those actions were assigned case numbers JU-23-201.08 and JU-23-33
CL-2026-0170, CL-2026-0171, CL-2026-0172, CL-2026-0173, CL-2026-0174, and CL-2026-0175
202.08, respectively. On January 30, 2026, after an evidentiary hearing
held on January 27, 2026, at which the juvenile court continuously
refused to accept evidence relating to the best interests of the children,
the juvenile court entered judgments concluding that the children were
no longer dependent, awarding custody of the children to the mother,
ordering DHR to continue to offer services to the family, and ordering
that the father's visitation with the children be set through an
individualized service plan ("ISP"). The juvenile court also dismissed
case numbers JU-23-201.06, JU-23-202.06, JU-23-201.08, and JU-23-202.08. The foster parents appealed from the various judgments, and,
after the filing of the notices of appeal, the juvenile court purported to
dismiss the foster parents as parties to case numbers JU-23-201.03 and
JU-23-202.03.
Although the juvenile court purported to determine that the
children were not dependent in its January 2026 judgments, the juvenile
court, in fact, implicitly determined that the children remained
dependent at least as to the father by failing to dismiss the dependency
petitions, by requiring that DHR provide further services to the family,
and by requiring that the father's visitation be determined in an ISP. In
34
CL-2026-0170, CL-2026-0171, CL-2026-0172, CL-2026-0173, CL-2026-0174, and CL-2026-0175
my opinion, the juvenile court erred by failing to take evidence regarding
the best interests of the children at the January 27, 2026, evidentiary
hearing because it was required to consider the best interests of the
children in making its custodial dispositions. See, e.g., M.P.G. v.
Jefferson Cnty. Dep't of Hum. Res., 215 So. 3d 1096, 1101 (Ala. Civ. App.
2016); T.W. v. Madison Cnty. Dep't of Hum. Res., 946 So. 2d 469 (Ala.
Civ. App. 2006). I believe that this error of the juvenile court alone
warrants reversal of the January 2026 judgments, as amended by the
February 17, 2026, postjudgment orders. I would therefore not consider
whether the juvenile court's error was compounded by the actions it took
during postjudgment practice.
I agree with the main opinion that the foster parents' appeals of the
judgments dismissing the petitions in case numbers JU-23-201.06, JU23-202.06, JU-23-201.08, and JU-23-202.08 should be dismissed and that
the juvenile court's orders removing the foster parents as parties to case
numbers JU-23-201.03 and JU-23-202.03 are void. However, because I
would reverse the custodial dispositions of the children in the dependency
judgments entered in case numbers JU-23-201.03 and JU-23-202.03 for
reasons different than those discussed in the main opinion, I concur in
35
CL-2026-0170, CL-2026-0171, CL-2026-0172, CL-2026-0173, CL-2026-0174, and CL-2026-0175
the result reached by the main opinion regarding the appeals from the
judgments entered in case numbers JU-23-201.03 and JU-23-202.03.
36
CL-2026-0170, CL-2026-0171, CL-2026-0172, CL-2026-0173, CL-2026-0174, and CL-2026-0175
FRIDY, Judge, concurring in the result in case numbers CL-2026-0170
and CL-2026-0173.
Regarding the appeals from the judgments entered in case numbers
JU-23-201.06 and JU-23-202.06, which the main opinion refers to as "the
.06 termination actions," I concur in the main opinion. Regarding the
appeals from the judgments entered in case numbers JU-23-201.08 and
JU-23-202.08, I concur in the main opinion, although I would refer to
those actions as "the .08 dependency actions" rather than "the .08 custody
actions" to allay any confusion regarding the nature of the petitions that
initiated those actions. Regarding the appeals from the judgments
entered in case numbers JU-23-201.03 and JU-23-202.03, which the main
opinion refers to as the ".03 dependency actions," I concur in the result
and agree with Presiding Judge Moore's analysis in his special writing.
37
CL-2026-0170, CL-2026-0171, CL-2026-0172, CL-2026-0173, CL-2026-0174, and CL-2026-0175
MOORE, Presiding Judge, concurring in the result in case numbers CL2026-0170, CL-2026-0173, CL-2026-0172, and CL-2026-0175.
H.J. and J.C. ("the foster parents") appeal from separate but
identically worded judgments entered in six separate actions relating to
N.H. and D.H., the children of S.L., Jr. ("the father"), and G.H. ("the
mother"). The first two actions were commenced in May 2024 when the
St. Clair County Department of Human Resources ("DHR") filed
dependency petitions ("the .03 dependency actions"); the next two actions
were commenced in April 2025 when DHR filed petitions to terminate the
parental rights of the mother and the father to the children ("the .06
termination actions"). In June 2025, the foster parents intervened in the
.03 dependency actions and the .06 termination actions. The final two
actions were commenced on January 20, 2026, when the foster parents
filed custody petitions relating to the children ("the .08 custody actions").
The juvenile court never acquired jurisdiction over the .08 custody
actions, however. As explained in J.S. v. Greene County Department of
Human Resources, [Ms. CL-2025-0181, Aug. 22, 2025] ___ So. 3d ___
(Ala. Civ. App. 2025), juvenile courts generally do not have subjectmatter jurisdiction over custody petitions. If a child is the subject of a
38
CL-2026-0170, CL-2026-0171, CL-2026-0172, CL-2026-0173, CL-2026-0174, and CL-2026-0175
pending dependency proceeding, and the juvenile court determines that
the child at issue is dependent, it may adjudicate the custody of the child,
but only in the dependency proceeding. The Alabama Juvenile Justice
Act, Ala. Code 1975, § 12-15-101 et seq., does not authorize an
independent or collateral action to adjudicate the custody of a dependent
child. A custody petition relating to a child who is the subject of an
ongoing dependency proceeding does not validly commence a new action,
and any judgment entered in that invalid action is a legal nullity that
will not support an appeal. Thus, the appeals from the judgments
entered in the .08 custody actions should be dismissed.1
That does not mean, however, that the foster parents did not have
valid claims for the custody of the children. A person seeking custody of
a dependent child "who is not already being considered a placement
option for the child by the juvenile court should file a motion to intervene
in the dependency proceeding regarding the child." J.S., ___ So. 3d at
___. The juvenile court permitted the foster parents to intervene in the
1The foster parents do not argue that the juvenile court erred in
dismissing the .06 termination actions, so I concur that the appeals from
the judgments entered in those actions also should be dismissed.
39
CL-2026-0170, CL-2026-0171, CL-2026-0172, CL-2026-0173, CL-2026-0174, and CL-2026-0175
.03 dependency actions. Although the foster parents never filed a formal
petition for custody in the .03 dependency actions, the foster parents
effectively asserted a claim seeking the permanent custody of the
children in their intervention motion, and the other parties and the
juvenile court treated them as parties to the .03 dependency actions for
that purpose. Hence, the foster parents properly raised their custody
claim in the .03 dependency actions.
On November 14, 2025, the mother filed in the .06 termination
actions a motion seeking the return of the custody of the children and a
dismissal of the .06 termination actions. In that motion, the mother
alleged, among other things, that, since July 2024, when the children
were removed from her custody because of ongoing domestic-violence
issues between her and the father, her circumstances had improved and
that those circumstances would only continue to improve in the future.
The mother alleged that she had separated from the father and that she
had obtained a protection-from-abuse order against him, that she had
received counseling to overcome her domestic-violence issues, that she
had moved into The Presbyterian Home for Children in Talladega and
was participating in a family-reunification program, and that she had
40
CL-2026-0170, CL-2026-0171, CL-2026-0172, CL-2026-0173, CL-2026-0174, and CL-2026-0175
progressed from supervised visitation to extended overnight
unsupervised visitation with the children. The mother requested a
hearing on the motion.
The juvenile court had previously conducted an adjudicatory
hearing and had entered judgments finding the children to be dependent
in July 2024. In those judgments, the juvenile court awarded custody of
the children to DHR, who placed the children with the foster parents.
Following the entry of those judgments, the juvenile court held periodic
review hearings in the .03 dependency actions to monitor the mother's
and the father's progress leading toward their rehabilitation and family
reunification. The juvenile court had found that the children remained
dependent at each hearing, and it had consistently maintained the
children in the protective legal custody of DHR in the home of the foster
parents, without making a final, permanent custodial disposition.
When the mother filed the motion for return of the custody of the
children, the juvenile court was required to hold a dispositional hearing
in the .03 dependency actions to determine whether the children could be
safely reunited with the mother. See T.W. v. Madison Cnty. Dep't of
Hum. Res., 946 So. 2d 469, 474 (Ala. Civ. App. 2006); M.P.G. v. Jefferson
41
CL-2026-0170, CL-2026-0171, CL-2026-0172, CL-2026-0173, CL-2026-0174, and CL-2026-0175
Cnty. Dep't of Hum. Res., 215 So. 3d 1096 (Ala. Civ. App. 2016).2 The
juvenile court conducted that dispositional hearing on January 27, 2026.
At that hearing, the juvenile court had to first determine whether the
children remained dependent. See H.T. v. A.C., 392 So. 3d 87, 96 (Ala.
Civ. App. 2023). But it also had to determine whether returning the
children to the mother was in their best interests. Id. After hearing from
five witnesses -- who corroborated that the mother, through reasonable
efforts expended by DHR and her considerable effort in adjusting her
circumstances to meet the needs of the children, had successfully
progressed to the point that she could safely resume custody of the
children, at least with DHR's supervision -- the juvenile court , on
January 30, 2026, entered judgments concluding that the children were
no longer dependent and awarding the mother custody of the children,
2The record does not disclose any formal consolidation order, but
the juvenile court regularly treated the pending cases relating to the
children interchangeably, holding hearings in all the cases
simultaneously. On January 13, 2026, the juvenile court entered an
order in the .03 dependency actions and the .06 termination actions
scheduling a hearing on the mother's motion, although it was filed only
in the .06 termination actions. The foster parents have not raised any
argument that the juvenile court erred regarding the irregularity of the
proceedings.
42
CL-2026-0170, CL-2026-0171, CL-2026-0172, CL-2026-0173, CL-2026-0174, and CL-2026-0175
subject to DHR protective services and supervision, but it did not find
that returning the children to the mother was in their best interests.
The foster parents filed a postjudgment motion challenging the
finding that the children were not dependent and arguing that the
juvenile court had unduly restricted the scope of the dispositional hearing
solely to the issue of whether the children remained dependent without
allowing an inquiry into their best interests. During the January 27,
2026, dispositional hearing, the juvenile court repeatedly informed the
parties that the inquiry would focus solely on the dependency of the
children. At several points, witnesses had testified that it was in the best
interests of the children to be returned to the mother's custody, but the
juvenile court regularly redirected the evidence toward the dependency
issue. The foster parents argued in their postjudgment motion that the
juvenile court had erred in changing the custody of the children without
finding that it was in their best interests and that the juvenile court
should set another dispositional hearing to allow them to present
evidence regarding the best interests of the children.
During the hearing on the postjudgment motion, the juvenile-court
judge agreed to amend the dependency findings, and he offered to hear
43
CL-2026-0170, CL-2026-0171, CL-2026-0172, CL-2026-0173, CL-2026-0174, and CL-2026-0175
any evidence that the foster parents had to support their position that it
would not be in the best interests of the children to be removed from
foster care and returned to the mother's custody. Rule 59(a), Ala. R. Civ.
P., allowed for that procedure because that rule, which applies in juvenile
proceedings, see Rule 1, Ala. R. Juv. P., grants a juvenile court discretion
in a nonjury case, when a party files a motion for a new trial, to open a
judgment, to take additional testimony, and to amend the judgment to
reflect the findings based on that additional evidence. However, the
foster parents declared that they were not prepared to present evidence
at the time of the postjudgment hearing because, as their counsel stated,
the juvenile court had notified them that the hearing would only address
their postjudgment motion.
In my opinion, the foster parents had moved for a new trial by
specifically requesting that the juvenile court set an evidentiary hearing
regarding the best interests of the children, and they should have been
prepared to present evidence in support of their position. A trial court
may take additional testimony regarding the merits of a case during a
hearing on a motion for a new trial, see Nesmith v. Nesmith, 419 So. 2d
247, 248 (Ala. Civ. App. 1982), and the juvenile court in this case had
44
CL-2026-0170, CL-2026-0171, CL-2026-0172, CL-2026-0173, CL-2026-0174, and CL-2026-0175
scheduled a hearing on the foster parents' postjudgment motion.
However, I cannot locate any case holding that the notice of a
postjudgment hearing impliedly encompasses notice of the opportunity
for an evidentiary hearing. Without clear precedent on this issue, I must
agree that the foster parents were not notified that they would be allowed
to present evidence during the postjudgment hearing regarding the best
interests of the children.
In the final amended judgments, the juvenile court determined that
the children were no longer dependent as to the mother, that they
remained dependent as to the father, and that it was in the best interests
of the children to be returned to the mother's custody, subject to DHR's
providing the family continuing services.3 See Ala. Code 1975, § 12-15-314(a)(1) (providing that a juvenile court may, to protect the welfare of a
dependent child, "[p]ermit the child to remain with the parent ..., subject
3The foster parents appealed from the amended judgments, and,
afterward, the juvenile court purported to enter orders dismissing the
foster parents as parties in the .03 dependency actions. Because the
filing of the notices of appeal divested the juvenile court of jurisdiction, I
concur that the juvenile court lacked jurisdiction to enter the orders
dismissing the foster parents as parties, that the dismissal orders are
void, and that the dismissal orders should be vacated.
45
CL-2026-0170, CL-2026-0171, CL-2026-0172, CL-2026-0173, CL-2026-0174, and CL-2026-0175
to conditions and limitations as the juvenile court may prescribe").
However, upon a fully developed record, the juvenile court could have
made "any other order as the juvenile court in its discretion ... deem[ed]
to be for the welfare and best interests of the child[ren]." § 12-15-314(a)(4). As the main opinion concludes, the foster parents were not
provided a meaningful opportunity to present evidence indicating that
leaving the children in their care would serve the best interests of the
children. Thus, I concur that the amended judgments should be reversed
and the cases remanded for the juvenile court to conduct another
dispositional hearing regarding the best interests of the children and for
the entry of amended judgments based on the evidence adduced at that
hearing.4 Nothing in the main opinion should be construed to preclude
the juvenile court from considering evidence regarding the children's
current circumstances.
4Because we are remanding for the entry of amended judgments, I
concur that we should not address any alleged error committed by the
juvenile court in misapplying the best-interests-of-the-child standard in
the current amended judgments that were entered in the .03 dependency
actions.
46