Ex parte T.M. PETITION FOR WRIT OF MANDAMUS (In re: In the matter of K.M.) (Jefferson Juvenile Court, Bessemer Division: JU-24-165.01).

Rel: November 15, 2024

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
OCTOBER TERM, 2024-2025
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CL-2024-0492
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Ex parte T.M.

PETITION FOR WRIT OF MANDAMUS

(In re: In the matter of T.M., Jr.)

(Jefferson Juvenile Court, Bessemer Division: JU-23-569.01)
_________________________

CL-2024-0493
_________________________

Ex parte T.M.

PETITION FOR WRIT OF MANDAMUS

(In re: In the matter of Z.M.)

(Jefferson Juvenile Court, Bessemer Division: JU-24-164.01)
CL-2024-0492; CL-2024-0493; and CL-2024-0494

_________________________

CL-2024-0494
_________________________

Ex parte T.M.

PETITION FOR WRIT OF MANDAMUS

(In re: In the matter of K.M.)

(Jefferson Juvenile Court, Bessemer Division: JU-24-165.01)

PER CURIAM.

T.M. ("the father") has petitioned this court for writs of mandamus

directing the Bessemer Division of the Jefferson Juvenile Court ("the

juvenile court") to vacate its orders entered on March 25, 2024, and May

1, 2024. We grant the petitions in part, deny the petitions in part, and

issue the writs.

Procedural History

The materials before this court show that the Jefferson County

Department of Human Resources ("DHR") initiated an investigation into

allegations that the father had sexually abused Z.M., his eldest daughter,

who was born on May 29, 2008. On January 31, 2024, DHR instituted a

safety plan, pursuant to which Z.M. and her two siblings, K.M., who was

born on December 7, 2011, and T.M., Jr., who was born on April 7, 2007,

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were placed into the home of S.L. ("the maternal aunt"). On February 7,

2024, DHR filed in the juvenile court three separate dependency petitions

relating to Z.M., K.M., and T.M., Jr. ("the children"), respectively. In

those petitions, DHR alleged that the mother of the children was

deceased and that the children were in need of care and supervision due

to the father's alleged sexual abuse of Z.M. On February 28, 2024, the

juvenile court conducted a shelter-care hearing regarding the children,

which the father attended. The father has not provided this court with

the transcript of the shelter-care hearing.

Also on February 28, 2024, the juvenile court entered a shelter-care

order in each of the three dependency actions, awarding the maternal

aunt pendente lite custody of the children and precluding the father from

having any contact with the children. In the shelter-care orders, the

juvenile court directed the father to provide DHR with a copy of the

children's medical-insurance card and the children's "clothing and

personal property." The juvenile court further ordered the father not to

remove any funds from the children's savings accounts. Lastly, the

shelter-care orders provided that the "[Social Security] checks [the

children] receive[] from their mother will follow the children and not

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remain with the father" and that, "[i]f the father receives [the] March

[Social Security] check[s,] [they] shall be given to [the maternal aunt]."

On March 15, 2024, the children's court-appointed guardian ad

litem filed a "motion to compel" in each of the dependency actions,

seeking to enforce the terms of the shelter-care orders. In the motions to

compel, the guardian ad litem asserted that the father had failed to turn

over the March 2024 Social Security checks to the maternal aunt and had

refused to allow the maternal aunt and the children entry into the "family

residence" to obtain the children's clothing and personal property,

including their pets and "memorabilia of their deceased mother." The

guardian ad litem attached to each motion to compel a memorandum

from the maternal aunt requesting that the juvenile court enter an

"emergency restraining order" against the father; the maternal aunt

alleged that the father had refused to allow her and the children access

to the family residence to obtain the children's personal property, that he

had changed the locks on the doors, that it appeared that he was

removing property from the family residence, that he had not turned over

the February 2024 Social Security checks as allegedly ordered, and that

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he had threatened to terminate any insurance policies covering the

children.

The father asserts in his mandamus petitions that the juvenile

court scheduled the motions to compel for a hearing to take place on

March 25, 2024, but he has not provided this court with a copy of the

notices that were issued scheduling that hearing. The hearing proceeded

as scheduled, but the father has not provided this court with a transcript

of the hearing. The father alleges that the juvenile court did not receive

any evidence at the hearing but that it received only arguments of

counsel. The juvenile court summarized the hearing in an order entered

in each of the dependency actions on the same date. According to those

orders, the father was represented by counsel at the hearing; the father's

counsel made objections to the father's cellular telephone being

submitted to the juvenile court as evidence and to the juvenile court's

considering any request that the father turn over the February 2024

Social Security checks, which objections the juvenile court overruled; and

the juvenile court received information indicating that T.M., Jr., was

driving himself and his siblings to school every day.

The juvenile court's orders also provided, in pertinent part:

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"1. The father shall not dispose of or destroy any of the
mother's property.

"2. The father shall not change[] the locks to the
home.

"3. [T.M., Jr.,] shall continue to have the use of the
motor vehicle to take himself and siblings to and from school
ever[y] day.

"4. [The maternal aunt] shall accompany [the
children] to the home and the father shall not be present.

"5. On April 2, 2024, after school[, the children] and [the
maternal aunt] shall go to the father's residence and retrieve
their personal care items. Neither the father nor his current
paramour shall be present.

"6. [The children] are to remove only their items and
those of their mother.

"7. They have [an] hour and [a] half to retrieve their
items. …

"8. The father shall maintain [the children] on his
health insurance.

"9. The father is to return the $4,500.00 that he
received on behalf of [the children] in February. The money
follows the children. Father previously stated that money was
direct deposit[ed] into their savings account. Therefore, it
should be available.

"10. If the father has not done so, please give [the
maternal aunt] an insurance card."

(Capitalization, bold typeface, and underlining omitted.)

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On April 4, 2024, the father filed motions to reconsider the March

25, 2024, orders, arguing, among other things, that his right to due

process had been violated because he had not received notice that the

hearing would address the removal of the mother's property from the

family residence, the children's health or medical insurance, or the use of

a motor vehicle and that the portion of the orders requiring him to turn

over the February 2024 Social Security checks was void because the

shelter-care orders had not required him to turn over those checks. The

juvenile court conducted a hearing on the motions to reconsider on April

16, 2024. The father has not provided this court with a transcript of that

hearing. On May 1, 2024, the juvenile court entered an order in each of

the dependency actions denying the motions to reconsider and directing

the father to turn over to the maternal aunt the February 2024 Social

Security checks.

Issue

On June 21, 2024, the father filed in this court petitions for the writ

of mandamus relating to the three dependency actions. In substance, the

father petitions this court to issue writs requiring the juvenile court to

vacate the March 25, 2024, orders because he did not receive adequate

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notice of the claims and issues to be litigated at the March 25, 2024,

hearing.

Ordinarily, a petition for the writ of mandamus arising from a

dependency action must be filed within 14 days of the entry of the

challenged order. See Rule 21(a)(3), Ala. R. App. P., and Ex parte R.W.,

41 So. 3d 800, 804 (Ala. Civ. App. 2009). However, when a petitioner

challenges an order as being void because it was entered in a manner

inconsistent with due process, the 14-day deadline does not apply. See

Ex parte M.F.B., 228 So. 3d 460, 462 (Ala. Civ. App. 2017); see also Ex

parte Murray, 267 So. 3d 328, 332 (Ala. Civ. App. 2018). In these

mandamus petitions, the father essentially argues that the March 25,

2024, orders were entered in a manner inconsistent with due process, see

generally Frahn v. Greyling Realization Corp., 239 Ala. 580, 583, 195 So.

758, 761 (1940) ("It is established by the decisions in this and in Federal

jurisdictions that due process of law means notice, a hearing according to

that notice, and a judgment entered in accordance with such notice and

hearing." ), so his petitions will be considered by this court.

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Standard of Review
A petition for the writ of mandamus is the appropriate method for

seeking review of an order that is alleged to be void for lack of due

process. See Ex parte Bashinsky, 319 So. 3d 1240, 1253 (Ala. 2020). "[A]

void court order is a complete nullity." Hodges v. Archer, 286 Ala. 457,

459, 241 So. 2d 324, 326 (1970). As a nullity, a void judgment has no

effect and is subject to attack at any time. Id. "A void order is a complete

nullity, and it is the duty of the court on application of an interested party

to vacate the void order at any time subsequent to its rendition." Person

v. Person, 236 So. 3d 90, 100 (Ala. Civ. App. 2017). If the March 25, 2024,

orders are void, this court must take notice of that fact and issue writs of

mandamus to the juvenile court directing it to vacate the orders.

Discussion

The father has failed to prove that the March 25, 2024, orders were

entered in a manner inconsistent with due process. The father has not

provided this court with the notices setting the March 25, 2024, hearing,

which would apprise this court of the matters to be addressed at that

hearing. See Rule 21(a)(1)(F), Ala. R. App. P. (providing, in pertinent

part, that a petitioner must attach to a petition for the writ of mandamus

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"[a]n appendix including copies of all parts of the record that are essential

to understanding the matters set forth in the petition"). Assuming the

juvenile court indicated in the notices scheduling the March 25, 2024,

hearing that only the matters set forth in the guardian ad litem's motions

to compel would be heard, those motions, which incorporated the

maternal aunt's memorandum, included all the matters adjudicated in

the March 25, 2024, orders, except for the use of the motor vehicle. The

March 25, 2024, orders indicate that, during the March 25, 2024, hearing,

the juvenile court received arguments regarding the use of the motor

vehicle, without objection from the father's counsel; thus, the father

waived any due-process violation regarding the juvenile court's

consideration of that issue. See C.B. v. J.W., 325 So. 3d 829, 835 (Ala.

Civ. App. 2020). The father has not provided this court with a transcript

of the March 25, 2024, hearing that would allow us to conclude otherwise.

Thus, we deny the petitions for the writ of mandamus insofar as the

father seeks an order compelling the juvenile court to vacate the March

25, 2024, orders based on any alleged due-process violations.

We note, however, that, when there is an apparent issue of subject-

matter jurisdiction, "our review … is not limited to grounds specifically

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raised in a mandamus petition." Ex parte T.C., 63 So. 3d 627, 630 (Ala.

Civ. App. 2010), superseded on other grounds by statute, as recognized

in Ex parte F.T.G., 199 So. 3d 82, 86 (Ala. Civ. App. 2015). This court

has a "duty to consider a lack of subject-matter jurisdiction ex mero

motu." Id. In the main opinion in T.J. v. Calhoun County Department of

Human Resources, 116 So. 3d 1168 (Ala. Civ. App. 2013), two members

of this court agreed that juvenile courts, which are courts of limited,

statutory jurisdiction, may dispose of property only in accordance with

the authority expressly vested in juvenile courts by the Alabama Juvenile

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

Section 12-15-314(e), Ala. Code 1975, provides that "[w]hen a child

is placed in the legal custody of the Department of Human Resources,"

the juvenile court must order the child's parent to provide child support

if that parent has the resources to do so. Traditionally, child support

includes items and services considered "necessaries" for the health and

welfare of a child. See Ex parte University of S. Alabama, 541 So. 2d 535,

537 (Ala. 1989). "The determination of what are necessaries depends

upon the facts and circumstances of each case," id., but the term generally

refers to food, clothing, shelter, health care, and education. See M.M. v.

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Colbert Cnty. Dep't of Hum. Res., 117 So. 3d 376, 381 (Ala. Civ. App.

2013) ("[T]his court has recognized that parents have the responsibility

to properly provide their children adequate food, clothing, shelter, health

care, education, nurturing, and protection."). Pursuant to that definition,

the juvenile court had jurisdiction over the Social Security funds, the

children's medical insurance, and their clothing, all of which were

necessaries.

The materials before this court do not define what the juvenile court

meant by "personal care" items, and we cannot assume that those items

are necessaries.

" 'In exercising jurisdiction over juvenile cases, a
juvenile court may validly render a judgment only as
authorized by the AJJA.' J.R.C. [v. Mobile Cnty. Dep't of
Hum. Res.], 342 So. 3d [580] at 583 [(Ala. Civ. App. 2021)].
Moreover, because a juvenile court is a statutory court of
limited jurisdiction, see W.B.B. v. H.M.S., 141 So. 3d 1062,
1065 n.1 (Ala. Civ. App. 2013), we cannot assume its
jurisdiction; instead, every fact essential to its jurisdiction
must affirmatively appear of record."

H.A.A. v. B.J.J., 368 So. 3d 876, 882 (Ala. Civ. App. 2022). Therefore, we

issue writs of mandamus directing the juvenile court to vacate that

portion of the March 25, 2024, orders that purports to adjudicate the

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dispute over the children's personal-care items, which was entered

without subject-matter jurisdiction.

We also conclude that the juvenile court did not have the authority

to order the father to maintain the personal property formerly belonging

to the mother before she died and to allow the children to remove that

property from the family residence, to order the father to refrain from

changing the locks on the doors to his house, and to order the father to

allow the children the use of his motor vehicle. The AJJA does not bestow

upon juvenile courts any authority to enter orders controlling the

disposition or use of such personal property, which are not necessaries.

See T.J., supra.

Conclusion

Based on the foregoing, we grant the petitions for a writ of

mandamus, in part, and direct the juvenile court to vacate those

provisions in the March 25, 2024, orders purporting to adjudicate the

disputes over the personal property formerly belonging to the mother, the

father's changing the locks on his house, the use of the father's motor

vehicle, and the children's "personal care" items. We deny the petitions

in all other respects.

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CL-2024-0492 -- PETITION GRANTED IN PART AND DENIED

IN PART; WRIT ISSUED.

CL-2024-0493 -- PETITION GRANTED IN PART AND DENIED

IN PART; WRIT ISSUED.

CL-2024-0494 -- PETITION GRANTED IN PART AND DENIED

IN PART; WRIT ISSUED.

Moore, P.J., and Edwards, Hanson, and Fridy, JJ., concur.

Lewis, J., concurs in the result in part and dissents in part, with

opinion.

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LEWIS, Judge, concurring in the result in part and dissenting in part.

The main opinion grants the petitions for a writ of mandamus to

the extent that "the March 25, 2024, orders purport[ed] to adjudicate the

disputes over the personal property formerly belonging to the mother, the

father's changing the locks on his house, the use of the father's motor

vehicle, and the children's 'personal care' items." ___ So. 3d at ___. The

main opinion otherwise denies the petitions. I respectfully dissent

insofar as the main opinion grants the petitions with respect to the

children's personal-care items. I otherwise concur in the result.

In T.J. v. Calhoun County Department of Human Resources, 116

So. 3d 1168 (Ala. Civ. App. 2013), two members of this court agreed that

juvenile courts lack jurisdiction "to order the removal of personal

property from the home of a parent." Id. at 1177. In a dissent authored

by Presiding Judge Thompson, which was joined by Judge Thomas,

Judge Thompson wrote that the juvenile court in that case had

jurisdiction to allow T.J.'s children, who had been declared dependent, to

take some of their personal property from T.J.'s home pursuant to § 12-

15-314(a)(4), Ala. Code 1975, which grants juvenile courts the authority

to "[m]ake any other order as the juvenile court in its discretion shall

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deem to be for the welfare and best interests of the child" when a child is

adjudicated dependent.

I agree with the dissent in T.J. that a juvenile court has the

authority to allow dependent children who have been removed from their

home to take their personal property for their use and enjoyment

pursuant to § 12-15-314(a)(4). In this case, though, the children had not

been adjudicated dependent. Therefore, § 12-15-314(a)(4) does not apply.

However, § 12-15-314(e) provides that, "[w]hen a child is placed in the

legal custody of the Department of Human Resources," the juvenile court

must order the child's parent to pay child support if that parent has the

resources to do so. Our supreme court has held that parents have the

obligation to provide "necessaries" for their children. Ex parte University

of S. Alabama, 541 So. 2d 535, 537 (Ala. 1989). "The determination of

what are necessaries depends upon the facts and circumstances of each

case." Id.

Here, T.M. did not provide this court with a transcript of the

hearing wherein the motions to compel were argued. Therefore, I cannot

conclude that, considering the facts and circumstances of these cases, the

juvenile court exceeded its discretion in determining that the provision

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of necessaries included the children's Social Security benefits, medical

insurance, and personal-care items.

The main opinion concludes that the juvenile court has jurisdiction

to order the father to provide the children their clothing but not their

personal-care items. However, I see no basis for such a distinction in

light of the juvenile court's authority to require a parent to support his

or her child by providing "necessaries" for the child. § 12-15-314(e); see

also In re S.A.B., 326 Or. App. 192, 196, 198, 531 P.3d 718, 721, 722

(2003) (holding that a juvenile court had the authority to require a father

to transfer a child's emotional-support dog to the child considering that

Or. Rev. Stat. § 419B.385 provides that " '[t]he court may order the parent

or guardian to assist the court in any reasonable manner in providing

appropriate education or counseling for the ward' " and considering "the

State of Oregon's policy to 'safeguard and promote each child's right to

safety, stability and well-being.' [Or. Rev. Stat. §] 419B.090(3)"). Holding

that a juvenile court lacks jurisdiction to order a parent to provide his or

her children with their personal-care items improperly limits the juvenile

court's discretion to allow for the support of those children during a

traumatic event in their lives. Under the main opinion's holding, a

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juvenile court would be allowed to order a parent to provide a child's

shirts and pants, but the juvenile court would not be permitted to order

a parent to provide a child with such "necessaries" as his or her

toothbrush, schoolbooks, teddy bear, or other items to aid in effecting

normalcy and stability for the child. I would not strain the construction

of the word "necessaries" to limit the discretion of a juvenile court that is

tasked with acting in the best interests of a child.

I note that, in these cases, the juvenile court's orders went beyond

allowing the children to remove their personal property by affecting a

transfer of property previously owned by their deceased mother, ordering

the father to allow the children to have the use of the father's car, and

directing the father not to change the locks on the father's house. I agree

with the main opinion that affecting a transfer of the father's car and the

property of the deceased mother as well as limiting the father's right to

change the locks on his house were outside the jurisdiction of the juvenile

court.

Based on the foregoing, I would issue writs of mandamus to the

juvenile court instructing it to vacate those provisions of its orders

affecting a transfer of the property of the children's deceased mother,

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ordering the father to allow the children to use the father's car, and

directing the father not to change the locks on his house. I would deny

the petitions in all other respects.

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