author: PER CURIAM.

text:
    Joe LOONEY, Jr. v. STATE of Alabama.
    2090694.
    Court of Civil Appeals of Alabama.
    Sept. 24, 2010.

      Joe Looney, Jr., pro se.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   PER CURIAM.

Joe Looney, Jr., who is currently incarcerated at the Bibb Correctional Facility, appeals from a judgment denying his motion for relief from an underlying judgment ordering the forfeiture of $680 in United States currency. Looney filed his motion pursuant to Rule 60(b)(4), Ala. R. Civ. P., alleging that he had not received notice of the underlying forfeiture action, in violation of his right to due process. Therefore, he contended, the forfeiture judgment was void.

The record indicates the following. On May 22, 2008, the Ashville Police Department executed a search warrant at Looney’s house in connection with a narcotics investigation. As a result of the search, police seized $680 in United States currency and two shotguns. Looney, who was on parole at the time, was arrested and taken to the St. Clair County jail. He remained in the jail until June 28, 2008, when he was transferred to Kilby Correctional Facility because his parole had been revoked.

On July 22, 2008, the State of Alabama filed a civil forfeiture action relating to the seized currency and shotguns. The record indicates that the complaint was “served” on Looney at his Ashville address and that Lance Bell, listed on the case-action summary as Looney’s attorney, also accepted the forfeiture complaint. Notice regarding the forfeiture hearing was also published in a St. Clair County newspaper.

The hearing was held as scheduled on October 28, 2008. Looney was not present, and no one appeared on his behalf. After the hearing, the trial court ordered that the $680 and the shotguns seized at Looney’s house be forfeited to the Ashville Police Department for use by law enforcement.

More than a year later, on January 15, 2010, Looney mailed a letter to the St. Clair Circuit clerk’s office from the Bibb Correctional Facility, where he apparently had been transferred since being taken to the Kilby Correctional Facility, requesting information about the forfeiture of his vehicle and asking for notice of any forfeiture hearing regarding the vehicle.- In response to Looney’s letter, the clerk’s office provided him with the record in this case. On February 20, 2010, Looney filed a motion pursuant to Rule 60(b)(4), Ala. R. Civ. P., seeking to have the forfeiture judgment set aside because, he said, he had not been served with the complaint and, thus, had not had notice of the forfeiture proceedings against him. He pointed out that he could not have been served at his house because he had been incarcerated since his arrest at the time the search warrant was executed. He also pointed out that the State was aware that he was incarcerated but that it made no effort to serve him at the jail where he had been taken initially or at the prison where he had been transferred. Looney also asserted that the forfeiture proceedings were not instituted promptly.

On March 29, 2010, the trial court entered a judgment stating that “[a]n examination of the Court record shows that there was proper service of the notice of claim by the St. Clair County Sheriffs Department” and denying Looney’s Rule 60(b)(4) motion. Looney, appearing pro se, appeals.

The State asserts that “[t]he facts of this case were received ore tenus” and that, therefore, this court is to apply the ore tenus standard of review to determine whether the denial of Looney’s Rule 60(b)(4) motion was proper. We note that nothing in the record indicates that ore tenus evidence was taken in connection with Looney’s motion. In fact, the trial court’s order explicitly states that it examined the record to determine whether Looney had been properly served with the complaint in the underlying forfeiture proceeding. The language of the trial court’s judgment indicates that the decision to deny Looney’s motion was based solely upon documents in the record. Accordingly, the ore tenus standard of review has no application in this case.

Furthermore, as our supreme court stated in Nationwide Mutual Fire Insurance Co. v. Austin, 34 So.3d 1238, 1242 (Ala.2009), the opinions of our appellate courts recognize that, when relief is sought under Rule 60(b)(4), a de novo standard of review is applied. “This is so because the issue of jurisdiction raised in a Rule 60(b)(4) motion is a purely legal one.” Id. See, e.g., Duncan v. S.N., 907 So.2d 428, 430 (Ala.2005) (de novo review applied in determining whether an inmate had been served properly with a summons and complaint). The proper standard of review of the denial of a Rule 60(b)(4) motion is as follows:

“ ‘ “The standard of review on appeal from the denial of relief under Rule 60(b)(4) is not whether there has been an abuse of discretion. When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process.” ’ ”

Bank of America Corp. v. Edwards, 881 So.2d 403, 405 (Ala.2003) (quoting Image Auto, Inc. v. Mike Kelley Enters., Inc., 823 So.2d 655, 657 (Ala.2001), quoting in turn Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala.1991))); Ex parte N.B., [Ms. 1080440, June 30, 2010] — So.3d -, - (Ala.2010).

The State contends that the judgment denying relief from the underlying forfeiture judgment is due to be affirmed because, it says, Looney’s challenge to the forfeiture judgment is untimely. In its brief, the State writes: “Rule 60(b), [Ala.] R. Civ. P., provides that challenges under Rule 60(b)(4), [Ala.] R. Civ. P., shall ‘not be made moré than four months after the judgment, order, or proceeding was entered or taken.’ ” In fact, however, Rule 60(b) provides that a motion filed pursuant to the rule “shall be made within a reasonable time, and for reasons [set forth in Rule 60(b) ](1), (2), and (3)[] not more than four (4) months after the judgment, order, or proceeding was entered or taken.” Clearly, Looney’s Rule 60(b)(4) motion was not filed pursuant to reasons (1), (2) or (3), but pursuant to reason (4), i.e., that the judgment is void. “ ‘As a nullity, a void judgment has no effect and is subject to attack at any time.... [A] motion for relief from a void judgment is not governed by the reasonable-time requirement of Rule 60(b).’ Ex parte Full Circle Distribution, L.L.C., 883 So.2d 638, 643 (Ala.2003).” Milloy v. Woods, 23 So.3d 48, 51 (Ala.Civ.App.2009). Well settled law renders meritless the State’s assertion that Looney’s request for relief from the forfeiture judgment, filed pursuant to Rule 60(b)(4), was untimely.

As mentioned, Looney contends that the forfeiture judgment is void because he was deprived of his due-process right to notice of the forfeiture proceedings. This court recently addressed whether a failure to afford due process to a defendant results in a void judgment.

“ ‘ “[I]t 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.”
‘Frahn v. Greyling Realization Corp., 239 Ala. 580, 583, 195 So. 758, 761 (1940) (emphasis added). The rule that a want of due process, so defined, voids a judgment is not redundant with the rule that a want of personal jurisdiction likewise voids a judgment, for a person already effectively made a party to litigation could, on some critical motion or for some critical proceeding within that litigation, be deprived of the “notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing,” required by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, Frahn, supra. See Winhoven v. United States, 201 F.2d 174 (9th Cir.1952), Bass v. Hoagland, 172 F.2d 205 (5th Cir.1949), Cassioppi [v. Damico, 536 So.2d 938 (Ala.1988) ], and Seventh Wonder [v. Southbound Records, Inc.], [364 So.2d 1173 (Ala.1978) ].’
“Neal [v. Neal], 856 So.2d [766] at 781-82 [ (Ala.2002) ].
“In Frahn v. Greyling Realization Corp., our supreme court noted:
“ ‘It was observed in Evans v. Evans, 200 Ala. 329, 76 So. 95 [ (1917) ], that such are the requirements of due process, being the fundamental conditions universally prescribed in a system of laws established and all state laws, statutory and judicially declared, regulating procedure, evidence and method of trials, which must be consistent with such requirements of the constitutions. Such rule is stated as follows in 6 R.C.L. § 442, p. 446: “... In fact one of the most famous and perhaps the most often quoted definition of due process of law is that of Daniel Webster in his argument in the Dartmouth College case (Dartmouth College v. Woodward, 4 Wheat. 518, 4 U.S. (L.Ed.) 629 [ (1819) ]), in which he declared that by due process of law was meant ‘a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.’ (Ex parte Wall, 107 U.S. 265, 2 S.Ct. 569, 27 U.S. (L.Ed.) 552 [ (1883) ].) Somewhat similar is the statement that it is a rule as old as the law that no one shall be personally bound until he has had his day in court, by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard. Judgment without such citation and opportunity (to be heard) wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and can never be upheld where justice is fairly administered. (Galpin v. Page, 18 Wall. 350, 21 U.S. (L.Ed.) 959 [ (1873) ]; Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 U.S. (L.Ed.) 215 [ (1897) ]; Ferry v. Campbell, 110 Iowa 290, 81 N.W. 604, 51 L.R.A. 92 [ (1900) ]).” (Parenthesis supplied.)’
239 Ala. 580, 583, 195 So. 758, 761 (1940).”

M.H. v. Jer. W., 51 So.3d 334, 337-38 (Ala.Civ.App.2010).

Looney asserts that the State’s attempt to serve the complaint at his house did not constitute proper service because, as he points out, he was in jail at the time; therefore, the State knew, or should have known, that he was not at his house. In support of his assertion, Looney relies on State v. $17,636 in United States Currency, 650 So.2d 900 (Ala.Civ.App.1994). In that case, police seized illegal drugs and $17,686 in cash discovered in Neuman Allen Reed’s motel room, where he was arrested on drug-related charges. Upon his arrest, Reed was placed in the Jefferson County jail until his trial, when he was convicted of the drug charges. Reed was sentenced to prison and transferred to the Kilby Correctional Facility. Id. at 900-01.

While Reed was in the Jefferson County jail, the State filed a petition seeking forfeiture of the cash, and the trial court granted the petition. Four years after the forfeiture, Reed filed a Rule 60(b)(4) motion for relief from the forfeiture judgment on the ground that he was never properly served with the petition and that the forfeiture petition had not been timely filed so as to meet the promptness requirement of § 20-2-93(c), Ala.Code 1975. Id. at 901.

Reed was arrested and the currency was seized on January 5, 1989. The forfeiture proceedings were instituted on February 23, 1989. When the State filed the forfeiture petition, prosecutors listed Reed’s home address as his residence in Los An-geles, California, even though they knew, or should have known, that he was being held in the Jefferson County jail awaiting trial for the drug charges arising from the same search during which the currency had been seized. Id. at 901.

This court determined that serving Reed at his Los Angeles address and the notice of the forfeiture hearing by publication were insufficient because such notice was not reasonably calculated to apprise Reed of the pending action. In reaching its holding, this court relied on two similar cases decided by the United States Supreme Court, stating:

“The Supreme Court made the following statement in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950): ‘An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them, an opportunity to present their objections.’ (Emphasis added.) Further, the Supreme Court made the determination in Mullane, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865, that if an individual’s name and address are either known or readily ascertainable, then notice by publication is not sufficient.
“The Supreme Court cited Mullane, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865, and its rationale in Robinson v. Hanrahan, 409 U.S. 38, 93 S.Ct. 30, 34 L.Ed.2d 47 (1972). Robinson involved a forfeiture proceeding of an automobile used in connection with an armed robbery. Robinson was arrested for armed robbery and thereafter remained in the Cook County jail awaiting trial on the charges. During the time that Robinson was awaiting trial, the State of Illinois mailed notice of the pending forfeiture proceedings to Robinson’s home address, rather than to the Cook County jail. The circuit court in Cook County ordered forfeiture of the automobile. Wfiien Robinson learned of the forfeiture, he filed a motion, requesting that the forfeiture be set aside because the manner of notice did not comply with due process requirements.
“The Supreme Court made the following pertinent statements:
“ ‘In the instant case, the State knew that [Robinson] was not at the address to which the notice was mailed and, moreover, knew also that [Robinson] could not get to that address since he was at that very time confined in the Cook County jail. Under these circumstances, it cannot be said that the State made any effort to provide notice which was “reasonably calculated” to apprise [Robinson] of the pendency of the forfeiture proceedings.’
“Robinson, 409 U.S. at 40, 93 S.Ct. at 31-32.”

Id. at 902.

The Supreme Court’s holdings in Mudlane v. Central Hanover Bank & Trust, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), and Robinson v. Hanrahan, 409 U.S. 38, 93 S.Ct. 30, 34 L.Ed.2d 47 (1972), are equally applicable in this case. Looney was arrested at the same time that the $680 was seized. He was held in the St. Clair County jail from the time of his arrest until he was transferred to the Kil-by Correctional Facility for violating his parole. As was the case in both State v. $17,636 in United States Currency and Robinson, in this case the State knew or should have known that Looney was not at the address listed as his residence in the forfeiture petition, and, further, it knew or should have known that Looney could not get to that address because, at the time the forfeiture petition was served at his residence, he was confined in the Kilby Correctional Facility. We find the circumstances in this case to be indistinguishable from those in State v. $17,636 in United States Currency and in Robinson.

In its brief, the State claims that this ease is distinguishable from State v. $17,636 in United States Currency. The State argues that, “[h]ere, Looney was served with notice on July 22, 2008 (personal); July 24, 2008 (attorney), and August 28, 2008 (publication).” The State asserts, without citing to any evidence, that Looney had knowledge of the petition. It then states that his attorney of record accepted service. We fail to see how this brief explanation in any way distinguishes Looney’s case from State v. $17,636 in United States Currency as to the purported service on Looney at his Ashville address or service by publication. The record indicates that on July 22, 2008, when the State claims Looney was served at his house in Ashville, Looney was incarcerated in the Kilby Correctional Facility in Montgomery County. Likewise, when notice of the forfeiture hearing was published in a St. Clair County newspaper, Looney was incarcerated in Montgomery County. As in State v. $17,636 in United States Currency, under the circumstances in this case, it cannot be said that the State made any effort to provide personal service or notice by publication that was “reasonably calculated” to apprise Looney of the pen-dency of the forfeiture proceedings. Furthermore, we note that Rule 4(c)(5), Ala. R. Civ. P., provides that service of process on a person incarcerated in any penal institution or detention facility within Alabama, as Looney was when the forfeiture petition was filed, shall be made by serving the individual, thus precluding valid service by publication.

As to serving the petition on Looney’s “attorney of record,” the State has failed to cite a legal basis for its claim that providing a copy of a summons and complaint to a party’s attorney, without more, constitutes proper service. Rule 4(c)(5), Ala. R. Civ. P., does not specifically authorize an attorney for an incarcerated person to accept service on behalf of that person. Furthermore, as of August 1, 2004, Rule 4(h), Ala. R. Civ. P., was amended so that it no longer explicitly authorizes an attorney to accept or waive service of process on behalf of a defendant.

Even if we were to give the State the benefit of reading Rule 4(c)(5) in conjunction with Rule 4(c)(1), which provides that, in the case of an individual, service may be perfected by “delivering a copy of the summons and the complaint to an agent authorized by appointment or by law to receive service of process,” there is no evidence in the record indicating that Looney authorized Bell to receive service on his behalf.

In Colvin v. Colvin, 628 So.2d 802 (Ala.Civ.App.1993), decided under the former version of Rule 4(h), this court considered whether an attorney for one of the parties in a divorce action was “an agent authorized by appointment or by law to receive service of process” for purposes of Rule 4(c)(1), Ala. R. Civ. P. In Colvin, the case-action summary indicated that Ed Massey, the wife’s attorney, had accepted service. Although it is not clear from the opinion, apparently at some point after the “service” of the complaint and summons, Massey filed a motion to withdraw from the case, and no other responsive pleading, motion, answer, or waiver of notice appeared in the record. Colvin, 628 So.2d at 802. This court concluded that, under the circumstances, Massey was not an agent authorized to accept service pursuant to Rule 4(c)(1) and, therefore, that the default judgment entered against the wife was void. We explained the holding as follows:

“There is no credible evidence in the record reflecting an appointment of Massey as agent for the wife for purposes of service of process, nor are we cited to any rule or law whereby he is ‘authorized by ... law5 to accept service of process for his client, other than in accordance with Rule 4(h). We note with interest the Committee Comments on the amendment of Rule 4(c)(1), viz:
“ ‘The committee notes that courts should be vigilant to protect the rights of defendants when default judgments are entered on the basis of service upon an agent of the defendant. On motion to set aside a default or on motion for relief from a default, where service has been attempted on a person alleged to be or purporting to be an agent, no presumption of agency should be indulged in with respect to such service and the court should be satisfied that the person upon whom service was attempted was in fact the authorized agent of the defendant before refusing to grant relief from a default judgment.’
“This is in keeping with the many prior decisions of this court holding that default judgments are not favored by the courts, and that discretion to grant same should be resolved in favor of the defaulting party when there is doubt as to the propriety thereof. Rules 55(c), 60(b), [Ala.] R. Civ. P.; Williams v. Curry, 455 So.2d 43 (Ala.Civ.App.1984).
“Neither the Alabama Code nor our Rules of Civil Procedure authorize process service on the defendant’s attorney unless performed in compliance with Rule 4(h), Singleton v. Allen, 431 So.2d 547 (Ala.Civ.App.1983), or unless there is credible evidence of the appointment of the attorney as agent for purposes of service of process, or that he is authorized by law in accordance with Rule 4(c)(1) as amended by the Rules Committee in 1992.”

Colvin, 628 So.2d at 803 (emphasis added).

In this case, the record contains no evidence indicating that Looney appointed Bell as his agent for purposes of service of process. Bell did not enter an appearance in the forfeiture action, and no responsive pleadings were filed. Looney asserts that Bell was never hired or appointed to represent him in the civil forfeiture action. In fact, in May 2010, Bell notified the court that he was not representing Looney in the civil forfeiture action. Likewise, the State has not cited any rule or statute pursuant to which Bell was authorized by law to accept service of process on behalf of Looney.

Based on the authorities previously cited, we conclude that Looney’s right to due process was violated because none of the State’s purported means of service in this case, i.e., service of the forfeiture petition at Looney’s house, service by publication, or providing a copy of the petition to Looney’s “attorney of record,” were proper, and, thus, the forfeiture judgment was void. Because we hold that service was improper, we need not consider the timeliness of the forfeiture petition.

For the reasons set forth above, the trial court erred in denying Looney’s motion for relief from the underlying forfeiture judgment. The judgment denying Looney’s Rule 60(b)(4) motion is reversed, and we remand this cause for entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

All the judges concur.

      . In an affidavit filed with the court in the instant case, Looney states that in 1999 he was convicted of criminal conspiracy to commit a controlled-substance crime and a drug-related offense and sentenced to 25 years in prison.

      . Nothing in the record indicates that a vehicle was seized during the execution of the warrant at Looney's house, and the trial court’s forfeiture judgment does not mention a vehicle.

      . The first three "reasons” set forth in Rule 60(b) allowing relief from a judgment are "(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); [and] (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.”


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    M.W. v. C.W.
    2090857 and 2090858.
    Court of Civil Appeals of Alabama.
    Oct. 22, 2010.
    Aundrea M. Snyder, Anniston, for appellant.
    Gerald O. Sills of Stubbs, Sills & Frye, P.C., Anniston, for appellee.
    Nancy P. Vernon, Heflin, guardian ad litem.
   MOORE, Judge.

M.W. (“the mother”) appeals from judgments • of the Cleburne Juvenile Court (“the juvenile court”) finding her children, M.N.W. and M.C.W., to be dependent and awarding custody of the children to the children’s paternal grandmother, C.W. (“the paternal grandmother”).

Procedural History

On March 29, 2010, the paternal grandmother filed in the juvenile court petitions for custody of the children, alleging that an emergency situation existed, that the children were dependent, that the children were physically, present in Alabama, and that the children were residing with the paternal grandmother. That same day, she also filed a motions for temporary custody of the children. In support of her motions for temporary custody, the paternal grandmother submitted an affidavit stating, in pertinent part:

“I am the paternal grandmother to [the children]. My son, [R.H.], is [the children’s] father. [The father] has a history of drug use, otherwise, [the father] is a good father. At this point, [the father] is not a viable option for custody of the children. [The father] is supporting my Petition for Custody of his children.
“... [The mother] resides in Tallapoo-sa, Georgia. [The mother] was charged with three counts of sodomy and/or sexual abuse to children. She has recently pled guilty to that charge and is awaiting a probation hearing on April 15, 2010. It is my understanding that [the mother] pled guilty to three cases of felony child abuse.... The charges to which [the mother] pled guilty ... involve her having sex- with minor children. On one occasion, her son, [M.H.,] walked in on her during one of these sex acts.
“[The mother] is also awaiting arraignment on two pending felony child-abuse charges in Georgia for physically abusing her son, [M.C.W.]
“I have received information that [the mother] is getting out of jail today and will attempt to take the children back to Georgia with her.
“I attempted to intervene in and gain custody of these children in the State of Georgia prior to the mother going to jail and the children coming to live with me, but was unsuccessful. I have deep fears for these children’s safety ... if they are allowed to go with their mother. She has physically abused [one of the children, M.C.W.] It is also my firm belief that their mother will not be granted probation on April 15, 2010, and she will be sent to prison at that time.
“The children reside with me in my home. [The father] also resides with me in the home. I understand that I will need to supervise his contact with the children, until such time as he is given clearance to be around the children by a qualified mental health professional.
“Failure to grant me temporary custody of my grandchildren would likely result in immediate irreparable harm to them.”

That same day, the juvenile court entered orders awarding the paternal grandmother emergency temporary custody of the children.

On April 16, 2010, the mother filed a motion to dismiss the paternal grandmother’s petitions, asserting that the juvenile court lacked jurisdiction; that motion was denied on May 12, 2010. A hearing was held on the paternal grandmother’s dependency petitions on May 5, 2010; no documentary or ore tenus evidence was received at that hearing. On May 28, 2010, the juvenile court entered judgments finding the children dependent and awarding custody of the children to the paternal grandmother. The mother filed her notice of appeal on June 8, 2010.

Discussion

On appeal, the mother argues that the juvenile court lacked jurisdiction to determine the dependency of, and award custody of, the children. As noted previously, on March 25, 2010, the Superior Court of Haralson County, Georgia (“the Georgia court”), made a custody determination with regard to the children. Thus, we must determine if the juvenile court had jurisdiction to modify the Georgia court’s previous custody determination.

Section 30-3B-203, Ala.Code 1975, provides:

“Except as otherwise provided in Section 30-3B-204, [Ala.Code 1975,] a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under Section 30-3B-201(a)(1) or (2)[, Ala.Code 1975,] and:
“(1) The court of the other state determines it no longer has continuing, exclusive jurisdiction under Section 30-3B-202[, Ala.Code 1975,] or that a court of this state would be a more convenient forum under Section 30-3B-207[, Ala.Code 1975]; or
“(2) A court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.”

Assuming without deciding that the juvenile court had “jurisdiction to make an initial [custody] determination under Section 30-3B-201(a)(l) or (2),” the requirements set forth in subsections (1) and (2) of § 30-3B-203 were not met. First, with regard to subsection (1) of § 30-3B-203, there is no indication that the Georgia court had determined that “it no longer has continuing, exclusive jurisdiction under Section 30-3B-202[, Ala.Code 1975,] or that a court of this state would be a more convenient forum.” Next, with regard to subsection (2) of § 30-2B-203, the paternal grandmother’s affidavit makes it clear that the mother resides in Georgia. Thus, according to § 30-3B-203, the juvenile court could exercise jurisdiction only “as otherwise provided in Section 30-3B-204[, Ala. Code 1975].”

Section 30-3B-204, Ala.Code 1975, provides, in pertinent part:

“(a) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
“(c) If there is a previous child custody determination that is entitled to be enforced under this chapter, or a child custody proceeding has been commenced in a court of a state having jurisdiction under Sections 30-3B-201 through 30-3B-203, [Ala.Code 1975,] any order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under Sections 30-3B-201 through 30-3B-203. The order issued in this state remains in effect until an order is obtained from the other state within^ the period specified or the period expires.
“(d) A court of this state which has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of a state having jurisdiction under Sections 30-3B-201 through 30-3B-203, shall immediately communicate with the other court. A court of this state which is exercising jurisdiction pursuant to Sections 30-3B-201 through 30-3B-203, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.”

Although the juvenile court in the present case might have been exercising temporary emergency jurisdiction pursuant to § 30-3B-204 when it entered the March 29, 2010, temporary orders, we do not address the propriety of those orders because the mother did not file an appeal or a petition for a writ of mandamus from those orders. We, instead, are limited to determining whether the juvenile court had jurisdiction to enter the May 28, 2010, judgments in which it found the children to be dependent and awarded the paternal grandmother custody, thereby modifying the Georgia court’s March 25, 2010, judgment.

In S.C. v. J.T.C., 47 So.3d 1253 (Ala.Civ.App.2010), this court considered a case similar to the present case. In S.C., the Mobile Juvenile Court entered a judgment in November 2007 awarding custody of the child at issue to the child’s father. 47 So.3d at 1254. Subsequently, the child, the child’s father, and the child’s mother moved to Virginia. 47 So.3d at 1254. Approximately one year later, the child’s maternal aunt, without the child’s parents’ knowledge, “checked out the child from school early and transported the child to Mobile to the home of the [child’s] maternal grandmother.” 47 So.3d at 1254. The child’s maternal grandmother filed in the Mobile Juvenile Court “an instanter petition for custody of the child, alleging the dependency of the child.” 47 So.3d at 1255. On November 17, 2008, the juvenile court awarded the maternal grandmother temporary custody of the child based on the “emergency petition” filed by the maternal grandmother. 47 So.3d at 1255. Subsequently, the court held a final hearing, after which the juvenile court entered a judgment on April 24, 2009, finding the child dependent and awarding the maternal grandmother custody of the child. 47 So.3d at 1255.

On appeal, this court determined that, although the Mobile Juvenile Court had entered the most recent custody judgment pertaining to the child in 2007, that court no longer had “continuing, exclusive jurisdiction” to modify its judgment under § 30-BB-202, Ala.Code 1975, and could exercise jurisdiction only “ ‘as otherwise provided in § 30-3B-204.’ ” 47 So.3d at 1255 (quoting 30-3B-201(a)). This court concluded that, although the Mobile Juvenile Court had acted pursuant to § 30-3B-204 in entering its temporary emergency-custody order, that statute did not authorize that court to enter the April 24, 2009, judgment finding the child dependent and awarding custody of the child to the maternal grandmother, thereby modifying the November 2007 judgment. 47 So.3d at 1257. Thus, this court declared that judgment void, and we dismissed the appeal and instructed the juvenile court to vacate that void judgment and to amend its temporary order to comply with the requirements of § 30-3B-204(c) and (d). 47 So.3d at 1257.

Similarly, in the present case, the juvenile court had jurisdiction only to determine custody of the children under § 30-3B-204. Assuming that the juvenile court properly exercised temporary emergency jurisdiction in entering the March 29, 2010, orders, that temporary emergency jurisdiction did not authorize that court to enter the May 28, 2010, judgments finding the children dependent and awarding custody of the children to the paternal grandmother, thereby modifying the Georgia court’s judgment. Because the juvenile court’s May 28, 2010, judgments were entered without jurisdiction, they are void. S.C., 47 So.3d at 1257. “A void judgment will not support an appeal, and any appeal from a void judgment must be dismissed.” Id. at 1257.

Just like in S.C., we remand these cases •with instructions to the juvenile court to vacate its May 28, 2010, void judgments and to revise its March 29, 2010, temporary orders to comply with § 30-3B-204. S.C., 47 So.3d at 1257. Specifically, we instruct the juvenile court to “specify in the order[s] a period that the court considers adequate to allow the [paternal grandmother] to obtain an order from the state having jurisdiction under Sections 30-3B-201 through 30-3B-203. The order[s] issued in this state [shall] remainf ] in effect until an order is obtained from the other state within the period specified or the period expires.” § 30-3B-204(c). “In the event a [Georgia] court assumes jurisdiction, the juvenile court is directed to communicate and cooperate with that court to assure the protection of the child[ren] until a custody determination can be made in that court.” S.C., 47 So.3d at 1258; see also § 30-3B-204(d). If the Georgia court determines that “it no longer has continuing, exclusive jurisdiction under Section 30-3B-202 or that a court of this state would be a more convenient forum under Section 30-3B-207,” § 30-3B-203 (1), the juvenile court may then reach the merits of the dependency petitions filed by the paternal grandmother because it would then have jurisdiction to modify the Georgia court’s judgment under § 30-8B-203. S.C, 47 So.3d at 1258.

APPEALS DISMISSED WITH INSTRUCTIONS.

THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ., concur.

      . The record indicates that, on March 25, 2010, the Superior Court of Haralson County, Georgia, dismissed an emergency petition for a change of custody that had been filed in that court by the paternal grandmother after determining that the paternal grandmother had failed to meet her burden of proving that a change of custody from the mother to the paternal grandmother was warranted.

      . The mother does not challenge the juvenile court’s failure to receive evidence at the hearing.

      . Section 30-3B-202 provides:
      "(a) Except as otherwise provided in Section 30-3B-204, [Ala.Code 1975,] a court of this state which has made a child custody determination consistent with Section 30-3B-201 or Section 30-3B-203[, Ala.Code 1975,] has continuing, exclusive jurisdiction over the determination until:
      “(1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
      "(2) A court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.
      "(b) A court of this state which has made a child custody determination and does not have continuing, exclusive jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under Section 30-3B-201.”


author: THOMPSON, Presiding Judge.

text:
    Kelly Renee SIMS v. Jason Pepper SIMS.
    2090696.
    Court of Civil Appeals of Alabama.
    Oct. 29, 2010.
    Joan-Marie Dean, Huntsville, for appellant.
    James D. Moffatt of Latham, Moffatt & Wise, P.C., Athens, for appellee.
   THOMPSON, Presiding Judge.

Kelly Renee Sims (“the mother”) appeals from a judgment of the Limestone Circuit Court divorcing her from Jason Pepper Sims (“the father”). Because we conclude that the trial court’s judgment was not a final judgment, we dismiss the appeal.

The parties were married on July 1, 2000. They are the parents of two children, both of whom were minors at the time of the trial in this case.

On May 13, 2009, the father filed an action seeking a divorce from the mother. The father also filed a petition for penden-te lite relief that included a request for temporary physical custody of the children and exclusive possession of the marital residence. The mother filed an answer to the complaint as well as a motion for pen-dente lite relief in which she sought custody of the children. The trial court held a hearing on the parties’ motions, after which, on July 1, 2009, the trial court entered a pendente lite order in which it awarded the parties temporary joint legal custody of the children, awarded the father temporary sole physical custody of the children, and awarded the father temporary exclusive possession of the marital residence.

On October 7, 2009, the mother filed a motion to hold the father in contempt in which she contended that the father had violated the July 1, 2009, order by failing to pay the telephone bill related to the marital residence. The father filed a response in which he asserted that the mother had incurred the charges reflected in the telephone bill before the father had been awarded possession of the marital home and that he had declined to be responsible for the payment of that bill.

The trial court held a trial in the action on November 18, 2009, at which it received ore tenus and documentary evidence. On November 25, 2009, the trial court entered a judgment divorcing the parties and, among other things, awarding the parties joint legal custody of the children, awarding the father sole physical custody of the children, and requiring the mother to pay child support. The trial court did not rule on the.mother’s motion to hold the father in contempt.

The mother filed a motion to alter, amend, or vacate the judgment. The trial court granted that motion in part, amending its judgment to provide for a division of the equity in the marital residence. The mother appeals.

With limited exceptions not applicable in the present case, this court has appellate jurisdiction only over appeals from judgments that are final. § 12-22-2, Ala.Code 1975. A final judgment is one that disposes of all the issues pending before the trial court. See Brown v. Melton, 29 So.3d 868, 872 (Ala.2009). In the present case, the trial court resolved the father’s complaint for a divorce; however, it did not resolve the mother’s contempt motion.

In a recent case decided by this court, Meek v. Meek, 54 So.3d 389 (Ala.Civ. App.2010), a similar situation was presented. In that case, one of the parties had filed an action for a divorce and each party had subsequently filed a motion to hold the other in contempt for violating certain provisions of an interlocutory order that the trial court had entered. The trial court did not resolve those motions before entering a judgment resolving the divorce complaint. Discussing whether the trial court’s judgment was final, this court wrote:

“The record on appeal reveals that the husband, on November 26, 2007, and the wife, on April 14, 2009, filed motions for contempt that alleged violations of certain provisions of the June 2006 order during the pendency of the divorce proceedings. The record does not contain an order disposing of either motion for contempt. ‘The pendency of an unadju-dieated contempt motion alleging a party’s failure to obey orders entered during the progress of the litigation renders a judgment nonfinal.’ A.C. v. C.C., 34 So.3d 1281, 1287 (Ala.Civ.App.2009) (citing Decker v. Decker, 984 So.2d 1216 (Ala.Civ.App.2007), and Heaston v. Nabors, [889 So.2d 588 (Ala.Civ.App.2004) ]). ‘[A] trial court’s failure to rule on a contempt motion relating to an interlocutory order [in a divorce proceeding] would render any subsequent judgment nonfinal because the filing of the contempt motion would not be considered as having initiated a separate proceeding.’ Decker v. Decker, 984 So.2d at 1220.”

54 So.3d at 392-93.

In the present case, there remains pending before the trial court the mother’s motion to hold the father in contempt. Because the trial court did not resolve that motion, its judgment is not final and will not support an appeal. As a result, this court is left with no alternative but to dismiss the mother’s appeal. See Logan v. Logan, 40 So.3d 721, 723 (Ala.Civ.App.2009).

APPEAL DISMISSED.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.


text:
    JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES v. L.S.
    2090668.
    Court of Civil Appeals of Alabama.
    Oct. 29, 2010.

      Sharon E. Ficquette, chief legal counsel, and Karen P. Chambless, legal counsel, Department of Human Resources, for appellant.
   THOMPSON, Presiding Judge.

The Jefferson County Department of Human Resources (“DHR”) appeals a judgment denying its petitions seeking to terminate the parental rights of L.S. (“the mother”) to C.M. and K.S. (hereinafter sometimes referred to as “the children”).

We note that although the separate actions related to the children were not formally consolidated in the juvenile court, the parties and the juvenile court treated the actions as if they had been consolidated. In April 2008, P.W. (“the maternal grandmother”) moved to intervene, and the juvenile court granted that motion. The maternal grandmother did not assert a claim seeking custody of the children; rather, she testified at the termination hearing that she wanted to be a relative placement for the children.

On July 30, 2008, DHR filed separate petitions seeking to terminate the mother’s parental rights to two of her children, C.M. and K.S. The hearing on DHR’s petitions was continued several times and was ultimately conducted on February 17, 2010. On March 15, 2010, the juvenile court entered a single judgment relating to both actions in which it denied DHR’s petitions seeking to terminate parental rights. DHR filed a postjudgment motion, which the juvenile court denied. DHR timely appealed.

The record indicates that C.M. was born in March 2002 and that in 2005, the mother lost custody of C.M. and his two older siblings, K.C. and C.S.; it appears that at some point thereafter custody of C.M. and the older siblings was awarded to the children’s maternal aunt and the maternal grandmother. The mother explained that she had lost custody because she had tested positive for the use of cocaine and marijuana and because she could not provide housing for C.M., K.C., and C.S.

K.S. was born in April 2006, and she was apparently immediately placed in the custody of the maternal aunt and the maternal grandmother. The mother has never had custody of K.S.

On December 16, 2006, DHR filed petitions seeking to have C.M. and K.S. and their older siblings removed from the custody of the maternal grandmother and the maternal aunt and declared dependent. In those petitions, DHR alleged that K.S. had been severely burned and that her custodians’ explanations of the cause of the injury were inconsistent. We note that although all four children were initially placed in foster care together, C.S. was eventually placed in the custody of a relative and K.C. was placed in the custody of her godmother. C.S. and K.C. are not subjects of this appeal. C.M. and K.S. (hereinafter together referred to as “the children”) have remained in foster care since December 2006.

In 2005, when DHR first became involved with the family, the DHR social worker originally assigned the case formulated an Individualized Service Plan (“ISP”). Pursuant to that ISP, the social worker arranged for the mother to obtain substance-abuse treatment and a psychological examination. The record contains no evidence pertaining to the results of the psychological examination. Other goals of the ISP were that the mother submit to random drug-screen testing, attend Alcoholics Anonymous or Narcotics Anonymous meetings, attend parenting classes, and maintain employment and a stable residence.

The mother testified that she had completed an inpatient substance-abuse treatment program in 2006. At the termination hearing, the mother testified that she had not used drugs since she had completed substance-abuse treatment in 2006. She later testified that, at the time of the February 17, 2010, termination hearing, she had been “clean” for two months. The mother clarified that she had not used cocaine since September 2009 and that she had last used marijuana a few months before the termination hearing.

The mother admitted that she had not submitted to the random drug screens required by DHR under a “color coding” system. The mother testified that she had no particular reason for failing to take those drug-screen tests.

Prior to the termination hearing, the mother had submitted to drug-screen tests that appear to relate primarily to the dates of the periodic-review hearings in this matter. DHR submitted into evidence the results for the 10 drug-screen tests to which the mother had submitted since 2005. Seven of the 10 drug-screen tests were positive for the use of cocaine, marijuana, or both. Most recently, the mother had tested positive for cocaine and marijuana at a September 2009 review hearing. The mother also tested positive for the use of marijuana at the time of the February 2010 termination hearing.

Linda Ward, the DHR social worker assigned to the case between January 2007 and January 2008, testified that the mother made no progress toward reunification during the time she had been assigned to the case. Ward stated that she had never known the mother’s whereabouts and that the only way to contact the mother had been to leave messages with the maternal grandmother.

The mother testified that she had not been employed in 2006 or 2007. The mother worked full time as a cook in 2008, and she stated that she had earned approximately $190 per week. The mother testified that she had worked approximately two to three months for a temporary-services company in 2009.

At the time of the termination hearing, the mother was unemployed but was attending a job-training program. The mother stated that she received $150 from that program each time she completed a job-training class; she stated that “it might take a month, two months” to complete each of those classes.

The mother testified that she had maintained the same three-bedroom home since 2007. According to the mother, her monthly expenses were approximately $1,100. The mother explained that the maternal grandmother helped her pay her monthly expenses. The mother testified that she could not say that the maternal grandmother had committed to support her financially, but she stated that the maternal grandmother “helps” her financially.

In November 2007, the juvenile court entered an order requiring the mother to pay $100 per month in child support. The mother testified that, at the time of the February 2010 termination hearing, she had paid a total of approximately $200 in child support.

The mother testified that she visited the children every third Friday. The mother stated that she does not have transportation, so the maternal grandmother would drive her to a McDonald’s restaurant to meet the foster mother and the children for visitation. We note that, during the pendency of this matter, the maternal grandmother was awarded unsupervised visitation with the children but that that visitation was later ordered to be supervised.

The mother testified that her visitation with the children was not required to be supervised. As noted earlier, the mother stated that she had no transportation and that she relied on the maternal grandmother to take her to visit the children; according to the mother, the supervision of visitation occurred because the maternal grandmother was present.

Charm Doughtery, the DHR social worker assigned to the case from January 2008 until the termination hearing, testified that, since she has worked on the case, all the mother’s and the maternal grandmother’s visitations with the children have been supervised. Doughtery explained that the mother’s visitation has been supervised because of the mother’s lack of honesty and her failure to comply with court orders. Doughtery testified that she was concerned that the mother and the children did not have a strong bond because of the infrequency of the mother’s visitations with the children.

At the time of the termination hearing, the mother had enrolled in a program providing parenting classes. The mother testified that she had recently attended one of the five required parenting classes in that program. The mother testified that the delay in her starting parenting classes was attributable to Ward and Doughtery’s failure to enroll her in those classes, and she stated that Doughtery had lost one set of her enrollment papers for those classes, thereby delaying her entry into those classes..

Doughtery and Ward testified that the only relative identified by the mother as a possible relative resource and who was willing to care for the children was the maternal grandmother. Neither social worker considered the maternal grandmother to be a viable relative placement for the children. Doughtery testified regarding the April 2006 burn incident that resulted in the children and their siblings’ being taken into protective custody. According to Doughtery, the maternal aunt and the maternal grandmother were present at the time K.S. was burned. Dought-ery testified that K.S. received severe burns to her forehead, the back of her head, her chest, and her leg. No evidence pertaining to the origin of the burns was presented at the termination hearing.

At the termination hearing, the maternal grandmother testified that she was at work on the evening that K.S. was burned and that the maternal aunt was the one present in the home when the injury occurred. The maternal grandmother testified that she purchased over-the-counter medications for the injury the next day and that that evening she took K.S. to the hospital for treatment when the burns did not appear to be healing. Doughtery testified that, after the hospital had notified DHR of K.S.’s injury, DHR initiated a child-abuse and neglect (“CA/N”) investigation. That CA/N investigation resulted in a finding of “indicated” for neglect and inadequate supervision of K.S. by the maternal grandmother.

Also, Ward testified that in addition to moving to intervene in the action, the maternal grandmother had initially had unsupervised visitation with the children. However, Ward testified that, in May 2007, the children’s foster mother contacted her to inform her that when K.S. had returned from visitation with the maternal grandmother she had a black eye and bruises on her forehead and lip. Ward stated that the maternal grandmother claimed to have been unaware that the child had been injured. DHR conducted a CA/N investigation that yielded a finding of “indicated” for inadequate supervision of K.S. by the maternal grandmother. After May 2007, the maternal grandmother’s visitation was suspended for a period. The record indicates that the maternal grandmother’s visitation was reinstated at some point after Ward was no longer the social worker assigned to the case. In June 2009, DHR moved to suspend the maternal grandmother’s visitation with the children; in its motion, DHR alleged that the maternal grandmother had recently been arrested on charges of possession of a controlled substance and that there had been two recent incidents of violence in her home. On July 13, 2009, the juvenile court ordered that the maternal grandmother receive only supervised visitation with the children.

Doughtery stated that, in addition to the two “indicated” CA/N reports relating to the grandmother in which K.S. was the child at issue, she had other concerns about the appropriateness of the maternal grandmother as a relative resource. Doughtery testified that there were additional CA/N reports involving someone with the maternal grandmother’s Social Security number, but she stated that the maternal grandmother had claimed not to know the other parties involved in those incidents. Doughtery also testified that, in 2005 or 2006, the maternal grandmother had tested positive for illegal drugs and had temporarily lost custody of her minor daughter, J.W., the mother’s sister. Also, Doughtery stated that she had heard a report that J.W. had stabbed her older brother during an altercation at the maternal grandmother’s home and that, during another incident, the maternal grandmother had suffered a broken arm after a confrontation with her son. DHR’s CA/N investigation into those incidents resulted in a “not indicated” finding regarding two aspects of that investigation and an “unable to complete” finding regarding another aspect.

The maternal grandmother acknowledged that there had been problems in her home between J.W. and her son, but she testified that her son no longer lived in the home or visited because, at the time of the termination hearing, he was in prison. In addition, the .maternal grandmother was arrested in October 2009 for possession of a controlled substance. The maternal grandmother testified that she had her sister’s prescription medication when she was arrested on that charge, and she stated that the charge had been dismissed.

Doughtery testified that she had not attempted to contact C.M.’s alleged father; she stated that other social workers had been unsuccessful in their attempts to locate him. No evidence was presented indicating that any person involved in this case knew the identity of the father of K.S.

In response to questioning by the mother, Doughtery stated that she had not investigated the maternal aunt as a possible relative resource and that another aunt, E.C., had stated that she was not interested in serving as a placement for the children. Doughtery testified that the children are adoptable and that she believed it was in the children’s best interests to terminate the mother’s parental rights.

Our juvenile courts use a two-pronged test to determine whether to terminate parental rights:

“A juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights:
(1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights.”

B.M. v. State, 895 So.2d 319, 331 (Ala.Civ.App.2004) (citing Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990)).

DHR filed its petitions seeking to terminate parental rights on July 30, 2008, before the January 1, 2009, effective date of the Alabama Juvenile Justice Act, § 12-15-101 et seq., Ala.Code 1975. Therefore, this case is governed by the former Child Protection Act (“the former CPA”), § 26-18-1 et seq., Ala.Code 1975 (repealed). The former CPA specified:

“(a) If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:
“(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.
“(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for [the] needs of the child.
“(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat, or otherwise maltreat the child, or the child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by such treatment of a sibling.
“(4) Conviction of and imprisonment for a felony.
“(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent.
“(6) That reasonable efforts by the Department of Human Resources ... leading toward the rehabilitation of the parents have failed.
“(7) That the parent has been convicted by a court of competent jurisdiction of [certain enumerated crimes.]
“(8) That parental rights to a sibling of the child have been involuntarily terminated.
“(b) Where a child is not in the physical custody of its parent ..., the court, in addition to the foregoing, shall also consider, but is not limited to the following:
“(1) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of its support, where the parent is able to do so.
“(2) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the department ... and agreed to by the parent.
“(3) Failure by the parents to maintain consistent contact or communication with the child.
“(4) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.”

Former § 26-18-7. The former CPA specified that evidence warranting the termination of parental rights must be “clear and convincing.” This court has noted that “clear and convincing evidence” is

“ ‘[evidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.’ ”

L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002) (quoting § 6-11-20(b)(4), Ala.Code 1975). We note that, in cases involving the termination of parental rights, the paramount consideration for the courts is the best interests of the children involved. A.R.E. v. E.S.W., 702 So.2d 138, 139-40 (Ala.Civ.App.1997).

In its March 15, 2010, judgment, the juvenile court found the children to be dependent. The juvenile court made no factual findings or legal conclusions in support of its denial of DHR’s petitions seeking to terminate parental rights. On appeal, DHR argues that the juvenile court erred to reversal in denying its petitions to terminate the parental rights of the mother. DHR contends the record contains clear and convincing evidence demonstrating that the mother has failed to adjust her circumstances to meet the needs of her children, that she is either “unable or unwilling to discharge [her] responsibilities to and for the child[ren],” and that her situation is unlikely to change in the foreseeable future. Former § 26-18-7(a) and (b). As explained below, we agree.

DHR has been involved with this family since at least 2005. C.M. has been out of the mother’s custody since June 2005, and K.S. has not, since her birth in April 2006, lived with the mother. Both children were placed in foster care in December 2006, and they had remained there for more than three years at the time of the termination hearing.

The mother completed substance-abuse treatment in 2006. However, the record clearly demonstrates that the mother has continued to use illegal drugs. The mother tested positive for the use of cocaine or marijuana, or both, on 7 of the 10 drug-screen tests to which she submitted before the termination hearing. The mother tested positive for the use of marijuana on the day of the termination hearing.

At the time of the termination hearing, the mother testified that she had her own residence. However, the mother was relying on the maternal grandmother to pay the mother’s monthly expenses. The mother has not maintained stable employment and has not demonstrated that she could support the children. The mother stated that she received approximately $150 every month or two from a job-training program when she finished a class in that program. The mother has contributed only $200 in support for the children during the three years they have remained in foster care. The mother, just before the termination hearing, had begun the parenting classes that were first recommended in 2005 and that were listed as goals in several ISPs. Also, at the time of the termination hearing, the mother still had only supervised monthly visitation with the children. After reviewing the record on appeal, we must conclude that “[t]he juvenile court erred in implicitly determining that DHR had not produced clear and convincing evidence demonstrating that DHR’s reasonable efforts to rehabilitate the [mother] had failed and that the [mother] was unable or unwilling to discharge his responsibilities to and for the childfren].” Montgomery County Dep’t of Human Res. v. W.J., 34 So.3d 686, 692-93 (Ala.Civ.App.2009) (citing former § 26-18-7(a)(6), Ala.Code 1975, and former § 26-18-7(b)(1), (2), and (4), Ala.Code 1975).

The juvenile court found the children to be dependent; in fact, the juvenile court found the children to be dependent during each of the multiple review hearings conducted during the more than three years the children have been in foster care. The mother has not challenged that finding on appeal.

The juvenile court was also required to consider whether there existed a viable alternative to the termination of the mother’s parental rights. Ex parte Beasley, supra; B.M. v. State, supra. This court has held that leaving a child in foster care when the parent, as here, is not progressing toward reunification is not a viable alternative to the termination of parental rights. T.G. v. Houston County Dep’t of Human Res., 39 So.3d 1146, 1152-53 (Ala.Civ.App.2009); R.L.B. v. Morgan County Dep’t of Human Res., 805 So.2d 721, 725 (Ala.Civ.App.2001). This court has rejected “maintain[ing] the children in foster care until, perhaps, the mother could rehabilitate herself sufficiently to become a fit mother” when the court concluded that the possibility of such rehabilitation was “remote.” S.B. v. State Dep’t of Human Res., 743 So.2d 470, 472 (Ala.Civ.App.1999). In this case, the mother’s failure in the more than three years the children have remained in foster care to make significant progress toward reunification with the children indicates that the possibility of reunification in the future is similarly “remote.” Accordingly, we cannot conclude that the juvenile court could have properly concluded that there was a likelihood of reunification in the foreseeable future.

The maternal grandmother offered to serve as a relative resource for the children as an alternative to the termination of parental rights. However, DHR had rejected the maternal grandmother as a suitable relative placement. Doughtery explained that two CA/N reports resulted in “indicated” findings for neglect and/or inadequate supervision of the children against the maternal grandmother. Both of those “indicated” CA/N reports involved an injury to K.S., one of the children at issue in this matter. The maternal grandmother testified at the termination hearing that she was not present when K.S. was burned; she did not testify regarding the incident in which K.S. returned with bruises from visitation with the maternal grandmother. The maternal grandmother lost custody of her daughter, J.W., for some time in 2005 because of the maternal grandmother’s illegal drug use. We conclude that, “[bjased upon its study, DHR reasonably excluded the maternal grandmother as a potential placement for the children.” Montgomery County Dep’t of Human Res. v. C.R., 4 So.3d 1162, 1170 (Ala.Civ.App.2008) (holding that the juvenile court erred in denying a petition to terminate parental rights when “DHR proved that the maternal grandmother was unsuited to obtain custody of the children”).

In Montgomery County Department of Human Resources v. W.J., supra, the Montgomery County DHR obtained custody of a child in 2006, and the father’s paternity was established in January 2007. In December 2008, the juvenile court in that case denied a petition seeking to terminate the father’s parental rights, stating that, although the father had “fallen short” in his efforts toward reunification, he could continue those efforts. The juvenile court also refused to grant the paternal grandmother’s custody petition because she had failed a drug-screen test and had not complied with requests for continued testing. 34 So.3d at 688. This court reversed, holding, among other things, that in denying the paternal grandmother’s petition for custody of the child the juvenile court had impliedly concluded that placing the child with her was not a viable alternative to the termination of the father’s parental rights. This court then explained:

“The juvenile court has effectively set aside the child’s right to permanency and stability in favor of awarding the father and the paternal grandmother further opportunities to rehabilitate themselves. The child should not be forced to suffer a lack of permanency due to the father’s and paternal grandmother’s inability to provide, in a timely manner, a drug-free, safe, and stable home. We have held that, ‘at some point, [a child’s] need for permanency must outweigh repeated efforts by DHR to rehabilitate’ a parent. N.A. v. J.H., 571 So.2d 1130, 1134 (Ala.Civ.App.1990) (citing § 26-18-7(b)(4), Ala.Code 1975). Further, ‘[i]n R.L.B. v. Morgan County Department of Human Resources, 805 So.2d 721, 725 (Ala.Civ.App.2001), this court held that maintaining a child in foster care indefinitely is not a viable alternative to termination of parental rights.’ T.G. v. Houston County Dep’t of Human Res., [39] So.3d [1146, 1152] (Ala.Civ.App.2009). Therefore, we conclude that maintaining the child in foster care while the father and the paternal grandmother attempt to rehabilitate themselves was error.”

34 So.3d at 693.

Similarly, in this case, in denying DHR’s petition to terminate parental rights, the juvenile court did not place the children with the maternal grandmother, thus implying that she is not a suitable placement for the children. Montgomery County Dep’t of Human Res., supra. Rather, the juvenile court left the children in their foster-care placement subject to future review. C.M. has been out of the mother’s custody since 2005, K.S. has never lived with the mother, and both children had been in foster care for more than three years at the time of the termination hearing. The children have a need for permanency. See Talladega County Dep’t of Human Res. v. M.E.P., 975 So.2d 370, 375 (Ala.Civ.App.2007) (“The children deserve to have a stable custody arrangement before 2008, having spent, at present, approximately two and one-half years in foster care.”). This court is aware of the presumption of correctness in favor of the juvenile court’s judgment. A.R.E. v. E.S.W., supra. However, after reviewing the evidence contained in the record on appeal, we must conclude that the juvenile court erred in denying DHR’s petitions to terminate the mother’s parental rights. State Dep’t of Human Res. v. A.K. 851 So.2d 1, 9 (Ala.Civ.App.2002). Therefore, we reverse the juvenile court’s judgment and remand the cause for the entry of a judgment in compliance with this opinion.

REVERSED AND REMANDED.

PITTMAN, BRYAN, and THOMAS, JJ., concur.

MOORE, J., concurs in the result, without writing.

      . The petitions also alleged that the children had no legal fathers, and DHR sought to terminate the parental rights of any father of the children. No man claiming to be the father of either child defended this action.

      . The order awarding custody of C.M. and his two older siblings to the maternal aunt and the maternal grandmother is not contained in the record on appeal. The record indicates that those children were removed from the mother’s custody pursuant to a dependency petition in 2005; K.S. was bom in April 2006, and she was apparently placed in the custody of the maternal grandmother and the maternal aunt. In dependency petitions filed in December 2006, DHR referred to the maternal aunt and maternal grandmother as the "custodians” of the children and their siblings.

      . A DHR social worker testified that, under the color-coding drug-screen testing program, the mother, had she been compliant with that program, would have submitted to more than 10 drug-screen tests in the more than 3 years the children were in foster care.

      . The dates of those positive drug-screen tests were July 1, 2005; January 23, 2006; May 30, 2006; November 8, 2006; February 22, 2008; March 19, 2009; and September 11, 2009.

      . After that testimony, the mother's attorney objected for the first time to Doughtery's testifying regarding an incident that occurred before she was assigned to the case. The juvenile court sustained the objection, but there is no indication that the mother sought to strike the testimony already provided or that the juvenile court did so.

      . DHR asserts no argument regarding the juvenile court's judgment as it pertains to the denial of that part of its petitions seeking to terminate the parental rights of the children’s unknown father or fathers.


text:
    ALABAMA BOARD OF NURSING v. Elizabeth Nalugo KIRYA.
    2090622.
    Court of Civil Appeals of Alabama.
    Oct. 29, 2010.
    Alice Maples Henley, gen. counsel, Alabama Board of Nursing, for appellant.
    Jerry N. Blevins, Montgomery, for ap-pellee.
   MOORE, Judge.

The Alabama Board of Nursing (“the Board”) appeals from a judgment of the Montgomery Circuit Court (“the circuit court”) reversing the Board’s decision to revoke Elizabeth Nalugo Kirya’s license to practice as a registered nurse. We reverse.

Facts and Procedural History

On March 19, 2009, the Board issued a statement of charges to Kirya, stating, in pertinent part:

“I.
“On April 21, 1995, [Kirya] was licensed by the' Alabama Board of Nursing as a Registered Nurse. [Kirya] was originally approved to practice as a Certified Registered Nurse Practitioner (CRNP) by the Alabama Board of Nursing on April 21, 1995. Her CRNP approval expired on December 81, 2006. [Kirya’s] RN license lapsed on December 31, 2008, for failure to renew.
“II.
“On May 21, 2004, the Board ... issued an Order suspending [Kirya’s] license until conditions were met. On August 26, 2004, the suspension was lifted and [Kirya’s] license was placed on probation for a period of twenty-four months. Said Order was issued based on facts including:
“• [Kirya’s] prescription of medication without documentation of a patient visit and subsequent failure to document notification from the emergency room that the patient had experienced an allergic reaction to the medication which required emergency treatment on two separate occasions
“• [Kirya’s] practice as a CRNP in violation of her collaborative practice approval between August 28, 2002 and November 4, 2003, while her collaborating physician was out of the country and she did not have an approved back-up physician
“• [Kirya’s] prescription of medications and controlled drugs for patients on two days using prescriptions that had been pre-signed by her collaborating physician for her use while he was out of the country
“• [Kirya’s] practice on multiple occasions at a practice site in Gadsden, Alabama, without notification to or approval from the [Board].
“HI.
“Stipulated Term Number 11 of [Kir-ya’s] Order of Probation provided that periods of time in which [Kirya] was not employed as a practicing nurse would be excluded from computation of time to be served on probation. [Kirya’s] only documented period of employment as a RN since the issuance of the Order of Probation in 2004 is her employment as a RN at Riverview Regional Medical Center (RRMC) from April 3, 2006, until January 26, 2007. Thus, [Kirya] has completed only 10 of the 24 months of practice as a RN required for successful completion of her Order of Probation.
“IV.
“Stipulated Term Number 4 of [Kir-ya’s] Order of Probation required [Kir-ya] to submit self-reports to the Board on a monthly basis by the 10th of the month. Self-reports were required to be submitted regardless of whether [Kirya] was employed in nursing.
“The Board has not received the self-reports due on the tenth of September, October, November, and December of 2007; nor the self-reports due on the tenth of January, February, March, April, May, and June of 2008.
“V.
“Stipulated Term Number 9 of [Kir-ya’s] Order of Probation required [Kir-ya] to cause her employer to provide to the Board on a Board-approved form a written evaluation of [Kirya’s] nursing performance every three months and further required that receipt of an unfavorable report may be considered a violation of the Order. On February 6, 2007, the Board received notice that on January 26, 2007, [Kirya] was separated from Riverview Regional Medical Center, Gadsden, Alabama. According to the Corrective Action/Discipline Record, [Kirya] was separated due to failure to respond to urgent care issues with a postoperative patient experiencing complications.
“The only Employer Report provided to the Board was the one for April to June 2007, a time period during which [Kirya] was not employed by RMC; however, this form was received by the Board in January 2007. The Board did not receive the employer reports due on the tenth of July and October of 2006.
“VI.
“Stipulated Term Number 12 of [Kir-ya’s] Order of Probation required [Kir-ya] to maintain a current license at all times during the period of the Order. [Kirya’s] license lapsed on December 31, 2008, for failure to renew.
“VII.
“By letter of November 6, 2007, [Kir-ya] was advised of deficiencies in her reporting that constituted violations of her Board Order. [Kirya] did not respond to this letter. By certified letter of December 12, 2007, [Kirya] was again advised of deficiencies in her reporting that constituted violations of her Order. Postal records reflect that this certified mail letter was delivered on January 4, 2008. [Kirya] did not respond to this letter. [Kirya] was again advised of deficiencies in her reporting that constituted violations of her Order by certified letter
. of February 21, 2008. Notice of this letter was left twice for Kirya, and the letter was subsequently returned to the Board marked ‘return to sender,’ ‘unclaimed,’ ‘unable to forward.’ [Kirya] did not respond to this letter.
“COUNT ONE
“[Kirya’s] conduct as described in Paragraphs II through VII above demonstrates that [Kirya] has willfully or repeatedly violated the provisions of Article 2 of the Alabama Nurse Practice Act as defined by Board rules and regulations by failing to comply with stipulated terms and conditions of a Board Order, in violation of Code of Alabama 1975, § 34-21-25 and Alabama Board of Nursing Administrative Code § 610-X-8-.03(8)(d).
“COUNT TWO
“[Kirya’s] conduct as described in Paragraph VII above demonstrates that [Kirya] failed to respond to official Board correspondence including requests for information and notices. In violation of Code of Alabama 1975, § 34-21-25 and Alabama Board of Nursing Administrative Code § 610-X-8-.03(7)(a) and (c).
“PRAYER FOR RELIEF
“WHEREFORE, Complainant, in her capacity as the Executive Officer of the [Board], requests that, upon hearing and proof, [Kirya] be found guilty of the aforementioned violations and that the [Board] revoke [Kirya’s] RN license and CRNP approval.”

A hearing was held before a hearing officer on May 19, 2009. At the commencement of the hearing, the parties stipulated to the facts set forth in the following numbered charges: I, II, III, and VI. The parties also stipulated to the facts set forth in the first paragraph of charge V; the Board dropped the factual allegations set forth in the second paragraph of charge V. Thus, the only disputed facts were those set forth in charges IV and VII.

At the hearing, David Pinnock, an investigator for the Board, testified that Kirya’s probation order required her to submit monthly self-reports. He testified that he reviews monthly self-reports as they come in and that they are then scanned into the computer system. He testified that the electronic record as well as his paper files indicate that Kirya’s self-reports from September 2007 until June 2008 had not been submitted. Pinnock testified that he had mailed Kirya correspondence notifying her of the deficiencies in submitting the self-reports. Specifically, Pinnock testified that he had mailed a letter to Kirya dated November 6, 2007, and that he had sent Kirya a letter on December 12, 2007, and in February 2008 by certified mail. He testified that he had received a return mail receipt on the December 12, 2007, letter indicating that it had been delivered but that there was no signature indicating who had received the letter. Pinnock testified that the February 2008 letter had been returned marked “unclaimed” and “unable to forward.” Pinnock admitted that other people had claimed to.,have mailed self-reports that he had not received. He testified that those discrepancies could be due to the person’s not actually mailing the self-report or a problem with , the mail system.

Pinnock testified that he had received a corrective-action discipline record from Riverview Regional Medical Center indicating that Kirya had been separated from her employment there due to her failure to respond to urgent-care issues with a postoperative patient who had been experiencing complications. Pinnock testified that he had made a notation that he spoke with Marye Elliott at Riverview and that she had stated that Kirya had resigned due to health issues.

Kirya testified that, in November 2007, she had traveled to Uganda to visit her mother. She testified that she had planned on returning home in January 2008 but that she had ended up staying until May 2008 because she contracted malaria. Even though she stated that she had planned to return in January, Kirya also stated that, before she left for Uganda, she had completed the self-reports that were due in November 2007 through May 2008 and had asked her husband to mail the self-reports that were due during the months she would be out of the country. Kirya first testified that she had not received the letters that Pinnock testified he had sent her, but she later admitted that she had received the letter he sent in November 2007 and that she had responded in a letter dated November 16, 2007. Pinnock testified that he had not received Kirya’s November 16, 2007, letter.

Kirya testified that there had been an incident involving a post-operative patient when she worked at Riverview but that she was not aware of anything she had done improperly. She testified that she had been assigned to attend to two postoperative patients. According to Kirya, while she was in the room with-one patient, another nurse noticed that the second patient was experiencing complications. Kirya testified that she instructed the other nurse to call the emergency team and that she did not go to assist because the emergency team was available. Kirya testified that she did not leave her employment at Riverview as a result of that incident but, instead, that she had left for health reasons. She admitted, however, that she had signed her corrective-action plan the same day she submitted her resignation.

Kirya testified that she realized that her nursing license had lapsed on December 31, 2008, when she did not receive her license card. She testified that she had overlooked the requirement to renew it and that she had been dealing with health problems. She testified that she took no action in renewing her license until she received a letter from the Board regarding her failure to renew her license.

On June 22, 2009, the hearing officer issued his findings of fact and conclusions of law. His findings were, in pertinent part:

“6. The Board did not receive the self-reports due on the tenth (10th) of September, October, November and December of 2007; nor the self-reports due on the tenth (10th) of January, February, March, April, May and June of 2008.
“7. Stipulated Term Number 9 of [Kirya’s] Order of Probation required [Kirya] to cause her employer to provide to the Board on a Board-approved from a written evaluation of [Kirya’s] nursing performance every three (3) months and further required that receipt of an unfavorable report may be considered a violation of the Order. On February 6, 2007, the Board received notice that on January 26, 2007, [Kirya] was separated from Riverview Regional Medical Center, Gadsden, Alabama. According to the Corrective Action/Discipline Record, [Kirya] was separated due to failure to respond to urgent care issues with a post-operative patient experiencing complications. [Kirya] disputed both the incident cited by Riverview and the reason given by Riverview for her separation. In regard to the latter, [Kirya] testified that a knee injury prevented her from being on her feet as long as required by her assignment. Resp. Exh. 3 is a copy of [Kirya’s] letter of resignation from Riverview, which cites health issues. [Kirya] also provided evidence of a degenerative knee injury, which resulted in her knee pain.
“8. The incident cited by Riverview as the basis for [Kirya’s] separation involved a complication of a post-operative (thyroidectomy) patient assigned to [Kirya]. Another nurse discovered the patient to be in breathing difficulty. At the time, [Kirya] was caring for another post-operative patient, and when notified by the other nurse of the situation she instructed others to call the hospital’s emergency response team. The patient had emergency surgery to address the problem, although there is no indication in the record that [Kirya’s] conduct changed the patient’s course of treatment or recovery.
“9. Stipulated Term Number 12 of [Kirya’s] Order of Probation required [Kirya] to maintain a current license at all times during the period of the Order. [Kirya’s] license lapsed on December 31, 2008, for failure to renew. [Kirya] testified that she failed to renew her license because she was in the midst of several medical issues, including radiation treatment for hyperthyroidism, and simply overlooked it. She discovered the oversight much later, when she didn’t receive her license card from the Board. She wrote the Board in February of 2009, explained the circumstances, and asked to renew her license, if allowed.
“10. By letter of November 6, 2007, [Kirya] was advised of deficiencies in her reporting that constituted violations of her Board Order. [Kirya] did not respond to this letter. By Certified Mail letter of December 12, 2007, [Kir-ya] was again advised of deficiencies in her reporting that constituted violations of her Order. Postal records reflect that this Certified Mail letter was delivered to [Kirya’s] address of record on January 4, 2008. [Kirya] did not respond to this letter. [Kirya] was again advised of deficiencies in her reporting that constituted violations of her Order by Certified Mail letter of February 21, 2008. Notice of this letter was left twice for [Kirya], and the letter was subsequently returned to the Board marked ‘return to sender,’ ‘unclaimed,’ ‘unable to forward.’ [Kirya] did not provide a written response to this until she made a formal response to the Statement of Charges.
“11. [Kirya] testified that she mailed the missing self-reports to the Board in September and October of 2007, but was out of the country during the remaining period. [Kirya] testified that she filled out some of the self-reports and left them for her husband to submit for her while she was visiting her home country of Uganda, where it was impractical to send the forms to the Board. She had planned to return in January of 2008, but she was required to stay in Uganda after she contracted malaria. She acknowledged that she received notice of the missing 2007 reports. Mr. Pinnock testified that he had telephone conversations with [Kirya] during this period and was aware of [Kirya’s] claims she had resigned from Riverview Medical Center due to health problems.
“12. [Kirya’s] conduct ... demonstrates that [Kirya] has willfully or repeatedly violated the provisions of Article 2 of the Alabama Nurse Practice Act as defined by Board rules and regulations by failing to comply with stipulated terms and conditions of a Board Order, in violation of Code of Alabama, (1975) § 34-21-25 and Alabama Board of Nursing Administrative Code, § 610-X-8-.03(8)(d).
“13. [Kirya’s] conduct as described in Paragraph 10 above demonstrates that [Kirya] failed to respond to official Board correspondence including requests for information and notices, in violation of Code of Alabama, (1975) § 34-21-25 and Alabama Board of Nursing Administrative Code, § 610-X-8-.03(7)(a) and (c).”

The hearing officer recommended that Kirya’s “existing probation be extended for a period of twenty-four (24) months under existing terms and conditions, subject to renewal of [Kirya’s] license in compliance with Board regulations.” On July 21, 2009, the Board issued its order, adopting the hearing officer’s findings of fact but rejecting the recommendation of the hearing officer to extend Kirya’s probation. Instead, the Board revoked Kirya’s license. Kirya filed her notice of appeal to the circuit court on August 11, 2009.

On February 17, 2010, the circuit court entered a judgment reversing the Board’s order and adopting the recommendation of the hearing officer. The circuit court’s findings of fact and conclusions of law state, in pertinent part:

“A. Self Reports
“Kirya’s undisputed testimony establishes that her monthly self-reports were in fact submitted to the [Board] for the time period covering August 2007 through June 2008. As noted by Pin-nock, the failure to receive the reports may be attributable to on-going problems with the [Board’s] mail system, or the forms may have simply been lost by the [Board] as with other forms. In any case, the [Board] had absolutely no basis for dismissing or discounting this undisputed testimony.
“B. Unfavorable Employer Report
“The unfavorable employer report is simply not supported by the evidence. Kirya denied any wrongdoing involving the patient incident cited in the report and no testimony was offered establishing that Kirya was separated from her employment at Riverview due to any wrongdoing. In fact, the undisputed evidence from both Marye Elliott (the employer representative) and Kirya clearly establishes that Kirya resigned her position due to on-going health issues. The [Board] had no basis for finding the unsupported report or misconduct credible.
“C. Not Maintaining Current License
“While it is undisputed that Kirya failed to renew her license, the [Board] appears to have overlooked the reasonable and ... legitimate reason offered in mitigation of this violation, and instead, has imposed an excessive punishment for this technical violation.
“D. Not Responding to Correspondence
“Kirya’s undisputed testimony establishes that at the time the December 12, 2007 and February 21, 2008 letters were sent to her, she was out of the country. No evidence was offered establishing that Kirya received these letters and intentionally failed to respond to same. The [Board] had absolutely no basis for dismissing or discounting these undisputed facts. With respect to the letter of November 6, 2007, Kirya testified that she responded to this letter on November 16, 2007.
“Conclusion
“In the end, there can be little doubt that the imposition of the harsh sanction of revocation of Kirya’s nursing license is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record and amounts to an unreasonable, arbitrary, or capricious decision, or is one characterized by an abuse of discretion.”

The Board filed a motion to alter, amend, or vacate the circuit court’s judgment on February 18, 2010; that motion was denied on March 18, 2010. The Board filed its notice of appeal to this court on March 25, 2010.

Standard of Review

“Our standard of review mirrors that of the circuit court:
“‘“Judicial review of an agency’s administrative decision is limited to determining whether the decision is supported by substantial evidence, whether the agency’s actions were reasonable, and whether its actions were within its statutory and constitutional powers. Judicial review is also limited by the presumption of correctness which attaches to a decision by an administrative agency.” ’ ”

Alabama Bd. of Nursing v. Williams, 941 So.2d 990, 995 (Ala.Civ.App.2005) (quoting Ex parte Alabama Bd. of Nursing, 835 So.2d 1010, 1012 (Ala.2001), quoting in turn Alabama Medicaid Agency v. Peoples, 549 So.2d 504, 506 (Ala.Civ.App.1989)).

Discussion

The Board makes several arguments on appeal. We find dispositive the Board’s argument that the circuit court erred in concluding that the Board’s decision to revoke Kirya’s license was a “harsh sanction” that was “clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record and amounts to an unreasonable, arbitrary, or capricious decision, or is one characterized by an abuse of discretion.”

In Ex parte Alabama Board of Nursing, 835 So.2d 1010 (Ala.2001), the Alabama Supreme Court granted certiorari review to determine whether this court had erred in affirming the circuit court’s decision to reverse the Board’s revocation of the license issued to Donna Jacquelyn Stejskal, a registered nurse. The supreme court reasoned:

“Based on the facts before us, we conclude that the Board’s decision to revoke Stejskal’s license was supported by substantial evidence; that it was reasonable; and that it was within the Board’s constitutional and statutory authority. Pursuant to the terms of her probation, Stejskal was required to inform the Board of any change in her employment status. It is undisputed that while Stejskal was employed by the cardiologist she sought and obtained additional, part-time employment with Eastern Shore Healthcare Facility, a nursing home facility. After she was employed at Eastern Shore, Stejskal submitted four self-reports to the Board; she did not report her employment with Eastern Shore in any of those self-reports. Although Stejskal argues that the Eastern Shore position was only part-time and that it, therefore, did not constitute a ‘change of employment,’ it nevertheless constituted additional employment within the nursing field, a matter that is within the Board’s discretion to monitor.
“Also pursuant to the terms of her probation, Stejskal was required to notify any employer or potential employer of her probationary status and to provide the employer with a copy of the order of probation. Stejskal’s employer was also required to submit quarterly reports regarding Stejskal’s job performance. Although Stejskal testified that she had informed Tina Webber, the Eastern Shore personnel director who had hired her, of her probationary status, Martha Howell, personnel director at Eastern Shore at the time of the discovery of the alleged violations, testified that Stejskal had never notified her of her probationary status. Moreover, Eastern Shore did not have a copy of the order of probation in its file before it discovered Stejskal’s probation violation, and Eastern Shore never submitted any reports to the Board.
“Stejskal had been convicted of bank fraud, a crime involving theft and dishonesty. Because a nurse has access to many things of value, such as drugs, supplies, and the personal property of patients, the Board chose to monitor Stejskal’s return to the practice of nursing. Because of the continued dishonesty regarding her employment during the last few months of her probation, the Board again revoked Stejskal’s license.
“Because Stejskal violated the specific terms of her probation, the Board acted within its discretion in revoking her license and the trial court erroneously reversed its decision.”

835 So.2d at 1013-14.

Similarly, in the present case, Kirya had been disciplined for the “prescription of medication without documentation of a patient visit and subsequent failure to document notification from the emergency room that the patient had experienced an allergic reaction to the medication which required emergency treatment on two separate occasions”; practicing as a certified registered nurse practitioner and prescribing medications and controlled drugs while her collaborating physician was out of the country; and “practice on multiple occasions at a practice site in Gadsden, Alabama, without notification to or approval from the [Board].” Based on those violations, the Board chose to monitor Kirya’s practice of nursing. In the probation order, the Board and Kirya stipulated that Kirya would, among other things, submit monthly self-reports to the Board and maintain a current license. The probation order also required Kirya to have her employer provide an evaluation to the Board every three months and stated that the receipt of an unfavorable report might be considered a violation of the order.

At the May 19, 2009, hearing before the hearing officer, there was substantial evidence presented indicating that Kirya had failed to submit her monthly self-reports in violation of her stipulated probation order, which in turn amounted to a violation of § 34-21-25, Ala.Code 1975, and Rule 610-X-8-.03(8)(d), Ala. Admin. Code (Board of Nursing), and that Kirya had failed to respond to Board correspondence in violation of § 34-21-25 and Rule 610-X-8-.03(7)(a) and (c), Ala. Admin. Code (Board of Nursing). Further, it was stipulated that Kirya had failed to renew her license and that the Board had received an unfavorable report, i.e., a corrective-action notice from Riverview. Although there was evidence indicating that Kirya had resigned from her employment at Riverview due to health reasons, that evidence did not obviate the fact that the Board had received an unfavorable report.

Based on the foregoing, we conclude that the Board’s “ ‘ “decision [was] supported by substantial evidence, [that the Board’s] actions were reasonable, and [that] its actions were within its statutory and constitutional powers.” ’ ” Williams, 941 So.2d at 995. Considering the presumption that the Board’s action in revoking Kirya’s license was correct, id., we conclude that the circuit court erred in reversing the Board’s decision. Thus, we reverse the judgment of the circuit court and remand this cause to the circuit court with instructions for that court to enter a judgment affirming the Board’s July 21, 2009, order.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ., concur.

      . Section 34-21-25(b)( 1 )h., Ala.Code 1975, provides:
      "The board may also deny, revoke, or suspend any license issued by it or otherwise discipline a licensee upon proof of any of the following regarding the licensee:

      "h. Has willfully or repeatedly violated this article, as defined by board rules and regulations.”

      . Rule 610-X-8-.03(8)(d) provides:
      "The Board may reprimand, fine, probate, suspend, revoke or otherwise discipline any registered nurse or licensed practical nurse upon proof that the person:

      "(8) Has willfully or repeatedly violated any of the provisions of a statute or rule that includes but is not limited to:

      "(d) Failure to comply with any stipulated terms and conditions of any Board order or contract.”

      .Rule 610-X-8-.03(7)(a) and (c) provide:
      "The Board may reprimand, fine, probate, suspend, revoke or otherwise discipline any registered nurse or licensed practical nurse upon proof that the person:

      "(7) Failure to respond to official Board correspondence, including but not limited to:
      “(a) Requests for information.

      "(c) Notices.”