author: PER CURIAM. THOMAS, Judge,

text:
    G.M. and P.M. v. T.W. and D.W.
    2100273.
    Court of Civil Appeals of Alabama.
    July 8, 2011.
    Ginette A. Dow, Bessemer, for appellants.
    J. Timothy Smith, Hoover, for appellees.
   PER CURIAM.

In March 2009, T.W. and her husband, D.W. (referred to collectively as “the maternal aunt and uncle”), filed a dependency petition in the Jefferson Juvenile Court, Bessemer Division, in which they sought custody of Z.M.S. (“the child”) on the ground that the child’s parents were deceased. The juvenile court, acting through a referee, awarded the maternal aunt and uncle emergency temporary custody of the child; the referee’s order was confirmed by the juvenile court. In April 2009, the maternal great-grandparents of the child, G.M. and P.M., moved to intervene in the dependency proceeding. The maternal great-grandparents were allowed to intervene and petitioned for custody of the child. The juvenile court declared the child to be dependent and, on September 4, 2009, awarded custody of the child to the maternal aunt and uncle and awarded the maternal great-grandparents visitation based on an agreement of the parties. An amended judgment regarding agreed-upon holiday visitation was entered on November 19, 2009.

Subsequently, the maternal aunt and uncle adopted the child; the adoption judgment was entered on July 14, 2010. In November 2010, the maternal great-grandparents filed a complaint in the juvenile court seeking to have the maternal aunt and uncle held in contempt for failing to permit the maternal great-grandparents to exercise the visitation provided for in the September 4, 2009, judgment and seeking the imposition of telephone and summer visitation. The maternal aunt and uncle moved to dismiss the maternal great-grandparents’ contempt/modification complaint, arguing in that motion that the maternal great-grandparents had not been entitled to the visitation they were awarded in the juvenile court’s judgment because the maternal great-grandparents lacked standing to seek grandparent-visitation rights under Ala.Code 1975, § 30-3-4.1, which this court had held did not authorize visitation awards to great-grandparents. See L.R.M. v. D.M., 962 So.2d 864, 875 (Ala.Civ.App.2007) (recognizing that great-grandparents were not authorized to seek visitation rights under § 30-3-4.1).

The maternal aunt and uncle also filed what they entitled a “Motion to Alter or Amend” the September 4, 2009, judgment, seeking to have the juvenile court set aside the September 4, 2009, judgment, insofar as it awarded visitation to the maternal great-grandparents, on the same legal ground asserted in the motion to dismiss; although labeled as a motion made pursuant to Rule 59, Ala. R. Civ. P., the motion specifically relied on Rule 60(b), Ala. R. Civ. P. Because the nomenclature of a motion is not controlling, see Ex parte Hartford Ins. Co., 394 So.2d 933, 935 (Ala.1981) (construing a motion labeled as a “Motion to Reinstate” to be a Rule 60(b) motion because it stated grounds under Rule 60(b) as a basis for setting aside the dismissal of the complaint), the maternal aunt and uncle’s motion was a Rule 60(b) motion seeking relief from the September 4, 2009, judgment. The maternal great-grandparents responded to the maternal aunt and uncle’s motions by arguing first that the juvenile court had had the authority to award them visitation under its dependency jurisdiction, Ala.Code 1975, § 12-15-314(a)(4) (permitting a juvenile court making a disposition in a dependency case to “[m]ake any other order as the juvenile court in its discretion shall deem to be for the welfare and best interest of the child”), and that the parties had agreed on visitation, which agreement, argued the maternal great-grandparents, should be enforced.

On December 6, 2010, the juvenile court entered two judgments dismissing both the maternal great-grandparents’ contempt/modification complaint and the maternal aunt and uncle’s motion seeking relief from the September 4, 2009, judgment. As the basis for the dismissals, the juvenile court stated that it no longer had jurisdiction to consider a postjudgment motion directed toward the September 4, 2009, judgment because the period for filing such a motion had expired and that it no longer had jurisdiction over the contempt/modification complaint because of this court’s opinion in Ex parte T.C., 68 So.3d 627, 629 (Ala.Civ.App.2010), which the juvenile court read as requiring that “all petitions to modify involving visitations, custody, or contempt must be filed with [the] domestic-relations court.” The maternal great-grandparents seek review of the judgment dismissing their complaint.

This court’s decision in Ex parte T.C., however, was not quite so broad. In our opinion, this court considered and compared the language of Ala.Code 1975, § 12-15-117(a), which restricts a juvenile court’s continuing jurisdiction over a child to cases in which a child has been declared dependent, delinquent, or in need of supervision, with the language of former Ala. Code 1975, § 12-12-32, which did not so restrict the continuing jurisdiction of the juvenile court over a child who had been before it. Based on the clear restriction placed on the juvenile court’s continuing jurisdiction by § 12-15-117(a), this court concluded in Ex parte T.C. that, under the current Alabama Juvenile Justice Act, Ala Code 1975, § 12-15-101 et seq., modification actions relating to a custody award of the juvenile court that had not been premised on a finding that a child is dependent, delinquent, or in need of supervision should be instituted in the circuit court.

We have since clarified our holding in Ex parte T.C. in J.W. v. C.B., 68 So.3d 878, 880 (Ala.Civ.App.2011):

“Pursuant to the AJJA [the Alabama Juvenile Justice Act], if a juvenile court has previously adjudicated a child to be dependent, delinquent, or in need of supervision, the juvenile court has continuing jurisdiction over that child until the child attains the age of 21 or until the juvenile court terminates its jurisdiction over the child. See § 12-15-117(a); and Ex parte L.N.K., 64 So.3d 656, 658 (Ala.Civ.App.2010) (‘By its plain terms, § 12-15-117(a) does not grant juvenile courts continuing jurisdiction over children unless they have been “adjudicated dependent, delinquent, or in need of supervision.” ’). Nothing in the AJJA limits a juvenile court’s continuing jurisdiction pursuant to § 12-15-117(a) to proceedings in which the child is again alleged to be dependent, and nothing in Ex parte T.C. should be construed as limiting a juvenile court’s continuing jurisdiction in that manner.”

Accordingly, we cannot agree that the juvenile court lacked jurisdiction over the maternal great-grandparents’ complaint because it was required to be maintained in the circuit court under Ex parte T.C.

However, we conclude that the juvenile court was without jurisdiction to enforce or modify the September 4, 2009, judgment for another reason. The judgment at issue arose from a settlement agreement reached between the maternal great-grandparents and the maternal aunt and uncle in a dependency proceeding in which the child was declared dependent, the custody of the child was awarded to the maternal aunt and uncle, and certain visitation rights were awarded to the maternal great-grandparents. Notably, that judgment also relieved the Jefferson County Department of Human Resources of any further duty to supervise the child. Following the entry of that judgment, the juvenile court conducted a compliance hearing and entered a November 13, 2009, judgment in which it indicated “File closed.”

Ordinarily, a juvenile court retains continuing jurisdiction over a child who has been adjudicated dependent until the child reaches age 21; however, as an exception to that rule, a juvenile court may terminate its own jurisdiction over a child who has been adjudicated dependent. See § 12-15-117(a). The juvenile court closed its file with no further compliance or other hearings contemplated, thus terminating its continuing jurisdiction under § 12-15-117(a). When the parties sought to invoke the jurisdiction of the juvenile court a year later, the juvenile court concluded that “the time allowed to alter/amend order on [the] closed case is expired,” and it directed the parties to file any action regarding their visitation dispute with the appropriate domestic-relations court. Although the juvenile court may have been wrong as to the proper legal basis for declining jurisdiction, it remains clear that all of its actions from November 13, 2009, forward signal its unmistakable intent to no longer adjudicate any disputes regarding the custody of the child, including the visitation controversy at issue. Thus, we conclude that the juvenile court properly dismissed the action filed by the maternal great-grandparents for lack of subject-matter jurisdiction.

Both parties’ requests for the award of an attorney fee on appeal are denied.

AFFIRMED.

THOMPSON, P.J., and PITTMAN and MOORE, JJ., concur.

THOMAS, J., concurs specially, which BRYAN, J., joins.

THOMAS, Judge,

concurring specially.

I agree with the main opinion that the juvenile court lacked jurisdiction to enforce or modify the September 4, 2009, judgment. However, I reach that conclusion for a different reason than the one expressed in the main opinion. I cannot agree that the use of the term “file closed,” or other similar terms, should be construed to terminate the continuing jurisdiction of a juvenile court under Ala.Code 1975, § 12-15-117(a). The indication by a juvenile court that it does not anticipate further review at its instance does not necessarily foreclose resumption of jurisdiction at the instance of a party to the proceedings. Reasons for continuing jurisdiction would vary, depending on the case, and could include enforcement or modification actions, when those actions may be properly instituted in the juvenile court. Instead, I conclude that the effect of the adoption judgment on the dependency judgment was to terminate the jurisdiction of the juvenile court to enforce or modify the September 4, 2009, judgment.

“ ‘The right of adoption ... is purely statutory, and was never recognized by the rules of common law.’ Hanks v. Hanks, 281 Ala. 92, 99, 199 So.2d 169, 176 (1967). ‘Adoption ... is a status created by the state acting as parens patriae, the sovereign parent.’ Ex parte Bronstein, 434 So.2d [780,] 781 [ (Ala.1983) ].”

Ex parte D.W., 835 So.2d 186, 190 (Ala.2002). Pursuant to Ala. Code 1975, § 26-10A-29(a), “[a]fter adoption, the adoptee shall be treated as the natural child of the adopting parent or parents.” After the judgment of adoption, the maternal aunt and uncle no longer had custody by virtue of the September 4, 2009, judgment; they became the natural parents of the child by virtue of the adoption judgment. With that status comes the superior right to custody of the child. Steed v. Steed, 877 So.2d 602, 605 (Ala.Civ.App.2003); Douglas v. Harrelson, 454 So.2d 984, 986 (Ala.Civ.App.1984).

The changed statuses of the child and of the maternal aunt and uncle are pivotal. As our supreme court explained in Ex parte Bronstein, 434 So.2d 780, 781-82 (Ala.1983), “[a]doption is not merely an arrangement between the natural and adoptive parents, but it is a status created by the state acting as parens patriae, the sovereign parent_” The adoption judgment, in creating the new legal statuses of the child and the maternal aunt and uncle, extinguished the visitation rights of the maternal great-grandparents provided in the September 4, 2009, judgment. See People ex rel. Levine v. Rado, 54 Misc.2d 843, 845, 283 N.Y.S.2d 483, 485 (N.Y.Sup.Ct.1967) (holding in a case remarkably similar to this one that a previous court order awarding a paternal aunt custody and a maternal grandmother visitation rights was extinguished by the adoption of the child by the paternal aunt and her husband based on the permanent change in status wrought by the adoption). This result obtains because the custody and visitation judgment was not a permanent change of status but was instead a temporary determination of the custodial situation serving the best interest of the child at the time and under the circumstances then existing, which is always subject to modification. As our supreme court has explained:

“[B]y its very nature, custody is always temporary and never permanent. Although the temporary custody of a child may have been placed with someone, the court always retains jurisdiction to modify custody under the appropriate circumstances. This is to say that temporary custody is actually permanent custody subject to change.”

Ex parte J.P., 641 So.2d 276, 278 (Ala.1994).

The status that an adoption judgment conveys, however, is not subject to modification upon a showing of changed circumstances. Although an action to determine custody incident to a divorce or to prove dependency of a child under new circumstances could affect that status, the action would be a new action. A previous custody or dependency order relating to a child based on his or her former status could not survive the change in status wrought by the adoption judgment or else it would undermine the permanency of the adoption judgment and the status it conveys.

Although earlier cases, like Evans v. Rosser, 280 Ala. 163, 166, 190 So.2d 716, 718-19 (1966), and the case on which it relies, might, at first glance, indicate that the adoption judgment did not oust the juvenile court of jurisdiction to enforce its 2009 judgments, I do not believe that those cases prevent the conclusion I reach. Evans does state that “[a]doption proceedings cannot defeat [the power of the equity court to withdraw custody from a natural or adoptive parent], and do not judicially determine the right of custody as against a natural parent,” 280 Ala. at 166, 190 So.2d at 719; however, that particular statement of law appears to be dicta, because it was not required to support the court’s holding that the adoption decree under review was properly entered without the consent of the father, who had “ ‘lost guardianship of the child through divorce proceedings.’” 280 Ala. at 165, 190 So.2d at 718. In addition, the case upon which Evans relies, Praytor v. Cole, 247 Ala. 259, 260, 23 So.2d 713, 713 (1945), indicates that the key word in that particular quotation is the word “proceedings.”

In Praytor, our supreme court considered whether an adoption proceeding, begun by maternal grandparents before the father sought custody of the child in circuit court, would prevent the circuit court from exercising its equity jurisdiction over the custody of the child. Praytor, 247 Ala. at 259, 23 So.2d at 713. The Praytor court decided that the pending adoption proceeding did not prevent the circuit court from exercising its equity jurisdiction over the custody of the child. 247 Ala. at 259-60, 23 So.2d at 713. Of importance to the holding in Praytor was the fact that the adoption proceeding had not concluded. 247 Ala. at 260, 23 So.2d at 713. Under the 1940 version of the adoption code, if an adoption petitioner proved to the satisfaction of the probate court that an adoption would be in the best interest of the child, the probate court could enter an interlocutory order regarding the adoption; a final adoption decree could not be entered until the child had resided with the petitioner for at least one year and had been visited on a quarterly basis by an official from the Department of Public Welfare, the precursor to what is now the Department of Human Resources. Ala.Code 1940, Tit. 27, § 4. Because the adoption had not been concluded in Praytor, the court properly determined that the custody of the child could still be determined by the circuit court exercising its inherent equity power over the custody of the child. 247 Ala. at 260, 23 So.2d at 713.

The situation in the present case is different than the situations presented in either Evans or Praytor. The adoption in this case has been concluded. Although the Evans court appeared to determine, in dicta, that even a final adoption decree did not “judicially determine the right of custody as against a natural parent,” 280 Ala. at 166, 190 So.2d at 719, that holding was questionable then and is clearly incorrect under the present adoption code. Although a pending adoption proceeding does not determine the custody rights of competing parties, a completed adoption reduced to a final judgment does necessarily determine the custody rights of a natural parent. Section 26-10A-29 clearly states that the rights and responsibilities of the natural parents, except in the case of a spouse of an adopting stepparent, are terminated. Collateral attacks against an adoption are limited to a period of one year, except in cases where the adoptee has been kidnapped or in cases of fraud. Ala.Code 1975, § 26-10A-25. The finality of an adoption judgment under the present adoption code is in stark contrast to earlier adoption codes, which permitted either the child or the adopting parent or parents to petition to have the adoption annulled. See Ala.Code 1907, § 5202; Ala.Code 1923, § 9308. Even in the 1940 Alabama Code, the adoption could be set aside if the adopting parents failed to perform their duties to the child “faithfully” or, in situations where the adopting parent or parents were unaware of the possibility, where the child developed certain conditions. Ala. Code 1940, Tit. 27, § 4.

Reliance on Evans and older cases is problematic, partly because of the changes in our adoption code over the years and partly because those cases also rely in large part on the equity powers of the circuit court, which give that court inherent power to determine the custody of children. See, e.g., Wright v. Price, 226 Ala. 468, 147 So. 675 (1988). The juvenile court, unlike the circuit court, is a court of limited jurisdiction that derives its jurisdiction over the custody of children from statute, which means that its jurisdiction is not inherent and arises only in those situations outlined in the statute creating the juvenile courts. T.B. v. T.H., 30 So.3d 429, 431 (Ala.Civ.App.2009) (“Juvenile courts are purely creatures of statute and have extremely limited jurisdiction.”); see also Ex parte K.L.P., 868 So.2d 454, 456 (Ala.Civ.App.2003). Therefore, Evans does not preclude my conclusion that the juvenile court’s 2009 judgments were extinguished by the entry of the adoption judgment, which created in the maternal aunt and uncle and the child the new statuses of parents and child.

Allowing the juvenile court to entertain the maternal great-grandparents’ contempt claim and to potentially enforce the visitation rights awarded in the September 4, 2009, judgment would undermine the status of the maternal aunt and uncle as adoptive parents, who have, by statute, the rights of natural parents. Those rights include, in most circumstances, the right to refuse visitation with the child’s grandparents or other third parties. In an adoption by anyone other than a stepparent, the natural parents lose all parental rights to the adoptee. § 26-10A-29(b). Thus, all others who may claim a relationship or a right to the child by virtue of the natural parents’ relationship to the child also lose their relationships and rights to the child. Ex parte Bronstein, 434 So.2d at 782. As explained by the Bronstein court, “adoption, like birth creates legal relationships under which the adoptive parents gain certain rights which pre-empt any visitation rights by natural parents or grandparents.” Id. at 783.

I note that the maternal great-grandparents’ complaint, insofar as it sought additional visitation rights, could not be maintained in the juvenile court because the maternal great-grandparents lacked standing to institute an action seeking those rights. Although natural grandparents may be awarded postadoption visitation in certain relative adoptions, see Ala.Code 1975, § 26-10A-30, the maternal great-grandparents do not fall within the term “natural grandparents” contained in that statute; in addition, the juvenile court would have lacked jurisdiction to modify the adoption judgment to permit visitation under § 26-10A-30, because the probate court, which has exclusive jurisdiction over adoption proceedings, is the proper forum for such an action. Palmer v. Bolton, 574 So.2d 42 (Ala.Civ.App.1990), rev’d on other grounds, 574 So.2d 44 (Ala.1990). Thus, the maternal great-grandparents, in my opinion, lack standing to seek an award of grandparent visitation under the adoption code.

Although the juvenile court may have had continuing jurisdiction over the September 4, 2009, judgment until the entry of the adoption judgment, I conclude that the juvenile court lacked jurisdiction to enforce or modify the visitation provisions of that judgment after the entry of the adoption judgment because of the maternal aunt and uncle’s changed status as adoptive parents, providing them a superior right to custody of the child, and because the maternal great-grandparents no longer have any basis upon which to predicate a right to seek visitation with the child in the juvenile court. To allow the juvenile court to retain jurisdiction to enforce or modify the provisions of the September 4, 2009, judgment would do violence to the spirit and letter of the adoption code and would infringe on the probate court’s exclusive jurisdiction to award grandparent visitation in the limited circumstances provided for in § 26-10A-30. Therefore, because this court may affirm the judgment of the juvenile court on any valid legal ground, I would affirm the judgment of the juvenile court dismissing the great-grandparents’ complaint for the foregoing reasons. See Byrom v. Byrom, 47 So.3d 783, 790 (Ala.Civ.App.2007) (“[A]n appellate court ‘may affirm a trial court’s judgment on “any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected, by the trial court.” ’ ”); see also Ferguson v. Baptist Health Sys., Inc., 910 So.2d 85, 96 (Ala.2005) (“While we affirm [the trial court’s] ruling on a ground different from the ground cited by the trial court, this Court, subject only to exceptions not applicable in this case, can affirm the judgment of the trial court if that judgment is supported by any valid legal ground.”).

BRYAN, J., concurs.

      . Section 30-3-4.1 has since been held unconstitutional by our supreme court in Ex parte E.R.G., 73 So.3d 634 (Ala.2011). We note that, as mentioned, the maternal great-grandparents were awarded visitation pursuant to agreements regarding regular visitation and holiday visitation reached by the parties; those agreements were then incorporated into the juvenile court's judgments on September 4, 2009, and November 19, 2009. The juvenile court was exercising dependency jurisdiction, and it is apparent from the record that the juvenile court did not award the maternal great-grandparents visitation pursuant to § 30-3-4.1.

      . We cannot agree that the juvenile court was without jurisdiction to entertain the Rule 60(b) motion filed by the maternal aunt and uncle because the time for filing a Rule 59 motion had expired. Unlike a postjudgment motion made pursuant to Rule 59, which must be filed within 14 days of the entry of the juvenile court's judgment, see Rule 1(B), Ala. R. Juv. P., a Rule 60(b) motion, by its very nature, is designed to be filed after the judgment has become final, i.e., after the expiration of the period for filing postjudgment motions or after any such motions are denied. See Ex parte Lang, 500 So.2d 3, 4 (Ala.1986); Dubose v. Dubose, 964 So.2d 42, 45 (Ala.Civ.App.2007). However, the maternal aunt and uncle did not appeal from the dismissal of their Rule 60(b) motion, and we need not address this issue further.

      . The maternal great-grandparents originally sought mandamus review; however, because the dismissal of their complaint was a final judgment capable of supporting an appeal, we have exercised our discretion to treat their petition for the writ of mandamus as an appeal. Weaver v. Weaver, 4 So.3d 1171, 1173 (Ala.Civ.App.2008) (exercising this court’s discretion to treat a petition for the writ of mandamus as an appeal when the judgment from which the petition sought relief was a final judgment capable of supporting an appeal).

      . As noted in the main opinion, in Ex parte E.R.G., 73 So.3d 634 (Ala.2011), our supreme court held Ala.Code 1975, § 30-3-4.1, the grandparent-visitation statute, unconstitutional. Therefore, I decline to address the maternal aunt and uncle’s argument that the maternal great-grandparents also lacked standing to pursue visitation under that statute.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Donald MOORE and Sandra Moore v. HSBC MORTGAGE SERVICES.
    2100418.
    Court of Civil Appeals of Alabama.
    July 15, 2011.

      Myron K. Allenstein and Rose Marie Allenstein of Allenstein & Allenstein, Gadsden, for appellants.
    Andrew J. Noble III and John David Owen of Bradley Arant Boult Cummings LLP, Birmingham, for appellee.
   THOMPSON, Presiding Judge.

Donald Moore and Sandra Moore appeal from a partial summary judgment entered by the Etowah Circuit Court in favor of HSBC Mortgage Services (“HSBC”) on their claim against HSBC. Because this court lacks jurisdiction in this matter, we dismiss the appeal.

The Moores filed an action against Alabama Home Construction, Inc. (“Home Construction”), and HSBC. In their complaint, the Moores alleged that they had entered into a contract with Home Construction for the construction of a new house. They alleged that, as soon as they moved into the house, they began to experience numerous problems with the house, including plumbing leaks, problems with drywall, and a severe mold infestation. The Moores claimed that they had spent a substantial amount of money to repair the house and that Sandra Moore had become ill as a result of the mold infestation. The Moores asserted claims of breach of the implied warranty of habitability, breach of contract, negligence, and wantonness against Home Construction.

With regard to HSBC, the Moores alleged in their complaint that Home Construction had arranged for the financing of the construction of the house for the Moores and that the original lender that had held the Moores’ note and mortgage related to the construction of the house sold the note and mortgage to HSBC. The Moores asserted that HSBC had purchased the note and mortgage from the original lender subject to all of the defenses the Moores had against Home Construction. The Moores asserted that they had a defense to the note based on the fact that the house Home Construction had built for them was defective and in such a condition that its value was substantially impaired. The Moores sought a credit on the balance of the loan evidenced by the note for the amount they asserted was owed to them by Home Construction due to the defective condition of the house. They also sought a stay of all loan payments due on the note until their claims against Home Construction were resolved.

In its answer, HSBC asserted, among other things, that the Moores’ claim against it was barred because it was a holder in due course of the note at issue. HSBC also asserted a counterclaim against the Moores in which it claimed that it had purchased the note and mortgage in question, that the Moores had defaulted on the note, and that HSBC was a holder in due course of the note such that the Moores’ claims against Home Construction did not excuse their default on the note. HSBC sought a declaration that the Moores had defaulted on the note; an order allowing the Moores a reasonable time in which to cure their default; and, should the Moores fail to cure the default, an order “accelerating the note and determining amounts due thereunder,” a judgment for that amount, and an order foreclosing the mortgage. The Moores filed a reply to HSBC’s counterclaim in which they asserted that the counterclaim was without merit because HSBC was not a holder in due course of the note and, as a result, that it was subject to defenses arising from their claims against Home Construction.

HSBC filed a motion for a partial summary judgment as to the Moores’ claim against it. It asserted that it was a holder in due course of the note, and it submitted evidence in support of that contention. Importantly, HSBC did not seek a summary judgment in its favor on its counterclaim against the Moores. In their opposition to HSBC’s partial-summary-judgment motion, the Moores argued, among other things, that HSBC was not a holder in due course of the note. In so arguing, they relied on 16 C.F.R. § 438.2, which is known as “the FTC Holder Rule.”

“The FTC Holder Rule, 16 C.F.R. § 433.2 (2002), provides in part that in connection with any sale of consumer goods or services, it is an unfair or deceptive act to take or receive a consumer credit contract that fails to contain the following provision in at least ten point, bold face, type:
“ ‘NOTICE
“‘ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.’
“In adopting this rule, the FTC abrogated the holder in due course rule in consumer credit transactions, thus preserving the consumer’s claims and defenses against the creditor-assignee.”

Jaramillo v. Gonzales, 132 N.M. 459, 465, 50 P.3d 554, 560 (N.M.Ct.App.2002). At the hearing on the motion, the attorney for the Moores also asserted that HSBC was not a holder in due course because HSBC had not taken the note in good faith.

On June 16, 2010, the trial court granted HSBC’s motion and entered a partial summary judgment in its favor as to the Moores’ claim against it. The trial court certified the partial summary judgment as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. The Moores filed a motion to alter, amend, or vacate the partial summary judgment, which the trial court denied. The Moores filed a timely appeal to this court. Because this court lacked appellate jurisdiction, we transferred the appeal to our supreme court. The supreme court transferred the appeal back to this court pursuant to § 12-2-7(6), Ala.Code 1975.

The Moores raise multiple issues on appeal; however, this court’s review of those issues is precluded by the fact that we lack appellate jurisdiction in this matter. Although neither the Moores nor HSBC has raised an issue with regard to this court’s jurisdiction over the appeal, this court is required to consider its jurisdiction ex mero motu. Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997). In BB & S General Contractors, Inc. v. Thornton & Associates, Inc., 979 So.2d 121, 123-25 (Ala.Civ.App.2007), this court discussed the entry of a final judgment as to fewer than all the claims or parties in an action pursuant to Rule 54(b), Ala. R. Civ. P.:

“Rule 54(b), Ala. R. Civ. P., allows a trial court, in appropriate instances, to ‘direct the entry of a final judgment as to one or more but fewer than all of the claims or parties.’ With regard to subsection (b), the Committee Comments on 1973 Adoption [of] Rule 54 provide, in pertinent part:
“ ‘This subdivision regulates the relation of that joinder to the usual requirement, in Alabama as elsewhere, that appeal must be only from a final judgment, save in unusual circumstances. See Code of Ala., Tit. 7, § 754. In general the rule adopts equity practice of a “split judgment.” See Equity Rule 69. The rule provides that, in the absence of affirmative action by the judge, no decision is final until the entire case has been adjudicated. The one exception is that where the court has completely disposed of one of a number of claims, or one of multiple parties, and has made an express determination that there is no just reason for delay, the court may direct the entry of judgment on that claim or as to that party. The judgment so entered is a final judgment in all respects, and may be appealed.... ’
“In some instances, a Rule 54(b) certification may not be appropriate. When pending claims ‘ “are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results,” ’ our courts may determine a Rule 54(b) certification to be invalid. Gray v. Central Bank of Tuscaloosa, N.A., 519 So.2d 477, 479 (Ala.1987) (quoting Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987)). See also Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88 (Ala.2002) (setting aside a Rule 54(b) certification and dismissing the appeal as being from a nonfinal judgment when the trial court considered breach-of-contract claims without considering the counterclaim alleging fraud). The mere fact that claims ‘may have arisen out of the same set of facts does not prevent them from being multiple claims.’ Pate v. Merchants Nat’l Bank of Mobile, 409 So.2d 797, 799 (Ala. 1982) (citing Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975)).
“In Winecoff v. Compass Bank, 854 So.2d 611 (Ala.Civ.App.2003), the Wine-coffs redeemed two savings bonds at a bank, and the bank overpaid the amount actually due on those bonds. The bank then ‘set off,’ or deducted, an amount from the Winecoffs’ checking account as partial repayment of the overpayment on the bonds. 854 So.2d at 612. The Winecoffs sued the bank, alleging that the setoff was improper, and the bank counterclaimed, alleging that the setoff was proper and seeking the remainder of the amount it had overpaid the Wine-coffs. The trial court entered a summary judgment in favor of the bank on the Winecoffs’ claims, and, although it noted that the bank’s counterclaim was still pending, the trial court certified its order as final pursuant to Rule 54(b). This court determined that ‘the claims and the counterclaim each rested on the issue whether [the bank] could validly effect a setoff against the Winecoffs’ joint checking account.’ Winecoff v. Compass Bank, 854 So.2d at 614. Therefore, this court held that the claims and the counterclaim were too closely intertwined to render the Rule 54(b) certification valid. Accordingly, this court set aside the Rule 54(b) certification and dismissed the appeal as having been taken from a nonfinal judgment. Id.”

BB & S General Contractors, Inc., 979 So.2d at 123-25.

In the present case, the basis of the Moores’ claim against HSBC, which is presently before us, is that HSBC is not a holder in due course of the note and mortgage related to the Moores’ house and, as a result, that HSBC’s claim under those instruments is subject to certain defenses arising from the Moores’ claims against Home Construction. The basis of HSBC’s counterclaim against the Moores, which the trial court has not yet resolved, is that, because HSBC is a holder in due course of the note, the Moores are required to pay it the amount due on the note and that it is not subject to any defenses the Moores may have had based on their dispute with Home Construction over the construction of their house. The Moores’ defenses to HSBC’s counterclaim include their assertion that HSBC is not a holder in due course of the note.

Because the resolution of both the Moores’ claim, which was resolved by the partial summary judgment, and HSBC’s counterclaim, which is still pending in the trial court, require a consideration of virtually the same issues, we conclude that those claims are so closely intertwined that separate adjudication of those claims poses an unreasonable risk of inconsistent results. As a result, we conclude that the trial court erred when it certified the partial summary judgment as a final judgment pursuant to Rule 54(b). See BB & S General Contractors, Inc., 979 So.2d at 123-25. Without the trial court’s certification, there is no final judgment over which this court can exercise appellate jurisdiction, and, as a result, the appeal is due to be and is hereby dismissed. See id.

APPEAL DISMISSED.

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


author: BRYAN, Judge.

text:
    Dana Kyle WHITMAN v. Larry Stephen WHITMAN II.
    2100185.
    Court of Civil Appeals of Alabama.
    July 15, 2011.
    Joan-Marie Dean, Huntsville, for appellant.
    William P. Burgess, Jr., and Amanda L. Chrisley of William P. Burgess, Jr., P.C., Huntsville, for appellee.
   BRYAN, Judge.

Dana Kyle Whitman (“the wife”) appeals from a judgment entered by the Madison Circuit Court (“the trial court”) that divorced her from Larry Stephen Whitman II (“the husband”), asserting that the trial court erred in failing to conduct a hearing on her postjudgment motion.

The record indicates that the parties were married in May 1989 and that three children were born during the marriage. The husband initiated the action below by filing a complaint for a divorce on April 16, 2010. On June 15, 2010, the wife filed an “acknowledgment of nonrepresentation” and the parties filed a settlement agreement that addressed all the issues pending before the trial court, such as custody of the parties’ children, child support, and division of marital property and debts, including the parties’ jointly owned business. On June 28, 2010, the trial court entered a judgment divorcing the parties that ratified and confirmed the parties’ settlement agreement and expressly incorporated their settlement agreement into the divorce judgment.

On July 23, 2010, the wife filed a post-judgment motion pursuant to Rule 59, Ala. R. Civ. P., requesting an order vacating the divorce judgment and a new trial. In her motion, the wife alleged that she had signed the settlement agreement under duress and that the husband had used economic coercion and fraudulent representations to procure her agreement. Specifically, the wife alleged that, during the course of negotiations of the settlement agreement, the husband had denied having an extramarital affair. However, according to the wife, after the divorce judgment was entered, the parties’ 15-year-old daughter discovered “the husband’s illicit conduct” while working at the family business. The wife attached the affidavit of the daughter who had discovered a series of e-mails between the husband and a family friend, as well as copies of the e-mails discovered by the daughter, to her postjudgment motion. The wife also alleged that the husband, during the negotiation of the settlement agreement, utilized economic coercion and duress by representing to the wife that the family business was in dire financial straights and that it was necessary to sell the marital residence. The wife further alleged that, at some point in the negotiation process, she desired substantial changes to the agreement and that the husband responded by indicating to the wife that she would not have access to funds that she needed to purchase a home for her and the parties’ children, which was already under contract. The wife specifically requested a hearing on her postjudgment motion; however, her postjudgment motion was denied by operation of law, see Rule 59.1, Ala. R. Civ. P., without the trial court’s having conducted a hearing on her postjudgment motion. The wife timely appealed.

On appeal, the wife challenges only the trial court’s failure to conduct a hearing on her postjudgment motion before it was denied by operation of law. In Wicks v. Wicks, 49 So.3d 700 (Ala.Civ.App.2010), this court considered the same question that is presented in this case — whether the trial court committed reversible error in failing to conduct a hearing on a post-judgment motion when a hearing was specifically requested. We stated:

“Rule 59(g), Ala. R. Civ. P., provides that postjudgment ‘motions remain pending until ruled upon by the court (subject to' the provisions of Rule 59.1) but shall not be ruled upon until the parties have had opportunity to be heard thereon.’ This court has held that
“‘[generally, a movant who requests a hearing on his or her post-judgment motion is entitled to such a hearing. Rule 59(g), Ala. R. Civ. P.; Flagstar Enters., Inc. v. Foster, 779 So.2d 1220, 1221 (Ala.2000). A trial court’s failure to conduct a hearing is error. Flagstar Enters., 779 So.2d at 1221.’
“Dubose v. Dubose, 964 So.2d 42, 46 (Ala.Civ.App.2007); see also Staarup v. Staarup, 537 So.2d 56, 57 (Ala.Civ.App.1988) (‘[Rule 59(g) ] mandates that, when a hearing is requested on a motion for new trial, the hearing must be granted.’).
“[However], this court has recognized an exception to the general rule that the denial of a postjudgment motion without conducting a requested hearing is reversible error. See Gibert v. Gibert, 709 So.2d 1257, 1258 (Ala.Civ.App.1998) (‘A trial court errs by not granting a hearing when one has been requested pursuant to Rule 59(g); however, that error is not necessarily reversible error.’). ‘On appeal, ... if an appellate court determines that there is no probable merit to the motion, it may affirm based on the harmless error rule.’ Palmer v. Hall, 680 So.2d 307, 307-08 (Ala.Civ.App.1996); see also Lowe v. Lowe, 631 So.2d 1040, 1041 (Ala.Civ.App.1993) (‘Denial of a Rule 59 motion without a hearing is reversible error if the movant requested a hearing and harmful error is found.’). The Alabama Supreme Court has stated:
“ ‘Harmless error occurs, within the context of a Rule 59(g) motion, where there is either no probable merit in the grounds asserted in the motion, or where the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.’
“Greene v. Thompson, 554 So.2d 376, 381 (Ala.1989). However, ‘[w]hen there is probable merit to the motion, the error cannot be considered harmless.’ Dubose, 964 So.2d at 46.”

49 So.3d at 701.

In Wicks, the parties to a divorce action entered into a settlement agreement that was eventually incorporated into a divorce judgment. Id. at 700. The husband subsequently filed a postjudgment motion pursuant to Rule 59 alleging, as he had before the entry of the divorce judgment, that the wife had fraudulently failed to disclose her ownership interest in certain assets before the parties entered into a settlement agreement. Id. This court held that the husband’s “allegation that [the wife] fraudulently concealed assets, if proven, may be a ground to set aside the final judgment.” Id. at 702 (quoting Barganier v. Barganier, 669 So.2d 933, 937 (Ala.Civ.App.1995), for the proposition that “ ‘[a] property agreement may be altered, amended, or vacated if one party procures the agreement by fraud or conceals assets or liabilities’ ”). Thus, we concluded that the trial court’s failure to hold a hearing on the husband’s postjudgment motion was not harmless error, and we reversed the trial court’s order denying the husband’s post-judgment motion. Id.

Similarly, in the present case, the wife’s allegations of fraudulent representations, duress, and coercion, if proven, may be grounds to set aside the divorce judgment. See Barganier, 669 So.2d at 938 (citing Kunkel v. Kunkel, 547 So.2d 555, 556 (Ala.Civ.App.1989)) (“A separation agreement incorporated into a divorce judgment must be fair, reasonable, and just, and free from fraud, duress, or other coercion.”). See also Elliott v. Elliott, 667 So.2d 116, 119 (Ala.Civ.App.1995) (citing Cary v. Cary, 257 Ala. 431, 59 So.2d 659 (1952), for the proposition that, “[i]f [a settlement] agreement was obtained through duress and fraud, then the divorce is void”). Because we cannot conclude, as a matter of law, that there was no probable merit to the wife’s postjudgment motion or that the trial court’s failure to conduct a hearing on the wife’s postjudgment motion was harmless error, we reverse the trial court’s order denying the wife’s postjudgment motion, and we remand the cause for further proceedings consistent with this opinion.

The husband’s and the wife’s requests for an award of attorney’s fees on appeal are denied.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . In Claybrook v. Claybrook, 56 So.3d 652, 653 (Ala.Civ.App.2010), the wife filed a motion to repudiate a divorce settlement agreement alleging several defenses to the enforcement of the settlement agreement. The trial court entered a judgment divorcing the parties, and the wife filed a postjudgment motion; after conducting a hearing on the wife’s postjudgment motion, the trial court denied the motion. Id. at 653-54. The wife appealed, and we reversed the trial court's denial of the wife's postjudgment motion, holding that the wife’s defenses to the enforceability of the settlement agreement should have been considered at an evidentiary hearing. Id. at 658. We also noted that,
      "on remand, even if the wife’s evidence fails to establish a defense sufficient to defeat the enforcement of the parties' agreement, the trial court is not bound by the provisions set forth therein. The trial court must independently determine whether the provisions of that agreement comply with Rule 32, Ala. R. Jud. Admin., or whether a deviation therefrom is justified, and whether the provisions of the agreement are just and equitable under the circumstances.”

        Id.


author: MOORE, Judge.

text:
    R.M. v. ELMORE COUNTY DEPARTMENT OF HUMAN RESOURCES. D.J.M., Jr. v. Elmore County Department of Human Resources.
    2091106, 2091130, and 2100496.
    Court of Civil Appeals of Alabama.
    July 15, 2011.

      G. Allen Howell of Pinkston & Courtney, LLP, Wetumpka, for appellant R.M.
    Brandon C. Stone of Stone & Britt, LLC, Millbrook, for appellant D.J.M., Jr.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Chambless, staff atty., Department of Human Resources, for appel-lee.
   MOORE, Judge.

In case no. 2091106, R.M. (“the mother”) appeals from a judgment entered by the Elmore Juvenile Court (“the juvenile court”) terminating her parental rights to her children, D.H.M. (a daughter born October 23, 2003), D.J.M. III (a son born May 13, 2005), and D.M.M. (a daughter born April 27, 2009) (hereinafter sometimes referred to collectively as “the children”). In case no. 2091130, D.J.M., Jr. (“the father”), appeals from the same judgment, which also terminated his parental rights to the children. In case no. 2100496, the father appeals from the denial of his motions, filed pursuant to Rule 60(b)(2) and Rule 60(b)(6), Ala. R. Civ. P„ seeking relief from the above-referenced judgment. This court consolidated the appeals ex mero moto.

Background,

In November 2008, the Elmore County Department of Human Resources (“DHR”) became involved with the family following reports that D.H.M. was being physically abused. After multiple visits to the family’s home in November and December 2008, DHR began providing in-home rehabilitative services to the family.

On February 11, 2009, after investigating another report that D.H.M. had been abused, DHR also became concerned that the mother and the father were neglecting D.H.M. At that point, D.H.M. and D.J.M. III were removed from the mother’s and the father’s custody. The juvenile court awarded DHR temporary custody of D.H.M. and D.J.M. III, and they were placed in foster care.

On April 27, 2009, shortly after D.H.M. and D.J.M. III were removed from the custody of the mother and the father, the mother gave birth to D.M.M. D.M.M. was born prematurely, and the hospital reported to DHR that D.M.M. had tested positive for benzodiazepines at birth. Asserting that the mother could not produce a valid prescription for benzodiazepines or explain the presence of benzodiazepines in D.M.M.⅛ blood, DHR obtained custody of D.M.M. in June 2009.

On June 24, 2009, all three children were placed with their paternal aunt, J.L.C., and her husband, W.D.C., both of whom had been approved as foster parents in the State of Florida. On June 16, 2010, DHR filed petitions to terminate the parental rights of the mother and the father to the children, asserting, in pertinent part:

“9. The parents failed to provide for the material needs of the child[ren] or to pay a reasonable portion of [their] support;
“10. The parents have tortured, abused, cruelly beaten, or otherwise maltreated the child [ren];
“11. The child[ren] ha[ve] experienced unexplained serious injury under circumstances that would indicate that the injuries resulted from the intentional conduct or wilful neglect of the parent;
“12. [The mother] suffers from an emotional illness, mental illness, or mental deficiency of a duration or nature as to render her unable to care for the needs of her child[ren].”

A hearing on DHR’s petitions was scheduled for August 5, 2010.

On some unidentified date, the Elmore County District Attorney filed criminal charges against the mother and the father for felony child abuse based on their alleged physical abuse and willful neglect of D.H.M. On July 16, 2010, the father moved the juvenile court to stay the termination hearing, asserting that the pending criminal trial would materially alter his defense and trial strategy and that, unless the termination hearing was stayed until after the resolution of his criminal charges, his rights would be materially and unfairly prejudiced. The mother filed a similar motion. On July 20, 2010, the father requested that the juvenile court grant him leave to conduct discovery; DHR objected to that request. The juvenile court denied the mother’s and the father’s motions to stay the proceedings and the father’s motion for leave to conduct discovery.

On July 24, 2010, an Elmore County grand jury returned an indictment against the father, charging that the father “did torture, willfully abuse, cruelly beat or otherwise willfully maltreat [D.H.M.], a child under the age of eighteen (18) years by hitting the said child on the buttocks and legs, hitting the child in the head, and failing to provide for the basic needs of the child, in violation of Section 26-15-3, Code of Alabama, 1975.” The mother was also indicted on felony child-abuse charges; however, no copy of the indictment returned against the mother is in the record.

At the beginning of the August 5, 2010, termination hearing, counsel for the mother and the father again moved for a stay of the termination hearing, asserting that the mother’s and the father’s Fifth Amendment rights against self-incrimination warranted a stay. After hearing arguments in favor of and opposing those motions, the juvenile court denied the motion, stating that the children had been “in care” for 18 months and needed permanency; the termination hearing proceeded.

At the conclusion of the termination hearing, the juvenile court noted that it had previously found the children to be dependent and indicated that it intended to grant DHR’s petitions to terminate the parental rights of the mother and the father. On August 12, 2010, the juvenile court entered its judgment terminating the mother’s and the father’s parental rights to the children. In its judgment, the juvenile court found, among other things, that the mother had physically abused D.H.M. and D.M.M.; that the mother had starved or otherwise maltreated D.H.M.; that the mother suffers from a mental illness, disorder, or deficiency that causes her to be unable to care for the children; that the father had physically abused D.H.M.; that the father had withheld food from D.H.M.; and that the father had failed to protect the children from the mother’s abuse.

On August 17, 2010, the mother timely filed her notice of appeal in case no. 2091106. On August 24, 2010, the father filed a motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial. The juvenile court denied the father’s postjudgment motion on August 25, 2010. On September 3, 2010, the father timely filed his notice of appeal in case no. 2091130.

On January 17, 2011, after obtaining leave from this court, the father filed a motion for relief from the juvenile court’s August 12, 2010, judgment; that motion was filed pursuant to Rule 60(b)(2), Ala. R. Civ. P. The juvenile court denied that motion on February 8, 2011. On February 15, 2011, the father filed a motion to alter, amend, or vacate the denial of his Rule 60(b)(2) motion; the juvenile court denied that motion on the same date. Also on February 15, 2011, the father filed a second motion for relief from the August 12, 2010, judgment. That motion was filed pursuant to Rule 60(b)(6), Ala. R. Civ. P.; the father did not obtain leave of this court to file that second Rule 60(b) motion. The juvenile court denied that motion on the same date it was filed.

On March 1, 2011, the father filed a petition for a writ of mandamus seeking relief from the denial of his Rule 60(b) motions (case no. 2100496). This court elected to treat the father’s petition as an appeal (see supra note 1).

Case nos. 2091106 and 2091130

The Alleged Lack of Service on the Mother

Because it touches on the jurisdiction of the juvenile court, we first address the mother’s argument that she was not properly served with notice of the petitions to terminate her parental rights in compliance with Rule 4, Ala. R. Civ. P. Service of process on individuals is governed by Rule 4(c)(1), Ala. R. Civ. P., which provides:

“(c) Upon Whom Process Served. Service of process, except service by publication as provided in Rule 4.3, shall be made as follows:
“(1) Individual. Upon an individual, other than a minor or an incompetent person, by serving the individual or by leaving a copy of the summons and the complaint at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and the complaint to an agent authorized by appointment or by law to receive service of process.”

Our supreme court has recognized that

“[o]ne of the requisites of personal jurisdiction over a defendant is ‘perfected service’ of process giving notice to the defendant of the suit being brought.’ ‘When the service of process on the defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally.’ A judgment rendered against a defendant in the absence of personal jurisdiction over that defendant is void.”

Horizons 2000, Inc. v. Smith, 620 So.2d 606, 607 (Ala.1993) (citations omitted).

It was undisputed before the juvenile court that process for the mother was left with the father at the family’s home on June 22, 2009. The mother asserts that, at the time of that service, she and the father had separated; that she no longer lived in the family’s home; and that the father was not authorized to accept service on her behalf. Thus, the mother asserts, she was never properly served with notice of the termination proceedings. Accepting the mother’s assertions as true, we nevertheless conclude that the mother has waived any claim of error resulting from the alleged lack of proper service.

The record contains a copy of a “Motion to Stay Proceedings,” filed by the mother in the juvenile court on July 21, 2010. In that motion, the mother did not raise the issue of the juvenile court’s lack of personal jurisdiction over her as a result of the lack of service of process. As recognized in Persons v. Summers, 274 Ala. 673, 681, 151 So.2d 210, 214-15 (1963):

“[T]he allegation of the bill shows that ‘complainants requested a continuance of said hearing which was granted.... ’ Service of process is not essential if the party intended to be served appears and defends and submits himself to the jurisdiction of the court. The purpose of process is to bring the defendant into court and may be by him waived.... We consider the appearance requesting a continuance to be a general appearance because we have said that if a defendant intends to rely on want of jurisdiction over his person, he must appear, if at all, for the sole purpose of objecting to the jurisdiction of the court. An appearance for any other purpose is usually considered general.”

As in Persons v. Summers, supra, the mother’s initial filing in response to the petitions to terminate her parental rights was the motion to continue or to stay the proceedings filed on July 21, 2010. In that motion, the mother asserted no challenge to the juvenile court’s exercise of personal jurisdiction over her, and, thus, she is deemed to have made a general appearance in the action and to have submitted to the jurisdiction of the juvenile court. As a result, any claim as to error occurring in the service of process on the mother is waived.

The Motions to Stay the Termination Hearing

The mother and the father both assert that allowing the termination hearing to proceed while the criminal charges against them were pending violated their constitutional rights against self-incrimination, as provided by the Fifth Amendment to the United States Constitution, and that the juvenile court exceeded its discretion in denying their motions to stay the termination hearing until after the resolution of their criminal trials.

“This Court stated in Ex parte Baugh, 530 So.2d 238, 241 (Ala.1988):
“ ‘Under the Fifth Amendment to the Constitution of the United States, “no person ... shall be compelled in any criminal case to be a witness against himself.” The privilege against self-incrimination must be liberally construed in favor of the accused or the witness, Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951), and is applicable not only to federal proceedings but also to state proceedings, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). “The fact that the privilege is raised in a civil proceeding rather than a criminal prosecution does not deprive a party of its protection.” Wehling v. Columbia Broadcasting System, 608 F.2d 1084 (5th Cir.1979), citing with approval Lefkowitz v. Cunningham, 431 U.S. 801, 9[7] S.Ct. 2132, 53 L.Ed.2d 1 (1977); McCarthy v. Arndstein, 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158 (1924).’
“The United States Constitution, however, does not mandate that under all circumstances the civil proceedings in which the privilege against self-incrimination is asserted be stayed; whether to stay those proceedings is within the trial court’s discretion.
‘“While the Constitution does not require a stay of civil proceedings pending the outcome of potential criminal proceedings, a court has the discretion to postpone civil discovery when “justice requires” that it do so “to protect a party or persons from annoyance, embarrassment, oppression, or undue burden or expense.” Rule 26(c), Ala. R. Civ. P.’
“Ex parte Coastal Training Inst., 583 So.2d 979, 980-81 (Ala.1991).
“In the present case, three issues must be addressed to determine if a stay in the civil divorce proceedings based on Fifth Amendment concerns in a pending criminal action is warranted: (1) whether the civil proceeding and the criminal proceeding are parallel, see Ex parte Weems, 711 So.2d 1011, 1013 (Ala.1998); (2) whether the moving party’s Fifth Amendment protection against self-incrimination will be threatened if the civil proceeding is not stayed, see Ex parte Windom, 763 So.2d 946, 950 (Ala.2000); and (3) whether the requirements of the balancing test set out in Ex parte Baugh, 530 So.2d at 244, and Ex parte Ebbers, 871 So.2d 776, 789 (Ala.2003), are met.”

Ex parte Rawls, 953 So.2d 374, 378 (Ala.2006).

The mother and the father also assert that the juvenile court improperly applied the three factors set forth in Ex parte Rawls, supra. The competing actions at issue in Rawls were a civil divorce action, in which the wife alleged that the husband had stalked her and had been physically and verbally abusive to her throughout the marriage, and a criminal action against the husband involving felony charges of criminal mischief, criminal trespass, and stalking. Id. at 380-81. The husband moved to stay the divorce proceedings, asserting that a civil trial would violate his Fifth Amendment privilege against self-incrimination; the trial court denied the motion, and the husband petitioned for a writ of mandamus. Id. at 377. This court denied his petition without an opinion. See Ex parte Rawls (No. 2040634, June 21, 2005), 945 So.2d 504 (Ala.Civ.App.2005) (table). The husband then filed a petition for a writ of mandamus in the supreme court. Id.

In addressing whether the civil and criminal actions were parallel proceedings, the supreme court stated that “a divorce action in which there are allegations of abuse, harassment, threats, and intimidation and a felony stalking charge could not be more parallel.” Id. at 380-81. The court found it significant that, in support of the felony stalking charge, the state would likely rely on some of the same evidence presented in the divorce action. Id. at 381. The court held that, “[bjecause that criminal proceeding and the divorce proceeding have some overlapping acts, they must be considered parallel proceedings. Therefore, [the husband’s] motion for a stay cannot be denied on the grounds that these are not parallel proceedings.” Id. at 380.

We note that the civil and criminal proceedings at issue in these appeals, i.e., the termination hearing and the action stemming from the felony child-abuse charges, were premised upon identical allegations. In both the termination actions and the criminal actions, the mother and the father were alleged to have physically abused D.H.M. by hitting or beating her; to have neglected her, presumably by failing to provide her with an adequate amount of food; and/or to have failed to protect her from abuse. Based on our review of the record, those are the same allegations on which DHR premised its termination petitions against the mother and the father. The evidence presented in both the civil and the criminal actions, therefore, was expected to be substantially similar, if not identical. As in Ex parte Rawls, supra, we conclude that the termination proceedings and the criminal proceedings were parallel.

The second factor identified in Rawls, supra, to be considered in determining whether the moving party is entitled to a stay is whether the moving party’s Fifth Amendment protection against self-incrimination will be threatened if the civil proceeding is not stayed. Ex parte Rawls, 958 So.2d at 381 (citing Ex paHe Window, 763 So.2d 946, 950 (Ala.2000)). In Ex parte Rawls, our supreme court stated:

“To sustain a moving party’s Fifth Amendment right against self-incrimination, ‘ “it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” ’ ”

953 So.2d at 381 (quoting Ex parte Baugh, 530 So.2d 238, 241 (Ala.1988), quoting in turn Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951)).

At the termination hearing, the mother asserted her Fifth Amendment right against self-incrimination in response to numerous questions, including: why she and the father had separated; whether she was living in a shelter for abused and battered women; why she had entered DHR’s custody as a child; whether, as a child, her mother had physically abused her; whether she had been sexually abused as a child; whether she had been indicted by a grand jury and, if so, why; on what charges she had been incarcerated; whether she had a history of mental-health problems and, if so, the extent and details of that history; whether she or the father had ever locked or chained the refrigerator to prevent the children from obtaining food from it; whether D.H.M. had a habit of getting up at night in search of food; whether she or the father had ever locked the children in their rooms; and whether she had ever abused or neglected the children.

At the termination hearing, the father asserted his Fifth Amendment right against self-incrimination to numerous questions, including: why he and the mother had separated; on what charges he had been incarcerated; whether he had ever been concerned for the health of his children during the time they had lived with the mother and/or him; whether, in his opinion, D.H.M. had ever appeared malnourished; whether he had ever placed a lock on the refrigerator; whether he had ever struck his children; whether he had ever been afraid of the mother or afraid that she might harm one of the children; and whether the mother had ever threatened to harm herself or commit suicide.

It is clear that responsive answers by the mother or the father to the above questions could be highly relevant to the criminal charges that were pending against them at the time of the termination hearing. Thus, under the circumstances existing at the time of the termination hearing, the mother and the father clearly had reason to believe that responsive answers to the questions posed to them “ ‘might be dangerous because injurious disclosure could result.’ ” Ex parte Baugh, 530 So.2d at 241 (quoting Hoffman v. United States, 341 U.S. at 486. Therefore, we conclude that the mother’s and the father’s Fifth Amendment rights against self-incrimination were threatened by the termination proceeding and by the juvenile court’s denial of the requested stay.

We next must determine whether the mother’s and the father’s Fifth Amendment rights outweigh the potential prejudice to the other party in the civil proceeding. See Ex parte Rawls, 953 So.2d at 378 (discussing the balancing test set out in Ex parte Baugh, 530 So.2d at 244, and Ex parte Ebbers, 871 So.2d 776, 789 (Ala.2003)). In Ex parte Ebbers, supra, our supreme court identified a list of factors to be considered in applying the balancing test; those factors include, but are not limited to:

“1. The interest of the plaintiff in proceeding expeditiously with the civil litigation, or any particular aspect of it, and the potential prejudice to the plaintiff of a delay in the progress of that litigation.
“2. The private interest of the defendant and the burden that any particular aspect of the proceedings may impose on the defendant.
“3. The extent to which the defendant’s Fifth Amendment rights are implicated/the extent to which the issues in the criminal case overlap those in the civil case.
“4. The convenience of the court in the management of its cases, and the efficient use of judicial resources.
“5. The interest of persons not parties to the civil litigation.
“6. The interest of the public in the pending civil and criminal litigation.
“7. The status of the criminal case, including whether the party moving for the stay has been indicted.
“8. The timing of the motion to stay.”

871 So.2d at 789-90 (citations to federal cases omitted). See also Ex parte 62 So.3d 531, 535 (Ala.Civ.App.2010) (listing and applying the factors from Ex parte Ebbers, supra, and concluding that the juvenile court did not improperly deny the mother’s motion for a stay of a pendente lite hearing in a dependency action but noting that the juvenile court had stayed the final custody hearing).

In considering the first factor, i.e., the interest of the plaintiff in proceeding expeditiously with the civil litigation, Ex parte Rawls instructs that “the important aspect of this factor is whether [the plaintiffs] civil action against [the defendant] will be damaged by the stay; in other words, will [the plaintiffs] case against [the defendant] be weakened by the passage of time because of lost evidence or witnesses?” 953 So.2d at 385. DHR did not argue before the juvenile court that the issuance of a stay would prejudice its case, i.e., that the issuance of a stay would pose a threat of lost evidence or witnesses in the termination hearing. Therefore, there was no evidence before the juvenile court to indicate that this factor weighed against staying the termination hearing.

We have already concluded that the civil and criminal proceedings substantially overlap and significantly threaten the mother’s and the father’s Fifth Amendment rights. Additionally, it was undisputed that, at the time of the termination hearing, both the mother and the father had been indicted on felony child-abuse charges. Thus, those factors weighed heavily in favor of staying the termination hearing.

DHR argued before the juvenile court that the children’s need for permanence greatly outweighed any right to a stay the mother and the father may have had. We agree with DHR that the children deserve permanency; permanency, however, may not be achieved at any cost. Additionally, the evidence established that the children were settled and thriving in their placement with relatives, and no evidence was presented to indicate that that placement was unstable or at risk of being disrupted. Further, the paternal aunt and uncle with whom the children had been placed indicated that they intended to wait until the juvenile court had resolved all issues of parental rights before initiating any adoption proceedings.

Thus, staying the termination hearing until the criminal proceedings had been resolved was unlikely to prejudice the children other than to continue to weaken any bond they may have had with the mother and the father by continuing a successful placement with the paternal aunt and uncle. That potential harm, however, is outweighed by the harm resulting from the permanent and irrevocable termination of the entire parent-child relationship, which termination the mother and the father opposed but were unable to defend against without sacrificing their constitutional rights. “Requiring a party to surrender one constitutional right in order to assert another is not allowed.” Lowe v. Lowe, 561 So.2d 240, 243 (Ala.Civ.App.1990).

In its brief filed with this court, DHR also asserts that the mother and the father did not timely seek a stay of the termination hearing and, therefore, that the juvenile court was within its discretion in denying their motions. We disagree. The mother and the father sought a stay within three weeks of DHR’s filing the petitions to terminate their parental rights. See, e.g., Ex parte White, 551 So.2d 923, 924-25 (Ala.1989) (concluding, on petition for a writ of mandamus, that trial court should have stayed civil action because defendant, who had failed to respond to discovery requests and who did not seek a stay until after he had been compelled to respond to discovery, had not waived his right to assert his Fifth Amendment rights). We, therefore, reject DHR’s argument that the mother and the father failed to timely seek a stay.

Based on our review of the record, we conclude that the termination hearing and the criminal proceedings were parallel proceedings; that the mother’s and the father’s constitutional rights against self-incrimination were threatened by the juvenile court’s denial of the stay; and that, after balancing the constitutional rights of the mother and the father against the prejudice that would have resulted from postponing the termination hearing, the mother’s and the father’s constitutional rights were the weightier concerns in this case. Thus, all three of the factors identified in Ex parte Rawls, supra, weigh in favor of the stay.

The very purpose of the termination hearing in this case was to determine whether the parental rights of the mother and the father were to remain intact. Cf. Carter v. Drumm, 700 S.W.2d 423, 424 (Ky.Ct.App.1985) (refusing to grant a motion to stay a dependency action pending resolution of criminal proceedings because the mother and the father were not risking a loss of all parental rights in that dependency action as the appellate court recognized they would if faced with a termination of their parental rights). Unlike the parents in Carter, supra, the parents in this case were faced with a total and irrevocable loss of their parental rights. Without waiving their Fifth Amendment rights against potentially incriminating themselves, the mother and the father were unable to significantly aid in the defense of their parental rights. Additionally, even by invoking their Fifth Amendment rights, the mother and the father were forced to expose themselves to an adverse inference of guilt. See, e.g., Ex parte Rawls, 953 So.2d at 383 (a civil court is entitled to draw adverse inferences when a party or witness invokes his or her Fifth Amendment right as to a particular question (citing Baxter v. Palmigiano, 425 U.S. 308, 317-18, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976))).

We therefore conclude that the juvenile court exceeded its discretion in denying the mother’s and the father’s motions to stay the termination hearing. We reverse the judgment of the juvenile court and remand the cause for further proceedings consistent with this opinion. Because of our resolution of the constitutional issue presented, we pretermit consideration of the other issues raised by the mother and the father on appeal.

Case no. 21004,96

On January 17, 2011, the father sought leave from this court to seek relief from the juvenile court’s judgment, pursuant to Rule 60(b)(2), Ala. R. Civ. P. See Rule 60(b), Ala. R. Civ. P. (“Leave to make the motion need not be obtained from any appellate court except during such time as an appeal from the judgment is actually pending before such court.”). This court granted the father’s motion.

The father thereafter filed, pursuant to Rule 60(b)(2), Ala. R. Civ. P., a motion seeking relief from the juvenile court’s August 12, 2010, judgment terminating his parental rights. Because we granted the father’s request to seek relief from the juvenile court, the date of the father’s motion, filed pursuant to Rule 60(b)(2), is “deemed to have been made in the trial court as of the date upon which leave to make the motion was sought in the appellate court.” Rule 60(b), Ala. R. Civ. P. Thus, the father is deemed to have filed his motion, pursuant to Rule 60(b)(2), on January 17, 2011.

In his Rule 60(b)(2) motion, the father asserted that he had been acquitted of the felony child-abuse charges in January 2011 and that the acquittal constituted “newly discovered evidence” relevant to DHR’s petitions to terminate his parental rights. On February 8, 2011, the juvenile court conducted a hearing on the father’s Rule 60(b)(2) motion, and, on that same date, it denied the father’s motion.

On February 15, 2011, the father filed a motion to alter, amend, or vacate the denial of his Rule 60(b)(2) motion. The juvenile court purported to deny that motion on the same date. Also on February 15, 2011, the father filed a second motion for relief from the judgment, this one pursuant to Rule 60(b)(6), Ala. R. Civ. P. In that second motion, the father stated that “[t]he grounds for relief are as they were presented in [the father’s] motion pursuant to Rule 60(b)(2).” The juvenile court denied the father’s second motion on the same date it was filed.

On March 1, 2011, the father filed a petition for a writ of mandamus seeking relief from the denial of his Rule 60(b) motions. This court has elected to treat the father’s petition as an appeal. See Evans v. Sharp, 617 So.2d 1039 (Ala.Civ.App.1993) (holding that appellate courts can review the denial of a Rule 60(b) motion by appeal even if the appellant mistakenly files a petition for a writ of mandamus). We conclude, however, that this court cannot consider the father’s appeal because it was not timely filed. The juvenile court denied the father’s Rule 60(b)(2) motion on February 8, 2011. The father thereafter had 14 days to appeal from that judgment. See Rule 28(C), Ala. R. Juv. P. The time for filing the appeal was not tolled by the filing of any of the father’s subsequent motions in the juvenile court, because those motions were in the nature of successive Rule 60(b) motions to “reconsider” the denial of the original Rule 60(b) motion, which our rules of procedure do not allow. See Ex parte Keith, 771 So.2d 1018, 1021-22 (Ala.1998). The father did not file his notice of appeal until after the deadline had expired; hence, this court has no jurisdiction to consider his appeal. See Rule 2(a)(1), Ala. R.App. P.

We nevertheless note that the father sought in his Rule 60(b) motion to have the judgment terminating his parental rights vacated. This court has now reversed that judgment for the reasons set out above. Accordingly, the father has, in essence, obtained the relief that he was seeking, thus rendering his Rule 60(b) motion and his appeal from the denial of that motion moot.

Based on the foregoing, we dismiss the father’s appeal in case no. 2100496.

Conclusion

In case nos. 2091106 and 2091130, we reverse the judgment of the juvenile court and remand the cases for further proceedings consistent with this opinion. In case no. 2100496, we dismiss the appeal for lack of appellate jurisdiction.

2091106 — REVERSED AND REMANDED.

2091130 — REVERSED AND REMANDED.

2100496 — APPEAL DISMISSED.

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

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

      . In case no. 2100496, the father filed a petition for a writ of mandamus; however, this court elected to treat that petition as an appeal. See Evans v. Sharp, 617 So.2d 1039 (Aia.Civ.App. 1993) (holding that appellate courts can review the denial of a Rule 60(b) motion by appeal even if the appellant mistakenly files a petition for a writ of mandamus).

      . "Except as otherwise provided by the Alabama Rules of Juvenile Procedure and this section, service of process of termination of parental rights actions shall be made in accordance with the Alabama Rules of Civil Procedure.” Ala.Code 1975, § 12-15-318(a).