author: MURDOCK, Justice. COBB, Chief Justice

text:
    Ex parte Celia Lapidus NADLER. (In re T.H. and C.H. v. Jefferson County Department of Human Resources).
    1100027.
    Supreme Court of Alabama.
    Feb. 25, 2011.
    Celia Lapidus Nadler and Tobie J. Smith of Legal Aid Society of Birmingham, Birmingham, guardians ad litem.
   MURDOCK, Justice.

WRIT DENIED. NO OPINION.

WOODALL, STUART, PARKER, MAIN, and SHAW, JJ., concur.

COBB, C.J., and BOLIN, J., dissent.

COBB, Chief Justice

(dissenting).

I believe that this petition for a writ of certiorari is being denied because it was sought by the guardian ad litem for the child in the dependency determination reviewed by the Alabama Court of Civil Appeals. The guardian ad litem petitioner was not a party to the appeal to the Court of Civil Appeals of the juvenile court’s determination that the minor child was dependent. Pursuant to Rule 40(a), Ala. R.App. P., titled “Who May File,” only “[a] party who has not prevailed may apply for a rehearing by filing an application for rehearing.” (Emphasis added.) Thus, under the literal application of our rules, there is a rationale for denying this petition, i.e., if only a party can file for rehearing, only a party can petition for certiorari review. I dissent because I believe that the guardian ad litem, appointed by the court to represent the interests of the minor child, stands “in loco parentis” (as the parent), protecting the interests of the child under the circumstances of this case, and should have the implicit authority under our rules to pursue any appellate remedies that might be available to the child. See, e.g., Smith v. Smith, 922 So.2d 94 (Ala.2005).

I note further that the 70-page one-judge opinion issued by the Alabama Court of Civil Appeals in this case shows a profound disagreement over the legal concepts and processes involved in the judicial determination of whether this emotionally and psychologically disturbed child is dependent. Moreover, the opinion and dissent of the Alabama Court of Civil Appeals also evince a profound disagreement over the proper view of the evidence in this case. It is long-settled law in this State that, “[ujnder the ore tenus standard of review, we defer to the juvenile court’s resolution of the disputed facts and to the juvenile court’s determination of the children’s best interests.” R.T.B. v. Calhoun County Dep’t of Human Res., 19 So.3d 198, 207 (Ala.Civ.App.2009). See also T.H. v. Jefferson County Dep’t of Human Res., 70 So.3d 1236 (Ala.Civ.App.2010); J.B. v. Cleburne County Dep’t of Human Res., 992 So.2d 34 (Ala.Civ.App.2008). This deference to the trial court, here the juvenile court, is based on that court’s unique opportunity to observe the witnesses and their demeanor, among other things. Ex parte Pielach, 681 So.2d 154 (Ala.1996); T.O.B. v. C.J.B., 986 So.2d 433 (Ala.Civ. App.2007). In short, the resolution of this legally and factually complex case involves the well being of a child. The well being of children is of critical concern to the courts of this State as evidenced by a separate body of rules — the Alabama Rules of Juvenile Procedure — implemented to promote the prompt and effective disposition of cases involving children.

The legal and factual complexities of this case, coupled with the fact that the one-judge opinion by the Court of Civil Appeals reverses the determination of the juvenile court, make this exactly the sort of case that this Court should consider on review by a petition for the writ of certio-rari. I respectfully dissent from denying the petition, and I call upon the respective rules committees of this State to suggest such changes to the Alabama Rules of Appellate Procedure as might be necessary to prevent a similar outcome in the future.

BOLIN, J., concurs.

      . The opinion was authored by Judge Moore. Presiding Judge Thompson and Judge Bryan concurred in the result; Judge Thomas and Judge Pittman dissented.


source: Caselaw Access Project

author: MOORE, Judge. THOMPSON, Presiding Judge,

license: Public Domain

text:
    R.F.W. v. CLEBURNE COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2091023.
    Court of Civil Appeals of Alabama.
    April 1, 2011.

      Chad Lee, Wedowee, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Kimberly J. Dobbs, staff atty., Department of Human Resources, for appellee.
   MOORE, Judge.

R.F.W. (“the father”) appeals from a judgment of the Cleburne Juvenile Court (“the juvenile court”) declaring M.W. (“the child”) dependent and awarding custody of the child to S.J.P., the child’s maternal great-grandmother, subject to certain visitation rights of the father and C.D.W. (“the mother”). In that judgment, which was entered on July 14, 2010, the juvenile court set forth the following specific findings of fact:

“That child is dependent in that the child’s parents, guardian, or other custodian are unable to discharge their responsibilities to and for the child and the child is in need of the care and protection of the state. The Court specifically finds that, although the father has attempted to comply with all the requirements of the Department of Human Resources, the father continues to be unable to provide for the child’s care, custody and control for any extended period of time. The Court specifically notes that the father has assistance in caring for himself and would need such assistance to continue to adequately care for the child.”

The father timely appealed, arguing that clear and convincing evidence does not support the individual factual findings of the juvenile court and its ultimate determination of the dependency of the child.

As a matter of constitutional law, a parent who has exercised custody over a child has a prima facie right to the continued custody of the child. See In re Moore, 470 So.2d 1269, 1270 (Ala.Civ.App.1985). The presumptive right of parents to the custody of their child may be overcome by clear and convincing evidence demonstrating that the parents are currently unable to discharge their responsibilities to and for the child and that the child requires additional care and supervision through the state, i.e., that the child is “dependent.” See Ala.Code 1975, § 12-15-102(8)a.6.; see also V.W. v. G.W., 990 So.2d 414, 417 (Ala.Civ.App.2008) (quoting K.B. v. Cleburne County Dep’t of Human Res., 897 So.2d 379, 389 (Ala.Civ.App.2004) (Murdock, J., concurring in the result)) (“‘[I]n order to make a disposition of a child in the context of a dependency proceeding, the child must in fact be dependent at the time of that disposition.’ ”). “Clear and convincing evidence” is defined as

“ ‘[ejvidence 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 Ala.Code 1975, § 6-11-20[ (b) ](4)).

On appeal from a judgment finding a child dependent following an ore tenus proceeding, we presume the juvenile court’s factual findings are correct. J.W. v. C.H., 963 So.2d 114, 119 (Ala.Civ.App.2007). Those findings will not be disturbed if they are supported by sufficient evidence. Ex parte Floyd, 550 So.2d 982, 984 (Ala.1989). In passing on the question of the sufficiency of the evidence as to a finding of dependency, this court does not reweigh the evidence; instead, this court determines whether the juvenile court, acting in its fact-finding role, reasonably could have determined from its own weighing of the evidence that the dependency of the child was proven by clear and convincing evidence as that standard is defined above. J.B. v. DeKalb County Dep’t of Human Res., 12 So.3d 100, 112 (Ala.Civ.App.2008). Giving due regard to the judgment of the juvenile court, we conclude that the record in this case does not contain sufficient evidence demonstrating that the father is unable to discharge his parental responsibilities to and for the child.

The record shows that, at the time of the trial, the father was living with his mother and his stepfather, while working on a separate house for eventual habitation. The father had been employed in a construction job for approximately 1 year earning $8.75 per hour, he averaged working 40 to 50 hours per week, and he was earning enough money to provide day care for the child and to cover his living expenses. The father had been exercising unsupervised visitation with the child for over six months. Leslie Driver, a social worker with the Cleburne County Department of Human Resources (“DHR”) who was assigned to the case, testified that she had no concerns with regard to those visits. Driver testified that the child’s room at the father’s house is adequate and appropriate, that the home meets minimal standards, and that it is sanitary. The child interacts well with the father, who testified that the child cries to come home with him at the end of visits. Driver testified that she had not observed any problems between the father and the child, and she indicated that she did not perceive any safety issues relating to the child. The record contains no evidence indicating that the persons residing in the home would provide anything but proper care for the child.

The juvenile court nevertheless found that the father could not meet his parental obligations to the child on the basis of the father’s failure to meet DHR’s goals and his reliance on others for assistance with caring for the child. As to the first reason, the evidence shows that, in this case, DHR did not establish any requirements for the father to meet in order to regain custody of the child. In a prior case, DHR had requested that the father complete a parenting class and anger-management counseling. The father completed the parenting class, but not the anger-management counseling. However, Driver testified that the only anger the father had exhibited related to the mother, who had intentionally interfered with his visitation rights. The mother had since lost custody and was in jail at the time of the dependency trial. The father testified that he had “let go” of his anger regarding the mother. In this case, DHR did not identify that former problem as a barrier to reuniting the father and the child, and, as stated above, Driver testified that she did not perceive any safety issues regarding the child while in the care of the father. Given those circumstances, the failure of the father to complete anger-management counseling does not render him unable to properly parent the child.

As to the other reason given by the juvenile court — the father’s reliance on others for assistance with caring for the child — the evidence shows that the father completed only the eighth grade and that he cannot read and write well. As a result, the father depends on his mother to write checks for him “and stuff like that.” Other than that one responsibility, the record contains no evidence indicating that the father does not properly take care of his own needs. The evidence appears undisputed that the father’s mother, stepfather, and girlfriend all assist the father with caring for the child. Driver specifically testified that the father told her that his mother helps “a lot” by “cooking, bathing [the child], that sort of thing.” The juvenile court apparently believed that any dependence on his family rendered the father incompetent to parent the child. However, “in the abstract, a parent’s reliance on others, particularly family, for support is not, in and of itself, determinative of the parent’s unfitness.” Ex parte A.M.B., 4 So.3d 472, 478 (Ala.2008).

We recognize that mental limitations, when severe enough; may be sufficient to render a parent unable to discharge parental responsibilities to and for a child. In this case, however, the father evidently displayed sufficient mental skills to pass the parenting class and to adequately care for the child in both a supervised and an unsupervised setting. No expert or other testimony indicated that the father’s intellectual limitations are so profound as to prevent him from continuing to provide such adequate care. See C.S.B. v. State Dep’t of Human Res., 26 So.3d 426, 432 (Ala.Civ.App.2009) (affirming a judgment finding that a child was not dependent because “no doctor who has evaluated the mother was allowed to testify about or submit reports regarding those evaluations, there is no evidence as to the extent of the mother’s limited mental capacity, whether the mother’s mental limitations prevent her from being able to fulfill her parental responsibilities to the child, and whether the mother’s condition is likely to change”).

In its brief to this court, DHR relies on two pieces of evidence to support its position that the father lacks the mental capability to properly care for the child. First, DHR proved that the father had at one time allowed the child to play with an inoperable cigarette lighter. The father testified that the child liked to dig objects out of his pocket and play with them. The father stated that the child had developed a particular fondness for the cigarette lighter, which did not contain any fluid and which the child could differentiate from other cigarette lighters. DHR social workers advised the father that he should not allow the child to play with the lighter; at trial, the father indicated his agreement with that instruction. The record contains no evidence indicating that the child was harmed or was ever in any danger of harm from playing with the lighter.

Second, the record shows that the father had accused the mother of taking the child to the doctor too much, that he had argued with the mother over the medications the child took, and that, on a certain visitation exchange, the father had informed the mother that he would not give the child certain medication as the mother had instructed him to do. After overhearing that remark, Driver testified that she had told the father he should follow the prescriptions given by the child’s doctors. The father testified that he had done everything DHR had asked him to do. No witness, testified that the father had actually ever failed to give the child medication as prescribed or that he had failed in any other manner to properly meet the medical needs of the child. Driver testified that the father understands the necessity of taking the child to the doctor and that he had expressed a willingness to continue to do that. Driver also testffied that the father was capable of administering the child’s medication as prescribed, although she could not answer the question whether he would.

The foregoing evidence does not substantiate any contention that the father is so mentally challenged that he cannot adequately care for the child. At worst, allowing the child to play with a nonworking cigarette lighter exhibited poor judgment on the part of the father, not abuse or neglect. Disagreeing with the mother on the proper course of medical treatment for the child also does not amount to neglect absent evidence that the father had ever endangered the child by actually withholding prescribed medication. See In re Hickman, 489 So.2d 601, 602 (Ala.Civ.App.1986) (holding that the limited mental capabilities of a parent, in the absence of evidence of abuse or neglect, does not prove an - inability to properly parent a child). • ..

We conclude that the record does not contain clear and convincing evidence indi-eating that the child is dependent. We therefore reverse the juvenile court’s judgment, and we remand the cause with instructions to the juvenile court to enter a judgment awarding temporary custody of the child to the father and dismissing the dependency petition. See J.L. v. W.E., 64 So.3d 681 (Ala.Civ.App.2010).

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMAS, J., concurs.

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

THOMPSON, P.J., dissents, with writing, which PITTMAN, J., joins.

THOMPSON, Presiding Judge,

dissenting.

After reviewing the record in this case, I believe that the juvenile court’s judgment, based upon ore tenus evidence, is due to be affirmed. Our standard of review is well settled:

“ We are not allowed to substitute our judgment for that of the trial court, even when this court might have reached a different result, unless the trial court’s resolution of the facts is plainly and palpably wrong. L.R.M. v. D.M., 962 So.2d 864, 873-74 (Ala.Civ.App.2007) (citing Griggs v. Griggs, 638 So.2d 916, 918-19 (Ala.Civ.App.1994), quoting in turn Young v. Young, 376 So.2d 737, 739 (Ala.Civ. App.1979)). “ ‘[A]n appellate court may not substitute its judgment for that of the trial court. To do so would be to reweigh the evidence, which Alabama law does not allow.’ ” Ex parte R.E.C., 899 So.2d 272, 279 (Ala.2004) (quoting Ex parte Foley, 864 So.2d 1094, 1099 (Ala.2003)). When addressing the inability of an appellate court to reweigh the evidence and substitute its judgment for that of the trial court, our supreme court recognized:
“ ‘ “The trial court must be allowed to be the trial court; otherwise, we (appellate court judges and justices) risk going beyond the familiar surroundings of our appellate jurisdiction and into an area with which we are unfamiliar and for which we are ill-suited — factfinding.”
‘“Ex parte R.T.S., 771 So.2d 475, 477 (Ala.2000).’
“J.B. v. Cleburne County Dep’t of Human Res., 992 So.2d 34, 39-40 (Ala.Civ. App.2008).”

J.L. v. W.E., 64 So.3d 631, 635 (Ala.Civ. App.2010). Furthermore, when a juvenile court receives ore tenus evidence and observes the witnesses’ demeanors, “this court cannot reverse the juvenile court’s judgment unless it is unsupported by the evidence so as to be clearly and palpably wrong.” J.W. v. C.H., 963 So.2d 114, 120 (Ala.Civ.App.2007).

In support of his assertion that clear and convincing evidence does not support the juvenile court’s finding that the child is dependent, the father compares the facts in this case with those of J.L. v. W.E., supra. In J.L., as in this case, the child was in the mother’s custody pursuant to a divorce judgment at the time the Talladega County Department of Human Resources (“the Talladega County DHR”) removed the child from the home. The removal was brought about because of the mother’s deleterious conduct. When the father learned that the mother no longer had custody of the child, he petitioned for custody. The child’s maternal grandparents also sought custody of the child. Id. at 632-33.

In J.L., the father had been involved in two incidents of domestic violence, one of which had occurred when he was 18 years old, more than 10 years before the events made the basis of that case. As directed by the Talladega County DHR, the father completed an anger-management course. The father also had tested positive for the use of marijuana on one occasion, but the results of all subsequent drug tests during the course of the litigation — including a test ordered on the day of the hearing— were negative for the use of drugs. The father held a steady job, lived with his mother in a house that the Talladega County DHR had found was suitable for the child, and had always exhibited appropriate behavior when visiting with the child. Id. at 636. This court found that the juvenile court’s judgment finding the child dependent and awarding custody to the maternal grandparents was not supported by clear and convincing evidence. Id. at 637. Specifically, we held that there was no evidence indicating that the father was unable or unwilling to care for the child; thus, the finding of dependency was improper. Id. at 637.

Although many of the facts in J.L. are similar to those in this case, the two cases are distinguishable in important ways. Although the father in J.L. had successfully completed an anger-management course, the evidence in this case indicated that the father’s counselor, who was attempting to teach coping skills to the father, had ended their sessions because the father was not making progress. The father had difficulty understanding the guidance workers for the Cleburne County Department of Human Resources (“the Cleburne County DHR”) had attempted to provide to him. The father admitted that his mother had to help him write checks and “stuff like that.” Evidence also indicated that the father had made inappropriate choices concerning the child, such as allowing the child to play with a cigarette lighter and failing to give the child medicine prescribed by the pediatrician because the father did not believe the child needed it. The father in this case also had limited experience in spending time alone with the child, who was three or four years old at the time of the dependency hearing. No such evidence was presented in J.L. In this case, the Cleburne County DHR recommended that the child remain with the child’s maternal great-grandmother. The juvenile court, which had the opportunity to observe the father during the hearing, explicitly found that “the father has assistance in caring for himself and would need such assistance to continue to adequately care for the child.”

Admittedly, this is a close case, and I may have reached a different conclusion than the juvenile court. However, the juvenile court had the opportunity to observe the parties as they testified, and it was in a better position than this court to make the determination whether the father was capable of fulfilling his responsibilities to the child. Although evidence indicated that the father appeared to be making progress toward being able to care for the child and although there is no evidence indicating that the father would intentionally harm the child, as previously mentioned, there was also evidence indicating that the father had made decisions that were detrimental to the best interests of the child. Based on the ore tenus standard of review requiring that we give deference to the juvenile court’s findings of fact, see J.L., 64 So.3d at 687, I cannot say that the evidence does not support the conclusion that the father was unable to care for the child at the time of the hearing or that the juvenile court’s judgment is clearly erroneous. Because I would affirm the judgment of the juvenile court, I must respectfully dissent.

PITTMAN, J., concurs.

      . Because we are reversing the juvenile court’s judgment on the foregoing grounds, we do not address the other issues raised by the father.

      . Because the child is not dependent, the juvenile court has jurisdiction only to transfer custody of the child to the father on a temporary basis for the protection of the child. See Ala.Code 1975, § 12-15-138. Any further custodial disposition, including awarding visitation rights to the mother, would have to be determined by the appropriate circuit court. See R.T. v. 66 So.3d 807 (Ala.Civ.App.2011).


author: THOMPSON, Presiding Judge.

text:
    Gail McIntosh SMITH v. Herbert H. McINTOSH.
    2091202.
    Court of Civil Appeals of Alabama.
    April 1, 2011.

      Everett M. Urech of Urech & Livaudais, P.C., Daleville, for appellant.
    Donna C. Crooks, Daleville, for appellee.
   THOMPSON, Presiding Judge.

Gail McIntosh Smith (“the wife”) appeals from a judgment terminating the obligation of Herbert H. McIntosh (“the husband”) to name her as the beneficiary of his military Survivor Benefit Plan (“SBP”) and as the beneficiary of a life-insurance policy issued by Serviceman’s Group Life Insurance (“the life-insurance policy”).

The record indicates the following. After a 31-year marriage, the parties divorced on July 23, 2001. The divorce judgment (“the 2001 judgment”) explicitly incorporated an agreement reached by the parties. In that agreement, the wife waived “all right and interest in and to any portion of the [husband’s] retirement.” The husband agreed to

“maintain the SBP insurance on behalf of [the wife] and agree[d] to maintain the life insurance policy in effect through the military insuring the [husband’s] life and [the husband] agree[d] to name the [wife] as irrevocable beneficiary. Said SBP and the life insurance is in lieu of alimony and is additional support to the [wife] and is non-dis-chargeable in bankruptcy.”

The wife also waived any right to receive periodic alimony and alimony in gross.

On November 21, 2001, the wife married Jimmy Hataway. She was 49 years old at the time of that marriage. When the husband was told of the wife’s remarriage, he discontinued payment of the SBP premiums. The husband testified that he also discontinued payment of the premiums on the life-insurance policy he had, which named the wife as beneficiary. He said that, at the time he discontinued payment of the premiums, he had been diagnosed with cancer and that the premiums for the life-insurance policy were increasing to the point that he could no longer afford them.

On April 23, 2007, the wife divorced Hataway. She notified the Defense Finance and Accounting Service (“DFAS”) of her divorce from Hataway and requested that she be reinstated as the beneficiary of the husband’s SBP, as allowed by federal law. DFAS complied with the wife’s request and notified the husband that the wife had been reinstated as the SBP beneficiary. At the request of DFAS, the husband paid an arrearage of the SBP premiums the husband had not paid during the time the wife had been married to Hata-way.

In March 2008, the husband remarried. He removed the wife as the beneficiary of his SBP and named his new wife as the beneficiary. In September 2009, after she learned that she was no longer the beneficiary of the husband’s SBP, the wife filed a complaint seeking to hold the husband in contempt for his failure to maintain her as the beneficiary of both the SBP and the life-insurance policy.

The trial court held two hearings on the wife’s complaint; ore tenus evidence was presented at both hearings, but the material facts are not in dispute. The first hearing was “on the issue of [the husband’s] default in that portion of the provision [of the 2001 judgment] requiring him to maintain the life-insurance policy.” After the first hearing, the trial court entered an interlocutory order in which it ruled that because the provision in the 2001 judgment requiring the husband to maintain the life-insurance policy naming the wife as the irrevocable beneficiary of that policy explicitly stated that the “requirement [was] additional support to the [wife] and [was] non-dischargeable in bankruptcy,” the requirement was, in effect, an award of periodic alimony. Therefore, the trial court found, the requirement was subject to modification upon a showing of a material and substantial change in circumstances.

The trial court held a second hearing “for the purpose of receiving evidence relevant to a modification or other action on this provision of the [2001 judgment] in light of this Court’s finding.” At the second hearing, the husband argued that his obligations to maintain the life-insurance policy and the SBP and naming the wife as beneficiary of each were due to be terminated because of the wife’s remarriage. On the other hand, the wife asked the court to reconsider its ruling in the interlocutory order holding that the requirement to maintain the life-insurance policy naming the wife as beneficiary was an award of periodic alimony. After the hearing, the trial court entered a judgment on June 18, 2010, ruling that Alabama law provides that a former spouse’s subsequent marriage ends the obligation of the other former spouse to pay alimony; therefore, the court concluded, when the wife married Hataway in 2001, the husband’s obligations to maintain the life-insurance policy and the SBP and naming the wife as the beneficiary of each ended. The trial court denied all other relief the parties sought. The wife appealed.

The wife argues that the trial court’s ruling that the husband’s obligation to maintain the SBP naming the wife as the beneficiary ended when she remarried was contrary to federal law, which, she contends, applies in this case.

When Alabama law is in conflict with federal law or with the administration of a federal program, the federal law must take precedence. Metropolitan Life Ins. Co. v. Potter, 533 So.2d 589, 591 (Ala.1988). Preemption of state law occurs in three ways. First, Congress may define expressly to what extent a federal statute preempts state law. See English v. General Elec. Co., 496 U.S. 72, 78, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). Second, preemption may be found when a pervasive scheme of federal regulation makes it reasonable to infer that Congress intended exclusive federal regulation of the subject matter. Id. at 79. Third, preemption occurs when there is a direct conflict between the provisions of a federal law and the provisions of a state law. Id.

In Mansell v. Mansell, 490 U.S. 581, 587, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989), the United States Supreme Court stated:

“Because domestic relations are preeminently matters of state law, we have consistently recognized that Congress, when it passes general legislation, rarely intends to displace state authority in this area. See, e.g., Rose v. Rose, 481 U.S. 619, 628 (1987); Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979). Thus we have held that we will not find preemption absent evidence that it is ‘ “positively required by direct enactment.” ’ Hisquierdo, supra, at 581 (quoting Wetmore v. Markoe, 196 U.S. 68, 77 (1904)).”

Furthermore,

“[o]n the rare occasion when state family law has come into conflict with a federal statute, this Court has limited review under the Supremacy Clause to a determination whether Congress has ‘positively required by direct enactment’ that state law be preempted. Wetmore v. Markoe, 196 U.S. 68, 77 (1904). A mere conflict in words is not sufficient. State family and family-property law must do ‘major damage’ to ‘clear and substantial’ federal interests before the Supremacy Clause will demand that state law be overridden. United States v. Yazell, 382 U.S. 341, 352 (1966).”

Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979). “The pertinent questions are whether the right as asserted conflicts with the express terms of federal law and whether its consequences sufficiently injure the objectives of the federal program to require nonrecognition.” Id. at 583. In Ridgway v. Ridgway, 454 U.S. 46, 55, 102 S.Ct. 49, 70 L.Ed.2d 39 (1981), the United States Supreme Court stated that a state-law divorce judgment, “like other law governing the economic aspects of domestic relations, must give way to clearly conflicting federal enactments.”

Section 30-2-55, Ala.Code 1975, provides, in pertinent part:

“Any decree of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex.”

Congress enacted the legislation creating the SBP in 1972 to provide benefits to surviving spouses and dependent children of deceased military retirees. Act of Sept. 21, 1972, Pub.L. No. 92-425, 86 Stat. 706 (1972) (codified as amended at 10 U.S.C. §§ 1447-1455). In 1982, Congress expanded the list of potential SBP beneficiaries to include former spouses. See Uniformed Services Former Spouses’ Protection Act, Pub.L. No. 97-252, § 1003, 86 Stat. 706, 735-36 (1982). Upon the death of an SBP participant, his or her beneficiaries receive monthly annuity payments. 10 U.S.C. § 1450(a). If a former spouse who is the beneficiary of an SBP remarries before reaching age 55, the former spouse’s SBP coverage is suspended. 10 U.S.C. § 1450(b)(2). However, if that marriage “is terminated by death, annulment, or divorce,” the former spouse can apply for reinstatement of the suspended former-spouse coverage. 10 U.S.C. § 1450(b)(3).

No Alabama court has considered whether 10 U.S.C. § 1450 preempts state law on the subject of a former spouse’s entitlement to SBP benefits. In Dugan v. Childers, 261 Va. 3, 7, 539 S.E.2d 723, 724 (2001), the Supreme Court of Virginia was asked to determine whether 10 U.S.C. § 1450 preempted state law “on the subject of a former spouse’s entitlement to the survivor benefits of a military retiree.” In Dugan, a former spouse sought to impose a constructive trust on SBP annuities that a servicemember’s surviving spouse had received, arguing that, when the former spouse and the servicemember divorced, the servicemember had agreed to name the former spouse as the beneficiary of his SBP. When the servicemember remarried, however, he changed the SBP beneficiary to his new wife. A Virginia trial court found the servicemember in contempt and directed him to reinstate the former spouse as the beneficiary; however the servicemember died before doing so. Dugan, 261 Va. at 5-6, 539 S.E.2d at 723-24.

In its preemption analysis, the Virginia Supreme Court found persuasive the following language from a Georgia Court of Appeals’ opinion addressing a similar factual situation:

“ ‘The right to the annuity asserted by [the former spouse] pursuant to the divorce decree clearly conflicts with the express provisions of the SBP under which [the military retiree’s] surviving spouse is the beneficiary of the annuity. In providing the means by which former spouses may become entitled to SBP annuity benefits, Congress enacted plain and precise statutory language placing conditions and limits on that right and made clear that any annuity benefits paid in compliance with the provisions of the SBP are not subject to legal process. Since the provisions of the SBP unambiguously preclude the rights asserted under the divorce decree, we further conclude that the consequences of enforcing the conflicting state law principles sufficiently injures the objectives of the SBP so that federal law preempts the authority of state law.’ ”

Dugan, 261 Va. at 8, 539 S.E.2d at 725 (quoting King v. King, 225 Ga.App. 298, 301, 483 S.E.2d 379, 383 (1997)). The Virginia court then found, as did the Georgia appeals court, that the provisions of federal law pertaining to the SBP made clear that Congress intended “ ‘to occupy the field’ ” under the circumstances. 261 Va. at 9, 539 S.E.2d at 725 (quoting Silva v. Silva, 333 S.C. 387, 391, 509 S.E.2d 483, 485 (Ct.App.1998)). Accordingly, the Virginia court held that federal law, specifically 10 U.S.C. § 1450, preempted state law as to a former spouse’s right to claim entitlement to an SBP annuity. See also Silva v. Silva, supra (holding that a state court did not have the authority to preempt provisions of federal law pertaining to the SBP under circumstances similar to those in Dugan)-, and Barros v. Barros, 34 Wash.App. 266, 660 P.2d 770 (1983) (states cannot apply community-property law to the distribution of SBP annuities).

In Metropolitan Life Insurance Co., supra, our supreme court was called upon to determine whether federal law allowed a former husband to change the beneficiary on a Federal Employees’ Group Life Insurance (“FEGLI”) policy even though, in a divorce proceeding, a state court had ordered him to maintain his former wife as the sole beneficiary of the policy. Following the precedent established by Ridgway, supra, in which the United States Supreme Court held that the provisions of the Servicemen’s Group Life Insurance Act (“SGLIA”), 30 U.S.C. § 765 et seq., prevailed over inconsistent state law, our supreme court held that the federal law governing the designation of a beneficiary of a FEGLI policy must preempt and supersede inconsistent provisions of a state-court divorce judgment. Metropolitan Life Ins. Co., 533 So.2d at 590 and 594-95. Our supreme court determined that Ridg-way could not be distinguished “just because it dealt with a different federal insurance program.” Id. at 594.

As mentioned, Congress’s purpose in creating the legislation pertaining to the SBP was to provide for the survivors of servicemembers. Congress has determined that, under certain circumstances, servicemembers’ former spouses whose subsequent marriages have ended are entitled to apply for reinstatement as the beneficiary of SBP. The statutes governing the SBP provide the procedure by which a former spouse can regain his or her status as an SBP beneficiary.

In this case, the trial court determined that the husband’s obligation to maintain the wife as the beneficiary of SBP benefits was in the nature of an alimony award and applied Alabama law to preclude the wife’s eligibility to continue as the beneficiary of the husband’s SBP. The trial court’s ruling that the wife was no longer entitled to the benefits of the husband’s SBP once she remarried is clearly contrary to the provisions of 10 U.S.C. § 1450, which sets forth the circumstances under which a former spouse can receive SBP benefits if the former spouse’s subsequent marriage ends. As was the case in the authorities previously cited, the consequences of enforcing the conflicting state law “sufficiently injures” the objectives of the federal SBP program so as to require preemption.

Neither the trial court nor this court has the authority to preempt the provisions of federal law pertaining to the SBP; therefore, we reverse the judgment of the trial court insofar as it held that, based on § 30-2-55, when she remarried, the wife was not entitled to the benefits of the husband’s SBP. In reaching this holding, this court makes no determination as to whether the wife is, in fact, the proper beneficiary of the husband’s SBP.

The judgment of the trial court is reversed, and this cause is remanded for further proceedings consistent with this opinion.

The husband’s request for an attorney fee on appeal is denied.

REVERSED AND REMANDED.

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

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

      . In Smith v. Smith, 190 W.Va. 402, 404, 438 S.E.2d 582, 584 (1993), the West Virginia Supreme Court of Appeals provided the following succinct description of the SBP:
      “The survivor benefit plan is designed to provide financial security to a designated beneficiary of a military member, payable only upon the member's death in the form of an annuity. Upon the death of the member, all pension rights are extinguished, and the only means of support available to survivors is in the form of the survivor benefit plan.”

      . It is unclear whether the trial court intended for both the life-insurance policy and the SBP to be included within the term "life-insurance policy.” However, as discussed below, the husband's obligation to maintain the wife as the beneficiary of both the life-insurance policy and the SBP was addressed at the second hearing and in the trial court's final judgment.

      . In her brief on appeal, the wife failed to argue that the trial court improperly terminated the husband's obligation to maintain the life-insurance policy naming the wife as the beneficiary. Therefore, the wife has waived that argument. See Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1167 (Ala.2003) ("Issues not argued in a party’s brief are waived.”); and Roberson v. C.P. Allen Constr. Co., 50 So.3d 471, 478 (Ala.Civ.App.2010).


author: BRYAN, Judge.

text:
    Ex parte MOBILE COUNTY BOARD OF SCHOOL COMMISSIONERS. (In re Mobile County Board of School Commissioners v. Barry Long).
    2100183.
    Court of Civil Appeals of Alabama.
    April 1, 2011.

      Edgar P. Walsh of The Atchison Firm, P.C., Mobile, for petitioner.
    Daniel L. McCleave of McCleave Den-son Shields, L.L.C., Mobile, for respondent.
   BRYAN, Judge.

This is the third time these parties have been before this court. See Mobile County Bd. of Sch. Comm’rs v. Long, 46 So.3d 6 (Ala.Civ.App.2010) (“Long I”); and Ex parte Mobile County Bd. ofSch. Comm’rs, 61 So.3d 292 (Ala.Civ.App.2010) (“Long II ”). We briefly recite the pertinent procedural history. The Mobile County Board of School Commissioners (“the Board”) voted to terminate the employment of Barry Long, a nonprobationary employee under the Fair Dismissal Act, § 36-26-100 et seq., Ala.Code 1975 (“the FDA”). Long contested the Board’s action, and a hearing officer was selected to conduct a de novo hearing. See Ala.Code 1975, §§ 36-26-103(b) and -104(a). Because Long contested the Board’s decision to dismiss him, his dismissal could not be effected until the hearing officer issued a decision. See § 36-26-103(b) (“No termination shall be effected ..., if notice of contest is filed, ... until the hearing officer has issued an opinion.”). Following a hearing, the hearing officer issued a decision on May 15, 2009, overturning the Board’s decision to dismiss Long. The Board appealed the hearing officer’s decision to this court, and this court, on March 12, 2010, reversed the decision and remanded the case to the hearing officer. Long I. Long did not petition our supreme court for a writ of certiorari in Long I, and this court issued a certificate of judgment in Long I on March 31, 2010.

On remand to the hearing officer following Long I, the Board and Long disagreed as to whether the hearing officer may hold another evidentiary hearing. The hearing officer determined that this court in Long I had intended for there to be an eviden-tiary hearing on remand. Consequently, the Board petitioned this court for a writ of mandamus directing the hearing officer to issue a decision in the Board’s favor without holding an evidentiary hearing. Long II, 61 So.3d at 293. In Long II, this court clarified that, in Long I, we had directed the hearing officer to issue a decision in favor of the Board without holding an evidentiary hearing. 61 So.3d at 295. Accordingly, on August 13, 2010, we granted the petition and issued the writ directing the hearing officer to issue a decision in favor of the Board upholding Long’s dismissal. Id. On August 20, 2010, the Board terminated Long’s employment. Long then petitioned the supreme court for a writ of certiorari in Long II. On September 21, 2010, Long filed a motion with the hearing officer, seeking an order directing the Board “to reinstate his pay retroactive to August 20, 2010[, the date of Long’s dismissal,] when his pay was cut off.” On October 8, 2010, the supreme court denied Long’s petition for a writ of certiorari in Long II, and this court issued a certificate of judgment in Long II on that same date.

On November 16, 2010, the hearing officer issued an order affirming Long’s dismissal. In that order the hearing officer also determined that “Long’s employment was wrongfully and prematurely discontinued on August 20, 2010.” Therefore, the hearing officer determined that Long is entitled to be paid by the Board for the period between August 20, 2010, and October 8, 2010, the date this court issued its certificate of judgment in Long II. The Board filed a petition for a writ of mandamus with this court to vacate the hearing officer’s order of November 16, 2010, contending that the hearing officer erred in determining that Long is entitled to be paid by the Board for the period between August 20, 2010, and October 8, 2010. We grant the petition and issue the writ.

“A writ of mandamus is an extraordinary remedy, and it will be ‘issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991).”

Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998).

The hearing officer lacked the authority under the FDA to award Long pay for the period between August 20, 2010, and October 8, 2010. Section 36-26-103(b), Ala.Code 1975, provides:

“The employing board[, such as the Board,] may suspend the employee with pay if the action is taken [by the employing board to dismiss the employee]. However, no pay shall be provided in cases involving moral turpitude. If the board’s action is overturned on appeal, pay shall be reinstated. No termination shall be effected until the time for filing notice of contest has expired and, if notice of contest is filed, not until the hearing officer has issued an opinion.”

Thus, by its plain language, § 36-26-103(b) entitled Long to receive payment until the hearing officer “issued an opinion.” The hearing officer issued a decision overturning the Board’s decision to dismiss Long on May 15, 2009, and that decision was reversed by this court in Long I. Long did not seek certiorari review challenging Long I in the supreme court, and this court issued a certificate of judgment in Long I on March 31, 2010. Neither § 36-26-103(b) nor any other provision of the FDA authorizes the hearing officer to award Long pay for a period well after this court had finally determined in Long I that the Board was justified in dismissing Long. As Long II made clear, the hearing officer’s only remaining task following Long I was to enter a decision in favor of the Board.

Long contends that Rule 41(b), Ala. RApp. P., supports the hearing officer’s order awarding him pay for the period between August 20, 2010, the date the Board dismissed him, and October 8, 2010, the date this court issued a certificate of judgment in Long II. Rule 41(b) provides, in pertinent part: “The timely filing of a petition for certiorari in the Supreme Court shall stay the issuance of the certificate of judgment by the courts of appeals, which stay shall continue until the final disposition by the Supreme Court.” Long argues that he was entitled to receive pay until the supreme court denied certiorari review and this court issued a certificate of judgment in Long II on October 8, 2010. In light of our discussion regarding the hearing officer’s lack of authority to award Long payment, the date this court issued a certificate of judgment in Long II is irrelevant. Thus, Rule 41 has no bearing on this ease.

Long also cites Reneke v. Reneke, 920 So.2d 579 (Ala.Civ.App.2005), in support of his position. In Reneke, following an initial appeal to this court, this court dismissed a second appeal from a probate court’s order because that order had been entered before this court had issued a certificate of judgment with respect to the first appeal. Reneke has no application to the issue whether the hearing officer in this case exceeded his authority in awarding Long pay.

Accordingly, we grant the petition for a writ of mandamus and issue the writ directing the hearing officer to vacate its order of November 16, 2010, and to issue a decision in favor of the Board upholding Long’s dismissal.

PETITION GRANTED; WRIT ISSUED.

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


author: MOORE, Judge.

text:
    R.B.O. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2091019.
    Court of Civil Appeals of Alabama.
    April 1, 2011.

      C. Jason Liggan, Birmingham, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Elizabeth Hendrix, staff atty., Department of Human Resources, for appellee.
    Brian Plant, Birmingham, filed brief on behalf of J.S.
    Tamara Harris Johnson, Birmingham, filed a brief on behalf of A. A.
   MOORE, Judge.

R.B.O. (“the father”) appeals from a judgment of the Jefferson Juvenile Court declining to award him unsupervised visits with M.S. (“the child”). We reverse.

On August 26, 2008, the Jefferson County Department of Human Resources (“DHR”) filed a dependency petition alleging that the child was dependent because A.A., the child’s mother (“the mother”), had an extensive history of drug abuse, had been hospitalized due to a drug overdose, and was residing with a male, who also had an extensive history of drug abuse. A pickup order for the child was entered that same day. A shelter-care hearing was held on August 27, 2008, after which an order was entered awarding DHR legal custody of the child. Subsequently, a dispositional hearing was held, and an order was entered on September 15, 2008, awarding custody of the child to J.S., the child’s maternal grandmother (“the maternal grandmother”), and awarding the mother supervised visitation. A further dispositional hearing was held on February 2, 2009, and an order was entered on February 6, 2009, finding the child dependent and continuing custody of the child with the maternal grandmother.

On February 6, 2009, the juvenile court entered an order requiring the father to submit to paternity testing. On June 18, 2009, the juvenile court entered an order establishing the father’s paternity of the child. On June 18, 2009, the juvenile court entered a dispositional order noting that the father had been adjudicated as the child’s legal father, noting that the child had been found dependent on February 6, 2009, continuing custody of the child with the maternal grandmother, awarding the mother and the father supervised visitation, ordering DHR to provide certain services to the parents, and ordering that all parties cooperate with DHR.

A dispositional hearing was held on June 22, 2010, at which the juvenile court heard evidence regarding whether the father should be awarded unsupervised visitation. On July 13, 2010, the juvenile court entered a judgment stating:

“The Court does acknowledge that the father has made many changes to better his position in this case. The Court cannot disregard the fact that the father remains on parole, has no valid driver’s license, has not paid child support and has a relationship with a woman that has lost custody of at least two of her children through this court.
“The mother makes no request for a change at this time.
“After sworn testimony and considering all exhibits that were properly introduced this court orders as follows:
“1. That custody of [the child] remains vested with [the maternal grandmother],
“2. Visitation for [the] mother and [the] father shall remain as previously ordered.
“3. The case is closed, and court costs taxed as paid.”

On July 26, 2010, the father filed his notice of appeal to this court. On appeal, the father argues that the juvenile court exceeded its discretion in declining his request that his visitation be unsupervised.

In dependency cases, a juvenile court possesses discretion over visitation, pursuant to former § 12-15-71(a)(4), Ala. Code 1975. That Code section provided that the juvenile court shall exercise its discretion according to the “welfare and best interests of the child.” Notably, that standard is identical to the standard used for determining the visitation rights of noncustodial parents in divorce cases. See Carr v. Broyles, 652 So.2d 299, 303 (Ala.Civ.App.1994) (“[T]he primary consideration in establishing the visitation rights accorded a noncustodial parent is always the best interests and welfare of the child.”). In Carr, this court held that, under the best-interests standard, in order “to limit a parent’s visitation based on misconduct, the limitation ordered must be supported by evidence that the misconduct of the parent is detrimental to the child.” 652 So.2d at 304 (citing Jones v. Haraway, 537 So.2d 946, 947 (Ala.Civ.App.1988)); see also Ex parte Thompson, 51 So.3d 265, 272 (Ala.2010) (“A trial court in establishing visitation privileges for a noncustodial parent must consider the best interests and welfare of the minor child and, where appropriate, as in this case, set conditions on visitation that protect the child.”). Seizing on that language, the father argues that the juvenile court exceeded its discretion in requiring his visitation with the child to be supervised without receiving evidence indicating that unsupervised visitation would be detrimental to the child.

After carefully reviewing the record, we find no evidence indicating that unsupervised visitation with the father would be detrimental to the child. As the juvenile court found, the record does show that, at the time the July 2010 judgment was entered, the father was on parole. The father testified that he had 39 or 40 days left on parole pertaining to incidents of burglary and related charges of possessing and receiving stolen property, which occurred in 2004. The father testified that he was compliant with all the conditions of his parole, including weekly drug testing, which had produced consistently negative results. The record does not contain any evidence of current criminal charges pending against the father. The record also shows that the father had completed parenting classes as ordered by the juvenile court. The record does not indicate how the facts that the father was on parole or that the father had a criminal past would impair his ability to properly care for the child during unsupervised visitation.

The father testified that he did not have a valid Alabama driver’s license but that he still drove when necessary. The father testified that he would not drive with the child in the vehicle if he were awarded unsupervised visits. The record indicates that the father requested unsupervised visits every other Saturday for eight hours during the daytime. The father lives in his father’s house with his father and his father’s girlfriend. The father testified that his father’s house is also the permanent residence for his sister and his nephew but that they only stay there an average of twice a month. Apparently, a responsible adult would be available to transport the child in the event of an emergency. At the least, the record does not indicate that the child would be subjected to an undue risk of harm because of the father’s lack of a valid driver’s license.

The father testified that he had been ordered to pay $100 per month in child support but that he had not paid anything since the end of 2009. The father had obtained a job and had been working for a marble and granite installation business for two weeks at the time of the trial; before obtaining that job he had worked in landscaping. The record does not indicate the amount of income the father had received since he was ordered to pay child support. The record does, however, indicate that the reason the father had stopped paying child support was because he was having financial problems. In Carr, this court held that it is improper to restrict a parent’s visitation with his or her child because of the parent’s failure to meet his or her financial obligations relating to the child. 652 So.2d at 304; see also Ex parte M.D.C., 39 So.3d 1117, 1131 (Ala. 2009) (recognizing that the right to visitation is independent of the duty to pay child support). Thus, the failure of the father to pay child support does not indicate that visitation should be restricted in order to prevent harm to the child..

The juvenile court correctly noted that the father was involved in “a relationship with a woman [who] has lost custody of at least two of her children through [the juvenile] court.” It was undisputed that the father was dating A.H. at the time of the trial and that she had stopped living with the father approximately a month before the trial, although the reason for her move was disputed. A.H. has five children. None of her children live with her, but two of them visit her regularly. A.H. lost custody of three of her children through dependency proceedings. The father testified that, if the juvenile court ordered him to keep the child away from A.H., he would comply with that order. A.H. likewise testified that she would abide by any order to stay away from the child.

Any harm to the child from the father’s relationship with A.H. could have been ameliorated through less restrictive means than ordering supervised visitation. For example, the juvenile court could have ordered that the father exercise his visitation outside the presence of A.H. See Jackson v. Jackson, 999 So.2d 488, 495 (Ala.Civ.App.2007) (Per Moore, J., with Pittman and Thomas, JJ., concurring in the result as to pertinent issue) (holding that any concern about influence of mother’s boyfriend should have been addressed by visitation provision restricting mother from exercising visitation around boyfriend instead of requiring visitation to be supervised). Hence, we hold that any harm to the child emanating from the relationship between the father and A.H. was not a sufficient ground for ordering all the father’s visitation with the child to be supervised.

Other than the factors addressed above, the juvenile court did not cite any reason for denying the father’s request for unsupervised visitation. In his brief to this court, the father points out that he currently enjoys unsupervised visitation with his teenage son from a former relationship. In Carr, this court, in reversing an award of supervised visitation with the child at issue, noted that the mother was living with another of her children “and [that] nothing in the record demonstrate^] any concern about the welfare of th[e] child in her care.” 652 So.2d at 304. Likewise, in this case, the record does not contain any evidence indicating anything other than that the father enjoys a good relationship with his other child. The record certainly does not demonstrate that his other child has been endangered by unsupervised visitation with the father. As in Carr, that evidence undermines the decision to deny the father unsupervised visitation.

A parent who has lost custody of a child through dependency proceedings retains the residual right to visitation with the child. Former § 12-15-1(24), Ala. Code 1975. It is in the best interest of a child to restrict the manner of his or her •visitation with his or her parent only when necessary to protect the health, safety, or welfare of the child. Ex parte Thompson, supra. A juvenile court exceeds its discretion, however, when it imposes an over-broad restriction on visitation that does more than is necessary to protect the child and thereby unduly infringes on the parent-child relationship. Pratt v. Pratt, 56 So.3d 638, 641 (Ala.Civ.App.2010).

In P.D. v. S.S., 67 So.3d 128, 130 (Ala.Civ.App.2011), the Montgomery Juvenile Court determined that the children at issue were dependent and awarded the children’s mother, P.D., supervised visitation. 67 So.3d at 130. P.D. appealed, arguing, among other things, that the Montgomery Juvenile Court had erred in requiring her visitation to be supervised. 67 So.3d at 130. This court reasoned:

“We also agree with [P.D.] that the juvenile court erred in awarding her only supervised visitation with the children. The record reveals that [P.D.] has never abused the children. Additionally, the record shows that, since the [children’s] aunt was given custody of the children, [P.D.] has voluntarily enrolled herself in parenting classes. Although the aunt, in her ex parte motion, had alleged that [P.D.] was living with a known drug dealer, that allegation was not substantiated at trial. In light of the lack of evidence indicating that [P.D.] had ever abused the children or had placed the children in harm’s way, supervised visitation was improper. Cf Jackson v. Jackson, 999 So.2d 488, 494 (Ala.Civ.App.2007) (main opinion indicating that limiting a parent’s visitation to supervised visitation would be improper when the mother had been arrested only for writing worthless checks and there was no evidence indicating that the mother ‘had ever exposed the children to illegal drug use or associated activity or conversation’).”

P.D., 67 So.3d at 136.

Similarly, in the present case, there was no evidence indicating that the father had abused or neglected the child or that he could not properly care for the child unsupervised. Thus, for the foregoing reasons, we reverse the judgment of the juvenile court insofar as it denied the father unsupervised ■visitation every other Saturday during the daytime, and we remand the case for further proceedings consistent with this opinion. Specifically, we instruct the juvenile court on remand to consider less-restrictive measures to protect the child other than supervised visitation, such as requiring visitation to occur outside the presence of A.H. and ordering the father not to drive with the child unless and until he obtains a valid driver’s license.

The father also argues that the juvenile court erred in admitting certain evidence that he contends is irrelevant. Because we reverse the juvenile court’s judgment based on the father’s first argument, we pretermit discussion of the father’s eviden-tiary argument.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ., concur in the result, without writings.

      . Because the underlying dependency action was filed before the operative date of the current Alabama Juvenile Justice Act, § 12— 15-101 et seq., Ala.Code 1975 (effective January 1, 2009), it is governed by the former Alabama Juvenile Justice Act, former § 12— 15-1 etseq., Ala.Code 1975.

      . DHR argues that the father’s petition should be interpreted as a request to modify a previous visitation judgment, which may be granted only upon proof of a material change of circumstances. N.T. v. P.G., 54 So.3d 918 (Ala.Civ.App.2010). We disagree. A petition to modify must be filed only after a final judgment has been entered that is intended to fix the visitation rights of a noncustodial parent based on then-existing conditions. The juvenile court did not enter a final visitation judgment: it merely ordered the visitation between the father and the child to be supervised while DHR provided reunification services to the family as part of an ongoing dependency case. Hence, the father did not have to file a modification petition and prove a material change of circumstances in order to have the juvenile court address his petition. See S.P. v. E.T., 957 So.2d 1127 (Ala.Civ.App.2005). We note, however, that, even if the father had been required to prove a material change of circumstances, the record contains sufficient evidence of a change of circumstances, as is noted in the first sentence of the juvenile court’s judgment, to warrant a rede-termination of whether unsupervised visitation would serve the best interests of the child.

      . In addition to the above factors, a witness for DHR testified that the father's visitation with the child should be supervised based on the facts that the father had at one time abused illegal drugs and that he had only relatively recently stopped attending a methadone clinic. The juvenile court, however, apparently rejected the father's past drug use as a ground for denying unsupervised visitation because it did not mention that circumstance in its judgment.

      . Interestingly, the juvenile court found the child to be dependent in February 2009, several months before the father’s paternity of the child was established, based solely on the inability of the mother to care for the child. The juvenile court never expressly found the child to be dependent based on any shortcomings of the father. Because the father does not appeal on that ground, we do not specifically address that issue; however, we do note that, in this case, we are not dealing with a petition for unsupervised visitation filed by a parent who has been found to be unable to properly care for his or her child.


author: MeMILLAN, Judge. WELCH, Judge, BASCHAB, Presiding Judge,

text:
    William Franklin HILL v. STATE of Alabama.
    CR-06-1839.
    Court of Criminal Appeals of Alabama.
    May 30, 2008.
    Rehearing Denied Aug. 15, 2008.
    George L. Beck, Jr., Montgomery; Todd Cox, Montgomery (withdrew 02/08/2010), and Allen Sheehan, Montgomery, for appellant.
    Troy King, atty. gen., and Michael G. Dean, asst. atty. gen., for appellee.
   MeMILLAN, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WISE, J., concurs.

SHAW, J., concurs in the result.

WELCH, J., concurs in part and dissents in part, with opinion.

BASCHAB, P.J., concurs in the result in part and dissents in part, with opinion.

WELCH, Judge,

concurring in part and dissenting in part.

I concur with Part I of the unpublished memorandum affirming the trial court’s denial of William Franklin Hill’s motion to withdraw his guilty plea. For the reasons that follow, I respectfully dissent from Part II of the unpublished memorandum. In Part II of its unpublished memorandum, the majority affirmed the trial court’s revocation of William Franklin Hill’s sentence to the Montgomery County community punishment and corrections program and its reinstatement of his original sentence to 20 years’ imprisonment.

On April 4, 2007, William Franklin Hill entered a guilty plea and was convicted of first-degree theft of property, a violation of § 13A-8-5, Ala.Code 1975. He was sentenced as a three-time habitual offender to 20 years’ imprisonment, to be served in the custody of the Montgomery County community-corrections program. I note that the revocation of a community-corrections alternative sentencing program is treated the same as a probation revocation. See Richardson v. State, 911 So.2d 1114 (Ala. Crim.App.2004). Thus, some references in this writing are to the “probation revocation.”

The revocation hearing began with the following statement from the trial court:

“THE COURT: We had you on Community Corrections. You have been charged with violating some of the conditions of your Community Corrections in that you failed to reside at the residence that you listed with the Community Correctional officer. In fact, he said when a home visit was made on June 11th, he discovered you had never lived there.
“Based upon that, your privilege of Community Corrections will be revoked and your sentence will be put into effect. Good luck, sir.”

(R. 15.) After the court announced it was revoking Hill’s placement in the community-corrections program Hill was allowed to speak. He offered a lengthy explanation to the trial court regarding his living arrangements. This was followed by the trial court’s asking, “[D]id you give [Mr. Tate, your community corrections officer] the correct address where you live?” (R. 19.) This was followed by Hill’s explanation why he did not live at the address he had given Mr. Tate, but that he had done everything he could control to comply with the criteria for placement in the community-corrections program. The trial court concluded the proceedings with the following comment:

“THE COURT: I am sorry. I can’t agree with you, that you have done everything, because one of the minimum requirements is telling the Community Corrections officer where you live. I don’t think you have been living where you told him you lived. So sorry. I gave you an opportunity. Good luck, sir.”

(R. 20.)

As the State concedes in its appellate brief, “it does not appear that [the trial court] applied all of the due process safeguards of Rule 27, Ala. R.Crim. P.” (State’s brief at pp. 18-19.) Andrews v. State, 975 So.2d 392 (Ala.Crim.App.2007), is factually similar to the instant case. In Andrews the appellant claimed “that the circuit court violated his right to due process by not adhering to the probation-revocation requirements contained in Rule 27, Ala. R.Crim. P., as required by § 15-18 — 175(d)(3), Ala.Code 1975.” 975 So.2d at 393. “Andrews did not make any objections in the circuit court related to the court’s failure to comply with this Rule.” 975 So.2d at 394. This court unanimously voted to remand Andrews to the circuit court “for that court to conduct a new revocation hearing in compliance with Rule 27, Ala. R.Crim. P.” 975 So.2d at 395. I note that in this case, Hill did file a motion to reconsider the revocation of his community-corrections placement in which he argued that he had not received due process as contemplated by Rule 27, Ala. R.Crim. P. No postjudgment motion is referenced in Andrews.

I am aware that a community-corrections-placement revocation hearing need not be formal and that the court is not bound by strict rules of evidence. See Ewing v. State, 826 So.2d 199, 202 (Ala.Crim.App.2001); Puckett v. State, 680 So.2d 980, 982 (Ala.Crim.App.1996); Mitchell v. State, 462 So.2d 740, 742 (Ala.Crim.App.1984). I am also aware that due-process rights may be waived. See Puckett v. State, 680 So.2d 980, 984 (Ala.Crim.App.1996). However, a probationer’s right to a revocation hearing “is mandatory and jurisdictional.” Story v. State, 572 So.2d 510, 511 (Ala.Crim.App.1990). A revocation hearing not only affords a probationer a forum in which to exercise his or her due-process rights, but it also provides the probationer an opportunity to challenge the absence of due process before possibly losing his liberty. Puckett v. State, 680 So.2d 980, 984 (Ala.Crim.App.1996) (“[T]he difficulty of raising an objection for the record where one’s [community-corrections placement] has been revoked without a hearing is obvious.”) A proceeding, such as in the instant case, where the probationer is not afforded due-process and is not afforded a meaningful opportunity to protect his due-process rights is without substance and meaningless. Therefore, I believe that, as was the case in Andrews, the instant case should be remanded to the trial court for that court to conduct a new revocation hearing in compliance with Rule 27, Ala. R.Crim. P. Accord, Ex parte Anderson, 999 So.2d 575 (Ala.2008) (no meaningful revocation proceeding was held); Wallace v. State, 992 So.2d 797 (Ala.Crim.App.2008) (no meaningful revocation hearing was held).

Therefore, based on the above, I must respectfully dissent from Part II of the unpublished memorandum.

BASCHAB, Presiding Judge,

concurring in the result in part and dissenting in part.

I concur with the decision to affirm the appellant’s conviction and sentence. However, I dissent as to the decision to affirm the circuit court’s revocation of the appellant’s community corrections sentence. Based on the Alabama Supreme Court’s decision in Ex parte Anderson, 999 So.2d 575 (Ala.2008), I do not believe that the proceedings in this case constituted an actual revocation hearing pursuant to Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); McCoo v. State, 921 So.2d 450 (Ala.2005); Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975); and Rule 27, Ala. R.Crim. P. Therefore, we should remand this case to the circuit court for that court to conduct an actual revocation hearing.

      . Hill’s issues were consolidated on appeal.

      . Presiding Judge Baschab concurred in the result.


author: BOLIN, Justice.

text:
    Ex parte William Franklin HILL. (In re William Franklin Hill v. State of Alabama).
    1071635.
    Supreme Court of Alabama.
    Sept. 4, 2009.
    Rehearing Denied Nov. 20, 2009.

      George L. Beck, Jr., and W. Allen Shee-han of Capell & Howard, P.C., Montgomery, for petitioner.
    Troy King, atty. gen., and Michael G. Dean, asst. atty. gen., for respondent.

       Justice Shaw was a member of the Court of Criminal appeals when that court considered this case.

   BOLIN, Justice.

William Franklin Hill was indicted for theft of property in the first degree, see § 13A-8-5, Ala.Code 1975. On April 4, 2007, Hill entered a plea of guilty to the charge. After accepting the guilty plea, the trial court postponed the sentencing hearing pending a determination as to whether Hill was eligible to serve his sentence on release to the Montgomery County Community Corrections Program (hereinafter referred to as “the community-corrections program”). On May 1, 2007, a different judge sentenced Hill, as a 3-time habitual offender, to 20 years’ imprisonment, to be served in the community-corrections program. On May 30, 2007, Hill filed a motion to reconsider the sentence or, in the alternative, to withdraw the guilty plea, in which he stated that “[t]he State and the defense had agreed that a sentence under the sentencing standards, to be served in community corrections, if [Hill] were eligible, would be appropriate.” The trial court denied the motion.

On June 12, 2007, Hill was arrested on a delinquency charge for failing to reside at the residence he had listed with the community-corrections program. On June 13, 2007, Hill was taken before the trial court for an initial appearance as required by Rule 27.5(a), Ala. R.Crim. P. During the initial appearance, the trial court revoked Hill’s sentence to the community-corrections program and ordered him to serve his 20-year sentence with the Alabama Department of Corrections.

On July 13, 2007, Hill filed a second postjudgment motion, requesting that the trial court reconsider its decision to revoke his community-corrections sentence and for enforcement of a plea agreement he claims he had made with the State. The motion, filed approximately 70 days after Hill had been sentenced and seeking enforcement of a plea agreement, was untimely. See Rule 24.1, Ala. R.Crim. P. The trial court denied the motion, and Hill appealed.

The Court of Criminal Appeals affirmed the trial court’s judgment in an unpublished memorandum. Hill v. State, 71 So.3d 1 (Ala.Crim.App.2008). Presiding Judge Baschab and Judge Welch issued special writings concurring in part and dissenting in part. We granted Hill’s petition for the writ of certiorari in order to determine (1) whether there was a plea agreement and (2) whether Hill was afforded due process before his sentence to the community-corrections program was revoked.

Hill first contends that he should have been allowed to withdraw his guilty plea because, he says, the trial court failed to sentence him pursuant to the terms of a plea agreement that he says he entered into with the State. The Court of Criminal Appeals held that the issue whether the trial court failed to sentence Hill pursuant to a plea agreement was not preserved for appellate review because, that court stated in its unpublished memorandum, Hill, in his first postjudgment motion filed on May 30, 2007, “failed to raise any claim that a plea agreement existed between [him] and the State.” Although Hill did not include precise language in his motion to the effect that a plea agreement between him and the State existed, he nonetheless referred to such an agreement between him and the State regarding the sentencing standards, i.e., “[t]he State and defense had agreed that a sentence under the sentencing standards, to be served in Community Corrections, if [Hill] were eligible, would be appropriate.” We conclude that this general language in Hill’s May 30, 2007, motion clearly placed the trial court on notice that Hill wished to withdraw his guilty plea based on the existence of some agreement between him and the State regarding sentencing standards. Consequently, we hold that Hill’s timely filed motion was sufficient to preserve for review the issue whether a plea agreement did in fact exist between Hill and the State. See Bagley v. State, 681 So.2d 262, 264 (Ala.Crim.App.1995) (language in the appellant’s motion, although not precise, “placed the trial court on notice that [the appellant] wanted to withdraw his plea because [he] was objecting to not being sentenced in accordance with the purported plea agreement”).

It is well settled that “‘[w]hen the trial judge decides not to carry out an agreement reached between the prosecutor and the defense counsel, the accused must be afforded the opportunity to withdraw his or her guilty plea on motion promptly made.’” Ex parte Clay, 562 So.2d 1307, 1309 (Ala.1990) (quoting Ex parte Otinger, 493 So.2d 1362, 1364 (Ala.1986)). At issue in the instant case is whether a plea agreement did in fact exist and, if so, what the terms of that agreement were. Ex parte Clay, 562 So.2d at 1309.

No written plea agreement is included in the record. However, the following exchange occurred during the guilty-plea hearing on April 4, 2007:

“THE COURT: I want to go over it. If you have any questions, this is the time to ask. I see you are charged with theft of property. Is this just a straight-up plea?
“[DEFENSE COUNSEL]: [The prosecutor] and I have talked about this. [The prosecutor] has done a preliminary calculation of the sentencing standards applicable in this case. It is my understanding the State has no objection to the Court sentencing under the Sentencing Standard preliminary calculation, which would be 76 to 115 months with split time.
“THE COURT: I can’t hear you. “[DEFENSE COUNSEL]: Preliminary calculations would be a base sentence of 76 to 115 months with split time 12 to 19 months. I understand the State has no objection. The State has no opposition to that. Also, it appears he is eligible for Community Corrections looking at his record and also talking to Community Corrections. I suppose if we can get that worked out with him, the State has no problem with that.
“[PROSECUTOR]: That’s correct, Your Honor.
“THE COURT: With three prior felonies and this is a Class B, the sentence is mandatory life or any term of not less than 20. Is that right?
“THE COURT: And a fine up to $60,000. Now, you understand what the range of the penalty could be?
“[HILL]: Yes, Your Honor.
“THE COURT: Has anyone promised you anything or threatened you in any way or offered you anything in order to get you to plead guilty?
“[HILL]: No, ma’am.”

(Emphasis added.)

As previously noted, the sentencing hearing was delayed pending a determination as to whether Hill qualified to serve his time in the community-corrections program. The following exchange occurred during the sentencing hearing on May 1, 2007, before a different judge from the judge who accepted Hill’s guilty plea on April 4, 2007:

“THE COURT: I reviewed the pre-sen-tence report. Anything else you want me to consider?
“[DEFENSE COUNSEL]: Yes, sir, Your Honor. First, [a different trial judge] took the plea in the case, and the State and defense had said there wouldn’t be a problem from either side if the Court went under the sentencing standards. Also, I believe the State said if Mr. Hill was eligible for community corrections, they wouldn’t have any objection to that.... It would be my recommendation to the Court that the Court consider either Community Corrections or a suspended sentence with perhaps referral to Mental Health Court.
“THE COURT: Was there a plea agreement at the time?
“[PROSECUTOR]: The only one it would be community corrections if he made it into the program or it would be a split sentence under the sentence guidelines, which I don’t know that you have a copy of.
“[DEFENSE COUNSEL]: It was read into the record at the time of the plea.
“[PROSECUTOR]: That was the only agreement we had.
“THE COURT: I am not going to follow that. I am going to follow normal sentencing standards as set out. I believe according to this note from when [the initial trial judge] took the plea, the Habitual Offender Act is applicable. Three priors.
“[THE PROSECUTOR]: The State would move to invoke that.
“THE COURT: Any objection?
“[DEFENSE COUNSEL]: No, sir.
“THE COURT: Mr. Hill, I am going to sentence you to a term of imprisonment in the Department of Corrections for 20 years. You will be permitted to serve this on community corrections since that has been approved by Mr. Tate.
“[HILL]: Thank you, Your Honor.”
(Emphasis added.)

During the sentencing hearing, defense counsel specifically represented to the trial court that it was defense counsel’s understanding that “there wouldn’t be a problem from either side if the Court went under the sentencing standards” and that the State would not have any objection if Hill was eligible for the community-corrections program. (Emphasis added.) Defense counsel then stated that it would be his recommendation that the trial court consider either the community-corrections program or a suspended sentence with perhaps referral to a mental-health court. This recommendation by defense counsel clearly indicates that there was not a binding agreement between defense counsel and the State, pursuant to which the State agreed to recommend to the trial court that Hill be sentenced under the voluntary sentencing guidelines. Instead, the State admitted that there was an agreement not to object if the trial court did, in fact, sentence Hill according to the voluntary sentencing guidelines or if the trial court sentenced Hill to serve his sentence in the community-corrections program. The trial judge at the sentencing hearing specifically inquired as to whether a plea agreement existed. The prosecutor responded that “it would be community corrections if [Hill] made it into the program or it would be a split sentence under the sentence guidelines.” (Emphasis added.) Defense counsel did not object to the prosecutor’s interpretation of the agreement. The trial judge then stated that based on Hill’s pri- or convictions, he was going to follow normal sentencing standards instead of the voluntary sentencing guidelines of § 12-15-34, AIa.Code 1975. However, the trial judge then sentenced Hill, as an habitual offender, to a 20-year sentence under the “normal” sentencing standards but ordered that Hill serve his sentence in the community-corrections program. Consequently, we hold that the trial court accepted the plea agreement pursuant to which the State agreed not to object if Hill was ordered to serve his sentence in the community-corrections program, as that agreement was explained to the court by the prosecutor. Accordingly, the trial court did not err in denying Hill’s motion to withdraw his guilty plea because the trial court had failed to sentence him in accordance with the terms of a plea agreement.

Hill next contends that he was denied due process when the trial court revoked his community-corrections sentence. Hill argues, among other things, that he was not afforded an opportunity to call witnesses on his behalf, to cross-examine the State’s witnesses, or to present any other evidence on his behalf. In its brief, the State concedes that the trial court failed to comply with Rule 27.6, Ala. R.Crim. P., which provides that before a trial court can revoke a defendant’s probation (or community-corrections sentence), it must hold a hearing and at that hearing each party is entitled to present evidence and cross-examine adverse witnesses.

As previously noted, the trial court, on May 1, 2007, sentenced Hill to 20 years’ imprisonment, to be served in the community-corrections program. On June 12, 2007, Hill was arrested on a delinquency charge and was taken the next day before the trial court for an initial appearance in accordance with Rule 27.5, Ala. R.Crim. P. The trial court, at the outset, made the following statement:

“THE COURT: We had you on community corrections. You have been charged with violating some of the conditions of your community corrections in that you failed to reside at the residence that you listed with the community correctional officer. In fact, he said when a home visit was made on June 11, he discovered you had never lived there. Based upon that, your privilege of community corrections will be revoked and your sentence will be put into effect. Good luck, sir.”

After the trial court revoked Hill’s community-corrections sentence, Hill gave a lengthy explanation regarding his living arrangements, admitting that he had not lived at the address he had given the community-corrections officer. The trial court thereafter made the following comment:

“THE COURT: I am sorry. I can’t agree with you, that you have done everything, because one of the minimum requirements is telling the Community Corrections officer where you live. I don’t think you have been living where you told him you lived. So sorry. I gave you an opportunity. Good luck, sir.”

Hill appealed to the Court of Criminal Appeals, arguing that the trial court erred in not complying with the due-process requirements of Rule 27.5 and Rule 27.6, Ala. R.Crim. P. The Court of Criminal Appeals affirmed the trial court’s revocation order on the ground that Hill had not preserved this issue for appellate review because, it said, he failed to make any objections on those grounds at the trial court level.

We first note that the revocation of a sentence served under a community-corrections program is treated the same as a probation revocation. See § 15 — 18— 175(d)(3)b., Ala.Code 1975 (“A revocation hearing shall be conducted before the court prior to revocation of the community corrections sentence. The court shall apply the same due process safeguards as a probation revocation proceeding and may modify or revoke the community punishment sentence and impose the sentence that was suspended at the original hearing or any lesser sentence..."); Richardson v. State, 911 So.2d 1114 (Ala.Crim.App.2004) (treating the revocation of a community-corrections sentence as a probation revocation); see also Jackson v. State, 867 So.2d 365 (Ala.Crim.App.2003) (providing that the rules of preservation apply to probation-revocation proceedings unless no revocation hearing is conducted, the record does not contain an adequate written or oral revocation order, or the probationer was not informed of his right to counsel). We hereinafter sometimes in our discussion of the due-process issue presented here make reference to probationers and probation-revocation proceedings.

In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the United States Supreme Court set forth the minimum constitutional requirements that must be met before parole may be revoked. These requirements include, among other things, affording the parolee the “opportunity to be heard in person and to present witnesses and documentary evidence” and “the right to confront and cross-examine adverse witnesses.” 408 U.S. at 489. These specific rights were extended to probationers in probation-revocation proceedings by the United States Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and by this Court in Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975); see also Rule 27.5 and Rule 27.6, Ala. R.Crim. P., which are intended to comply with these due-process requirements.

In Ex parte Anderson, 999 So.2d 575 (Ala.2008), this Court stated:

“A probationer who makes his initial appearance under Rule 27.5, Ala. R.Crim. P., is entitled to a revocation hearing. Rule 27.5(a)(4), Ala. R.Crim. P. (at the initial appearance, the ‘judge ... shall ... set the date of the revocation hearing.’)....
“... Generally, arguments not presented to the trial court are waived on appeal.... However, in Puckett v. State, 680 So.2d 980, 983 (Ala.Crim.App.1996), the Court of Criminal Appeals recognized two exceptions to that general rule when the case involves the revocation of probation:
“ ‘[The Court of Criminal Appeals] has recognized, in probation revocation proceedings, only two exceptions to the general rule that issues not presented to the trial court are waived on appeal: (1) the requirement that there be an adequate written order of revocation ..., and (2) the requirement that a revocation hearing actually be held.’ ”

999 So.2d at 577-78.

In the present case, the Court of Criminal Appeals held that because Hill’s challenge to the sentence-revocation hearing did not fall within one of the exceptions noted in Puckett, Hill had to preserve his objections to the hearing, and that, because he did not, he had waived the issue for appellate review. Hill argues that his case falls within the second Puckett exception because, he says, the trial court failed to hold a revocation hearing. We agree. The trial judge in the instant case revoked Hill’s community-corrections assignment during Hill’s initial appearance, without affording Hill a meaningful hearing to be set at a later date. As a result, Hill was not afforded the opportunity to present witnesses, nor was he afforded the opportunity to confront and cross-examine witnesses. Accordingly, the minimum due-process requirements of Morrissey, Gag-non, and Armstrong, supra, were not met.

Based on the foregoing, we reverse that portion of the Court of Criminal Appeals’ decision holding that Hill failed to preserve for appellate review the issue whether due process was afforded at the revocation hearing, and we remand this case to that court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, PARKER, and MURDOCK, JJ., concur.

SHAW, J., recuses himself.

      . Mental-health court is a diversionary program for defendants with mental illnesses.

        . Rule 27.5(a)(4), Ala. R.Crim. P., specifically provides that during the probationer's initial appearance, the trial judge shall "[s]et the date of the revocation hearing." Rule 27.6(a), Ala. R.Crim. P., states that a hearing “to determine whether probation should be revoked shall be held before the sentencing court within a reasonable time after the probationer’s initial appearance under Rule 27.5.” Rule 27.6(d)(1), Ala. R.Crim. P., additionally provides that each party "shall have the right to present evidence and the right to confront and to cross-examine adverse witnesses who appear and testify in person. The court may receive any reliable, relevant evidence not legally privileged, including hearsay."


author: MAIN, Judge.

text:
    William Franklin HILL v. STATE of Alabama.
    CR-06-1839.
    Court of Criminal Appeals of Alabama.
    Feb. 5, 2010.

      George L. Beck, Jr., Montgomery; Todd Cox, Montgomery (withdrew 02/08/2010), and Allen Sheehan, Montgomery, for appellant.
    Troy King, atty. gen., and Michael G. Dean, asst. atty. gen., for appellee.
   On Remand from the Alabama Supreme Court

MAIN, Judge.

In an unpublished memorandum issued on May 80, 2008, this Court affirmed the circuit court’s judgment in this case, holding that Hill had not preserved his challenge to the revocation proceedings and that, even had his challenge been preserved, he was not entitled to any relief on his claim that the circuit court erred in denying his motion to withdraw his guilty plea. See Hill v. State, 71 So.3d 1 (Ala.Crim.App.2008) (Presiding Judge Baschab concurred in the result in part and dissented in part, with opinion; Judge Welch concurred in part and dissented in part, with opinion; Judge Shaw concurred in the result). Hill petitioned the Alabama Supreme Court for certiorari review.

On September 4, 2009, the Alabama Supreme Court held that the circuit court did not err in denying Hill’s motion to withdraw his guilty plea; however, the Alabama Supreme Court reversed that portion of this Court’s judgment addressing Hill’s challenge to the revocation proceedings, holding:

“The trial judge in the instant case revoked Hill’s community-corrections assignment during Hill’s initial appearance, without affording Hill a meaningful hearing to be set at a later date. As a result, Hill was not afforded the opportunity to present witnesses, nor was he afforded the opportunity to confront and cross-examine witnesses. Accordingly, the minimum due-process requirements of Morrissey [v. Brewer, 408 U.S. 471 (1972) ], Gagnon [v. Scarpelli, 411 U.S. 778 (1973)], and Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975)], were not met.
“Based on the foregoing, we reverse that portion of the Court of Criminal Appeals’ decision holding that Hill failed to preserve for appellate review the issue whether due process was afforded at the revocation hearing, and we remand this case to that court for further proceedings consistent with this opinion.”

Ex parte Hill, 71 So.3d 3, 10 (Ala.2009). The Alabama Supreme Court further stated that Hill’s claims fall within the second exception discussed in Puckett v. State, 680 So.2d 980, 983 (Ala.Crim.App.1996), to the rule that arguments not presented to the trial court are waived on appeal applicable to probation revocation proceedings, i.e., “the requirement that a revocation hearing actually be held.”

Thus, in accordance with the directions of the Alabama Supreme Court, we remand this case to the circuit court for that court to conduct a new revocation hearing in compliance with Rule 27, Ala.R.Crim.P. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

WISE, P.J., and WELCH, WINDOM, and KELLUM, JJ., concur.

      . Although Judge Main was not on the Court when the unpublished memorandum was issued, the case was assigned to Judge Main when the Alabama Supreme Court remanded it to this Court.

       Note from the reporter of decisions: On November 16, 2010, the appeal was dismissed on the motion of the appellant by the Court of Criminal Appeals. A certificate of judgment was issued on November 16, 2010.