author: BRYAN, Judge.

text:
    K.F. v. CLEBURNE COUNTY DEPARTMENT OF HUMAN RESOURCES, V.F., and C.L.
    2100368, 2100369, and 2100370.
    Court of Civil Appeals of Alabama.
    Aug. 12, 2011.

      Joshua J. Lane, Anniston, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Kimberley J. Dobbs, asst. atty. gen., Department of Human Resources, for ap-pellee Cleburne County Department of Human Resources.
   BRYAN, Judge.

K.F. (“the mother”) appeals from a dis-positional judgment in three separate dependency actions that transferred custody of her three children, N.T., A.F., and M.T. (referred to collectively hereinafter as “the children”) from the Cleburne County Department of Human Resources (“DHR”) to V.F. and C.L.

Procedural History

On September 29, 2009, DHR filed a petition in case no. JU-08-107.03, seeking to transfer custody of A.F., a child born to the mother and V.F., the father, in January 2001, from DHR to C.L., who is V.F.’s daughter and the half sister of A.F. The petition alleged that DHR had had custody of A.F. since February 2009, that A.F. had been living with C.L. since August 2009, that C.L. was able and willing to care for A.F., and that DHR thought that placement of A.F. with C.L. was in A.F.’s best interest. On the same day, in case no. JU-08-108.03, DHR filed a petition to transfer custody of M.T., a child of the mother and V.F. born in April 2002, from DHR to C.L. The petition alleged that DHR had had custody of M.T. since February 2009, that M.T. had been living with C.L. since August 2009, that C.L. was able and willing to care for M.T., and that DHR thought that placement of M.T. with C.L. was in M.T.’s best interest.

On January 29, 2010, in case no. JU-08-109.03, V.F. filed a petition seeking custody of N.T., a child of the mother that was born in August 1994. In his petition, V.F. alleged that N.T. was his stepson, that N.T. had been in the custody of DHR since February 2009, and that DHR had placed N.T. in his custody in August 2009. V.F. subsequently filed a motion to intervene in the dependency action filed by DHR regarding N.T.

The trial court conducted an ore tenus hearing on the pending custody petitions on October 28, 2010. On December 9, 2010, the juvenile court entered a judgment on DHR’s and V.F.’s petitions to transfer custody. The juvenile court awarded custody of N.T. to V.F., and it awarded custody of A.F. and M.T. to C.L. The mother was awarded standard visitation with the children, as set forth in an exhibit attached to the judgment. However, the judgment further stated that the mother’s visitation with the children “shall not be overnight until the mother provides documentation to the current custodians of her completion of an intensive outpatient or inpatient treatment program which addresses her alcohol use.”

The mother subsequently filed a petition to alter, amend, or vacate the judgment pursuant to Rule 59, Ala. R. Civ. P. The mother’s postjudgment motion was denied by operation of law, see Rule 1(B), Ala. R. Juv. P., and the mother filed a timely notice of appeal in each action. This court has consolidated the mother’s appeals.

Issues

On appeal, the mother argues that the juvenile court erred by transferring custody of N.T. to V.F. and by transferring custody of A.F. and M.T. to C.L. She also argues that the juvenile court’s award of visitation is erroneous because it is vague and ambiguous.

Facts

The record indicated that the juvenile court had adjudicated the children to be dependent soon after they were removed from the mother’s custody, for the second time, in February 2009. At the time of trial, N.T. was 16 years old, A.F. was almost 10 years old, and M.T. was 8 years old. The record indicated that the mother and V.F., who is the father of A.F. and M.T., were married before A.F. was born and that they separated in 2005. At the time of trial, the mother and V.F. were still legally married.

Carrie Pollard, a caseworker with DHR, testified that the children were first removed from the mother’s home in October 2008 and that, after some time, they were returned to the mother’s custody. However, the children were removed from the mother’s home again in February 2009 after DHR received a report regarding domestic violence and alcohol use in the home; apparently, the safety plan that had been put in place by DHR had not been followed. At that time, the mother’s primary barrier to reunification with the children was her abuse of and her addiction to alcohol.

Pollard stated that DHR had recommended that the mother participate in services to address her alcohol abuse, including an outpatient substance-abuse program, ongoing counseling, and attendance in an Alcoholics Anonymous or Narcotics Anonymous support group. According to Pollard, the mother had participated in two different outpatient alcohol-treatment programs: Pathways in Georgia and New Directions in Anniston. Pollard stated that she had asked the mother to produce documentation to prove that she had completed an alcohol-treatment program at an Individualized Service Plan (“ISP”) meeting in July 2010, but, as of October 2010, the mother had not done so. Pollard was aware that the mother had participated in a program called Celebrate Recovery, but, as far as she knew, the mother had not attended that program since July 2009.

Carrie Halladay, a licensed professional counselor, stated that she had counseled the mother from February 2009 through October 2009. According to Halladay, after some time, the mother eventually admitted that she had an addiction to alcohol and that she had relapsed once she became involved with R.T.E., a paramour with whom the mother was still involved at the time of trial. During one counseling session, R.T.E. admitted that he had driven with the children after drinking alcohol and that he had been pulled over and charged with three counts of reckless endangerment. Halladay stated that the mother did not have a driver’s license because she had gotten into an alcohol-related automobile accident after DHR took custody of the children. Halladay stated that, in order for the children to be returned to the mother, the mother needed to successfully complete outpatient alcohol treatment and counseling at New Directions.

Halladay stated that her counseling sessions with the mother had taken place in the mother’s home in Ranburne and that they had abruptly ended in October 2009 when the mother and R.T.E. moved. Hal-laday stated that the mother did not achieve the goals that Halladay had set for her before she stopped attending counseling. Halladay, who the parties stipulated was an expert in the area of alcohol counseling, stated that statistics showed that 95% of alcoholics will relapse without completion of some type of treatment program. However, she also stated that someone who was involved in church and who participated in Alcoholics Anonymous or a similar program had a reduced chance of relapsing.

The mother testified that she had not consumed alcohol since the day the children were taken from her in February 2009. She stated that she did not complete treatment at New Directions or Pathways because she could not afford to pay for the programs and DHR had not provided any financial assistance. The mother testified that she had been employed for only two or three months while she lived in Georgia. The mother stated that she had participated in a program called Celebrate Recovery, a Christian-based recovery program for any kind of addiction, approximately three times a week for one year. She stopped participating in the Celebrate Recovery program at the time she started New Directions because the programs met on the same days. She also stated that she did not have a driver’s license because she was legally blind.

DHR had also required the mother to maintain stable housing and employment and to keep DHR notified of her whereabouts. Pollard stated that she had an address for the mother in Georgia but that she did not have the mother’s current address. Pollard also stated that she was not aware of any goal that the mother had reached that had been set by DHR. Pollard stated that the mother stopped all services through DHR, except visitation with the children, in October 2009, approximately one year before trial. From April 2009 through the time of trial, the mother visited the children every Sunday from 8:00 a.m. to 5:00 p.m. Pollard stated that DHR had not allowed the mother to exercise overnight visitation with the children because she had not completed a substance-abuse-treatment program.

R.T.E. stated that he and the mother had begun a relationship in 2005 and that they had moved in together in mid 2006. R.T.E. testified that he had participated in substance-abuse counseling through Pathways and New Directions after DHR removed the children from his and the mother’s home. R.T.E. admitted that he had not completed a substance-abuse-rehabilitation program as requested by DHR, but he contended that it was because of financial constraints. However, he stated that he had participated in Celebrate Recovery, which he began in August 2008. When asked if he had completed the Celebrate Recovery program, he stated that he went as far as he could go in the book. He supported the mother in her request to have custody of the children returned to her.

In September 2010, the mother and R.T.E. were hired by their pastor to be caretakers of a church camp in Cleburne County. The mother and R.T.E. lived in the caretakers’ home, which had three bedrooms, on the property of the church camp. The mother’s pastor testified that the mother had been consistently visiting his church for 14 months and that he had never seen any indication that the mother was abusing or using alcohol.

According to Pollard, she contacted V.F. after the children were placed in foster care in February 2009, and, she stated, at that time, V.F. was living with C.L. in Georgia, along with C.L.’s husband and son. V.F. and C.L. had weekly visitation with the children while they were in foster care. Pollard stated that the children were placed in V.F. and C.L.’s care in August 2009 after a successful home study was completed pursuant to the Interstate Compact on the Placement of Children (“ICPC”). Pollard stated that the Georgia counterpart of the Department of Human Resources had maintained contact with V.F. and that she had spoken to V.F.’s Georgia caseworker. Pollard stated that V.F. had no issues with drugs, alcohol, or domestic violence and that she had no concerns about the children residing in V.F. and C.L.’s home.

The mother had objected to the placement of the children with V.F. and C.L. at that time because V.F. had not seen the children in two years and because, she alleged, there had been domestic violence issues between her and V.F. when they had lived together. The mother stated that, when she and V.F. separated, V.F. had left her with no way to support herself or the children and that he had not been involved with the children after 2004. However, V.F. testified that he had been unable to locate the mother and the children after the mother moved out of their home in 2005. V.F. stated that he had been prevented from providing support for the children because he did not know where they were. V.F. further testified that he did not have an alcohol problem, that he had never hit the mother, and that he had never hit the children.

Pollard stated that the children appeared to be happy in V.F. and C.L.’s home. However, she admitted that N.T. and M.T. had received poor grades after they were initially placed in V.F. and C.L.’s home and that N.T. had not passed his grade while he lived with V.F. and C.L. in Georgia. However, Pollard also stated that N.T. and M.T. had had poor grades while they were in the mother’s custody as well. V.F. testified that, at the time of trial, A.F. was making As and Bs in school; that N.T. was making primarily As and Bs but had received a grade of 60 in one class; and that M.T. was making primarily As and Bs but had one C. V.F. testified that the children did not have any behavioral issues at school and that he had been to school to meet their teachers on two or three occasions.

At the time of trial, V.F. and C.L. had relocated from Georgia to Cleburne County and Pollard had visited their home, which had 4 bedrooms and sat on 15 acres of land. DHR had performed a home study on their residence, which had been approved. Pollard stated that DHR recommended that custody of A.F. and M.T. be placed with their half sister, C.L. According to Pollard, DHR was not providing any services to C.L., C.L. had been caring for A.F. and M.T. for approximately 14 months, and C.L. was able to meet the needs of A.F. and M.T. Pollard stated that DHR recommended that the juvenile court place custody of N.T. with V.F., who had been caring for N.T. for approximately 14 months.

The mother stated that she did not want her children in the custody of V.F. or C.L. because the children had been coming to visitation dirty and unkept and because, the mother alleged, C.L. had tried to breast-feed A.F. when he was an infant despite the fact that C.L. was not breastfeeding a child of her own at that time. The mother later admitted that she had merely seen C.L. attempt to lift up her blouse and that she was not sure what C.L.’s intentions had been. The mother also complained that A.F.’s skin condition, which was a result of being severely burned as a child, had worsened after being in C.L.’s custody. Pollard stated that she had seen the burns on A.F.’s arms approximately two weeks before trial and she had not noticed that they looked any worse than usual. V.F. testified that A.F. had had sores on his burned skin when he first came to live with him and C.L., but he denied that there were any sores on A.F.’s burned skin at the time of trial. The mother stated that, if the juvenile court did not place custody of the children with her, she would rather the children be placed in foster care then be placed in the custody of V.F. and C.L.

At the conclusion of trial, the guardian ad litem of the children recommended that custody of N.T. be placed with V.F. and that custody of A.F. and M.T. be placed with C.L.

Discussion

Initially, the mother challenges the custodial disposition of the children. It is well settled that, after a child has been adjudicated to be dependent, a juvenile court may make any custodial disposition that serves the best interests of the child.

See § 12-15-314(a), Ala.Code 1975; and W.T.H. v. 915 So.2d 64, 70 (Ala. Civ.App.2005) (explaining that, under former § 12-15-71, Ala.Code 1975, the predecessor statute to § 12-15-314(a), the “best interests” standard applies during the dis-positional phase of a dependency proceeding).

“In Ex parte Alabama Department of Human Resources, 682 So.2d 459 (Ala. 1996), the Alabama Supreme Court stated the applicable principles of appellate review in the context of a challenge to a juvenile court’s custodial disposition of a dependent child:
“ ‘Appellate review is limited in cases where the evidence is presented to the trial court ore tenus. In a child custody case, an appellate court presumes the trial court’s findings to be correct and will not reverse without proof of a clear abuse of discretion or plain error. Renter v. Neese, 586 So.2d 232 (Ala.Civ.App.1991); J.S. v. D.S., 586 So.2d 944 (Ala.Civ.App.1991). This presumption is especially applicable where the evidence is conflicting. Ex Parte P.G.B., 600 So.2d 259, 261 (Ala. 1992). An appellate court will not reverse the trial court’s judgment based on the trial court’s findings of fact unless the findings are so poorly supported by the evidence as to be plainly and palpably wrong. See Ex parte Walters, 580 So.2d 1352 (Ala.1991).’
682 So.2d at 460.”

J.J. v. J.H.W., 27 So.3d 519, 522 (Ala.Civ.App.2008).

The mother contends, citing § 12-15-314(a)(3)c., Ala.Code 1975, that the juvenile court erred in awarding custody of N.T. to V.F. because V.F. is not a relative of N.T. Section 12-15-314(a)(3)c. provides that a juvenile court may, after adjudicating a child to be dependent,

“[tjransfer legal custody to-[a] relative or other individual who, after study by the Department of Human Resources, is found by the juvenile court to be qualified to receive and care for the child. Unless the juvenile court finds it not in the best interests of the child, a willing, fit, and able relative shall have priority for placement or custody over a non-relative.”

The mother argues that the juvenile court should have awarded her custody of N.T. because V.F. is not related to N.T., because V.F. abandoned her and the children after they separated, and because V.F. did not provide any support for the children after she and V.F. separated. Although V.F. and N.T. have no biological connection, the only party that sought custody of N.T. that was a relative of N.T. was the mother. However, the juvenile court had previously adjudicated the children to be dependent while in the mother’s custody, and the evidence at trial indicated that the mother had not met the ISP goals set by DHR that were required in order for the mother to regain custody of the children. Accordingly, the juvenile court could have determined that the mother was not a “fit and able relative” that should have had priority for placement of N.T. over V.F. Moreover, the juvenile court could have concluded that V.F. had not abandoned the children after he and the mother separated but instead that V.F. had been unable to locate the mother and the children after the separation in order to provide support for the children.

The mother also argues that N.T.’s best interests were not being served in the custody of V.F. because the record indicated that N.T.’s grades were poor in V.F.’s custody. The evidence indicated that N.T.’s grades were initially poor after custody was transferred to V.F., but the evidence also indicated that N.T. had poor grades while he was in the mother’s custody. Furthermore, V.F. testified that N.T.’s grades had improved as of the time of trial and that he had only one below-average grade. Finally, V.F. testified that N.T. had no behavioral problems in school, Pollard testified that N.T. was happy in V.F.’s custody, and the record indicated that, after an investigation was conducted, neither DHR nor their counterpart in Georgia had any issue with V.F.’s being a custodian for N.T. See § 12 — 15— 314(a)(3)c. Accordingly, we cannot conclude that the juvenile court’s determination that the best interests of N.T. would be served by placing his custody with V.F. was plainly or palpably wrong.

The mother also argues that the juvenile court erred in awarding custody of A.F. and M.T. to C.L. because the evidence indicated that A.F.’s burned skin had gotten worse since C.L. had had custody of A.F. and because she had allegedly seen C.L. attempt to breast-feed A.F. The juvenile court was presented conflicting and disputed evidence regarding whether the condition of A.F.’s burned skin had deteriorated since A.F. was placed in the custody of C.L. The record indicates that the juvenile-court judge asked A.F. to come into the courtroom at the conclusion of the trial so that his skin could be examined. The results of that examination are not in the record on appeal. Considering that the evidence was disputed and that the juvenile-court judge had the opportunity to view at least parts of A.F.’s burned skin, we must conclude that the juvenile court determined that A.F.’s skin condition had not deteriorated while in C.L.’s custody. Furthermore, the trial court could have concluded that the mother’s allegation that C.L. had once attempted to breast-feed A.F. was not credible because the mother admitted that she was not sure of C.L.’s intentions at the time the mother thought that C.L. was attempting to breast-feed A.F. See Dunn v. Dunn, 972 So.2d 810, 815 (Ala.Civ.App.2007) (noting that the trial court is the best position to evaluate the demeanor and credibility of the parties because of its ability to observe the parties as they testify).

The mother further argues that the award of custody of A.F. and M.T. to C.L. was reversible error because C.L. did not testify during trial about her ability or willingness to care for A.F. and M.T. However, DHR filed the petition to transfer custody of A.F. and M.T. from DHR to C.L.; thus, it was DHR’s burden to prove that the best interests of A.F. and M.T. would be served by allowing custody of A.F. and M.T. to be transferred to C.L. Moreover, the record reveals that the mother did not argue before the juvenile court that its custodial disposition of A.F. and M.T. was error because C.L. did not testify at trial. Accordingly, because this argument is being raised for the first time on appeal, we cannot consider it. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (an appellate court cannot consider an argument raised for the first time on appeal as grounds to reverse the trial court’s judgment).

DHR presented evidence indicating that A.F. and M.T. were successfully placed in C.L.’s home in August 2009 after DHR’s counterpart in Georgia completed a successful home study and after C.L. visited the children when they were in foster care after they were first removed from the mother’s custody. As was the case with N.T., there was an indication that M.T.’s grades were poor when he was first placed with C.L., but other evidence indicated that, at the time of trial, M.T. had brought his grades up and that A.F. was also doing well in school. Pollard testified that C.L. was able and willing to continue to care for A.F. and M.T. Pollard had visited C.L.’s new home in Cleburne County, and, after an investigation and home study was completed, DHR had approved C.L. and her home for custody of A.F. and M.T. From this evidence, the juvenile court could have concluded that the best interests of A.F. and M.T. would be served by transferring their custody from DHR to C.L., with whom they had been living for approximately 14 months before trial. See § 12-15-314(a)(3)c. Accordingly, the judgment transferring custody of A.F. and M.T. to C.L. is affirmed.

Next, the mother argues that the award of visitation, insofar as it limits her overnight visitation with the children, is vague and ambiguous. The mother was awarded standard visitation with the children as set forth in an exhibit attached to the juvenile court’s judgment. The mother’s visitation award included, for example, visitation with the children every first, third, and, when applicable, fifth weekend of each month from Friday at 6:00 p.m. until Sunday at 6:00 p.m. However, as set forth above, the mother was precluded from exercising overnight visitation with the children until she could provide documentation that she had completed an intensive outpatient or inpatient treatment program to address her alcohol use. The mother contends that, because the standard visitation schedule does not specifically set forth a time for visitation before she completes an alcohol-treatment program, the visitation award is vague and operates to deny her any visitation with the children.

The mother contends that the visitation award is similar to awards of visitation that leave the noncustodial parent’s visitation with the children left entirely to the discretion of the custodian of the children. See, e.g., Bryant v. Bryant, 739 So.2d 53, 56-57 (Ala.Civ.App.1999) (reversing an award of visitation that left the father’s right to visit his children completely within the mother’s discretion); K.L.U. v. M.C., 809 So.2d 837, 841 (Ala.Civ.App.2001) (same); and R.K.J. v. J.D.J., 887 So.2d 915, 919 (Ala.Civ.App.2004) (award of visitation to mother “at reasonable times and places” was reversed because it failed to set forth a specific visitation schedule for the mother, because it “place[d] too much control over the noncustodial parent’s relationship with the children in the hands of the custodial parent,” and because the “visitation judgment [wa]s likely to increase the chance of further litigation over visitation matters”).

Although we find the present case distinguishable from cases that leave the noncustodial parent’s visitation award entirely to the discretion of the custodian of the children, we agree with the mother that the award of visitation, insofar as it fails to specifically set forth times she may visit the children until she is able to exercise overnight visitation, is unduly vague and could lead to additional litigation over visitation matters if the mother and V.F. or C.L. disagree on the extent of the mother’s visitation rights before she completes alcohol treatment. See Pratt v. Pratt, 56 So.3d 638, 644 (Ala.Civ.App.2010) (“The propriety of the [visitation] judgment depends on whether the noncustodial parent has a sufficient, specified visitation schedule to rely upon, independent of the custodial parent’s discretion.”). Accordingly, the judgment of the juvenile court is reversed insofar as it fails to specifically set forth the mother’s visitation rights until she is able to exercise standard visitation as set forth in the juvenile court’s judgment, and we remand the case -with instructions to enter a judgment consistent with this opinion.

Conclusion

The juvenile court’s custodial disposition of the children is affirmed. However, the visitation provisions of the judgment are reversed, and the case is remanded with instructions to the juvenile court to enter a judgment consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

PITTMAN and THOMAS, JJ., concur.

THOMPSON, P.J., and MOORE, J., concur in the result, without writings.

      . The judgment indicates that the juvenile court was also ruling on the mother’s petition for custody of A.F., M.T., and N.T. The record on appeal does not contain a petition filed by the mother requesting custody of the chil-tiren, but it is clear from the record on appeal that the mother was seeking custody of the children during the October 2010 ore tenus hearing.

      . There is an indication in the record that the juvenile court had entered an order, on or about August 25, 2010, that ordered the mother to submit to inpatient substance-abuse treatment or to fully participate in a therapeutic outpatient program as directed by DHR. Pollard stated that, to her knowledge, the mother had not complied with that order as of October 2010.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Dudley McGUIRE II v. William WHITE.
    2100382.
    Court of Civil Appeals of Alabama.
    Aug. 12, 2011.
    William D. Davis III of Davis & Associates, P.C., Birmingham, for appellant.
    Harry A. Drasutis, Birmingham, for ap-pellee.
   THOMPSON, Presiding Judge.

Dudley McGuire II appeals from a summary judgment entered by the Shelby Circuit Court in favor of William White. For the reasons stated herein, we dismiss the appeal.

On August 10, 2009, White filed an action against McGuire in which he alleged that McGuire had negotiated a worthless check to him in the amount of $11,656. He asserted a claim against McGuire pursuant to § 6-5-285, Ala.Code 1975, which provides the holder of a worthless check a cause of action against the maker of the check. McGuire filed an answer in which, among other things, he denied the allegations of the complaint.

On October 22, 2009, White filed a motion for a summary judgment as to his claim against McGuire. McGuire filed a response and a supplemental response to that motion and moved to strike certain documents that White had attached to his summary-judgment motion. On May 10, 2010, the trial court denied White’s summary-judgment motion.

White filed a motion to reconsider the trial court’s May 10, 2010, order denying his summary-judgment motion. The trial court held a hearing on that motion, after which, on June 29, 2010, it granted White’s motion and entered a summary judgment in his favor in the amount of $11,666 plus an attorney’s fee of approximately $4,000.

On November 4, 2010, McGuire filed a motion to set aside the summary judgment pursuant to Rule 60(b), Ala. R. Civ. P. In his motion, he stated that neither his counsel nor he had received notice of the hearing on White’s motion to reconsider the order of May 10, 2010, and that his counsel had not been notified of the entry of the summary judgment. He stated that the court’s file apparently contained no indication that the case had been disposed of because, when his counsel appeared at court on September 24, 2010, for a previously set pretrial conference, the trial court advised him that he would be notified when the court was ready to hold a trial of the action. McGuire stated that his counsel and he first learned of the summary judgment on October 29, 2010, when his bank account was garnished. McGuire supported his motion with affidavits from his attorneys.

On December 2, 2010, the trial court purported to grant McGuire’s motion and to set aside the summary judgment. On December 13, 2010, the trial court purported to reenter a summary judgment in favor of White. On January 24, 2011, McGuire filed a notice of appeal to this court.

In his appellate brief, White argues that this court lacks jurisdiction over this appeal because the appeal is untimely. We agree with White.

Corretti v. Pete Wilson Roofing Co., 507 So.2d 408 (Ala.1986), involved procedural facts that are virtually indistinguishable from those involved in the present case. In Corretti the trial court entered a summary judgment in favor of the defendants. Twenty months later, the plaintiff filed a motion to set aside that judgment pursuant to Rule 60(b), Ala. R. Civ. P., asserting a lack of notice of the entry of the summary judgment. The trial court purported to grant that motion and to set aside the summary judgment “‘due to the court’s concern that notice of this ruling was not communicated to counsel for the plaintiff....’” Corretti, 507 So.2d at 409 (quoting trial court’s order). The trial court then reentered the summary judgment in favor of the defendants. The plaintiff appealed. Our supreme court, considering its jurisdiction over the appeal ex mero motu, wrote:

“Rule 77(d), Ala. R. Civ. P., provides in pertinent part:
“ ‘Lack of notice of the entry [of an order or judgment] by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except that upon a showing of excusable neglect based on a failure of the party to learn of the entry of the judgment or order the circuit court in any action may extend the time for appeal not exceeding 30 days from the expiration of the original time now provided for appeals in civil actions.’
“Rule 60(b), Ala. R. Civ. P., cannot be substituted for the exclusive remedy-provided by Rule 77(d) and thereby used as a method to extend the time within which to appeal. Cockrell v. World’s Finest Chocolate Co., 349 So.2d 1117, 1119 (Ala.1977); see Hayden v. Hams, 437 So.2d 1283,1287 (Ala.1983).
“Rule 77(d), Ala. R. Civ. P., controls this case and prevents the lack of notice of the entry of an appealable order or judgment from being a ground for a Rule 60(b) motion.... This Court looks to substance and not form in determining the nature of a motion, see Ex parte Lang, 500 So.2d 3 (Ala.1986); even so, treating his Rule 60(b) motion as a motion for relief under Rule 77(d) would not help Corretti, because the trial court has no jurisdiction of a Rule 77(d) motion filed more than 72 days (i.e., 42 days for appeal, Rule 4, Ala. R.App. P., plus 30 days under Rule 77(d), as extended by Rule 6(a), Ala. R. Civ. P., when the final day is a Saturday, Sunday, or ‘legal holiday’) after the entry of an appealable order or judgment. Certainly, it has no jurisdiction of the motion in this case, which was filed 617 days after such a judgment.”

Id.

In the present case, the sole basis of McGuire’s Rule 60(b) motion to set aside the summary judgment was a lack of notice of the entry of that judgment. Thus, his motion was controlled by Rule 77(d), Ala. R. Civ. P, not Rule 60(b). Id. See also Altmayer v. Stremmel, 891 So.2d 305, 309 (Ala.2004) (“ ‘[T]he lack of notice from the clerk’s office is not a ground for relief under Rule 60(b), Ala. R. Civ. P.’ Ireland, [v. Piggly Wiggly Alabama Distrib. Co.,] 719 So.2d [844,] 845 [ (Ala.Civ.App.1998) ]. Therefore, the trial court could not have granted Rule 60(b) relief predicated solely upon the circuit clerk’s failure to notify the plaintiffs of the court’s order in this case.”). The trial court’s jurisdiction over any such motion expired 72 days after the entry of the June 29, 2010, summary judgment. Corretti, 507 So.2d at 409. McGuire did not file his motion until more than four months after the entry of the summary judgment. Thus, the trial court was without jurisdiction when, on December 2, 2010, it purported to grant McGuire’s motion and to set aside the summary judgment, and it was without jurisdiction when, on December 13, 2010, it purported to reenter the summary judgment.

Because the trial court lacked jurisdiction to grant McGuire’s motion to set aside the summary judgment, and because McGuire did not file his appeal within 42 days of the entry of the summary judgment, we conclude that appellate jurisdiction is lacking in this case. As a result, the appeal is due to be, and is hereby, dismissed.

APPEAL DISMISSED.

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

      . The additional $10 the trial court awarded in excess of the amount of the check appears to have been for a "charge-back” fee White asserts his bank assessed after he deposited the check.


author: MOORE, Judge. THOMAS, Judge,

text:
    K.J. v. S.P. and J.P.
    2100392.
    Court of Civil Appeals of Alabama.
    Aug. 12, 2011.

      Scott F. Stewart of Stover, Stewart & Phillips, LLC, Gadsden, for appellant.
    Mary K. Simmons, Gadsden, for appel-lees.
   MOORE, Judge.

K.J. (“the mother”) appeals from a judgment of the Etowah Juvenile Court (“the juvenile court”) terminating her parental rights to N.J. (“the child”), who was born on July 10, 2004, and awarding custody of the child to S.P., the child’s maternal great-grandmother (“the great-grandmother”), and J.P., the child’s maternal great-grandfather (“the great-grandfather”) (hereinafter sometimes referred to collectively as “the great-grandparents”). We reverse.

Procedural History

On April 5, 2010, the juvenile court awarded custody of the child to the great-grandparents, who were divorced; the child resided with the great-grandmother and visited with the great-grandfather every other weekend. On September 21, 2010, the great-grandparents petitioned the juvenile court to terminate the mother’s parental rights. On that same date, the great-grandparents moved for an ex parte restraining order against the mother and against D.J., the child’s maternal grandmother (“the grandmother”); in that motion, the great-grandparents asserted that they had reason to fear for their safety because of certain actions taken by the mother and the grandmother. The juvenile court issued the requested restraining order. On September 29, 2010, the child’s unknown father was served with the pending petition to terminate his parental rights to the child by publication.

The juvenile court held a hearing on December 8, 2010, at which ore tenus evidence was presented, on the great-grandparents’ petition to terminate the mother’s parental rights. The hearing was continued and completed on January 5, 2011. On January 12, 2011, the juvenile court entered its judgment terminating the mother’s parental rights. In its judgment, the juvenile court found that the mother’s lifestyle was not conducive to raising a child and that she had not changed her behavior since the child’s birth or since custody of the child had been transferred to the great-grandparents. The juvenile court noted that, since the child’s birth in 2004, the mother had engaged in sexual relationships with at least four men and had cohabited with at least three of those men, which the juvenile court noted must be confusing to the child. The juvenile court also found that the mother had been diagnosed with a mental illness and that, at the time of the termination hearing, she was not taking the medication that had been prescribed for that illness; that the child was under the care of a psychiatrist and was not meeting his developmental milestones; and that the child had been subjected to multiple moves and had a right to stability. The juvenile court also found that no viable alternatives to termination existed. On January 26, 2011, the mother filed her notice of appeal.

Standard of Review

With regard to reviewing a judgment in a termination-of-parental-rights case, this court has stated:

“This court’s standard of appellate review of judgments terminating parental rights is well settled. A juvenile court’s factual findings, based on ore tenus evidence, in a judgment terminating parental rights are presumed to be correct and will not be disturbed unless they are plainly and palpably wrong. See, e.g., F.I. v. State Dep’t of Human Res., 975 So.2d 969, 972 (Ala.Civ.App.2007). Under express direction from our supreme court, in termination-of-parental-rights cases this court is ‘required to apply a presumption of correctness to the trial court’s findingfs]’ when the trial court bases its decision on conflicting ore ten-us evidence. Ex parte State Dep’t of Human Res., 834 So.2d 117, 122 (Ala.2002) (emphasis added). Additionally, we will reverse a juvenile court’s judgment terminating parental rights only if the record shows that the judgment is not supported by clear and convincing evidence. F.I., 975 So.2d at 972.”

J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1183 (Ala.Civ.App.2007) (footnote omitted).

Analysis

The mother raises several issues on appeal, but we find the dispositive issue to be whether the juvenile court correctly found that no viable alternative existed to terminating the mother’s parental rights. In resolving that issue, we are instructed by our supreme court’s recent opinion in Ex parte A.S., 73 So.3d 1223 (Ala.2011), in which the supreme court held that termination of parental rights would be premature when a child is in the safe custody of a nonparent, that nonparent can adequately supervise visitation between the parent and the child, and the parent is making some progress toward rehabilitation. We conclude that the facts of this case sufficiently mirror those in A.S. so as to require this court to hold that the juvenile court erred in terminating the parental rights of the mother.

In Ex parte AS., supra, our supreme court reversed this court’s no-opinion order of affirmance of a judgment terminating a mother’s parental rights because it found that a viable alternative to termination existed. Id. at 1230. The supreme court recognized that the grandmother in that case held sole custody of the child, that the mother’s visitation with the child was at the grandmother’s discretion, and that the grandmother had testified that she was not opposed to the mother’s regaining custody in the future if the mother was “behaving.” Id. at 1229. The supreme court concluded:

“The mother has maintained limited contact with the child through telephone calls to the grandmother and has provided a small amount of support for the child. The evidence before the juvenile court indicated that the mother is in a treatment program in prison for her kleptomania and is apparently behaving while she is incarcerated because she has earned good-time credit. The mother is satisfied with the grandmother’s care of the child as evidenced by the mother’s testimony that she would not mind if the grandmother adopted the child but that she does not want her parental rights to the child terminated. The grandmother’s maintaining custody of the child and having the ability to determine and supervise the mother’s visitation with the child is a viable alternative to termination of the mother’s parental rights while the mother is making progress towards rehabilitation. Thus, the juvenile court’s decision to terminate her parental rights appears to be premature.
“ ‘ “[T]he termination of parental rights is a drastic measure, and we know of no means by which those rights, once terminated, can be reinstated. The evidence in [this] case[] ‘does not rise to the level of being so clear and convincing as to support termination of the parental rights of the mother, such action being the last and most extreme disposition permitted by statute.’ ” ’
“D.O. v. Calhoun County Dep’t of Human Res., 859 So.2d 439, 445 (Ala.Civ.App.2003)(quoting V.M. v. State Dep’t of Human Res., 710 So.2d 915, 921 (Ala.Civ.App.1998)).”

Ex parte A.S., 73 So.3d at 1229-30.

As in Ex parte A.S., the child at issue in this case is in the custody of the great-grandparents who, according to their testimony, had been awarded complete discretion as to the mother’s visitation. As in Ex parte A.S., the mother in this case has shown some progress. The record shows that, at the time of the termination hearing, the mother had been attending counseling, had found employment, and was engaged to be married. Thus, it appears that she was moving in the direction of stability. We also note that the juvenile court’s judgment terminating the mother’s parental rights was entered only nine months after the child had been removed from the mother’s custody. The great-grandparents also testified that they were not opposed to the mother’s regaining custody of the child if she could demonstrate stability and could provide adequately for the child. Therefore, as in Ex parte A.S., we conclude that the juvenile court’s decision to terminate the mother’s parental rights was premature.

For the above-stated reasons, we reverse the juvenile court’s judgment terminating the mother’s parental rights. We remand this case to the juvenile court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

PITTMAN, J., concurs.

THOMAS, J., concurs in part and concurs in the result, with writing, which BRYAN, J., joins.

THOMPSON, P.J., concurs in the result, without writing.

THOMAS, Judge,

concurring in part and concurring in the result.

I concur insofar as the main opinion holds that the mother is precluded from arguing on appeal from the juvenile court’s January 12, 2011, judgment that her visitation with the child should not be at the sole discretion of the great-grandparents. I also concur insofar as the main opinion holds that any challenge to the juvenile court’s denial of the mother’s request for pendente lite visitation had to have been brought by filing a petition for a writ of mandamus. Otherwise, I concur in the result.

BRYAN, J., concurs.

      . At the termination hearing, the mother asserted that N.J.'s father is Jo.Hu. and that Jo.Hu. had died in a work-related accident in July 2010. The mother and Jo.Hu. had never married, and Jo.Hu.'s paternity had not been established before his death.

      . We do not address the mother’s contention that her visitation should not be at the discretion of the great-grandparents. The judgment establishing that condition was entered in a separate proceeding on April 5, 2010, and the mother did not timely appeal from that judgment. See Rule 1(B), Ala. R. Juv. P. (addressing time in which to appeal from orders and judgments entered by the juvenile court). We also do not address the mother's argument that the juvenile court erred in entering an order denying her request for pendente lite visitation. The mother failed to timely file a petition for a writ of mandamus relating to that interlocutory order, which is our only method of review of such an order. See Rule 21(a)(3), Ala. R.App. P. (addressing mandamus relief), and P.B. v. P.C., 946 So.2d 896 (Ala.Civ.App.2006).


author: MOORE, Judge.

text:
    G.UB.MK CONSTRUCTORS v. Howard Lee DAVIS.
    2100282.
    Court of Civil Appeals of Alabama.
    Aug. 19, 2011.

      Dennis Riley of Morring, Schrimsher & Riley, Huntsville, for appellant.
    Steven D. Tipler of Tipler Law Offices, Birmingham, for appellee.
   MOORE, Judge.

G.UB.MK Constructors (“the employer”) appeals from a judgment entered by the Colbert Circuit Court (“the trial court”) on remand from this court’s decision in G.UB.MK Constructors v. Davis, 45 So.3d 1277 (Ala.Civ.App.2010). In the judgment entered on remand, the trial court found Howard Lee Davis (“the employee”) to be virtually totally disabled as a result of the pain caused by the work-related injury he had sustained to his left hand, and, based on that finding, the trial court awarded the employee permanent-total-disability benefits pursuant to the Workers’ Compensation Act (“the Act”), Ala.Code 1975, § 25-5-1 et seq. We reverse.

Background

In Davis, supra, the trial court found that, as a result of the employee’s March 15, 2006, on-the-job accident, the employee sustained an injury to his left hand, that, as a result of that injury, the employee experienced severe pain extending up his arm and into his shoulder, neck, and upper back, and that his pain affected his ability to perform his job as a machinist. Id. at 1278-80. The trial court also found that the employee’s injury caused him debilitating pain. Id. at 1280. As a result, the trial court found that the employee was permanently and totally disabled, and it awarded him workers’ compensation benefits outside the schedule set out at § 25-5-57(a)(3)a., Ala.Code 1975 (“the schedule”), which sets forth the benefits payable for an injury to a scheduled member. Id. The employer appealed.

In reviewing the trial court’s judgment, this court acknowledged that the trial court had referred to two recognized grounds for awarding benefits outside the schedule, i.e., the test set out in Ex parte Drummond Company, 837 So.2d 831 (Ala.2002), and the “pain exception” recognized in Masterbrand Cabinets, Inc. v. Johnson, 984 So.2d 1136 (Ala.Civ.App.2005), affirmed, Ex parte Masterbrand Cabinets, Inc., 984 So.2d 1146 (Ala.2007). See Davis, 45 So.3d at 1281.

After reviewing the evidence that had been presented to the trial court, this court concluded that the employee had failed to present sufficient evidence indicating that the effects of his left-hand injury extended to other parts of his body and interfered with their efficiency. Id. at 1284. Thus, this court concluded that the trial court’s award of benefits outside the schedule could not be sustained under the exception recognized in Ex parte Drum-mond Co., supra. Id.

This court then addressed the trial court’s reliance on the “pain exception,” which also allows benefits to be awarded outside the schedule, and noted that recent changes had occurred in that area of workers’ compensation law while the case was on appeal. Id. at 1285. This court summarized those recent changes as follows:

“At the time the judgment was entered on December 1, 2008, Masterbrand Cabinets, Inc. v. Johnson, 984 So.2d 1136 (Ala.Civ.App.2005), affirmed, Ex parte Masterbrand Cabinets, Inc., 984 So.2d 1146 (Ala.2007), served as the only possible authority allowing a trial court to treat ‘debilitating’ pain as a way of avoiding the schedule. This court has since overruled Johnson and held, consistent with footnote 11 from Ex parte Drummond [Co., 887 So.2d 881, 836 n. 11 (Ala.2002) ], that pain isolated to a scheduled member may be sufficient to remove the injury from the schedule if that pain is totally, or virtually totally, physically disabling. See Norandal U.S.A., Inc. v. Graben, 18 So.3d 405, 416 (Ala.Civ.App.2009) (‘Graben I ’).
“As more recently discussed in Norandal U.S.A., Inc. v. Graben, [Ms. 2080679, March 12, 2010] — So.3d(Ala.Civ.App.2009) (‘Graben II ’):
“ ‘This court phrased the [new “pain exception”] test as requiring proof of total, or virtually total, physical disability because Ex parte Drummond holds that an injury to a scheduled member may not be treated as unscheduled based on evidence of the vocational disability arising therefrom. 837 So.2d at 834 n. 8....
‘Ex parte Drummond further instructs this court that the pain exception should be construed strictly. As this court has previously recognized, the Drummond court intended “a reining in ... of the manner of computing benefits where the only impairment claimed is to a scheduled member.” Ex parte Fort James Operating Co., 905 So.2d 836, 844 (Ala.Civ.App. 2004). Ex parte Drummond created a “more stringent test” for circumventing the legislated remedy. Alabama Workmen’s Comp. Self-Insurers Guar. Ass’n, Inc. v. Wilson, 993 So.2d 451, 453 (Ala.Civ.App.2006). Accordingly, any judicially created exception to the schedule must be applied narrowly. See Ex parte Addison Fabricators, Inc., 989 So.2d 498 (Ala.2007). The pain exception should not be applied so that it swallows the rule of exclusivity and returns the law to its pre-Ex parte Drummond state in which the schedule almost never controlled the compensation due for an impairment to a listed member. See 1 T. Moore, Alabama Workers’ Compensation § 14:16 (Supp.2009). Just recognizing a pain exception to the schedule injects uncertainty into an area purposefully intended to be certain, see Ex parte Addison Fabricators, Inc., 989 So.2d at 502-03 (recognizing that the legislature instituted the schedule to minimize controversy and to assure speedy payment of benefits); the test should not be applied in such a manner as to add to that uncertainty and to lead to the type of litigation the legislature specifically intended to avoid when it created the schedule. See id. In keeping with Ex parte Drummond and the legislative intent behind the schedule, the test is not satisfied by evidence that the worker experiences “abnormal,” constant, and severe pain even when not using the affected member, see Johnson, 984 So.2d at 1144-45; rather, it requires competent proof that whatever pain the worker experiences completely, or almost completely, physically debilitates the worker.
“ ‘In determining whether the evidence satisfies this exceedingly high standard, a trial court must consider all legal evidence bearing on the existence, duration, intensity, and disabling effect of pain in the scheduled member, including its own observations. See generally Nance v. Nance, 640 So.2d 953 (Ala.Civ.App.1994). That evidence would include the worker’s own subjective complaints, even if those complaints are unsupported by or contradict the medical evidence .... ’
“Graben II, — So.3d at-.”

Davis, 45 So.3d at 1285-86. Because of the changes in the law regarding the pain exception that had occurred while the case was on appeal, we reversed the trial court’s judgment and remanded the case for reconsideration. Id. at 1286. On remand, we instructed the trial court “to determine whether, based on the evidence in the record, the pain isolated in the left hand of the employee totally, or virtually totally, disables him.” Id.

On remand, the trial court entered a judgment, which stated, in pertinent part:

“This court has studied [Norandal U.S.A., Inc. v. Graben, 18 So.3d 405 (Ala.Civ.App.2009) ], and [Norandal U.S.A., Inc. v. Graben, [Ms. 2080679, March 12, 2010] — So.3d-(Ala.Civ. App.2010) ], and has gone back and studied the record and its notes and reflected on the testimony that was elicited in open court on October 6, 2008. This court finds that the pain in the employee[’s] ... left hand virtually totally disables him. The pain that [the employee] testified about in open court was not only abnormal, constant and severe but virtually debilitating. This court observed [the employee] testifying about the pain and observed him in court before and after his testimony. This court saw [the employee’s] hand where the skin, blood vessels and nerves had been ripped from the top of his hand. This court recollects that Dr. Clark prescribed a narcotic to help [the employee] deal with the pain. Dr. Clark testified that [the employee complained of ‘severe pain ... that interferes with his activities.’ The doctor and [the employee] referenced an ‘aching pain,’ a ‘throbbing pain,’ and pain that on a scale of 1 to 10, averaged an 8. This evidence was not refuted.
“This court in its ORDER AND FINAL JUDGMENT of December 1, 2008, ... found the employee[’s] ... pain to be ‘debilitating.’ This court found then that the pain in this worker’s left hand was physically debilitating and states and finds now that this pain, isolated to the left hand of [the employee], virtually totally disables him.”

(Capitalization in original.) Based on those findings, the trial court again ordered the employer to pay the employee permanent-total-disability benefits and to pay the cost of any reasonably necessary medical treatment related to the employee’s injury, including any treatment necessary for pain. The employer filed a motion seeking to alter, amend, or vacate the judgment, which the trial court denied. The employer appeals again.

Standard of Review

The standard of appellate review in workers’ compensation cases is governed by § 25-5-81(e), Ala.Code 1975, which provides, in part, that, “[i]n reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.” § 25-5-81(e)(2). “Substantial evidence” is “ ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co., 547 So.2d 870, 871 (Ala.1989)).

Analysis

In order for pain in a scheduled member to be totally, or virtually totally, debilitating to the body as a whole, that pain must be such that it completely, or almost completely, prevents the worker from engaging in physical activities with the uninjured parts of his or her body. Norandal U.S.A., Inc. v. Graben, [Ms. 2080679, March 12, 2010] — So.3d(Ala.Civ.App.2010). After carefully reviewing the record, we conclude that the employee did not present substantial evidence to meet that “exceedingly high standard.” Id. at-.

The trial court correctly determined that the employee complained of throbbing, aching pain in his left hand that he rated at a level of 8 on a scale of 1 to 10 and that the employee complained to Dr. Joseph Clark, his authorized treating orthopedic surgeon, on July 31, 2008, that the pain in his left hand “interferes with his activities.” Furthermore, at least at one point during his medical treatment of the employee, Dr. Clark had prescribed Lortab 7.5 for the employee to use to combat his left-hand pain.

However, the employee did not testify that the pain in his left hand had totally, or virtually totally, debilitated him. To the contrary, the employee testified that, five or six weeks after his injury, the employer reassigned him to work as a quality-assurance inspector with restrictions against using his left hand, that he performed that job for over a year, and that he remained able to do that job at the time of the trial. The employee stated that he could not use a garden tiller around his house because of the adverse effects on his left hand from the vibration. He also testified that environmental changes increase the pain in his left hand, but he did not testify that the pain from his left hand prevents him in any way from otherwise fully using the uninjured parts of his body, including his dominant right hand.

The evidence in the record would sustain a finding that the employee experiences severe, unremitting pain in his left hand, but the record does not support the trial court’s determination that such pain totally, or virtually totally, debilitates the employee. Thus, the trial court erred in awarding the employee permanent-total-disability benefits under § 25-5-57(a)(4), Ala.Code 1975. We reverse the judgment of the trial court and remand the case for the trial court to determine the appropriate amount of benefits due the employee under § 25-5-57(a)(3).

REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN and THOMAS, JJ„ concur.

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

      . In Davis, the parties stipulated that the employee's injury resulted from an accident arising out of his employment with the employer, and the details surrounding the employee's injury can be found in that opinion. The only issues presented to the trial court for resolution in Davis were (1) whether the employee’s compensation should be based on a scheduled injury under the Act or on a disability to the body as a whole and (2) the extent of Davis’s impairment or disability resulting from the injury. See 45 So.3d at 1278.

      . In Davis, supra, this court concluded that the effects of the employee's injury had not extended to other parts of his body and had not interfered with their efficiency. 837 So.2d at 1284. Thus, on remand, the trial court was not free to reconsider whether the evidence warranted an award of benefits outside the schedule under the exception addressed in Ex parte Drummond Co., and, as a result, that issue is not before this court in this appeal. See Norandal U.S.A., Inc. v. Graben, [Ms. 2080679, March 12, 2010] — So.3d -,-(Ala.Civ.App.2010)("Under the ‘law of the case’ doctrine, "[t]he issues decided by an appellate court become the law of the case on remand to the trial court, and the trial court is not free to reconsider those issues.” ' ” (quoting Travis v. Travis, 875 So.2d 1212, 1214 (Ala.Civ.App.2003), quoting in turn Ex parte S.T.S., 806 So.2d 336, 341 (Ala.2001))).

      . The record from the previous appeal, case no. 2080547, has been incorporated into this appeal.

      . At one point, the employee testified that he had last worked in January 2007; however, he had earlier testified that he had worked through September 2007, that he had been laid off at that time, and that he had resumed work in January 2008 for four days before being laid off again.


text:
    L.P. v. A.W.
    2100535.
    Court of Civil Appeals of Alabama.
    Aug. 19, 2011.
    Mark S. Gober, Tuscaloosa, for appellant.
   MOORE, Judge.

L.P. (“the father”) appeals from a judgment of the Tuscaloosa Juvenile Court (“the juvenile court”) to the extent that it denied his petition to modify the custody of D.W.P. (“the child”), his minor child with A.W. (“the mother”). We dismiss the appeal.

On April 7, 2010, the father filed in the juvenile court a “motion to modify child custody” requesting that the juvenile court award him primary physical custody of the child. The father asserted, among other things, that the juvenile court had entered a judgment on May 23, 2003, awarding the parties joint legal custody of the child, subject to the father’s rights of visitation; that, since the entry of that judgment, there had been a material change in circumstances affecting the welfare of the child in that the child had been “subjected to severe discord in the mother’s home which ha[d] occurred as a result of problems involving [the child’s] fifteen (15) year old half-sister”; that, because the mother works from 3:00 p.m. to 11:00 p.m., the mother leaves the child with the child’s maternal grandmother until the mother picks up the child around midnight; that the mother’s work schedule is not conducive to the best interest of the child; and that the father “is able to provide a stable and loving home environment for the minor child ... and that a change in custody would materially promote the welfare of the minor child.” Also on April 7, 2010, the father filed a motion requesting that a guardian ad litem be appointed to represent the interests of the child; the juvenile court granted that motion on May 18, 2010. The father also filed a motion requesting that the mother be held in contempt of court for not allowing him to exercise his visitation with the child and that the mother be ordered to pay a reasonable fee to his attorney for the attorney’s services in the contempt action. On May 4, 2010, the mother filed an answer to the father’s custody-modification petition; she also counterclaimed for a modification of the father’s child-support obligation. On May 14, 2010, the father filed a response to the mother’s counterclaim.

On July 13, 2010, the juvenile court entered a “Temporary Order” that stated:

“This matter came before the Court on July 13, 2010 for a hearing based upon allegations of the [father] that an emergency change of custody was needed pending a final hearing on his petition for modification of custody; and
“There being present in Court, [the mother], with her attorney ..., the [father], with his attorney ..., and [the guardian ad litem]; and
“Based upon the evidence presented, the Court entered the following orders:
“(1) The evidence presented was insufficient to warrant an emergency order modifying custody pending a final hearing in this matter.
“(2) The prior orders for custody, support, and visitation shall remain in full force and effect and unchanged pending a final hearing in this matter.”

Thereafter, following ore tenus proceedings on February 9, 2011, the juvenile court entered a final judgment on February 25, 2011, that, among other things, denied the father’s petition to modify custody and denied the mother’s counterclaim to increase the father’s child-support obligation. The father filed his notice of appeal to this court on March 11, 2011.

On appeal, the father argues that the juvenile court erred in denying his custody-modification petition. Initially, however, we must determine whether the juvenile court had jurisdiction to enter its February 25, 2011, judgment.

‘“[A] lack of subject-matter jurisdiction is not subject to waiver by the parties, and it is our duty to consider a lack of subject-matter jurisdiction ex mero motu.’ Ex parte T.C., 68 So.3d 627, 630 (Ala.Civ.App.2010) (citing Ex parte Progressive Specialty Ins. Co., 31 So.3d 661, 662 n. 1 (Ala.2009)). In Ex paHe T.C., supra, we explained the recent change in the law regarding the juvenile court’s exercise of retained jurisdiction over child-custody determinations when a child has not been found to be dependent, delinquent, or in need of supervision:
“ ‘Under former law, “once a juvenile court obtained] jurisdiction in any case involving a child,” ... “that court retained] jurisdiction over that case until the child reache[d] the age of 21 years or until the court, by its own order, terminate^] that jurisdiction.” W.B.G.M. v. P.S.T., 999 So.2d 971, 973 (Ala.Civ.App.2008) (citing former §§ 12-15-32(a) & 26-17-10(e), Ala.Code 1975). Thus, under former law, “[w]hen a juvenile court ha[d] jurisdiction to make an initial child-custody determination, it retained] jurisdiction over a petition to modify that custody judgment to the exclusion of any other state court until the child reache[d] 21 years of age or the juvenile court terminatefd] its jurisdiction.” Id. at 974 ....
“ ‘However, ... the Legislature has mandated a contrary rule as to custody cases filed after January 1, 2009:
““‘Act No. 2008-277, Ala. Acts 2008, replaces ... § 12-15-32[ ] with a new Code section, Ala.Code 1975, § 12-15-117, that limits a juvenile court’s retained jurisdiction to cases in which ‘a child has been adjudicated dependent, delinquent, or in need of supervision ’ (emphasis added [in W.B.G.M.])....”
“ ‘999 So.2d at 975 (Pittman, J., concurring specially). To like effect is § 12-15-114(a), which provides that although a juvenile court has original jurisdiction to decide an action alleging that a child is dependent, “[a] dependency action shall not include a custody dispute between parents.” The clear intent of the Legislature was to provide that the juvenile courts of this state should no longer be deciding custody disputes except insofar as their resolution is directly incidental to core juvenile-court jurisdiction (such as in original paternity actions, see Ala.Code 1975, § 26-17-104)....
“ ‘... To the extent that a juvenile court has properly made an initial custody award, or has properly modified a custody judgment under the statutory framework set forth in the main opinion in W.B.G.M., those judgments remain valid and enforceable notwithstanding [Ala.Code 1975, §§ 12-15-114 and 12-15-117]. Any such judgments would, however, be prospectively modifiable in Alabama only by the circuit courts, which are constitutionally constituted as “trial courts of general jurisdiction.” Ala. Const.1901, § 139(a) (Off.Reeomp.).’ ”

K.C. v. R.L.P., 67 So.3d 94, 95-96 (Ala.Civ.App.2011) (quoting Ex parte T.C., 63 So.3d 627, 630-31 (Ala.Civ.App.2010)). See also B.L.R. v. N.M.N., 69 So.3d 868, 869-70 (Ala.Civ.App.2011).

The record in this case indicates that the parties and the juvenile court treated the father’s April 7, 2010, petition as a request to modify a prior custody determination. As explained above, pursuant to § 12-15-117, Ala.Code 1975, juvenile courts now retain jurisdiction to modify a previous custody determination only in cases in which a child has previously been found dependent, delinquent, or in need of supervision, which does not appear to be the case here. Accordingly, the juvenile court acted without jurisdiction in entering the February 25, 2011, judgment. K.C., 67 So.3d at 95.

Because the juvenile court lacked subject-matter jurisdiction over the father’s custody-modification petition, the judgment from which the father appeals is void. R.T. v. B.N.H., 66 So.3d 807, 812 (Ala.Civ.App.2011). “ ‘This court is required to dismiss an appeal from a void judgment.’ ” R. T., 66 So.3d at 812 (quoting Owens v. Owens, 51 So.3d 364, 367 (Ala.Civ.App.2010)). Thus, we dismiss the father’s appeal, albeit with instructions to the juvenile court to vacate its void judgment. R.T., 66 So.3d at 812.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . The record reveals that the parties were never married. Although there is no indication in the record that paternity has ever been established, the father testified that he had been ordered to pay child support to the mother on behalf of the child. Additionally, the father’s custody-modification petition was assigned case no. CS-02-5523.04, which indicates that the initial case between the parties was a child-support matter. See M.C. v. L.J.H., 868 So.2d 465, 467 (Ala.Civ.App.2003) (“ ‘CS’ number ... indicates a juvenile-court child-support matter”).

      . The 2003 judgment entered by the juvenile court is not included in the record on appeal. The father did not assert in his modification petition that that judgment had awarded the mother physical custody; however, the parties behaved as if the mother had been awarded physical custody.


author: PER CURIAM.

text:
    T.D.K. v. L.A.W. and T.M.
    2100551.
    Court of Civil Appeals of Alabama.
    Aug. 19, 2011.

      Jonathan M. Welch of The Law Office of Philip E. Miles, LLC, Gadsden, for appellant.
    Mary K. Simmons, Gadsden, for appel-lee L.A.W.
    Randy Phillips of Stover, Stewart & Phillips, LLC, Gadsden, for appellee T.M.
   PER CURIAM.

T.D.K. (“the mother”) appeals from the judgment terminating her parental rights to two of her children, A.B.M. and T.O.M. (“the children”). The judgment awarded legal custody of the children to their father, T.M. (“the father”), and L.A.W., the former wife of the children’s paternal uncle. L.A.W. was awarded physical custody of the children, subject to visitation by the father.

The record indicates the following. The mother was 28 years old at the time of the trial. She and the father have never been married to each other. A.B.M., the older of the children at issue in this case, was born in September 2002. The mother was still in high school when she became pregnant with A.B.M.; however, she said that she dropped out of school because of difficulties she had during her pregnancy. T.O.M. was born in May 2004.

The Calhoun County Department of Human Resources (“DHR”) first became involved with the mother when, in October 2006, T.O.M. received burns over his body when he was scalded by water heating on a stove. The mother testified that they were living at a friend’s house when the accident occurred. She said that she and the friend were cooking and had turned their backs “for just a moment” when someone knocked at the door. While their backs were turned, she said, one of the children in the house pulled a pot of hot water off the stove. The record indicates that DHR took no action against the mother at that time.

In April 2007, DHR investigated a report that the mother’s boyfriend, G.H., was physically abusing the children. Charles Parker, the DHR investigator, testified that he learned that G.H. would sometimes make the children take off their clothes before beating them with a belt so hard that the beating would cause bruising. G.H. would also place the children in the clothes dryer to punish them. On at least one occasion, G.H. turned on the clothes dryer after placing T.O.M. inside. When Parker examined the children, he saw multiple bruises on A.B.M.’s inner thigh. T.O.M. had bruising on his chest and marks around one of his nipples that Parker said were consistent with bite marks.

There was evidence indicating that G.H. had physically abused the mother as well. The children had witnessed that abuse on occasion. The mother initially denied knowing anything about G.H.’s conduct toward the children. However, she eventually told Parker that she was aware that G.H. was beating the children and putting them in the clothes dryer but that she could not do anything to stop him. The mother said that G.H. would beat the children because, she said, he had told her she did not hit them hard enough.

Parker testified that, as a result of his initial interviews, the mother entered into a safety plan to remove the children from the mother and G.H.’s home. In April 2007, the children were placed with the father, who lives in Gadsden. Although Parker advised the mother that DHR could help her find shelter away from G.H., the mother chose to stay with him. The mother was also advised that she had to leave G.H. before the children would be allowed to live with her again. Parker said that he opened the mother’s case for ongoing services and said that the mother would have been assigned a social worker to follow through with her; however, he said, the mother told him she was moving to Gadsden, in Etowah County. Parker intended for the mother’s case to be transferred to the Etowah County DHR; however, no action appears to have been taken by that agency, and DHR’s involvement with the mother ended in 2007.

G.H. was convicted of child abuse in connection with his treatment of the children and sentenced to one year in jail. The mother did move to Gadsden, but she admitted that she never lived in one place very long. L.A.W. testified that the mother made few attempts to visit or call the children once they went to live with the father, and subsequently, other family members. When G.H. was released from jail, the mother moved back to Calhoun County and lived in an apartment next door to G.H.’s mother.

Several witnesses testified regarding an incident that occurred in November 2009, after G.H. had been released from jail. The mother was visiting her sister’s house, and the children were also there. The mother was speaking with G.H. on the telephone and handed the telephone to A.B.M. for her to speak with him as well. A.B.M. refused, and the mother began to “whip” her with a belt. When A.B.M. would not stop crying, the mother put her in a closet.

Africa Bell, a therapist at the CED Mental Health Center, testified that both children had told her during their therapy sessions that they did not want to live with the mother or even to see the mother. A.B.M. told Bell that the incident in which T.O.M. was scalded in 2006 had not been an accident and that the mother had purposefully scalded him.

During her testimony, the mother acknowledged that she had been in jail on several occasions, that she did not have a job, that she had no income, that she had no vehicle and no valid driver’s license, and that she did not have a stable place to live. She admitted that, at that time, she was unable to care for the children. Other than the gifts she sometimes gave to the children, there is no evidence indicating that the mother provided financial support for the children after they were removed from her custody.

The children began living with their paternal grandmother in the summer of 2007. A little more than a year later, in October 2008, they began living with L.A.W. In 2009, the mother said, she signed “temporary guardianship papers” for the children while they were living with L.A.W. Afterward, the mother was arrested for failing to pay traffic fines and sentenced to serve time in jail beginning in November 2009. In March 2010, she was released from jail and called L.A.W. to arrange a visit with the children. The mother testified that L.A.W. refused her request because, the mother said, L.A.W. believed that she was seeing G.H. again.

L.A.W. then contacted the mother and asked her to sign a second set of “temporary guardianship papers” because the other set was no longer valid and she needed the papers to enroll the children in school and for other purposes. At about that time, the mother testified, she discovered that DHR had closed her ease and that she still had legal custody of the children. L.A.W. testified that she learned that the mother planned to remove the children from her home and to give' custody of them to the mother’s sister. The dispute between L.A.W. and the mother escalated until, on June 11, 2010, the father and L.A.W. filed petitions seeking the termination of the mother’s parental rights to the children and also seeking joint custody of the children. That same day, they filed a “motion for ex parte temporary custody” of the children. The juvenile court granted the motion the day it was filed.

On February 17, 2011, the juvenile court held a hearing on the petitions to terminate the mother’s parental rights and for joint custody. On March 1, 2011, the juvenile court entered its judgment terminating the mother’s parental rights. The juvenile court found that, since the children had gone to live with the father in April 2007, the mother had had nearly four years to adjust her circumstances to meet the needs of the children. The juvenile court also noted that the children had lived with L.A.W. for two and a half years and were entitled to the opportunity to have a permanent home. The juvenile court terminated the mother’s parental rights to the children, awarded legal custody of the children to the father and L.A.W., and awarded physical custody of the children to L.A.W., subject to the father’s visitation rights. The mother’s visitation rights were explicitly terminated. The mother timely appealed the termination of her parental rights.

Our standard of review of an appeal from a judgment terminating parental rights after an ore tenus hearing is well settled. A trial court’s factual findings based on ore tenus evidence are presumed correct. See Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994). “ ‘This presumption is based on the trial court’s unique position to directly observe the witnesses and to assess their demeanor and credibility.’ ” Ex parte T.V., 971 So.2d 1, 4 (Ala.2007) (quoting Ex parte Farm, 810 So.2d 631, 633 (Ala.2001)). On appeal, a judgment entered on factual findings based on ore tenus evidence will not be reversed “ ‘unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court’s discretion is shown. To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow.’ ” Perkins, 646 So.2d at 47 (quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App. 1993)).

Furthermore, a juvenile court’s judgment terminating parental rights must be supported by clear and convincing evidence. Bowman v. State Dep’t of Human Res., 534 So.2d 304, 305 (Ala.Civ.App. 1988). “Clear and convincing evidence” is “ ‘[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.’ ” L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002) (quoting § 6-11-20(b)(4), Ala.Code 1975).

“Where ... the custodial parent petitions to terminate the parental rights of the noncustodial parent, the trial court’s analysis consists of two parts. [Ex parte Beasley,] 564 So.2d [950,] 954 [ (Ala.1990) ]. First, the trial court must determine whether grounds exist for terminating parental rights. 564 So.2d at 954. Grounds exist for terminating parental rights if the parent in question is ‘unable or unwilling to discharge [his] responsibilities to and for the child, or ... the conduct or condition of the parent[ ] is such as to render [him] unable to properly care for the child and ... such conduct or condition is unlikely to change in the foreseeable future.’ Ala. Code 1975, [former] § 26-18-7(a) [ (amended and renumbered as § 12-15-319(a))]....”

Ex parte J.E., 1 So.3d 1002, 1006-07 (Ala. 2008).

The mother contends that, in terminating her parental rights, the juvenile court erred in not considering her present circumstances. It is true that this court has held that “the existence of evidence of current conditions or conduct relating to a parent’s inability or unwillingness to care for his or her children is implicit in the requirement that termination of parental rights be based on clear and convincing evidence.” D.O. v. Calhoun Cnty. Dep’t of Human Res., 859 So.2d 439, 444 (Ala.Civ. App.2003). We have also held that the juvenile court may properly consider past history and present circumstances in a termination proceeding. W.P. v. Madison Cnty. Dep’t of Human Res., 980 So.2d 1016,1023 (Ala.Civ.App.2007).

In this case, the mother’s own testimony indicated that her present circumstances were such that she could not properly care for the children. She testified that she had no job, no income, no vehicle, and no stable housing. She acknowledged that she did not have the means to provide for the children and said that, as of the time of the hearing, she was not in a position to have custody of the children. Furthermore, despite the mother’s assertion that she was no longer seeing G.H., evidence was presented indicating that she had, in fact, continued to see him after she was released from jail in March 2010. The mother’s present circumstances are consistent with her history.

There is no evidence indicating that the mother has put forth the effort to improve her circumstances. Accordingly, we conclude that the record contains sufficient evidence to support the juvenile court’s finding that the mother is unable or unwilling to discharge her responsibilities to and for the children, or that her conduct or condition renders her unable to properly care for the children, warranting the termination of the mother’s parental rights.

The mother also contends that the father and L.A.W. failed to present clear and convincing evidence indicating that no viable alternatives existed to terminating her parental rights. She correctly notes the second prong that the juvenile court is required to find before it can properly terminate one’s parental rights: “If the trial court determines, based on all relevant factors, that grounds exist for terminating parental rights, then the court must proceed to the second part of its analysis, which is to consider whether all viable alternatives to terminating parental rights have been exhausted. [Ex parte ] Beasley, 564 So.2d [950,] at 954 [ (Ala.1990) ].” Ex parte J.E., 1 So.3d at 1008.

Parents and their children share a fundamental right to family integrity that does not dissolve simply because the parents have not been model parents. Santosky v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). That due-process right requires states to use the most narrowly tailored means of achieving the state’s goal of protecting children from parental harm. Roe v. Conn, 417 F.Supp. 769, 779 (M.D.Ala. 1976). Thus, if some less drastic alternative to termination of parental rights can be used that will simultaneously protect the children from parental harm and preserve the beneficial aspects of the family relationship, then a juvenile court must explore whether that alternative can be successfully employed instead of terminating parental rights. Id.

However, a juvenile court has no duty to use reasonable efforts to reunite a family in cases in which a parent has subjected a child to chronic physical abuse. § 12-15-312(c), Ala.Code 1975. Thus, the juvenile court in this case was not required to consider counseling or some other method of rehabilitating the mother to prevent further abuse of the children.

Our caselaw has recognized that removing the child from the abusive parent’s custody but allowing that parent restricted visitation rights can be a viable alternative to termination of parental rights when it appears that a wayward parent cannot be rehabilitated but still shares a deep and beneficial emotional relationship with his or her children. See, e.g., D.M.P. v. State Dep’t of Human Res., 871 So.2d 77, 95 n. 17 (Ala.Civ.App.2003) (plurality opinion). In such cases, permanently depriving children of association with a parent by terminating parental rights could do more harm than good to the children. Id. However, in this case, both children informed their therapist that they did not want to see the mother again. Thus, the juvenile court determined, properly so, that visitation between the mother and the children was not a viable alternative to termination of the mother’s parental rights.

Under the facts of this case, we conclude that substantial evidence supports the juvenile court’s judgment terminating the mother’s parental rights to the children. Accordingly, the judgment is affirmed.

AFFIRMED.

All the judges concur.

      . The mother has one other child, the children’s older half sibling, who lives with his father. That child is not involved in this case.

      . After the father and L.A.W. filed their petitions for custody, the mother’s sister and her husband also filed a petition seeking custody of the children. Before the hearing in this case, however, the mother's sister, the father, and L.A.W. reached an agreement, pursuant to which the mother’s sister and her husband withdrew their petition.


author: WELCH, Presiding Judge,

text:
    James Earl ANDREWS v. STATE of Alabama.
    CR-09-1675.
    Court of Criminal Appeals of Alabama.
    March 18, 2011.
    James Earl Andrews, pro se.
    Troy King and Luther Strange, attys. gen., and Robin D. Scales, asst. atty. gen., for appellee.
   Note from the reporter of decisions: On July 27, 2005, James Earl Andrews filed a Rule 32, Ala. R.Crim.P., petition alleging that he should be allowed to withdraw his guilty plea to second-degree rape, in part because the Montgomery Circuit Court did not sentence him according to a plea agreement he had entered into with the prosecution. The circuit court dismissed Andrews’s petition, and he appealed. On March 18, 2011, the Court of Criminal Appeals issued an order remanding this case to the Montgomery Circuit Court to allow Andrews the opportunity to prove that he was not aware before he was sentenced that the circuit court would not sentence him according to the plea agreement and to allow the State an opportunity to rebut Andrews’s claim. Presiding Judge Welch dissented from the order.

WELCH, Presiding Judge,

dissenting.

I respectfully dissent from the majority’s order remanding this case to the Montgomery Circuit Court for that court to review James Earl Andrews’s claim, presented in a Rule 32, Ala. R.Crim. P., petition, that he should be allowed to withdraw his guilty plea. The order directs the circuit court to conduct additional proceedings and to issue findings of fact resolving whether Andrews knew before entering his guilty plea that the trial court intended to reject a plea agreement Andrews had entered into with the State. I believe that the record affirmatively shows that Andrews entered his guilty plea without knowing that the trial court intended to reject the plea agreement but that, nevertheless, contrary to the law, the circuit court erroneously ruled that Andrews was not entitled to relief. Therefore, unlike the majority, I believe that the Court should reverse the circuit court’s judgment denying Andrews relief on this claim instead of remanding the case for further proceedings.

I also note that, although the circuit court described its action as a summary dismissal of Andrews’s Rule 32 petition, in reality the circuit court did in fact issue a ruling on the merits, albeit without explicitly addressing Andrews’s ineffective-assistance-of-appellate-counsel claim. Because the circuit court made findings of fact (see emphasized text from the circuit court’s order below), it is obvious that the order was a denial of relief based upon factual determinations made by the court, and not a summary dismissal. Because the circuit court has ruled on the merits in this case, remand is not necessary, and the judgment in this case should be reversed because the circuit court incorrectly applied the law to the facts it found to exist.

Andrews appeals from the denial of his August 1, 2005, Rule 32 petition in which he argued that the trial court failed to sentence him in accordance with a written plea agreement he had entered into with the prosecution. The plea agreement provided: “[Andrews] shall receive a sentence as determined by this Honorable Court. The parties agree that the sentence should be suspended and [Andrews] shall be placed on three (3) years of supervised probation.” (C. 27.) The trial court, however, sentenced Andrews to 20 years in prison. The State responded that Andrews’s claim was without merit and, in support of that assertion, attached as exhibits to its response a copy of Andrews’s plea agreement and an affidavit of Norman Hurst, Andrews’s defense counsel. The affidavit asserted that it had been agreed that Andrews would “ ‘receive a sentence as determined by this Honorable Court’ but that ‘[t]he parties agree[d] that the sentence should be suspended and [Andrews would] be placed on three (3) years probation.’ ” (C. 29, quoting the plea agreement.) Based on the evidence submitted in support of Andrews’s Rule 32 petition, see Rule 32.9(a), Ala. R.Crim. P., the judge presiding over the Rule 32 proceeding, who was the same judge who presided over Andrews’s guilty plea, on October 5, 2005, ruled as follows:

“This matter is before the Court on [Andrews’s] Petition For Relief From Conviction Or Sentence, filed pursuant to Rule 32, [Ala. R.Crim. P.], and the State’s Answer to Petition for Relief and Motion to Dismiss.
“James Andrews was indicted by the Montgomery County Grand Jury on May 14, 2004 for the offenses of Rape in the first degree, two counts, in violation of § 13A-6-61, Code of Alabama 1975. The Honorable Norman Hurst, Jr., was retained to represent Mr. Andrews in this matter.
“On October 28, 2004, [Andrews] came before this Court and pleaded guilty to a reduced charge of Rape in the second degree. This Court conducted a sentencing hearing on December 16, 2004 and sentenced [Andrews] to 20 years in the penitentiary. [Andrews] filed a Motion to Set Aside Judgment; however, said Motion was denied as moot. [Andrews] appealed to the Alabama Court of Criminal Appeals; however, a Certificate of Judgment affirming his conviction was issued on June 17, 2005. On August 1, 2005, [Andrews] filed a Rule 32 Petition for Relief from Conviction or Sentence.
“It is the finding of this Court that [Andrews] made a knowing and voluntary plea of guilt to Rape in the second degree. This Court made it clear to [Andrews] before his plea of guilt that it was not bound by any agreement [Andrews] had with the State of Alabama and sentencing was solely in this Court’s discretion. It is also the finding of this Court that [Andrews] was represented by effective counsel who acted professionally and competently at all times.
“Upon consideration thereof, and having taken judicial notice of the Court’s own records, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Petition is hereby SUMMARILY DISMISSED without an evidentiary hearing pursuant to Rule 32.7(d) of the Alabama Rules of Criminal Procedure.”

(R. 38-39.)(Capitalization in original; emphasis supplied.)

Andrews, acting pro se, filed a notice of appeal, which was followed by a motion to withdraw his guilty plea filed by Andrews’s counsel. The trial court ruled that the motion to withdraw the guilty plea was moot because it was filed after Andrews had filed his notice of appeal. (C. 29.)

It is clear from the face of the record that Andrews did not know before entering his plea that the trial court did not intend to honor the plea agreement. As the circuit court found, the record establishes only that the trial court told Andrews that the court was not bound by the plea agreement. Further, we cannot assume that Andrews was informed off the record because the Alabama Canons of Judicial Ethics prohibit judges from initiating or considering ex parte communications concerning a pending or impending proceeding. See Canon 3A(4), Alabama Canon of Judicial Ethics. The transcript of the sentencing hearing, which is contained in the record, reflects that Andrews was informed for the first time at the sentencing hearing that the trial court was rejecting the plea agreement. (Supp. Rec. at 167.)

Because the trial court did not follow the plea agreement executed between Andrews and the prosecution, the trial court was required to allow Andrews the opportunity to withdraw his guilty plea. Johnson v. State, 886 So.2d 900, 902 (Ala.Crim.App.2003) (“ ‘ “When the trial judge decides not to carry out an agreement reached between the prosecutor and defense counsel, the accused must be afforded the opportunity to withdraw his or her guilty plea on motion promptly made.” ’ ”); see also Waters v. State, 963 So.2d 693 (Ala.Crim.App.2006) (“ ‘ “[I]f the trial court does not sentence the defendant pursuant to the terms of the plea agreement ... then the defendant must be given an opportunity, upon proper, timely, and specific motion, to withdraw his guilty plea.’””); Rule 14.3(c)(2)(iv), Ala. R.Crim. P. (“If the court rejects the plea agreement, the court shall ... [ajfford the defendant the opportunity to withdraw the defendant’s offer to plead guilty.”).

It is unnecessary to remand this case to the circuit court for findings of fact because it is clear from the record that the circuit court committed an error of law. The judgment of the circuit court denying Andrews’s Rule 32 petition should be reversed because the trial court made an error in applying the law to the facts. Therefore, I must dissent from the remand order.

      . The plea agreement and defense counsel’s affidavit were included with the record on appeal.

      . The trial court’s ruling in this regard was error.
      "In criminal cases, the trial court has jurisdiction over a motion for a new trial if it is filed within 30 days after the entry of the judgment or sentence even if a notice of appeal is also filed, regardless of the order in which the motion and notice of appeal are filed. Walker v. State, 652 So.2d 198 (Ala.1994); Ala.Code 1975, § 12-22-133; Rule 4(b)(1), Ala. R.App. P; and Rule 24, Ala. R.Crim. P. Therefore, the appellant's motion to withdraw his guilty pleas was timely filed and, even though notice of appeal had been given prior to its filing, the trial court retained jurisdiction to consider the motion. Therefore, the trial court erred in ruling that the notice of appeal rendered the motion to withdraw the guilty pleas moot.”

        Wallace v. State, 701 So.2d 829, 830 (Ala.Crim.App.1997).