author: THOMPSON, Presiding Judge.

text:
    Sandra MAIDEN v. FEDERAL NATIONAL MORTGAGE ASSOCIATION.
    2100881.
    Court of Civil Appeals of Alabama.
    Dec. 9, 2011.

      Ashley W. Davis of Legal Services Alabama, Inc., Birmingham, for appellant.
    Greggory M. Deitsch, R. Ryan Daugherty, and Meaghan E. Ryan of Sir ote & Permutt, P.C., Birmingham, for appellee.
   THOMPSON, Presiding Judge.

Sandra Maiden appeals from a judgment of the Jefferson Circuit Court denying her motion to set aside a default judgment the court had entered in favor of the Federal National Mortgage Association (“FNMA”). For the reasons set forth herein, we reverse the trial court’s judgment.

This is the second time this case has been before this court. See Maiden v. Federal Nat’l Mortg. Ass’n, 69 So.3d 860 (Ala.Civ.App.2011). In the opinion issued in the first appeal, we set forth the following factual and procedural background:

“On December 16, 2009, FNMA filed an ejectment action against Jerry Hardy and Patricia Hardy. It alleged that Jerry Hardy had executed a mortgage, which, after being assigned to another mortgage company, had been foreclosed. FNMA stated that the real property securing the mortgage (‘the property’) had been conveyed to it by a special warranty deed. It asserted that it had served the Hardys with a written demand for possession of the property but that they had failed to vacate the property. FNMA sought an order ejecting the Hardys from the property. It attached to its complaint a foreclosure deed indicating that Everhome Mortgage Company (‘Everhome’) had been assigned the mortgage from the original mortgagee, that Everhome had foreclosed on the mortgage because of default in the payment of the debt the mortgage secured, and that Everhome had purchased the property at the foreclosure sale on November 19, 2009. FNMA also attached to its complaint a copy of a special warranty deed, executed on August 14, 2009, conveying the property from Everhome to FNMA. The Hardys and Sandra Maiden are listed on the deed as ‘mortgagors.’ Finally, FNMA attached to its complaint a copy of an unsigned letter, dated November 19, 2009, sent on behalf of Everhome and addressed to the estate of Jerry Hardy, who had died, Patricia Hardy, and Sandra Maiden. The letter, titled ‘Demand for Possession,’ informed the Hardys and Maiden that Everhome had purchased the property at a foreclosure sale, and it demanded that the Hardys and Maiden vacate the property.
“On December 29, 2009, FNMA filed an amended complaint adding Maiden as a defendant on the basis that she currently resided on the property. The record reflects that Maiden was served with process on January 6, 2010.
“Maiden did not file an answer to the amended complaint, and, on February 11, 2010, FNMA filed an application for the entry of a default judgment against her. FNMA also filed a motion to dismiss Jerry Hardy and Patricia Hardy on the ground that they no longer occupied the property. On February 23, 2010, the trial court entered the requested default judgment against Maiden, awarding possession of the property to FNMA, and it granted FNMA’s motion to dismiss Jerry Hardy and Patricia Hardy from the action.
“On March 22, 2010, Maiden filed a motion to set aside the default judgment. In her motion, she asserted that she had a meritorious defense to FNMA’s action in that ‘there was an improper foreclosure of the property,’ although she stated that, without discovery, she would ‘not be able to fully discern the exact extent to which the foreclosure was improper.’ She also stated that she had a defense on the basis of ‘estoppel due to misrepresentation.’ Maiden asserted that FNMA would not be prejudiced by the setting aside of the default judgment because the judgment had been entered less than 30 days before Maiden filed her motion and, as a result, that the automatic stay of proceedings to enforce the judgment provided by Rule 62, Ala. R. Civ. P., was still in force. Thus, she argued, FNMA had ‘not wasted any time or resources initiating collections efforts.’ Finally, she asserted that the default judgment did not result from culpable conduct on her part. She stated that she had been ‘under the honest impression that she would be unable to be heard in court because she had been unable to receive or relay any information to the servicer of the mortgage account prior to the foreclosure date’ and that, once she realized the default judgment had been entered, she retained counsel. Maiden argued that, under Alabama law, cases should be decided on the merits whenever practicable and that, because of her financial situation, failure to set aside the default judgment would leave her ‘homeless and without any resources.’ Maiden supported her motion with an affidavit in which she stated, in pertinent part:
“ T have lived at [the property] since March 3, 2003. I was willed the property after my fiance’s death in October 2005. Since that date, I have maintained my monthly mortgage payment. I attempted to speak regularly with [Everhome], but was unable to do so because my name was not on the account. I attempted, numerous times, to send the documents necessary to add me to the account, but I could never get anyone at [Everhome] to verify receipt of documents or let me know what other documents needed to be sent.
“ T received notice of the pending lawsuit on January 6, 2010. I sincerely thought that because the mortgage company would not speak to me, neither would the court. I was without legal counsel at that time. After I was given authorization to receive information about the account at [Ever-home], I learned that there was a default judgment against me. I notified an attorney and retained counsel immediately.’
“The trial court set Maiden’s motion for a hearing.
“On April 5, 2010, after the hearing on Maiden’s motion, the trial court entered an order that provided:
“ ‘This matter comes before the court on Defendant Maiden’s motion to set aside entry of default judgment. The court, having considered [Maiden]’s motion under the criteria established by the [Supreme] Court in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala.1988), and being satisfied that due to [Maiden]’s not being privy to the real estate mortgage, the foreclosure of which precipitated [FNMAJ’s ejectment action, and therefore being satisfied of [Maiden]’s inability to secure evidence with regard to the existence, or not, of a default in the said mortgage prior to the time that [Maiden] came into possession of the said parcel of real property necessary to meet the meritorious defense prong of the Kirtland analysis, the following is hereby ordered:
“ ‘1. [Maiden]’s motion to set aside entry of default in this matter is hereby continued;
“ ‘2. [FNMA] shall produce for an in camera inspection the account history of the said real estate mortgage for the court’s determination of whether or not the said loan was in default prior to the time that [Maiden] allegedly commenced making monthly installment payments thereunder;
“ ‘3. The said in camera inspection shall take place on a date within the next two weeks to be determined by the court and set by separate order to be issued by the court.
“ ‘4. Following an in camera inspection, the court shall then rule on [Maiden]’s motion to set aside entry of default.’
“Although the record is silent on the issue, the parties agree in their appellate briefs that FNMA did not produce the account history relative to the foreclosed mortgage for inspection by the trial court. The trial court took no further action on Maiden’s motion. Thus, Maiden’s motion was denied by operation of law on June 21, 2010. See Rule 59.1, Ala. R. Civ. P.”

Maiden, 69 So.3d at 861-63. Maiden filed an appeal that was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

This court reversed the trial court’s denial by operation of law of Maiden’s motion to set aside the default judgment. We noted that the record did not reflect that, in allowing Maiden’s motion to be denied by operation of law, the trial court had considered the factors relevant to a determination of whether to set aside a default judgment as set forth in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600, 605 (Ala.1988), i.e., whether Maiden had a meritorious defense to the action; whether FNMA would be unfairly prejudiced if the default judgment was set aside; and whether the default judgment was a result of Maiden’s culpable conduct. See Maiden, 69 So.3d at 866-67. Relying on Richardson v. Integrity Bible Church, Inc., 897 So.2d 345 (Ala.Civ.App.2004), we held that the trial court’s failure to consider those factors in allowing the motion to be disposed of by operation of law warranted reversal of the judgment, and we remanded the cause to the trial court to consider the Kirtland factors in resolving Maiden’s motion to set aside the default judgment.

After remand, FNMA offered several documents as evidence, including the mortgage and note Jerry B. Hardy had executed and a “customer account activity statement” that, according to the trial court, showed the history of the loan at issue from 2007 to 2009. On April 29, 2011, the trial court entered a judgment denying Maiden’s motion to set aside the default judgment. In pertinent part, the trial court wrote:

“At the oral argument of the motion, the parties argued to the Court that the original mortgagor, Jerry B. Hardy, had died during the term of the said mortgage and that ... Maiden was named as the specific devisee in the probate estate, designated to receive title to the said residential real property from the estate. It was further represented to the Court that after years of the pen-dency of the said estate in the Jefferson County Probate Court, the Estate of Jerry B. Hardy had never been finalized and settled so that ... Maiden has not, as of the date of the hearing on this matter, become the fee simple owner of the said residential real property. Counsel for [FNMA] represented to the Court that [FNMA] required ... Maiden to offer proof of ownership before [FNMA] would continue to forebear to accelerate the said loan and execute power of sale.... Maiden having failed to so secure title, [FNMA] proceeded with exercise of its power of sale. Section 13 of the said mortgage provides that ... Maiden[ ] occupies the status of a successor in interest to the Borrower, Jerry B. Hardy. As such, a writing is necessary, under the said provision, whereby ... Maiden undertakes the obligations and duties of the said mortgage and acquires the rights of the Borrower thereunder. There is also a requirement for the Lender to approve Borrower’s successor in interest. Any default in the contractual obligations with regard to the successor in interest to the Borrower providing written notice to the Lender or in the Lender’s not approving the said successor can trigger an acceleration of the debt, the nonpayment of which can trigger other remedies such as the power of sale.
“The Court, however, has no eviden-tiary material before it evidencing ... Maiden’s written request to be added to the said note and mortgage; any document evidencing the said forbearance agreement pending resolution of the Estate of Jerry B. Hardy; or any evidence on the progress of the Estate of Jerry B. Hardy in the probate court.
“Applying the Kirtland factors to the case before the Court and under the matters which have been submitted to the Court, the Court finds that no prejudice is worked against [FNMA] by setting aside the default judgment as [Maiden] filed her motion within the thirty (30) day period during which the Court is generally without power to enforce its order. See Rule 62(a), Ala. R. Civ. P.
“Likewise, with regard to the fault of [Maiden] in allowing judgment to be entered by default, the Court finds that the averments of [Maiden] in her affidavit filed in support of her motion do not indicate willful conduct or conduct committed in bad faith nor conduct which could be characterized as being in flagrant disrespect for the Court and its rules.
“However, with regard to the requirement of presenting a meritorious defense, [Maiden] has only submitted her affidavit stating that at the time of the exercise of the power of sale by [FNMA], ... [Maiden] was current with payments under the said note and mortgage and was otherwise not in default of the terms of the said note and mortgage such as to trigger the remedy of [FNMA]’s exercise of its power of sale.”

The trial court then set forth its findings with regard to its review of the account history FNMA had provided to it and concluded that, “at the time of the exercise of the power of sale, the said loan was in arrears by the amount of $242.93, not including late charges.” The trial court continued:

“Regarding the issue of ... Maiden’s status as a mortgagee [sic] under the loan and mortgage the evidence before the Court is that ... Maiden has neither applied in written form to be assigned the rights and duties of the Borrower under the said mortgage, nor has [FNMA], as Lender’s successor, approved the addition of ... Maiden as a successor in interest to the named Borrower under the said note and mortgage. The burden of coming forward [with] evidence on the motion is with the movant. The Court does not find that a meritorious defense is presented with regard to the issue of the said note and mortgage being in default at the time of the exercise of the power of sale, or with regard to the issue of [Maiden]’s status as successor to Borrower under the terms and conditions of the said mortgage.
“Considering the evidence before the Court, the Court does not find a meritorious defense available to [Maiden] under her averment that she was current with the installments due on the said note and mortgage and that the said note and mortgage was not otherwise in default and subject to foreclosure.”

Maiden filed a timely appeal to this court, which transferred the appeal to the supreme court for lack of appellate jurisdiction. The supreme court subsequently transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Whether to grant or deny a motion to set aside a default judgment under Rule 55(c), Ala. R. Civ. P., is a matter committed to the discretion of the trial court. Thus, in reviewing a trial court’s denial of a motion to set aside a default judgment, we consider whether the trial court exceeded its discretion. We note that, “[a]l-though Rule 55(c) confers broad discretion upon a trial court, this discretion is not boundless.” Royal Ins. Co. of America v. Crowne Invs., Inc., 903 So.2d 802, 807 (Ala.2004).

In Sampson v. Cansler, 726 So.2d 632 (Ala.1998), our supreme court discussed the factors set forth in Kirtland, supra, that a trial court must consider in disposing of a motion to set aside a default judgment:

“In Kirtland ..., this Court held that the trial court has broad discretion in determining whether to grant or to deny a defendant’s motion to set aside a default judgment, but that that discretion is not boundless. The trial court must balance two competing policy interests associated with default judgments — judicial economy and the defendant’s right to defend on the merits. Kirtland, 524 So.2d at 604. These interests must be balanced under the two-step process set out in Kirtland.
“Under Kirtland, the trial court must first presume that cases should be decided on the merits whenever it is practicable to do so. This presumption exists because the right to have a trial on the merits ordinarily outweighs the need for judicial economy. Second, the trial court must apply a three-factor analysis in determining whether to set aside a default judgment: it must consider 1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant’s own culpable conduct.’ Kirtland, 524 So.2d at 605.”

726 So.2d at 633. As previously noted, the trial court determined that Maiden satisfied the second and third of the Kirtland factors; on appeal, neither party challenges that conclusion. Thus, the issue on appeal, according to both parties, is whether Maiden met the first of the Kirtland factors, i.e., whether she demonstrated that she has a meritorious defense to FNMA’s ejectment action.

In Royal Ins. Co. of America, supra, our supreme court explained the meritorious-defense factor in the following manner:

“In Kirtland, we noted that a trial court should begin its analysis of whether it should exercise discretionary authority under Rule 55(c) with the presumption that a case ‘should be decided on the merits whenever practicable.’ 524 So.2d at 604. The presumption is undercut, however, if the answer to the first of three inquiries a court must make — whether the defendant has a meritorious defense — is negative. The existence of a meritorious defense is a ‘threshold prerequisite,’ Kirtland, 524 So.2d at 605, because without a meritorious defense, a finding that the plaintiff would not be prejudiced and a finding that the defendant was not culpable would matter little. A meritorious defense need not be a perfect defense, nor one that would necessarily prevail at trial. Rather, a meritorious defense is merely a ‘plausible’ defense. Kirtland, 524 So.2d at 605. That is, a meritorious defense must simply ‘induce the trial court reasonably to infer that allowing the defense to be litigated could foreseeable] alter the outcome of the case.’ 524 So.2d at 606 (emphasis added).
“We have specifically stated that a defendant can successfully present a meritorious defense either by setting forth allegations that, if proven at trial, would constitute a complete defense or by submitting evidence that would at least create a jury question. Kirtland, 524 So.2d at 606. The defendant’s allegations ‘must be more than mere bare legal conclusions without factual support’; they must set forth ‘relevant legal grounds substantiated by a credible factual basis.’ 524 So.2d at 606.”

903 So.2d at 808.

Maiden contends that she presented a meritorious defense to FNMA’s action. With regard to the first basis on which the trial court found that she had not presented a meritorious defense — that Maiden had not shown that she was current on the payments under the mortgage and note — Maiden argues that, in her affidavit submitted in support of her motion to set aside the default judgment, she stated that she had maintained current payments on the loan at issue. She argues that proof of this statement at trial would constitute a complete defense to FNMA’s action because it would render the foreclosure sale void under the terms of the note and mortgage. FNMA responds that Maiden failed to support her contention that she had made all the payments due under the mortgage and that the evidence before the trial court of Maiden’s payment history indicated that the mortgage was, in fact, in default.

We conclude that the trial court erred in holding that Maiden did not present a meritorious defense to FNMA’s action based on the payment records submitted by FNMA. The trial court found a conflict in the evidence, which consisted of Maiden’s affidavit statement that she was current on the mortgage payments and FNMA’s records indicating that she was not. The trial court weighed that evidence and determined which was accurate. In so doing, the trial court purported to resolve an issue of material fact, i.e., whether Maiden’s mortgage payments were current, rather than simply to determine whether Maiden had set forth a meritorious defense. Such action by the trial court was improper and went beyond the proper scope of inquiry in deciding Maiden’s motion. See Jones v. Hydro-Wave of Alabama, Inc., 524 So.2d 610, 614 (Ala.1988) (“Jones’s affidavit provided the trial court with a sufficient factual basis on which to conclude that Jones presented a genuine issue of material fact, and for this reason, Jones satisfied the requirement of showing the existence of a meritorious defense.”). In this respect, we agree with the Supreme Court of Montana, which stated: “When inquiring into whether a party has offered a meritorious defense, it is not the Court’s function to determine factual issues or resolve the merits of the dispute, but instead is to simply determine whether the defendant has presented a prima facie defense.” State ex rel. Dep't of Envtl. Quality v. Robinson, 290 Mont. 137, 144, 962 P.2d 1212, 1216 (1998), overruled on other grounds, Essex Ins. Co. v. Jaycie, Inc., 323 Mont. 231, 236, 99 P.3d 651, 654 (2004). See also United States v. Signed Pers. Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1094 (9th Cir.2010) (“All that is necessary to satisfy the ‘meritorious defense’ requirement is to allege sufficient facts that, if true, would constitute a defense: ‘the question whether the factual allegation [i]s true’ is not to be determined by the court when it decides the motion to set aside the default.... Rather, that question ‘would be the subject of the later litigation.’ ” (quoting TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 700 (9th Cir.2001))). We conclude, based on the materials submitted to the trial court, that Maiden has set forth a meritorious defense that, if proven, would demonstrate that the foreclosure of the mortgage based on an alleged failure to make the payments required by the note and mortgage was wrongful and, as a result, that she was not subject to ejectment from the property.

The trial court also found that Maiden had failed to present a meritorious defense because she had not produced evidence of a writing, as required by the mortgage, whereby she undertook the obligations and duties of the mortgage and acquired the rights of Jerry Hardy, the mortgagor, and because she had not produced any evidence indicating that FNMA had approved her as a mortgagor on the mortgage. The trial court indicated that the failure of Maiden to adduce proof demonstrating that she had been added to the mortgage as a mortgagor meant that she had failed to demonstrate that the mortgage was not in default.

Relying on the statute of frauds, § 8—9—2(5), Ala.Code 1975, FNMA contends, additionally, that any transfer of an interest in the property to Maiden was required to have been in writing, and, because Maiden did not produce such a writing in support of her motion to set aside the default judgment, FNMA asserts, she could not prove that an interest in the property had been conveyed to her. Thus, FNMA contends, Maiden does not have “standing” to challenge Everhome’s foreclosure of the mortgage and FNMA’s subsequent ejectment action.

Our review of the record discloses some evidence indicating that Maiden had, in fact, been joined as a mortgagor under the mortgage and that she had been conveyed an interest in the property at issue. FNMA, in pursuit of its ejectment action, attached to its complaint a special warranty deed transferring title to the property in question from Everhome Mortgage Company, the purchaser of the property at the foreclosure sale, to FNMA. Distinctly listed on the face of that deed as mortgagors of the property were the Estate of Jerry B. Hardy, Patricia Hardy, and Maiden. Thus, it appears that Everhome, a prior mortgagee of the property under the mortgage and FNMA’s predecessor in interest to the property, recognized Maiden as one of the mortgagors under the mortgage. This is some evidence indicating that Maiden was, in fact, a mortgagor under the mortgage. In addition, Maiden stated in her affidavit that she had obtained the property by will in 2005, after the death of her fiancé.

The fact that Maiden has not, at this point, provided a writing indicating that she sought to be added as a mortgagor to the mortgage or that she obtained the property by will does not mean that she has not presented a meritorious defense to FNMA’s action. A meritorious defense need not be established by the production of all the evidence necessary to succeed at the trial of an action; instead, a meritorious defense can be established merely by the setting forth of allegations that would constitute a defense if proven at trial or by the submission of evidence that would at least create a jury question. Royal Ins. Co. of America, 903 So.2d at 808. Here, we conclude that Maiden has met this burden through the combination of her affidavit testimony and the submission by FNMA to the trial court of its deed from Everhome listing Maiden as a mortgagor on the property at issue.

This case is in its infancy; indeed, the parties have yet to engage in the discovery process. It may very well be that, once the litigation process is fully undertaken, evidence will be produced demonstrating that Maiden was never properly added as a mortgagor to the mortgage and that she otherwise has no rights in the property. However, in light of the fact that there is some evidence indicating that Maiden was a mortgagor of the property and that she had obtained an interest in the property by will, any such determination at present is premature. Similarly, it may well be that Maiden has not made all the payments due under the note and mortgage; however, she has stated under oath that she made all such payments, and we cannot say that such a statement is not sufficient at this stage of the litigation to allow the default judgment to be set aside so that the litigation can proceed.

Bearing in mind the court’s predisposition to resolving cases on the merits, and recognizing that the analysis of the meritorious-defense factor set out in Kirtland does not include the resolution of eviden-tiary disputes, we conclude that the trial court erred to reversal when it denied Maiden’s motion to set aside the default judgment in favor of FNMA. For that reason, we reverse the judgment denying Maiden’s motion to set aside the default judgment, and we remand the cause to the trial court to set aside the default judgment and to conduct further proceedings.

REVERSED AND REMANDED.

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

      . FNMA also states in its brief that Maiden must show that her title to the property is superior to that of FNMA in order to defeat its ejectment action. This is a misstatement of the law. In an ejectment action, the burden is on the plaintiff, not the defendant, to prove superior title to the property in question. See MacMillan Bloedell, Inc. v. Ezell, 475 So.2d 493, 496-97 (Ala.1985). If the plaintiff fails to do so, the defendant will prevail in the action without the necessity of proving its title in the property. See id. at 497 ("As at common law, the plaintiff must prevail on the strength of his own legal title or claim to possession and not on the weakness of the defendant’s.... Although he may, the defendant is not required to show legal title or a right to possession in himself. Therefore, even against one with no title or right to possession, the plaintiff cannot prevail unless he meets his burden of proof.”).


source: Caselaw Access Project

author: PER CURIAM. BRYAN, Judge, THOMAS, Judge,

license: Public Domain

text:
    L.M. v. SHELBY COUNTY DEPARTMENT OF HUMAN RESOURCES. J.K. v. Shelby County Department of Human Resources.
    2100733 and 2100773.
    Court of Civil Appeals of Alabama.
    Dec. 9, 2011.

      John C. Robbins of Robbins Law Firm, Birmingham, for appellant L.M.
    James V. Green, Jr., Alabaster, for appellant J.K.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for appellee.
   PER CURIAM.

L.M. (“the father”) and J.K. (“the mother”) separately appeal from a judgment entered by the Shelby Juvenile Court (“the juvenile court”) that terminated their parental rights to their three children (“the children”). This court, ex mero motu, consolidated the appeals. For the reasons set forth in this opinion, we reverse the juvenile court’s judgment.

Background and Procedural History

The record reveals that the children were first removed from the custody of the mother and the father, who lived together but were not married, in December 2007 when the mother gave birth to the youngest child and both the mother and that child tested positive for cocaine. In December 2008, the children, who had been in the custody of the Shelby County Department of Human Resources (“DHR”), were returned to the mother and the father. The mother and the father were ordered to continue random drug testing and, the record reveals, the mother and the father missed several drug screens in the latter part of 2008 and throughout early to mid 2009. On August 31, 2009, the juvenile court held the mother and father in contempt for failing to attend drug testing and for failing to meet with in-home service providers and counselors. On September 16, 2009, the children were removed from the home of the mother and the father for a second time. After the mother tested positive for cocaine on September 17, 2009, DHR filed its first petitions to terminate the parental rights of the mother and the father.

On March 9, 2010, the juvenile court, after conducting a hearing, denied DHR’s petitions to terminate the parental rights of the mother and the father based in part on evidence indicating that neither the father nor the mother had tested positive for any illegal drugs since the children were removed from their home in September 2009. The juvenile court ordered, among other things, that the children remain in the custody of DHR; that the mother and the father continue with services arranged by DHR; that the mother and the father continue regular drug and alcohol testing; and that the mother participate in regular drug and alcohol counseling.

On May 20, 2010, the mother tested positive for alcohol and an opiate. On June 12, 2010, the mother tested positive for ethyl glucuronide, which, the juvenile court found, suggested that the mother had been exposed to alcohol. On July 22, 2010, the juvenile court found the mother in contempt based on the positive drug and alcohol screens. On August 9, 2010, DHR filed its second petitions to terminate the parental rights of the mother and the father to the children in case nos. JU-07-1075.03, JU-07-1076.03, and JU-07-1077.03. DHR alleged, among other things, that the mother and the father were not able or willing to provide a fit and suitable home for the children. After conducting an ore tenus hearing on February 14, 2011, the juvenile court entered a single judgment on March 31, 2011, terminating the parental rights of the mother and the father. After the mother’s post-judgment motion was denied by operation of law, both parties appealed.

Issues

On appeal, the mother and the father argue that, based on the doctrine of res judicata, the juvenile court erred in considering evidence in support of terminating their parental rights at the February 2011 termination hearing of matters that occurred before the entry of the March 2010 judgment denying DHR’s first petitions to terminate their parental rights. They also argue that DHR failed to present clear and convincing evidence sufficient to terminate their parental rights.

The Res Judicata Argument

The father argues that the doctrine of res judicata should have barred the admission of evidence at the February 2011 termination hearing that related to facts and circumstances that existed before the entry of the March 2010 judgment denying DHR’s first petitions to terminate the parental rights of the mother and the father. The mother also argues that the doctrine of res judicata should prevent DHR from having a “second bite at the apple,” i.e., a second chance to litigate termination-of-parental-rights petitions that were largely based on evidence that existed, and was heard by the juvenile court, before the juvenile court denied DHR’s first termination-of-parental-rights petitions in March 2010.

“The elements of res judicata, or claim preclusion, are (1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both suits. Hughes v. Allenstein, 514 So.2d 858, 860 (Ala.1987). If those four elements are present, any claim that was or could have been adjudicated in the prior action is barred from further litigation....
“... The determination of whether the cause of action is the same in two separate suits depends on whether the issues in the two actions are the same and whether the same evidence would support a recovery for the plaintiff in both suits. Dominex, Inc. v. Key, 456 So.2d 1047, 1054 (Ala.1984). Stated differently, the fourth element is met when the issues involved in the earlier suit comprehended all that is involved in the issues of the later suit. Adams v. Powell, 225 Ala. 300, 142 So. 537 (1932).”

Dairyland Ins. Co. v. Jackson, 566 So.2d 723, 725-26 (Ala.1990).

Our research reveals no Alabama case-law that addresses the precise question presented on appeal, i.e., whether the doctrine of res judicata barred DHR, in the second termination-of-parental-rights hearing, from presenting evidence that existed before the entry of the judgment denying DHR’s first petitions to terminate the parental rights of the mother and the father. However, we are not without guidance from other jurisdictions. See In the Matter of Newman, 49 Or.App. 221, 619 P.2d 901 (1980); In re Interest of V.B., 220 Neb. 369, 370 N.W.2d 119 (1985); People in Interest of J.R., 711 P.2d 701 (Colo.App.1985); In Interest of A.S., 12 Kan.App.2d 594, 752 P.2d 705 (1988); and Scott v. Prince George’s Cnty. Dep’t of Soc. Servs., 76 Md.App. 357, 545 A.2d 81 (1988). Because the factual background and arguments made by the appellant in Scott v. Prince George’s County Department of Social Services, supra, are the most similar to the factual background and arguments made in the present case, a detailed discussion of that case ensues.

In Scott, the mother, Martine Scott (“Scott”), gave birth to twins in November 1980, and the Prince George’s County Department of Social Services (“the Department”) became involved with Scott and the twins in January 1981. 76 Md.App. at 364-65, 545 A.2d at 84-85. A Maryland juvenile court placed the twins in the Department’s care in January 1981, and the twins were returned to Scott and subsequently returned to the Department’s care several times between February 1981 and October 1982, at which point Scott apparently abandoned the twins with a non-English-speaking babysitter. 76 Md.App. at 365-66, 545 A.2d at 85-86. In August 1983, the Department filed a petition to terminate Scott’s parental rights to the twins, and, in February 1985, a Maryland trial court denied the Department’s petition but ordered Scott to participate in psychological counseling, to disclose her mother’s address so the Department could investigate her as a possible relative placement for the twins, to execute a service agreement with the Department, and to cooperate with the Department. 76 Md.App. at 367, 545 A.2d at 86. After Scott failed to comply with the provisions of the trial court’s judgment, the Department, in March 1986, filed a second petition to terminate Scott’s parental rights to the twins. 76 Md.App. at 369, 545 A.2d at 87. The trial court allowed the Department to present evidence that had been presented at the first termination trial, and, at the conclusion of the trial, the trial court granted the Department’s petition. Id.

On appeal, Scott argued, among other things, that the doctrine of res judicata prevented the Department from using evidence that was presented to the trial court in the first termination trial against her in the second termination trial and that the trial court could only consider evidence of facts that occurred after the first judgment denying the Department’s petition to terminate her parental rights. The Maryland Court of Appeals began its discussion of Scott’s res judicata argument by noting that it would apply the “same evidence test” to the two termination trials to determine whether the cause of action was the same in both cases for res judicata purposes. 76 Md.App. at 375, 545 A.2d at 90. As we set forth above, Alabama also follows the “same evidence test” for determining whether two causes of action are the same for res judicata purposes. See Dairyland Ins. Co. v. Jackson, supra. The Maryland Court of Appeals stated:

“Applying the same evidence test to the two termination trials in the case sub judice, we cannot conclude that the same evidence could have sustained both actions. The trial court found at the first termination trial that the Department had failed to establish, by clear and convincing evidence, that it would be in the best interests of the twins to forever sever their ties with their mother. But the first trial did not result in the return of the twins to appellant. The trial judge in the first action gave the proverbial ‘second chance’ to appellant — she was to follow the terms of the court order he issued. It was appellant’s failure to make any attempt to comply with that order which made the second trial qualitatively different from the first.
“Additionally, res judicata extends ‘only to the facts and conditions as they existed at the time of the first judgment and does not bar the fresh litigation of an issue which is appropriately subject to periodic redetermination, as subsequent facts and changed conditions may alter the status of the thing being evaluated.’ Towers v. Director, Patuxent Institution, 18 Md.App. 248, 250, 306 A.2d 597 (1973) (emphasis added). See also Whittle v. Board of Zoning Appeals of Baltimore County, 211 Md. 36, 45, 125 A.2d 41 (1956);[] Jack v. Foster Branch Homeowners Ass’n, 53 Md.App. 325, 333, 452 A.2d 1306 (1982). Child welfare seems to be a particularly appealing subject for periodic redetermination because children can be quickly and irretrievably scarred by negative circumstances. Changes in custody decrees are a classic example.!] ...
“In the case sub judice, following appellant’s line of reasoning to its logical conclusion could produce disturbing practical results. The Department would be required to wait after any unsuccessful termination trial until independent new evidence reached a clear and convincing level. Without the evidence of prior events, it would be a rare situation indeed where the independent new evidence would be egregious enough to sustain a new action within a short period of time. Thus, while the parent or parents might be benefitted, the children would suffer.”

76 Md.App. at 375-77, 545 A.2d at 90-91.

After a discussion of cases in other jurisdictions that had reached the same conclusion, i.e., that the doctrine of res judicata did not act as a bar in a second termination hearing to presenting evidence of matters that occurred before the first termination hearing, the Maryland Court of Appeals limited its holding by stating:

“If the State had brought the second petition to terminate appellant’s rights and had alleged nothing new, there is no doubt that it would be barred by res judicata. But there were new facts and circumstances introduced at the second action which could not have been introduced at the first. Although the court did not terminate appellant’s parental rights in the first action, her children remained in the custody of the State and she was ordered to work with the Department toward reunification. In order to help appellant toward this end, the trial court ordered that there be a private psychological therapist for appellant, contact with her mother, visits with the children, and counselling for the children. It appears in the ease sub judice that the Department made an effort to comply with the order. Appellant rejected a service agreement designed to facilitate reunification. She did not regularly write to the children. There was no effort on her part to improve the unhappy circumstances which had led to the Department’s obtaining custody of the children in the first place. The Department filed the second petition when it became clear that appellant’s continued refusal to work toward reunification had resulted in stagnation, with no likelihood of remedy. Regardless of any difficulties appellant may have had with the Department, the record shows that she made no effort to cooperate with them and thus retain her parental rights. All of the foregoing amounted to substantial new reasons for termination. The new facts created a qualitatively different situation: the second cause of action was not identical, and therefore not barred by res judicata. Because the new facts had to be put into context, the trial court was correct in admitting evidence of events prior to the first action at the second proceeding. The trial court thus correctly weighed all evidence pursuant to the criteria set forth in [Maryland’s termination-of-parental-rights statute] to find that it was in the best interests of the children to terminate appellant’s parental rights.”

76 Md.App. at 379-80, 545 A.2d at 92 (footnote omitted; emphasis added).

We think the rationale used by the Maryland Court of Appeals should apply to this case. The record reveals that DHR filed second petitions to terminate the parental rights of the mother and the father after the mother failed to comply with the juvenile court’s order denying DHR’s first petitions to terminate her parental rights because she continued to test positive for drugs and/or alcohol after the first judgment denying DHR’s petitions to terminate parental rights. In its second petitions, DHR alleged that the mother and the father, five months after the juvenile court had given them the “proverbial second chance,” were still unable or unwilling to provide a fit and suitable home for the children. See In re Interest of V.B., 220 Neb. at 372, 370 N.W.2d at 122 (noting that the trial court could not have used evidence of matters that occurred before the entry of the first judgment denying termination of parental rights as the sole basis for granting a second petition to terminate parental rights but that the trial court could use evidence of matters that occurred before and after the first termination trial to determine if there was a change in circumstance or “stagnation of conditions” to terminate parental rights at the second termination trial). DHR presented new evidence at the second termination trial that could not have been presented at the first termination trial, and, thus, the second termination actions were not based on evidence that was the same as the evidence presented at the first trial. Accordingly, we conclude that the doctrine of res judicata did not prevent presentation of evidence of matters that occurred before the first termination trial in the second termination trial and that the juvenile court properly weighed all the existing evidence to determine whether there was clear and convincing evidence sufficient to support the termination of the parental rights of the mother and the father.

The Judgment Terminating Parental Rights

In its judgment terminating parental rights, the juvenile court made extensive specific findings of fact. Although some of those facts are set forth above, they bear repeating for a full understanding of the juvenile court’s reasons for terminating the parental rights of the mother and the father. The juvenile court made the following findings of fact:

“1. This is the second petition for termination of the parental rights of the parents.
“2. In December of 2007, the children were originally removed from the parents’ home after the youngest child ... tested positive for cocaine at birth, which was caused by the mother’s use of cocaine during pregnancy.
“3. In December 2008, the children were returned to the parents.
“4. September 16, 2009, the children were again removed from the parents’ home.
“5. On September 17, 2009, the [mjother again tested positive for cocaine, and [DHR] filed its first Petition for Termination of Parental Rights.
“6. [On] March [9], 2010, the original petition to terminate parental rights was denied by Order of this Court. The children were not immediately returned to the parents, but remained in the custody of DHR.
“7. On April 1, 2010, the parties held an [Individualized Service Plan (TSP’) ] meeting wherein the [m]other ... agreed to enroll in a 28 day in-house drug treatment program, but [she] failed to complete that program.
“8. The [mjother testified that she contacted numerous agencies and drug treatment programs including all the ones given to her by DHR at the April 1, 2010 ISP meeting. She stated that she was not accepted into any of the in-house drug treatment programs because she had been drug free and sober for more than six months and none of the agencies and programs w[ere] equipped to detox her off of the drug suboxone. She had been prescribed suboxone by a doctor to treat her for drug addiction.
“9. Prior to May 20, 2010, [the moth-' er] had been drug free and sober for approximately [eight and one-half] months. During the 24 days between May 20 and June 12, 2010, she was tested [6] different times. One test was positive for a Lortab and alcohol; one was positive for alcohol only; and one had an abnormal creatinine level. The other three tests were negative for drugs and alcohol.
“10. On May 20, 2010, the [m]other ... tested positive for alcohol and an opiate. She admitted to drinking vodka and taking a Lortab that she had left over from a prior valid prescription. Six days later on May 26, 2010, she had a negative drug and alcohol test.
“11. On June 1, 2010, [the mother’s] test results showed an abnormal creati-nine level but negative for drugs and alcohol. She was again tested on June 2, 2010, with negative results including a normal creatinine level.
“12. On June 12, 2010, [the mother] tested positive for Ethyl Glucuronide, which suggests exposure to alcohol.
“13. On June 16, 2010, [the mother] entered Hill Crest Hospital for suboxone and alcohol detox. This was a 7 day hospitalization program.
“14. On July 22, 2010, this Court cited [the mother] for contempt based on the positive drug/alcohol tests of May 20, 2010 and June 12, 2010. She was ordered to serve 24 hours in the Shelby County Jail.
“15. On Ju[ne] 23, 2010, [the mother] entered Alabama Psychiatric Services’ Chemical Dependency Partial Hospitalization Program which she completed on July 15, 2010.
“16. On August 9, 2010, DHR filed its second Petition for Termination of Parental Rights.
“17. On December 14, 2010, the [m]other’s drug test showed an abnormal creatinine level. She tested negative for drugs and alcohol on December 14. Further she was also tested in the month of December on the 2, 4, 6, 9, 26[,] and 30, all these tests were negative with normal creatinine levels.
“18. All of the mother’s drug tests have been negative with normal creati-nine levels since December 14, 2010.
“19. The [fjather ... has not missed a drug test nor tested positive for alcohol or drugs in over 18 months.
“20. [The mother] is currently participating in Alabama Psychiatric Services (APS) Aftercare Program which includes among other things meeting with her psychiatrist every two weeks and meeting with her medical doctor every six months.
“21. Through APS, [the mother] was introduced to- the [Alcoholics Anonymous] program. She has been participating in meetings 3 to 4 times per week since entering the program. She has a permanent sponsor who testified that [the mother] is doing exceptionally well in the program. She is working on the 12 step program and is currently on Step 4.
“22. There is no problem with the physical home of the parents which would itself prevent return of the children.
“23. The [fjather ... has complied with all the requirements of DHR, but he continues to reside with the mother.
“24. The mother ... is unable to stop using drugs and alcohol. Almost immediately after the denial of [DHR]’s original petition to terminate her parental rights, she began drinking a pint to a pint and a half of alcohol per day, and hiding it from the father. She entered Hillcrest Hospital for detox purposes in June 2010 and then treatment with Alabama Psychiatric Services (APS) which recommended she attend weekly meetings with their provider as well as [Alcoholics Anonymous] meetings, beginning with 90 meetings in 90 days. The mother testified she had not attended any APS weekly meetings since late November.
“25. The parents have been provided every service known to [DHR],
“Considering the testimony and exhibits listed above, in addition to the finding made in this Court’s Order dated March 9, 2010, this Court finds that the reasonable efforts made by DHR towards the rehabilitation of the parents have failed. This Court finds that the parents have failed to show that [the m]other may remain free of illegal drugs and alcohol for a sustainable period of time. Similarly, the putative [flather remains with the [m]other and has no intentions of leaving her. Thus, the parents of the children have failed to adjust their lifestyle and circumstances to meet the needs of the minor children.”
Under Alabama law,
“[a] juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights. Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990).”

B.M. v. State, 895 So.2d 319, 331 (Ala.Civ.App.2004). In order to meet the first prong of the test, DHR must prove by clear and convincing evidence that grounds for termination exist. See § 12-15-319, Ala.Code 1975; and Bowman v. State Dep’t of Human Res., 534 So.2d 304, 305 (Ala.Civ.App.1988). Section 12-15-319 provides, in pertinent part:

“(a) If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents.”

The juvenile court was required to consider the factors set forth in § 12-15-319(a)(1) — (12) to determine whether the father and the mother were unable or unwilling to discharge their parental responsibilities to and for the children. The juvenile court found that the mother was unable to remain free of alcohol and drugs for a “sustainable period of time,” see § 12-15-319(a)(2), that reasonable efforts made by DHR toward the rehabilitation of the mother and the father had failed, see § 12-15-319(a)(7), and that the mother and the father had failed to adjust their circumstances to meet the needs of the children, see § 12-15-319(a)(12).

“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.” J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1183 (Ala.Civ.App.2007). Accordingly, “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.” Id. However, DHR, as the petitioner, had the burden of proving, by clear and convincing evidence, that the parental rights of the mother and the father should be terminated. “Clear and convincing evidence” is “ ‘evidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.’ ” L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002) (quoting § 6-11-20(b)(4), Ala.Code 1975).

We will begin our discussion with the arguments presented by the father. On appeal, the father argues that (1) the juvenile court violated his constitutional rights by concluding that his failure to sever his relationship with the mother was a sufficient ground for terminating his parental rights and (2) that DHR failed to present clear and convincing evidence sufficient to support termination of his parental rights. As argued by DHR in its brief on appeal, the father failed to present his constitutional argument to the juvenile court, and, thus, he is presenting that argument for the first time on appeal. Accordingly, we cannot address that argument. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“[An appellate cjourt cannot consider arguments raised for the first time on appeal; rather, [the appellate court’s] review is restricted to the evidence and arguments considered by the trial court.”). However, we will consider the father’s argument that DHR failed to present clear and convincing evidence sufficient to terminate his parental rights to the children.

The father contends that his failure to end his relationship with the mother is not clear and convincing evidence of his failure to adjust his circumstances to meet the needs of the children. We agree, as the father contends, that the juvenile court terminated the father’s parental rights based only on the undisputed fact that the father continued to reside with the mother who, the juvenile court found, was unable to stop using drugs and alcohol for a “sustainable period of time.” Thus, we must consider whether the juvenile court’s sole basis for terminating the father’s parental rights was sufficient to support its judgment.

This court has affirmed judgments terminating the parental rights of a parent when that parent has failed or refused to remove himself or herself from a living situation that presented a danger to the parent’s child, see C.W. v. State Dep’t of Human Res., 826 So.2d 171, 173-74 (Ala.Civ.App.2002) (determining that the children in question were dependent after considering the mother’s refusal to sever her relationship with an abusive boyfriend, whose attitude towards DHR hindered the mother’s ability to reunite with her children), even if the child’s other parent was the individual that presented a danger to the child. See B.M. v. State, 895 So.2d at 334 (when clear and convincing evidence indicated that the mother had abused one of the parties’ children and the father testified that he did not believe the mother had abused the child, this court affirmed the judgment terminating the parental rights of the father on the basis that the trial court could have concluded that the father, who had undisputedly never harmed the children, could not protect the children from the danger of harm presented by the mother). Thus, the juvenile court’s judgment terminating the father’s parental rights can be affirmed if clear and convincing evidence shows that the father was unable to protect the children from the danger presented by the mother’s alleged inability to remain alcohol and drug free. Id.

After a thorough review of the record, this court is unable to find evidence sufficient to support a finding that the father could not, or was unwilling to, protect the children from the potential harm presented by the mother’s inability to remain alcohol and drug free. There is nothing in the record before this court indicating that the father had ever failed to protect the children from the mother when she was under the influence of drugs or alcohol. In fact, the father testified that he recognized the danger presented to the children if the mother continued to abuse alcohol, and he stated that he was willing to sever his relationship with the mother if the mother continued on a path of substance abuse.

Moreover, as the father argues on appeal, there is no indication in the record that DHR ever conveyed to the father that he needed to sever his relationship with the mother in order to be reunited with the children. A parent’s parental rights cannot be terminated on the ground that the parent did not adjust his or her circumstances to meet the needs of the children, or on the ground that efforts to rehabilitate the parent had failed, when the sole barrier to reunification was not communicated to the parent by DHR. See H.H. v. Baldwin Cnty. Dep’t of Human Res., 989 So.2d 1094, 1105 (Ala.Civ.App.2007) (opinion on return to remand) (Per Moore, J., with two judges concurring in the result) (“The natural starting point in any fair and serious attempt to rehabilitate the parent and to reunite the parent with the child is identification of that characteristic, conduct, or circumstance that renders the parent unfit or unable to discharge his or her parental responsibilities to the child. Once DHR identifies the source of parental unfitness, the overarching goal of family reunification requires DHR to communicate its concerns to the parent and to develop a reasonable plan with the parent that is tailored toward the particular problem© preventing the parent from assuming a proper parental role.”).

In the present case, there was not clear and convincing evidence presented that anyone from DHR had ever informed the father that his maintaining a household or a relationship with the mother was a barrier, let alone the sole barrier, to his reunification with his children. The father testified that he had not been told by DHR to sever his relationship with the mother, and the representative from DHR that testified during the February 2011 termination hearing could not confirm that anyone from DHR had ever conveyed to the father that he was required to sever his relationship with the mother before DHR would consider returning the children to his custody. Thus, because there was not sufficient evidence from which the juvenile court could have concluded that the father had been informed that his failure to sever his relationship with the mother would prevent the return of the children to his custody, there was not clear and convincing evidence to support a finding that the father exhibited a “[ljack of effort ... to adjust his ... circumstances to meet the needs of the childfren] in accordance with agreements reached, including agreements reached with local departments of human resources ..., in an administrative review or a judicial review.” § 12-15-319(a)(12) (emphasis added).

Furthermore, there was not clear and convincing evidence to support a finding that DHR’s attempts to rehabilitate the father had failed. As stated above, DHR did not provide the father the opportunity to correct the circumstances that presented a barrier to reunification because DHR did not inform him that such a barrier existed. Also, the juvenile court specifically found that the father had not tested positive for drugs or alcohol in approximately 18 months, that he had done everything that DHR had required him to do, and that there was no problem with the father’s home that would otherwise prevent the father’s reunification with the children. In short, the only “new evidence” that DHR presented regarding the father in the second termination trial tended show that the father had faithfully continued to visit the children and that he had not missed or failed a single drug screen.

Our review of the record has failed to reveal clear and convincing evidence to support a conclusion that the father was unable or unwilling to discharge his responsibilities to and for the children or to prove that the father’s conduct or condition rendered him unable to properly care for the children and that that conduct or condition was unlikely to change in the foreseeable future. § 12-15-319. The record revealed that the father consistently visited the children, that he was physically and financially capable of caring for the children, and that there were no problems with the father’s home that would prevent his reunification with the children. Accordingly, that part of the juvenile court’s judgment terminating the father’s parental rights is reversed.

In light of our conclusion that there was not clear and convincing evidence to support termination of the father’s parental rights, we must also reverse the judgment insofar as it terminates the mother’s parental rights. Our review of the record reveals that DHR presented clear and convincing evidence sufficient for the juvenile court to have concluded that the mother could not remain free of drugs and alcohol for a “sustainable period of time” and, thus, that there was sufficient evidence from which the juvenile court have concluded that the children were dependent based on the mother’s conduct, condition, and circumstances. See § 12 — 15—319(a)(2). However, there is no evidence in the record indicating that the welfare of the children would be endangered by the mother if the father was in the home to supervise the family. In other words, we can find nothing in the record to support a conclusion that the father would be unable to protect the children from the potential harm presented by the mother’s presence in the home with the children. See T.B. v. DeKalb Cnty. Dep’t of Human Res., 12 So.3d 90, 99 (Ala.Civ.App.2008) (plurality opinion) (reversing a judgment terminating the parental rights of the mother in light of the fact that the judgment terminating the parental rights of the father had been reversed when there was no indication that the conduct or condition of the mother that hindered her ability to independently meet the needs of the children presented a danger to the children while the father remained in the home to supervise the family).

As the mother points out in her brief to this court, and as noted above, a juvenile court is required to consider viable alternatives to terminating a parent’s parental rights. B.M. v. State, 895 So.2d at 331. From the facts in the record before this court in this particular case, we cannot determine the basis for DHR’s failure to recommend that the custody of the children be returned to the father with orders that he strictly supervise the mother’s contact with the children. Returning custody of the children to the father while continuing DHR’s ability to supervise the family appears to be a viable alternative to termination of the mother’s parental rights in this case. Accordingly, we reverse the judgment of the juvenile court insofar as it terminates the mother’s parental rights, and we remand the cause for further proceedings consistent with this opinion.

2100733 — REVERSED AND REMANDED.

2100773 — REVERSED AND REMANDED.

MOORE, J., concurs.

BRYAN and THOMAS, JJ„ concur specially, with writings.

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

BRYAN, Judge,

concurring specially.

I fully concur in the main opinion, despite the fact that it is based, in part, on this court’s decision in T.B. v. DeKalb County Department of Human Resources, 12 So.3d 90, 99 (Ala.Civ.App.2008), in which I filed a dissenting opinion. See T.B., 12 So.3d at 99-100. In T.B., I dissented from the judgment reversing the mother’s parental rights because I did not believe that this court had properly reversed the judgment terminating the parental rights of the father in a companion case, J.B. v. DeKalb County Department of Human Resources, 12 So.3d 100 (Ala.Civ.App.2008). However, in the present case, I fully concur in the conclusion reached in the main opinion that the juvenile court erroneously terminated the father’s parental rights. Thus, despite the fact that I find clear and convincing evidence in the record to support the juvenile court’s conclusion that the mother was unable to remain drug and alcohol free for a “sustainable period of time,” I agree with the conclusion in the main opinion that the judgment terminating the parental rights of the mother should be reversed because, from all that appears in the record before this court, there is nothing that would prevent an appropriately tailored award of custody to the father from being a viable alternative to the termination of her parental rights.

However, this conclusion is based on the fact that the record reveals that the mother and the father are in a committed long-term relationship. Indeed, the mother and the father indicated that they held themselves out to have a common-law marriage. Thus, I believe the decision in this case could be different if the facts of the case indicated that the relationship between the mother and the father was not stable. The record reveals that the mother works for, or at least with, the father and that the mother and the father are “always together.” I find no basis in the record for concluding that the father cannot protect the children from any potential danger presented by the possibility of the mother’s continued substance abuse.

With that being said, I caution the mother to continue her diligent efforts at maintaining an alcohol and drag-free lifestyle. My approval of this court’s decision today should not be read as an approval of the mother’s behavior, which has resulted in her children being kept in foster care for an extended period.

THOMAS, Judge,

concurring specially.

Although I dissented in H.H. v. Baldwin County Department of Human Resources, 989 So.2d 1094, 1110 (Ala.Civ.App.2007), T.B. v. DeKalb County Department of Human Resources, 12 So.3d 90, 100 (Ala.Civ.App.2008) (Thomas, J., dissenting), and J.B. v. DeKalb County Department of Human Resources, 12 So.3d 100, 119 (Ala.Civ.App.2008) (Thomas, J., dissenting), I concur in the reversal of the judgment terminating the parental rights of the mother and the father in the present case. The evidence does not support the conclusion that the father’s parental rights should be terminated. Because we reverse the judgment insofar as it terminates the father’s parental rights, I agree that the judgment, insofar as it terminates the parental rights of the mother, should also be reversed, because an appropriately tailored custody award to the father may well be a viable alternative to termination of the mother’s rights.

      . There were three separate actions — one for each child — in the juvenile court. The juvenile court entered a single judgment that applied to all three actions.

      . In City of Mobile v. Cunningham, 46 Ala.App. 461, 466, 243 So.2d 723, 727 (1971), our supreme court quoted with approval from Whittle v. Board of Zoning Appeals of Baltimore County, 211 Md. 36, 125 A.2d 41 (1956), which is cited above in Scott, and held that the doctrine of res judicata would not apply to an application for a use variance if the proponent could show that there were new facts that tended to show changed conditions and circumstances that arose after a request for a variance had been previously denied.

      . Our supreme court, in Ex parte Snider, 929 So.2d 447, 458 n. 9 (Ala.2005), likewise acknowledged that matters of custody and visitation “ 'are never res judicata’ ” upon a showing of changed circumstances.

      . Such a conclusion finds support in our caselaw regarding termination of parental rights, such as the well settled principle that, “when deciding whether grounds to terminate parental rights exist, the juvenile court is not limited to evidence of current conditions; it may also consider the past history of a parent.” R.L.M.S. v. Etowah Cnty. Dep’t of Human Res., 37 So.3d 805, 808 (Ala.Civ.App.2009). This court has also recognized that a finding of dependency may be based on the totality of the circumstances. See V.G. v. Madison Cnty. Dep’t of Human Res., 989 So.2d 550, 554 (Ala.Civ.App.2008); J.W. v. C.H., 963 So.2d 114, 120 (Ala.Civ.App.2007); and R.G. v. Calhoun Cnty. Dep’t of Human Res., 716 So.2d 219, 221-22 (Ala.Civ.App.1998).


author: MOORE, Judge.

text:
    J.D.R. v. ETOWAH COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2100956.
    Court of Civil Appeals of Alabama.
    Dec. 16, 2011.
    Paul R. Roberts II, Gadsden, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, chief legal counsel, and Kimberly J. Dobbs, asst. atty. gen., Department of Human Resources, for appellee.
   MOORE, Judge.

On June 29, 2009, the Etowah County Department of Human Resources (“DHR”) filed a petition in the Etowah Juvenile Court (“the juvenile court”), asserting that J.E. (“the child”) was dependent because he was “without proper parental care and control necessary for his well-being” and that the child’s mother, D.E. (“the mother”), who was 16 years old at the time, was in DHR’s custody because she had no home and no income with which to support the child. DHR requested that it be awarded temporary custody of the child.

A shelter-care hearing was held on June 30, 2009, after which the juvenile court entered an order finding that “an emergency situation exists which requires the immediate temporary removal of the child from his/her home” and transferring pen-dente lite custody of the child to DHR. Following a hearing on July 8, 2009, the juvenile court entered a judgment that same date finding the child dependent and transferring custody of the child to DHR.

On September 17, 2009, following a review hearing, the juvenile court entered a “judicial review order” in which it found, among other things, that the child was safe in foster care, that services had been offered to the mother, that returning the child to the mother’s custody would be contrary to the welfare of the child, and that a custody placement other than with the mother would be in the best interests of the child’s health and safety. The juvenile court continued custody of the child with DHR,

On December 18, 2009, the juvenile court entered a “judicial review order” in which it, among other things, determined that the child remained safe in foster care, continued legal custody of the child with DHR, and ordered “DNA testing” of the child and J.D.R. to determine whether J.D.R. was the biological father of the child. Based on the results of that DNA testing, the juvenile court, on January 25, 2010, entered an order on the case-action-summary sheet adjudicating J.D.R. (“the father”) to be the child’s father.

On September 16, 2010, DHR filed a petition to terminate the parental rights of the mother and the father; the juvenile court entered an order setting the termination hearing to occur on December 15, 2010. Because the mother’s whereabouts were unknown, she was served by publication. The mother sent the juvenile court a letter, dated October 14, 2010, in which she stated that she was writing the letter regarding her parental rights and that she was, at that time, “in the [substance-abuse] program at Etowah County Detention Center.” The father sent the juvenile court a letter, dated October 15, 2010, in which he stated, among other things, that he was in the Calhoun County Jail, that he had received a summons and a petition for termination of his parental rights from the juvenile court, and that he would be released from the Calhoun County Jail on November 23, 2010; he requested that the juvenile court “allow [him] to get released from Calhoun County [Jail] before a decision is made regarding [the child].”

The termination hearing was held on December 15, 2010. The mother appeared at the hearing with counsel and testified that she was consenting to the termination of her parental rights; the father did not appear at the hearing. The juvenile court subsequently entered a judgment on December 21, 2010, terminating the parental rights of the mother and the father to the child.

Thereafter, on April 25, 2011, the father filed an “affidavit of substantial hardship and order” requesting that the juvenile court appoint an attorney to represent him; the juvenile court granted that motion on April 26, 2011. On May 19, 2011, the father, through counsel, filed a motion for relief from the December 21, 2010, judgment, pursuant to Rule 60(b)(1), Ala. R. Civ. P., in which he asserted:

“2. That [DHR] filed a petition to terminate the parental rights of ... [the father].
“3. That the [father] was served with said petition while incarcerated. (See Attached as Exhibit A — Affidavit of [the father])
“4. That the [father] mailed a letter/answer to the Clerk of the Court which was received and filed in this matter.
“5. That a hearing was set for December 15, 2010 on DHR’s petition.
“6. That an Order was subsequently filed acknowledging the mother’s desire to voluntarily terminate her parental rights.
“7. That said Order further terminated the rights of the [father].
“8. That [the father] avers that he had no knowledge of the hearing set for December 15, 2010 and was never given proper notice of said hearing.
“9. That [the father’s] lack of knowledge of said hearing is evidenced in his letter to the Court wherein he asked to be allowed to be released from jail before the Court made a decision in the matter. [The father’s] statement is contrary to any claim that he knew of a hearing set in December as he was due to be released in November but did not have knowledge of when a decision would be made.
“10. That [the father] avers that he was released from incarceration in November 2010 and would have attended said hearing if he had knowledge of the same.
“11. That this matter is of such a severe nature that [the father] should be allowed to be present at a hearing.
“12. That due to [the father’s] mistake, inadvertence, surprise, or excusable neglect, he hereby moves the Court for relief from the [judgment] in this matter.”

On June 22, 2011, the juvenile court purported to enter a judgment denying the father’s motion for relief from judgment. The father filed his notice of appeal to this court on July 6, 2011.

Although neither party has raised the issue of this court’s jurisdiction to consider this appeal, “jurisdictional matters are of such significance that an appellate court may take notice of them ex mero motu.” Kennedy v. Merriman, 963 So.2d 86, 88 (Ala.Civ.App.2007).

The juvenile court entered a judgment on December 21, 2010, terminating the parental rights of the father. On May 19, 2011, nearly five months after the juvenile court entered its judgment, the father moved the juvenile court to set aside its December 21, 2010, judgment. In his motion, the father alleged, among other things, that “he had no knowledge of the hearing set for December 15, 2010 and was never given proper notice of said hearing.” Although the father did not specifically reference Rule 60(b), Ala. R. Civ. P., in his motion, he stated that he was seeking relief from the judgment “due to [his] mistake, inadvertence, surprise, or excusable neglect,” which are grounds under Rule 60(b)(1). See Dobbins v. Anderson, 496 So.2d 63, 64 (Ala.Civ.App.1986) (holding that Rule 60(b)(1) applies to a motion filed by a party alleging that he or she did not have notice of the trial date); see also Noll v. Noll, 47 So.3d 275, 278 (Ala.Civ.App.2010) (accord). A motion made pursuant to Rule 60(b)(1) must be brought within four months of the entry of the judgment from which relief is sought. See Rule 60(b) (“The motion shall be made within a reasonable time, and for reason[ ] (1) ... not more than four (4) months after the judgment, order, or proceeding was entered or taken”). The father filed his motion nearly five months after the entry of the December 21, 2010, judgment, outside the four months allowed by Rule (60)(b). Accordingly, the father’s motion, made pursuant to Rule 60(b)(1), was untimely filed.

A trial court lacks jurisdiction to consider a Rule 60(b) motion that is not timely filed. See Noll, 47 So.3d at 279. Accordingly, the juvenile court lacked jurisdiction to consider the father’s untimely May 19, 2011, Rule 60(b) motion and to enter its June 22, 2011, judgment denying that motion. Because the juvenile court’s June 22, 2011, judgment was entered without jurisdiction, it is void. Jones v. Sears Roebuck & Co., 342 So.2d 16, 17 (Ala.1977). A void judgment will not support an appeal. Id. Accordingly, we dismiss the father’s appeal, albeit with instructions to the juvenile court to vacate its void judgment.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . Rule 1(A), Ala. R. Juv. P., provides, in pertinent part: "If no procedure is specifically provided in these Rules or by statute, the Alabama Rules of Civil Procedure shall be applicable to those matters that are considered civil in nature.”


text:
    Minor Child “A,” by and through her mother F.P.J. v. Amy DAVIS and Shelia Hale.
    2100832.
    Court of Civil Appeals of Alabama.
    Dec. 16, 2011.
    F.P.J., pro se.
    M. Kathleen Miller and Lacey D. Smith of Armbrecht Jackson LLP, Mobile, for appellees.
   MOORE, Judge.

Minor Child “A,” by and through her mother F.P.J., appeals from a summary judgment entered by the Mobile Circuit Court (“the trial court”). We dismiss the appeal.

On October 22, 2010, F.P.J., appearing pro se, filed a complaint in the trial court, naming “Minor Child ‘A’ ” as the plaintiff and “USA Womens’ and Children Hospital” (“the hospital”) as the defendant. The complaint alleged that Minor Child “A” (“the child”) had suffered damages as a result of the negligence of the nurses who had treated the child during a stay at the hospital. Specifically, the complaint alleged that the child was seeking $1,000,000 in damages “for negligent medical malpractice, endangering an infant, causing [the child] trauma, emotional hurt, disfigurement, defamation of character, slander, pain and suffering, breach of confidential medical documentation, harassment, abuse, embarrassment, and mistaken gender and all other injuries so may be discovered.”

The hospital filed a motion to dismiss on November 5, 2010, based on the doctrine of sovereign immunity. On November 19, 2010, F.P.J. filed a motion requesting that her claims not be dismissed and asserting that the child possessed individual claims against the nurses. On December 16, 2010, F.P.J. filed a motion seeking to file an amended complaint; the trial court granted that motion on January 28, 2011. On February 2, 2011, F.P.J. filed an amended complaint, naming as defendants “Dr. Smith,” “RN Amy Davis,” and “RN Hale.” On February 11, 2011, the trial court entered an order granting the hospital’s motion to dismiss; in another order entered that same date, the trial court indicated that, although proper service had been made upon Amy Davis, proper service had not been perfected as to the other individual defendants named in F.PJ.’s amended complaint.

On March 4, 2011, Shelia Hale and Amy Davis filed separate motions to extend their time to answer the complaint; the trial court granted both motions on that same date. On March 28, 2011, Davis filed a motion to dismiss or, in the alternative, a motion for a summary judgment. On March 29, 2011, Hale filed a motion to dismiss or, in the alternative, a motion for a summary judgment. On April 30, 2011, the trial court entered a summary judgment in favor of Davis and Hale. F.P.J. filed a document entitled a “reply” in the trial court on June 2, 2011; that document was treated by the trial court as a notice of appeal to this court. This court transferred the appeal to the Alabama Supreme Court for lack of jurisdiction; that court subsequently transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, F.P.J., acting pro se as the representative of the child, argues that the trial court erred by entering a summary judgment in favor of Davis and Hale.

In Chambers v. Tibbs, 980 So.2d 1010 (Ala.Civ.App.2007), Hermie Chambers (“the father”) and his wife, Delores Chambers (“the mother”), appealed from an adverse decision of the Barbour Circuit Court in an action brought by them pro se, in which they asserted claims on their own behalf and on behalf of their child. This court dismissed the portion of the appeal brought on behalf of their child and stated, in pertinent part:

“The father and the mother cite Rule 17(c), Ala. R. Civ. P., to support the proposition that they should be allowed to represent their child’s interests in this action despite the fact that they are not licenced attorneys; however, that argument is unpersuasive. Rule 17(c) provides in part that ‘[wjhenever a minor has a representative, such as a general guardian or like fiduciary, the representative may sue in the name of the minor.’ This phrase is similar to a phrase in Rule 17(c), of the Federal Rules of Civil Procedure. When interpreting Rule 17(c), Fed.R.Civ.P., the United States Court of Appeals for the Eleventh Circuit stated that Rule 17(c) ‘permits authorized representatives, including parents, to sue on behalf of minors, but does not confer any right upon such representatives to serve as legal counsel.’ Devine v. Indian River County Sch. Bd., 121 F.3d 576, 581 (11th Cir.1997) (citing Osei-Afriyie v. Medical Coll. of Pennsylvania, 937 F.2d 876, 882-83 (3d Cir.1991); Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir.1990); and Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir.1986)); see also Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 284 (2d Cir.2005) (‘[i]t is thus a well-established general rule in this Circuit that a parent not admitted to the bar cannot bring an action pro se in federal court on behalf of his or her child’). We similarly conclude that Rule 17(c), Ala. R. Civ. P., does not confer upon a representative of a minor a right to practice law on behalf of that minor.
“Further, although there does not appear to be an Alabama case directly on point, in Ex parte Ghafary, 738 So.2d 778 (Ala.1998)[,] our Supreme Court addressed the issue whether the nonattor-ney executrix of an estate could represent the estate in an action. In that case our Supreme Court examined both Article I, § 10, of the Constitution of Alabama of 1901, which establishes the right of a person to represent himself before any tribunal in the state, and § 34-3-6, Ala.Code 1975, which restricts those persons who have authority to practice law to those persons who ‘are regularly licensed.’ The Supreme Court concluded in Ex parte Ghafary that the right of a person to represent himself under Article I, § 10, did not ‘extend to the representation of interests other than those of the pro se litigant.’ Id. at 779. Additionally, the Supreme Court determined that § 34-3-6 (a) ‘prohibits a nonattorney executor or personal representative from representing an estate before a court of law.’ Id. at 781. That conclusion was reiterated in Godwin v. State ex rel. McKnight, 784 So.2d 1014 (Ala.2000), in which our Supreme Court noted, ‘[a]lthough the law allows Mr. Godwin to file complaints pro se, it does not allow him to file a complaint on behalf of anyone else, even an estate of which he is the executor.’ Id. at 1015.
“Other states have specifically held that a nonattorney parent may not represent his or her child in an action. E.g., Byers-Watts v. Parker, 199 Ariz. 466, 469, 18 P.3d 1265, 1268 (Ariz.Ct.App.2001) (concluding that a nonattor-ney mother acting as the guardian ad litem for her child may not act as an attorney to represent her child); Chisholm v. Rueckhaus, 124 N.M. 255, 256, 948 P.2d 707, 708 (N.M.Ct.App.1997) (similarly concluding that a nonattorney parent may not act as an attorney to represent his or her child). In a case in which the parents of a child, acting on behalf of their child, attempted to appeal a trial court’s judgment without the aid of counsel, the Appellate Court of Connecticut stated:
“ ‘The plaintiffs parents brought this action solely in a representative capacity as next friends. As we have noted, they did not raise any claims of their own. Accordingly, the party in interest in the underlying action and the aggrieved party to this appeal is the plaintiff, not his parents. “It is the infant, and not the next friend, who is the real and proper party. The next friend, by whom the suit is brought on behalf of the infant, is neither technically nor substantially the party, but resembles an attorney, or a guardian ad litem, by whom a suit is brought or defended in behalf of another.” (Emphasis in original.) Morgan v. Potter, 157 U.S. 195, 198, 15 S.Ct. 590, 39 L.Ed. 670 (1895); Williams v. Cleaveland, 76 Conn. 426, 431-32, 56 A. 850 (1904); Black’s Law Dictionary (7th Ed.1999) (defining “next friend”).
“ ‘As nonattorneys, the plaintiffs parents lacked authorization to maintain this appeal without the appearance of an attorney....
“ ‘Although there is no appellate case law in Connecticut addressing whether parents, without the aid of an attorney, can represent the interest, as next friends, of their children, the courts in other jurisdictions that have addressed that issue have universally held that they may not do so.[] The reasoning of the United States Court of Appeals for the Second Circuit is persuasive: “The choice to appear pro se is not a true choice for minors who under state law ... cannot determine their own legal actions. There is thus no individual choice to proceed pro se for courts to respect, and the sole policy at stake concerns the exclusion of nonlicensed persons to appear as attorneys on behalf of others.
“ ‘ “It goes without saying that it is not in the interests of minors or incompetents that they be represented by non-attorneys. Where they have claims that require adjudication, they are entitled to trained legal assistance so their rights may be fully protected. There is nothing in the guardian-minor relationship that suggests that the minor’s interests would be furthered by representation by the non-attorney guardian.” .... Cheung v. Youth Orchestra Foundation of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir.1990). The purpose for requiring a lawyer is to “ensure that children rightfully entitled to legal relief are not deprived of their day in court by unskilled, if caring, parents.” Devine v. Indian River County School Board, 121 F.3d 576, 582 (11th Cir.1997), cert. denied, 522 U.S. 1110, 118 S.Ct. 1040, 140 L.Ed.2d 106 (1998).
“Lowe v. City of Shelton, 83 Conn.App. 750, 756-58, 851 A.2d 1183, 1189-91 (2004).
“Although we find such authority highly persuasive, we note that there is at least one exception to this general rule that applies when a parent’s interests in supplemental-security-income (‘SSI’) benefits are closely intertwined with the interests of the child in those same benefits. Harris v. Apfel, 209 F.3d 413, 416 (5th Cir.2000) (holding that a nonattorney parent may represent the interests of his or her child in an SSI benefits case when the parent has a personal stake in the litigation); and Machadio v. Apfel, 276 F.3d 103, 107 (2d Cir.2002) (holding that a nonat-torney parent may bring an action on behalf of his or her child without representation by an attorney, in an appeal from an SSI decision by an administrative law judge, when it is determined that the parent has a sufficient interest in the case and meets basic standards of competence). Additionally, when addressing the extent to which a parent may represent his or her child in an action under the Individuals with Disabilities Education Act (‘the IDEA’), 20 U.S.C. § 1400 et seq., the United States Supreme Court concluded that parents have their own rights at stake under the IDEA and may, therefore, represent those interests pro se. Winkelman ex rel. Winkelman v. Parma City Sch. Dist., [550] U.S. [516], [535], 127 S.Ct. 1994, 2007, 167 L.Ed.2d 904 (2007). However, the Supreme Court explicitly left open the question whether a parent could, pro se, represent his or her child’s claims under the IDEA. Id. In this case we are not faced with an intertwining of interests similar to that involved in SSI benefits cases, nor are we faced with any potential statutory exception to the general rule that a nonattorney may not represent another person or entity in an action. Therefore, we hold that the non-attorney parents of the child in this case may not represent the child in her action against the defendants. Indeed, they also may not represent the child on appeal, and we therefore must dismiss that portion of the appeal. Stage Door Dev., Inc. v. Broadcast Music, Inc., 698 So.2d 787 (Ala.Civ.App.1997) (dismissing an appeal because the individual representing the corporation on appeal was not a licensed attorney); see also Lowe, supra.”

980 So.2d at 1012-1015 (footnotes omitted).

Like in Chambers, in the present case, F.P.J. is not an attorney. The only claims raised before the trial court and on appeal are brought in the child’s name; F.P. J. has not stated any claims of her own. Also like in Chambers, this case is not one that invokes an exception to the general rule that a nonattorney may not represent another person or entity. Because we conclude, based on Chambers, that F.P.J. may not represent the child in this action, we dismiss the appeal. See Chambers, 980 So.2d at 1015.

APPEAL DISMISSED.

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