author: BRYAN, Judge. BRYAN, Judge, MOORE, Judge,

text:
    D.B. and J.R.B. v. K.B., L.B., Jr., C.T.H., and the Calhoun County Department of Human Resources.
    2090831.
    Court of Civil Appeals of Alabama.
    Jan. 21, 2011.

      Russell T. Emrick and Allison J. Miller of Emrick & Associates, P.C., Heflin, for appellants.
   BRYAN, Judge.

On November 17, 2009, the Calhoun County Department of Human Resources (“DHR”) filed a petition in the Calhoun Juvenile Court (“the juvenile court”) alleging .that C.J.H. and S.H. (collectively referred to hereinafter as “the children”) were dependent because they did not have a parent or guardian able to provide for their support, training, or education. DHR further alleged that T.H., the father of the children (“the father”), had killed W.H., the mother of the children (“the mother”), and that the father had then committed suicide. DHR also filed a motion for ex parte temporary custody of the children; that motion was granted by the juvenile court the same day.

Shortly thereafter, C.T.H., the brother of the children (“the brother”); K.B., the children’s maternal aunt (“the maternal aunt”), and L.B., Jr., the children’s maternal uncle (“the maternal uncle”); and D.B., the children’s paternal aunt (“the paternal aunt”), filed separate petitions to intervene in DHR’s dependency action. The brother, the maternal aunt and the maternal uncle, and the paternal aunt all sought custody of the children. The paternal aunt alleged that DHR had placed the children in her custody shortly after the deaths of the mother and the father. The paternal aunt’s petition for custody was later amended to add the paternal aunt’s husband, J.R.B. (“the paternal uncle”), as a petitioner. The juvenile court subsequently ordered DHR to perform a home study of the residences of the brother, the maternal aunt and the maternal uncle, and the paternal aunt and the paternal uncle.

On May 3, 2010, the juvenile court entered an order finding the children dependent. The juvenile court awarded custody of the children to the paternal aunt, awarded the brother “liberal” visitation with the children, and awarded the maternal aunt and the maternal uncle specific visitation with the children, including; 4 days during Thanksgiving holidays in even-numbered years; 1 week during Christmas holidays; 3 consecutive weeks during the summer; every weekend that the children have the following Monday off of school; and any time the maternal aunt and the maternal uncle were in Anniston for two consecutive days, provided they give the paternal aunt 48 hours notice of the visit. The juvenile court also ordered DHR “to supervise for a period of ... 12 months from the date of entry of this [ojrder,” and it held that “DHR shall provide counseling and all other services as may be necessary.” The juvenile court, in its judgment, required the paternal aunt to

“keep the child[ren] in the school of [her] choosing, but because th[e] child[ren are] accustomed to going to a public school and being involved in both classes with other non-related children and in public school related extracurricular activities, the [paternal aunt] shall not home school th[e] children] for a minimum of one full school year in order to provide the children] with as much normalcy as possible, due to the turmoil the childfren] ha[ve] endured.”

The paternal aunt subsequently filed a motion to alter, amend, or vacate the judgment pursuant to Rule 59, Ala. R. Civ. P. In her motion, the paternal aunt argued that the juvenile court’s judgment required her to keep the children in public school for one year, and she argued that such a provision was “unconstitutional as it takes away the custodial guardian’s right to direct the upbringing and education for the ... children under her control.” She also argued that the provision in the judgment that ordered DHR to supervise the custodial arrangement for one year was “invalid and unconstitutional as it places undue state interference into the life of a fit custodial guardian.” Finally, the paternal aunt argued that the visitation award to the maternal aunt and the maternal uncle was invalid because the maternal aunt and the maternal uncle had not requested an award of' visitation with the children, because there is no law that allows for visitation by an aunt and an uncle, and because the maternal aunt and the maternal uncle lacked standing to assert visitation rights with the children. The juvenile court denied the paternal aunt’s postjudgment motion. The paternal aunt and the paternal uncle timely appealed; because the juvenile court awarded custody solely to the paternal aunt, we will address the appellants’ arguments as they relate to the paternal aunt.

On appeal, the paternal aunt raises three issues for this court’s review, which she frames as follows: (1) whether the provision in the judgment that, she alleges, requires her to keep the children in public school for one year is unconstitutional; (2) whether the provision in the judgment that ordered DHR to supervise the custodial arrangement for one year is unconstitutional; and (3) whether the provision in the judgment allowing the maternal aunt and the maternal uncle visitation with the children was error.

Regarding the paternal aunt’s first argument — that the juvenile court’s judgment is unconstitutional because it requires her to keep the children in public school for one year — we note that the juvenile court’s judgment does not, in fact, require the paternal aunt to keep the children in public school for one year. The judgment specifically states that the paternal aunt may place the children in the school of her choosing but that, because of the emotional turmoil the children had experienced since the deaths of their parents, the paternal aunt could not homeschool the children for one year. At the trial in this matter, the paternal aunt stated that the children were excelling in public school and that she did not intend to homeschool the children. However, she did testify that she would like to enroll the children in a private school. Nothing in the juvenile court’s judgment prohibits the paternal aunt from enrolling the children in private school. Accordingly, because there is no provision in the juvenile court’s judgment that requires the paternal aunt to keep the children in public school for one year, the paternal aunt’s argument that such a provision is unconstitutional is not properly before this court.

Next, the paternal aunt argues that the requirement in the juvenile court’s judgment that DHR supervise the custodial arrangement for one year is unconstitutional because it places undue state interference into the life of a fit custodial guardian. In support of her argument, the paternal aunt cites several general propositions of law from United States Supreme Court opinions such as Troxel v. Granville, 580 U.S. 57, 72-73, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (“[T]he Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made.”), and Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944) (“It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”). The paternal aunt argues that the evidence in the record reflected that she was a fit custodian and that, in the absence of evidence indicating that she was unfit, the juvenile court violated her constitutional rights by requiring DHR to maintain a supervisory role in the case.

However, the paternal aunt has not clearly set forth the constitutional right that she allegedly possesses that would prohibit a juvenile court in a dependency action from requiring DHR to maintain a supervisory role for one year after the disposition of the custody of the children. Furthermore, the paternal aunt has failed to apply the general propositions of law cited in her brief in a manner that would demonstrate that the juvenile court violated her constitutional rights. See Beachcroft Props., LLP v. City of Alabaster, 901 So.2d 703, 708 (Ala.2004) (“Authority supporting only ‘general propositions of law does not constitute a sufficient argument for reversal.”); and Elliott v. Bud’s Truck & Auto Repair, 656 So.2d 837, 838 (Ala.Civ.App.1995) (citing Liberty Loan Corp. of Gadsden v. Williams, 406 So.2d 988 (Ala.Civ.App.1981)) (“This court does not presume error. In order for this court to consider an error asserted on appeal, that error must be affirmatively demonstrated by the record.”). Accordingly, we affirm that part of the juvenile court’s judgment that ordered DHR to supervise the custodial arrangement for one year following the entry of the judgment.

Finally, the paternal aunt argues that the juvenile court’s award of visitation to the maternal aunt and the maternal uncle is error for several reasons: (1) because the maternal aunt and the maternal uncle did not seek visitation with the children as a form of alternate relief; (2) because there is no statutory basis for an award of visitation to an aunt and uncle; (3) because the maternal aunt and the maternal uncle lacked standing to petition for visitation with the children; and (4) because the amount of visitation awarded to the maternal aunt and the maternal uncle is contrary to the best interests of the children.

Regarding the paternal aunt’s first assertion of error regarding the award of visitation to the maternal aunt and the maternal uncle, the paternal aunt’s argument consists of two sentences that state that the maternal aunt and the maternal uncle did not file a petition for visitation and that they did not ask for visitation during the final hearing. The paternal aunt wholly fails to cite any authority to support her argument that the award of visitation should be reversed on those grounds. Accordingly, we will not address that argument. See Rule 28(a)(10), Ala. R.App. P.; and Watson v. Whittington Real Estate, LLC, 16 So.3d 802, 809 (Ala.Civ.App.2009) (when the appellant failed to cite any legal authority to support a particular issue raised on appeal, this court held that the “issue presented] no ground upon which we may reverse the trial court’s judgment”).

We will consider the paternal aunt’s argument that there is no law that allows the maternal aunt and the maternal uncle to seek visitation with the children with the paternal aunt’s argument that the maternal aunt and the maternal uncle lacked standing to petition for visitation with the children. We agree that the Alabama Legislature has not provided aunts and uncles a statutory right to an award of visitation with a niece or nephew in a typical custody proceeding. However, this case stems from a dependency proceeding, not a custody proceeding. In J.S.M. v. P.J., 902 So.2d 89 (Ala.Civ.App.2004), this court upheld an award of visitation to a nonparent who had filed a dependency petition seeking custody of the child, without specifically seeking an award of visitation, based in part on the authority of former § 12-15-71 (a)(4), Ala.Code 1975, which authorized a juvenile court, after adjudicating a child to be dependent, to “[m]ake any other order as the court in its discretion shall deem to be for the welfare and best interests of the child.” Although § 12-15-71(a)(4) was repealed by the Alabama Juvenile Justice Act (“the AJJA”), § 12-15-101 et seq., Ala.Code 1975, and renumbered in the AJJA at § 12-15-314(a)(4), Ala. Code 1975, effective January 1, 2009, see Act No. 2008-277, Ala. Acts 2008, § 12-15-314(a)(4) is nearly identical to former § 12-15-71(a)(4). See § 12-15-314(a)(4) (allowing a juvenile court, after adjudicating a child dependent, to “[m]ake any other order as the juvenile court in its discretion shall deem to be for the welfare and best interests of the child”). In J.S.M., this court held that an award of visitation to the nonparent was appropriate after the child was adjudicated dependent “if the [juvenile] court determined such an award to be in the child’s best interests.” 902 So.2d at 95. Accordingly, we conclude that, pursuant to § 12-15-314(a)(4), the juvenile court could have awarded the maternal aunt and the maternal uncle visitation with the children if the juvenile court determined that such an award was in the best interests of the children.

Therefore, we will now consider the paternal aunt’s final argument that the record did not support a determination that an award of visitation to the maternal aunt and the maternal uncle was in the best interests of the children.

The record on appeal reveals the following. The maternal aunt and the maternal uncle live in Florala, Alabama, which is approximately four hours from the children’s home in Anniston. The maternal aunt admitted that her family was not “close-knit” and that all of her sisters, including a sister that lived near the children, had “serious problems.” The evidence indicated that, at the time of the mother’s and the father’s deaths, the maternal aunt had met the children, who were approximately 8 years old and 10 years old, only on 1 prior occasion, approximately 3 months before the mother and the father died. The maternal uncle admitted that he did not meet the children until after the mother and the father died. However, the record indicated that the maternal aunt and the maternal uncle had been able to develop a relationship with the children during three visits arranged by Donna Crow, the children’s counselor, and DHR. In its judgment, the juvenile court found that the maternal aunt and the maternal uncle “clearly love” the children and desire a relationship with them. That finding is supported by the evidence. The record indicates that DHR approved the home of the maternal aunt and the maternal uncle and that DHR had no safety concerns regarding them home.

Crow testified that she had recommended that visitation betwéen the children and the maternal aunt and the maternal uncle be suspended after their third visit based on unspecified allegations made by the children. The maternal aunt and the maternal uncle testified that they had learned that them visits with the children had been suspended the day before trial, and the maternal uncle stated that he was flabbergasted that their visitation had been suspended because he thought the visits had gone exceptionally well. Both the maternal aunt and the maternal uncle denied making any negative remarks about the paternal aunt during their visits with the children.

However, Crow testified that the children could resume visitation with the maternal aunt and the maternal uncle once the children felt that they were not going to be taken from the paternal aunt’s home. Crow recommended that visits begin at her office and move to the paternal aunt’s home, where the children could see the paternal aunt and the maternal aunt and the maternal uncle being friendly to one another. Although the record indicated that there were communication issues between the paternal aunt and the maternal aunt and the maternal uncle, the paternal aunt testified that she had no problem with the maternal aunt or the maternal uncle and that, if she were awarded custody, she would “open her doors” to the maternal aunt and the maternal uncle. The maternal aunt stated that, if she was not awarded custody of the children, she would like as much visitation with the children as the paternal aunt would allow. The paternal aunt testified that she supported the children’s having a relationship with the maternal aunt and the maternal uncle. The guardian ad litem of the children also stated that she hoped that the maternal aunt and the maternal uncle could become part of the children’s lives.

This court’s standard of reviewing visitation awards in a dependency action is well settled.

“In awarding visitation rights relating to the disposition of a ‘dependent child’ pursuant to [former] § 12-15-71(a) [repealed by the AJJA and replaced by § 12-15-314(a) ], the trial court is guided by the ‘best interests of the child’ standard. See [former] § 12-15-71(a)(4) [repealed by the AJJA and replaced by § 12-15-314(a)(4) ] (‘If a child is found to be dependent, the court may make any of the following orders of disposition to protect the welfare of the child: ... (4) Make any ... order as the court in its discretion shall deem to be for the welfare and best interests of the child.’).
“ ‘ “ ‘The determination of proper visitation ... is within the sound discretion of the trial court, and that court’s determination should not be reversed absent a showing of an abuse of discretion.’ Ex parte Bland, 796 So.2d 340 (Ala.2000). ‘[C]ases in Alabama have consistently held that the primary consideration in setting visitation rights is the best interests and welfare of the child. Furthermore, each child visitation case must be decided on its own facts and circumstances.’ Fanning v. Fanning, 504 So.2d 737, 739 (Ala.Civ.App.1987) (citations omitted). ‘When the issue of visitation is determined after oral proceedings, the trial court’s determination of the issue will not be disturbed absent an abuse of discretion or a showing that it is plainly in error. Andrews v. Andrews, 520 So.2d 512 (Ala.Civ.App.1987).’ Dominick v. Dominick, 622 So.2d 402, 403 (Ala.Civ.App.1993).”
“‘K.L.U. v. M.C., 809 So.2d 837, 840-41 (Ala.Civ.App.2001).’
“K.L.R. v. L.C.R., 854 So.2d [124,] 132 [ (Ala.Civ.App.2003) ].”

K.B. v. Cleburne County Dep’t of Human Res., 897 So.2d 379, 387-88 (Ala.Civ.App.2004).

Based on our review of the réc-ord, we cannot conclude that the juvenile court exceeded its discretion by awarding the maternal aunt and the maternal uncle visitation with the children. Although it was undisputed that the children did not have a close relationship with the maternal aunt or the maternal uncle before the mother and the father died, the juvenile court could have concluded, especially in light of the maternal aunt’s testimony that her sister that lived near the children had serious problems, that it was in the best interests of the children to maintain ties to their deceased mother’s family through visitation with the maternal aunt and the maternal uncle.

The paternal aunt also argues that the amount of visitation awarded to the maternal aunt and the maternal uncle was error because it was contrary to Crow’s recommendation that visitation begin in an environment where the children felt safe. Although the juvenile court awarded the maternal aunt and the maternal uncle considerable visitation with the children, the juvenile court included in its judgment certain provisions to protect the best interests of the children that indicate that Crow’s recommendations were adequately considered. For example, the juvenile court ordered that Crow begin working with the children to prepare them for visitation with the maternal aunt and the maternal uncle and that visitation with the maternal aunt and the maternal uncle was not to begin until the children were adequately prepared by Crow. The juvenile court also held that the maternal aunt and the maternal uncle shall participate in counseling if Crow recommended that they do so before visitation with the children began again. Therefore, we cannot conclude that the visitation awarded to the maternal aunt and the maternal uncle was contrary to the recommendation made by Crow.

Accordingly, we conclude that the judgment of the juvenile court is due to be affirmed.

AFFIRMED.

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

BRYAN, J., concurs specially.

MOORE, J., concurs in part and dissents in part, with writing.

BRYAN, Judge,

concurring specially.

Although not necessary to the determination of the appeal filed by D.B. (“the paternal aunt”) and J.R.B. (“the paternal uncle”), I write specially to address the first argument raised in their brief on appeal, that the juvenile court unconstitutionally limited the paternal aunt’s right to direct the education of C.J.H. and S.H. (collectively referred to hereinafter as “the children”).

The paternal aunt, citing Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), argues that parents are afforded a fundamental right to educate their children in the way they see fit. The paternal aunt further argues, citing Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), that the “doctrine of parental rights” applies to guardians and custodians.

In Meyer, the United States Supreme Court held that parents, pursuant to their liberty interest under the Fourteenth Amendment to the United States Constitution, have a right to control and direct the education of their children. 262 U.S. at 400-01. In Pierce, relying on its holding in Meyer, the United States Supreme Court held that a state statute that required “every parent, guardian, or other person having control or charge or custody of a child between 8 and 16 years to send him ‘to a public school....,’” 268 U.S. at 530, was unconstitutional because it “unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control.” 268 U.S. at 534-35 (emphasis added). Based on the above-emphasized language, the paternal aunt argues that she, as the “custodial guardian” of the children, has the same fundamental substantive due-process right to control and direct the education of the children as the biological parents of the children. I disagree.

At the outset of this dependency action, the paternal aunt was a nonparent with no legal rights to the children. Pursuant to the juvenile court’s statutory authority to make a dispositional order regarding custody of the children after they were adjudicated dependent, see § 12-15-314(a), Ala.Code 1975 (setting forth the disposi-tional orders a juvenile court may make after a child is adjudicated dependent), the juvenile court transferred legal custody of the children from the Calhoun County Department of Human Resources to the paternal aunt. In Alabama, juvenile proceedings are conducted pursuant to the Alabama Juvenile Justice Act (“the AJJA”), codified at § 12-15-101 et seq., Ala.Code 1975. The AJJA defines “legal custody” as

“[a] legal status created by order of the juvenile court which vests in a legal custodian[] the right to have physical custody of a child under the jurisdiction of the juvenile court pursuant to this chapter and the right and duty to protect, train, and discipline the child and to provide the child with food, shelter, clothing, education, and medical care, all subject to the powers, rights, duties, and responsibilities of the legal guardian of the person of the child and subject to any residual parental rights and responsibilities. A parent, person, agency, or department granted legal custody shall exercise the rights and responsibilities personally, unless otherwise restricted by the juvenile court.”

§ 12-15-102(16), Ala.Code 1975 (emphasis added).

Thus, the AJJA explicitly states that the rights and responsibilities of a legal custodian may be restricted by the juvenile court. Regarding the children, the only rights the paternal aunt obtained were given to her pursuant to the juvenile court’s statutory authority to make a dispositional order after a finding of dependency; in doing so, the juvenile court limited the paternal aunt’s right to provide education to the children by limiting the paternal aunt’s choice of education for the children in a manner that would, as stated by the juvenile court in its judgment, “provide the child[ren] with as much normalcy as possible, due to the turmoil the child[ren] ha[ve] endured.”

The paternal aunt, in her brief on appeal, has not addressed the fact that the juvenile court had authority to confer restricted rights to her as a legal custodian, and she has not otherwise challenged the constitutionality of any part of the AJJA. In short, the paternal aunt has presented this court with no authority that would support her argument that she, as a legal custodian with limited rights conferred by the juvenile court, has the same inherent, fundamental constitutional right as a biological parent to direct the education of the children. Therefore, based on the argument presented by the paternal aunt, I conclude that that part of the juvenile court’s judgment that temporarily limited the paternal aunt’s choice of education for the children did no,t violate the paternal aunt’s constitutional rights.

MOORE, Judge,

concurring in part and dissenting in part.

D.B. and J.R.B. (“the custodians”), who are the paternal aunt and uncle of S.H. and C.J.H. (“the children”), appeal from the May 3, 2010, judgment entered by the Calhoun Juvenile Court (“the juvenile court”) on three separate grounds. First, the custodians argue that the judgment unconstitutionally requires them to maintain the children in public school. Second, the custodians argue that the judgment unconstitutionally subjects them to monitoring by the Calhoun County Department of Human Resources (“DHR”). Third, the custodians argue that the juvenile court erred in awarding K.B. and L.B., Jr. (“the maternal aunt and uncle”), visitation with the children.

I agree with the main opinion that the custodians have misinterpreted the judgment in regard to the education of the children. The judgment specifies that the custodians may enroll the children in any school of their choosing but that they are precluded from homeschooling the children for one year. The judgment does not require the custodians to continue to enroll the children in public school. Hence, the issue whether a juvenile court can constitutionally include such a limitation in a judgment awarding a relative custody of a dependent child is not before this court. Therefore, I fully concur with the decision not to address the constitutional issue raised by the custodians, and I do not express any opinion regarding the correctness of any of the legal principles espoused in Judge Bryan’s special concurrence.

I disagree with the main opinion’s treatment of the custodians’ second issue. In their brief to this court, the custodians argue that American families have a constitutional right to be free of undue state interference; that, because they are fit parents, the state has no basis for interfering with their family; and that the provision in the judgment requiring DHR to supervise their family for one year violates that right by subjecting the custodians’ child-rearing decisions to state oversight. In my opinion, that argument, which is supported by appropriate caselaw citations, sufficiently advises this court of the nature of the error that the custodians allege the juvenile court committed so that we should address it.

Furthermore, I agree with every premise of the custodians’ argument. The Supreme Court of the United States has recognized that a relative, who assumes an in loco parentis role due to the death or absence of a child’s natural parent, has a fundamental right to be free from undue state interference with that familial relationship. See Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977). State interference with a family may be justified in order to protect a child from harm, see E.H.G. v. E.R.G., [Ms. 2071061, March 12, 2010] — So.3d —, — (Ala.Civ.App.2010), but, in the absence of such a compelling justification, the state has no authority to oversee the child-rearing decisions of a fit custodian. Id. The juvenile court, by placing the children in the “permanent” custody of the custodians, impliedly found that the custodians were fit, willing, and able to receive and care for the children. See Ala.Code 1975, § 12-15-314(a)(3)c. The record contains no evidence indicating that the children have been, or probably will be, subjected to harm by the custodians. The children in this case were rendered dependent by the deaths of their parents, but their dependency ended once the juvenile court awarded their “permanent” custody to the custodians. S.P. v. E.T., 957 So.2d 1127, 1131 (Ala.Civ.App.2005) (holding that dependency ends when “the child has a proper custodian ‘and ’ is no longer ‘in need of care or supervision’ by persons other than the custodian”). The juvenile court cannot seize on the children’s former dependent status as grounds for maintaining unnecessary state oversight. In short, the juvenile court had no rational basis, much less a compelling reason, for ordering DHR to supervise the family, and its judgment subjecting the family to such supervision violates the constitutional rights of the custodians.

As to the custodians’ third argument, the record shows that, during the trial, the parties raised the issue of the visitation rights of the maternal aunt and uncle without objection, so I do not believe the juvenile court erred in addressing that issue in its judgment based on the ground that it was not properly pleaded. See Rule 15, Ala. R. Civ. P. I also agree that this court, in J.S.M. v. P.J., 902 So.2d 89 (Ala.Civ.App.2004), construed former Ala.Code 1975, § 12 — 15—71(a)(4), as authorizing a juvenile court to award visitation to a non-parent when such visitation is in the best interests of a dependent child, and that the reasoning in J.S.M. applies equally to current Ala.Code 1975, § 12-15-314(a)(4), which is similarly worded. However, as set out above, I cannot agree that the children in this case remain dependent children, and, even if they were, I cannot agree that the juvenile court had sufficient evidence before it to find that visitation with the maternal aunt and uncle served the best interests of the children.

In J.S.M., the 14-year-old child at issue had lived with the nonrelative since he was 4 months old. The child referred to the nonrelative as his “mother,” and it appears that she had fulfilled that role for the child throughout his childhood. After the father in J.S.M. removed the child from the non-relative’s home, the nonrelative filed a dependency petition. At the trial, the child testified that he wanted to continue to see the nonrelative as much as possible and that he did not believe the father would voluntarily allow him to interact with the nonrelative, so he had been sneaking out of the father’s home to contact the nonrela-tive. Under those circumstances, the juvenile court found that it would be in the best interests of the child to have court-ordered visitation with the person who had stood in loco parentis to the child for much of the life of the child.

In this case, on the other hand, before the deaths of the parents, the children, who were ages 10 and 8 at the time, had seen their maternal aunt only once or twice for a brief period, and they had never met the maternal uncle. The maternal aunt testified that she had not enjoyed a close-knit relationship with the maternal family for many years. The children’s older brother testified that the maternal aunt and uncle sometimes visited the children’s maternal grandmother, who lived nearby, but that they had never come by the home of the parents to see the children. After the death of the parents, the maternal aunt and uncle decided that they would offer themselves as potential custodians for the children, so they were allowed to visit with the children in order to forge a relationship with them. After the third visit, the children’s counselor, responding to information provided by the children that the visit had distressed them, recommended that the visitation cease. By the time of trial, the maternal aunt and uncle, who denied any wrongdoing, had not seen the children since that third visit.

It is clear from the record that the maternal aunt and uncle have no past relationship with the children similar to that of the nonrelative in J.S.M. Thus, the juvenile court could not have determined that it would be in the best interests of the children to preserve that relationship. Likewise, based on the evidence in the record, the juvenile court could not have determined that it would be in the best interests of the children to forge a new relationship with the maternal aunt and uncle through visitation. The record simply contains no evidence as to any benefit the children would gain from such visitation. The main opinion hypothesizes that the children would benefit by maintaining contact with the maternal side of their family through the court-ordered visitation. I note that the record contains no evidence indicating that such contact would necessarily benefit the children. Some evidence, including the testimony of the maternal aunt herself, indicates that the children would be better off not having any contact with some maternal relatives. Nevertheless, even if it could be inferred that it would be beneficial to the children to have some contact with the maternal family, the record shows that other maternal relatives who live closer to the children could serve that purpose. Not to disparage the maternal aunt and uncle, who appear to be very compassionate people acting with the best of intentions toward the victims of an unexpected and horrendous tragedy, but it appears that the visitation provisions are intended to benefit them, not the children.

In her testimony, the paternal aunt testified that she would allow the maternal aunt and uncle to visit with the children in her home at appropriate times and that she would not discourage any relationship between the maternal aunt and uncle and the children. Rather than awarding the maternal aunt and uncle 42 days of visitation out of every year, which is at least 21 times the amount of visitation they enjoyed with the children during the children’s entire lives before the deaths of the parents, the juvenile court should have left visitation to the discretion of the custodians, who, presumably, will act in the best interests of the children in deciding visitation. See Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). I would reverse the judgment of the juvenile court to the extent it awarded the maternal aunt and uncle visitation beyond those parameters.

      . The juvenile court’s order awarded custody solely to the paternal aunt; the juvenile court did not mention the paternal uncle in its custody award.

      . The paternal uncle did not join in the post-judgment motion.

      . The paternal uncle is listed as an appellant. However, as noted earlier, the juvenile court did not award custody to the paternal uncle. See supra note 1. We do not address whether the paternal uncle has standing to appeal.

      . We note that none of the cases relied on by Judge Moore in his dissent as to this issue, in which he asserts that the judgment of the juvenile court should be reversed as to this issue, are cited by the paternal aunt in her brief to this court. Our caselaw creates no exception for addressing constitutional arguments that are supported only by general propositions of law. See Limbaugh v. Limbaugh, 574 So.2d 804, 805 (Ala.Civ.App.1990) (affirming judgment of the trial court when the husband's general propositions of law cited regarding due process and civil rights were "not cited in such a way as to support the husband’s contention of error on appeal”). Reversing the judgment of the juvenile court based on arguments that are not contained in the paternal aunt’s brief on appeal unfairly penalizes the appellees by denying them an opportunity to respond to those arguments. Although none of the appellees filed an appellate brief with this court, we cannot assume that they would not have done so had the paternal aunt properly argued the constitutional issues raised in her brief.
      Furthermore, we conclude that the juvenile court had the authority to order DHR to supervise the custodial arrangement for one year under the provisions of § 12-15-314(a)(4), Ala.Code 1975. Because of the contentious nature of these proceedings, which was a direct result of the manner of the mother’s death, the juvenile court could have concluded that the best interests of the children would be served by allowing DHR to maintain a supervisory role of the custodial arrangement for a definite period. See S.P. v. E.T., 957 So.2d 1127, 1133 (Ala.Civ.App.2005) (discussing the applicable custody-modification standard in ongoing dependency cases and stating that "it is not uncommon for a juvenile court to require that DHR remain involved in a case for various reasons and at various levels after the entry of a 'final' dispo-sitional order” in order to further the best interest of a dependent child).

      . We reject any assertion made by Judge Moore in his dissent as to this issue that the paternal aunt set forth an argument in her brief that the visitation provisions violate her constitutional right to decide visitation matters for the children. No such assertion is made by the paternal aunt in her brief on appeal. We can only assume that he considers two quotations taken from Troxel v. Granville, 530 U.S. at 72-73 and 78, with no argument whatsoever regarding the constitutionality of the award of visitation, as an "argument” sufficient to merit our consideration.

      . Although a dispositional custody award was entered, the juvenile court had authority to enter the custody award only because it determined that the children were dependent. See § 12-15-310, Ala.Code 1975 (if a juvenile court finds that a dependency petition has not been proven by clear and convincing evidence, the juvenile court must dismiss the petition).

      . It is not for this court to determine whether visitation with the maternal aunt and the maternal uncle is in the best interests of the children. The court is limited to reviewing whether a juvenile court exceeded its discretion by determining that an award of visitation was in the best interests of the children. See K.B. v. Cleburne County Dep’t of Human Res., 897 So.2d 379, 387-88 (Ala.Civ.App.2004).

      . See note 1 and note 3 in the main opinion.

      . The AJJA defines "legal custodian” in § 12-15-102(15), Ala.Code 1975, as
      “[a] parent, person, agency, or department to whom legal custody of a child under the jurisdiction of the juvenile court pursuant to this chapter has been awarded by order of the juvenile court or other court of competent jurisdiction.”

      . The main opinion criticizes this writing for relying on cases not cited by the custodians in their brief; however, an appellate court addresses legal arguments, not legal citations. The custodians argued that, as a matter of constitutional law, they are entitled to be free of DHR’s supervision absent proof that the children would otherwise be subjected to harm. That this writer cited different cases than those cited by the custodians does not in any way alter that argument. The appellees were fully apprised of the issue, both through the postjudgment motion filed by D.B. in the juvenile court as well as through the custodians' brief filed in this court. I cannot agree that, had the custodians cited Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977), and E.H.G. v. E.R.G., [Ms. 2071061, March 12, 2010] — So.3d — (Ala.Civ.App.2010), the appellees would have responded any differently than they did.

      . Previously, I have argued that a child whose parent or parents die is not dependent when the child remains under the proper care and supervision of relatives. See T.T.T. v. R.H., 999 So.2d 544, 560-61 (Ala.Civ.App.2008) (Moore, J., dissenting). In this case, after the deaths of the parents, the children were immediately placed with the custodians and have remained in their proper care and supervision ever since. According to my reasoning in T.T.T., the children would not have been considered dependent. However, since T.T.T. was decided, our supreme court has issued Ex parte L.E.O., 61 So.3d 1042 (Ala.2010), which has redefined dependency so as to make dependent any child who is not receiving proper care and supervision from the persons legally obligated to provide it. So, at least as the state of the law currently stands, the children were rendered dependent by the deaths of their parents, and the juvenile court properly accepted the stipulation of the parties that the children were dependent.

      . I do not agree with the main opinion that the evidence shows that DHR’s services are needed in order to protect the children from any contentious relationship between the maternal and paternal sides of the family. 67 So.3d at 118 n. 4. First, the evidence does not reveal any ongoing tension between the two sides of the children’s families that threatens the safety or welfare of the children. The evidence shows only that, immediately following the deaths of the mother and the father, some members of the maternal side of the family exhibited anger toward the father for killing the mother. Although, at that time, some members of the maternal family suggested that the children would be best served by being in their custody, the only maternal relatives who subsequently sought custody, the maternal aunt and uncle, did so through appropriate judicial means. The record contains no evidence indicating that anyone violated the pendente lite custody award entered by the juvenile court, which awarded custody of the children to the custodians, or that anyone would violate the final custody judgment. The record also contains no evidence of any dangerous interaction between the two sides of the family since the custodians had been keeping the children. Even if the custody dispute could be characterized as "contentious,” which could probably describe practically any child-custody dispute, it has not elevated to the level that the safety of the children has been threatened. Second, should any threat to the children from family tensions arise, that threat can be ameliorated through appropriate protection-from-abuse or other orders addressed toward that specific threat without DHR’s intervention. Third, I am unaware of any authority that empowers DHR to perform monitoring on a family absent evidence of past harm or the threat of imminent harm to the children that the guardian of the child lacks the protective capacity to prevent. The record contains no evidence indicating that the custodians cannot act to adequately and lawfully protect the children.
      The main opinion creates a dangerous precedent by recognizing that a juvenile court can order a family to be monitored by DHR solely because two sides of the family may not get along. Family tension is simply not a sufficient legal ground to justify state oversight over children. If this order is allowed, a juvenile court concerned for the safety of any child for any hypothetical or tenuous reason could, presumably, require constant monitoring of any family. Arguably, all children are jeopardized by some remote threat of harm that constant state monitoring could prevent. However, our constitution, which prizes the sanctity and independence of the family, does not allow such undue state interference. I fear the main opinion may be used as legal authority to allow even further unwarranted and unconstitutional judicial and executive intrusion into family affairs.

      . The juvenile court did not state its reasons for awarding the visitation.

      . A juvenile court, like any other court, would exceed its discretion by awarding visitation that does not serve the best interests of the children. A decision that visitation serves the best interests of the children must be based on the evidence in the record. On appellate review, this court determines if the evidence is sufficient to sustain the judgment. It is not improper for this court to determine that the record lacks any evidence to support a finding that visitation would serve the best interests of the children. Thus, by concluding that the evidence does not support the visitation order entered by the juvenile court in this case, the court would not be usurping the role of that court, as the main opinion suggests. 67 So.3d at 121 n. 7.

      . As our supreme court explained in Ex parte Devine, 398 So.2d 686 (Ala.1981), the determination of what is in the best interests of a child must be based on the specific facts of each case, and general social attitudes may not be used as surrogates for that thorough factual inquiry. Thus, the juvenile court would have had to infer from the evidence relating to this specific case that it would be in the best interests of the children to maintain contact with their maternal family. The juvenile court could not have based its decision on any general attitude that contact with both sides of the family always serves the best interests of a child.

      . The main opinion points out that the maternal aunt testified that her sisters that lived close to the children had "serious” problems. 67 So.3d at 121. However, no adverse evidence was presented as to other maternal relatives, such as the maternal grandmother, who lived near the children.

      . For that reason, I would not address the custodians’ argument, to the extent made, that the visitation provisions of the judgment violate their constitutional right to decide visitation matters for the children. Because I am not addressing that issue, I see no need to respond in detail to the main opinion’s implication that the argument fails to comply with Rule 28, Ala. R.App. P. 67 So.3d at 119 n. 5. Suffice it to say that reasonable minds could differ on that point and that this court has in the past exercised its discretion to consider issues based on far less content.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    P.D. v. S.S.
    2090301.
    Court of Civil Appeals of Alabama.
    Jan. 21, 2011.

      Andriette W. Rowell, Legal Services Alabama, Opelika, for appellant.
    Thomas H. Claunch III of Harding & Claunch, LLC, Montgomery, for appellee.
   PITTMAN, Judge.

P.D. (“the mother”) appeals from a judgment of the Montgomery Juvenile Court awarding custody of her children (collectively, “the children”), born of the marriage to her former husband (“the father”), to S.S., the father’s sister (“the aunt”).

In March 2009, about a month after the death of the father, the aunt petitioned to have the children declared dependent and sought custody of the children. Additionally, the aunt filed an ex parte motion seeking temporary custody of the children (“the ex parte motion”). The juvenile court granted the ex parte motion pending a hearing on the dependency and custody petitions, which was thereafter held in October 2009.

In a judgment, dated October 23, 2009, the juvenile court found that the children were dependent, awarded custody of the children to the aunt, and granted visitation rights to the mother, the terms of which were to be decided and agreed upon by the parties. That order also provided that the mother’s visits were to be supervised by the aunt or by another person approved by the aunt. In response, the mother timely filed a postjudgment motion to alter, amend, or vacate that judgment on November 6, 2009, to which the aunt and the children’s guardian ad litem responded in opposition. The mother then filed, pursuant to Rule 59.1, Ala. R. Civ. P., a notice of the parties’ express agreement to extend until December 1, 2009, the time for a ruling on the postjudgment motion. The juvenile court heard arguments on the mother’s postjudgment motion on December 1, 2009, but it did not expressly rule on that motion by the end of that day. On December 8, 2009, the juvenile court purported to amend its previous judgment to provide that the mother should have supervised visitation with the children, at a minimum, from Saturday at 12 p.m. until Sunday at 5 p.m. during the third weekend of each month and that the mother’s visitation could be increased or changed upon agreement of the parties. The mother thereafter timely appealed, and the juvenile court judge certified the record as adequate for appellate review. See Rule 28(A), Ala. R. Juv. P.

The mother raises three issues on appeal. First, the mother contends that the juvenile court erred in awarding custody of the children to the aunt. Second, the mother asks this court to address whether her postjudgment motion was denied by operation of law so as to render void the juvenile court’s order purporting to amend the judgment. Third, the mother argues that the juvenile court erred in requiring that her visitation be supervised by, and in requiring visitation to occur at the discretion of, the aunt.

We begin by addressing the mother’s first argument that the juvenile court erred in awarding custody of the children to the aunt. In support of that argument, the mother asserts that the juvenile court erred for three reasons: 1) the mother’s parental rights were, she says, incorrectly “terminated” without the juvenile court’s having first found her to be an unfit parent; 2) the award of custody to a nonpar-ent was improper because the juvenile court had not first found the mother to be an unfit parent; and 3) assuming that the award of custody to the aunt was based on a determination that the children were dependent, that determination would necessarily be incorrect because, the mother says, the aunt did not prove dependency.

The mother initially asserts that the juvenile court terminated her parental rights without first finding that she was an unfit parent. However, that assertion is based on the mother’s apparent misunderstanding of the juvenile court’s decision. The juvenile court did not terminate the mother’s parental rights; instead, it concluded that the children were dependent. The trial transcript reveals that the juvenile court judge, during the hearing on the mother’s postjudgment motion, expressly indicated that the mother’s parental rights had not been terminated, stating that the judge disagreed with the notion that, “if children are placed with third parties, there [must] necessarily be a finding of unfitness against the natural parent” because, in the juvenile court’s view, such a finding of unfitness “removes from a natural parent any viable possibility to make changes in ... circumstances to be reunited with the child.” In fact, the mother, in her brief to this court, cites that statement in support of her contention that the juvenile court did not find the mother to be unfit. However, the mother’s reference to that statement demonstrates her apparent misapprehension of the juvenile court’s determination that the children were dependent, a determination that entails a much less severe outcome for the mother than would a termination of her parental rights. Thus, the mother’s argument that the juvenile court failed to satisfy a prerequisite of finding unfitness before terminating her parental rights (which did not occur) is factually unsound.

The mother next contends that, because the juvenile court did not find the mother unfit, custody should not have been awarded to the aunt, a nonparent, based on Ex parte Terry, 494 So.2d 628, 632 (Ala.1986), which case governs custody disputes between parents and nonparents. In Terry, the court stated:

“‘The prima facie right of a natural parent to the custody of his or her child, as against the right of custody in a nonparent, is grounded in the common law concept that the primary parental right of custody is in the best interest and welfare of the child as a matter of law. So strong is this presumption, absent a showing of voluntary forfeiture of that right, that it can be overcome only by a finding, supported by competent evidence, that the parent seeking custody is guilty of such misconduct or neglect to a degree which renders that parent an unfit and improper person to be entrusted with the care and upbringing of the child in question. Hanlon v. Mooney, 407 So.2d 559 (Ala.1981).’ ”

494 So.2d at 632 (quoting Ex parte Mathews, 428 So.2d 58, 59 (Ala.1983)). Terry applies in child-custody disputes between a parent and nonparent; it does not apply if the child or children, the custody of whom is disputed, have been found to be dependent, as is the case here. See W.T.H. v. M.M.M., 915 So.2d 64, 70 (Ala.Civ.App.2005) (discussing the abundance of caselaw regarding the distinction between child-custody disputes and the dispositional phase of a dependency proceeding). Therefore, because the juvenile court found the children to be dependent, no finding of unfitness was necessary. See Anonymous v. Anonymous, 504 So.2d 289, 291 (Ala.Civ.App.1986) (stating that a determination that a parent is unfit is unnecessary to award custody to a nonparent after a finding that a child is dependent).

The third ground upon which the mother contends that the juvenile court erred in awarding custody to the aunt is that the juvenile court could not have properly determined that the children were dependent because, the mother says, the aunt did not prove dependency. Under Ala.Code 1975, § 12-15-311(a), a juvenile court’s determination that a child is dependent is to be based on clear and convincing evidence. The mother argues that the juvenile court’s decision was not so supported.

In reviewing a dependency determination made by the juvenile court based upon evidence presented ore tenus, we will not disturb that determination without a showing that it was plainly and palpably wrong. See J.L. v. W.E., 64 So.3d 631, 634-35 (Ala.Civ.App.2010) (quoting L.A.C. v. T.S.C., 8 So.3d 322, 326-27 (Ala.Civ.App.2008)); see also J.B. v. Cleburne County Dep’t of Human Res., 992 So.2d 34, 39-40 (Ala.Civ.App.2008) (quoting Ex parte R.T.S., 771 So.2d 475, 477 (Ala.2000)) (distinguishing between the fact-finding role of the trial court and the standard of appellate review). Applying that standard of review, we address the question whether the juvenile court could have concluded that the children’s dependency had been established by clear and convincing evidence.

“[Cjlear and convincing evidence is

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

J.L., 64 So.3d at 634-35 (quoting L.A.C., 8 So.3d at 326-27, quoting in turn Ala.Code 1975, § 6-11-20(b)(4)).

Under Ala.Code 1975, § 12-15-102(8)a., a “dependent child” is

“[a] child who has been adjudicated dependent by a juvenile court and is in need of care or supervision and meets any of the following circumstances:
“1. Whose parent, legal guardian, legal custodian, or other custodian subjects the child or any other child in the household to abuse, as defined in subdivision (2) of Section 12 — 15—301[,] or neglectf,] as defined in subdivision (4) of Section 12-15-301, or allows the child to be so subjected.
“2. Who is without a parent, legal guardian, or legal custodian willing and able to provide for the care, support, or education of the child.
“3. Whose parent, legal guardian, legal custodian, or other custodian neglects or refuses, when able to do so or when the service is offered without charge, to provide or allow medical, surgical, or other care necessary for the health or well-being of the child.
“4. Whose parent, legal guardian, legal custodian, or other custodian fails, refuses, or neglects to send the child to school in accordance with the terms of the ■ compulsory school attendance laws of this state.
“5. Whose parent, legal guardian, legal custodian, or other custodian has abandoned the child, as defined in subdivision (1) of Section 12-15-301.
“6. Whose parent, legal guardian, legal custodian, or other custodian is unable or unwilling to discharge his or her responsibilities to and for the child.
“7. Who has been placed for care or adoption in violation of the law.
“8. Who, for any other cause, is in need of the care and protection of the state.”

“In determining whether a child is dependent, the juvenile court ‘may consider any competent evidence relevant to the ability or -willingness of the parent to discharge his or her responsibilities to the child....’” J.L., 64 So.3d at 636 (quoting M.E. v. Shelby County Dep’t of Human Res., 972 So.2d 89, 100 (Ala.Civ.App.2007)). To assess whether the juvenile court properly concluded that the children were dependent, we must review the record to determine whether clear and convincing evidence to support a finding of dependency, as defined above, was presented to that court.

The record reveals that the mother and the father had three children: a daughter (“the daughter”), born in July 1995; a son (“the older son”), born in January 1997; and a another son (“the younger son”) born in September 1998. The mother and the father had separated in or around 2005, at which time the family was living in Montgomery. The record shows that the mother and the children lived in Florida from December 2005 until August 2006, at which time they moved back to Montgomery. In February 2009, the father died.

This action arose when the aunt petitioned for a finding of dependency as to, and custody of, the children in March 2009. In the aunt’s petitions and her ex parte motion, she claimed that the children had lived in Florida with her and the father “until he [had died]”; that the children had attended school in Florida until the mother had moved them back to Alabama “without notifying anyone” on the day before the father had died; that, after returning to Alabama, the mother and the children had moved into a hotel room with the mother’s alleged boyfriend who, the aunt claimed, was “a known drug dealer”; that the mother was “unstable” and had allegedly been using drugs because, the aunt claimed, the mother had recently lost weight and had appeared “very hostile and combative”; that the mother’s disabled son, the half brother of the children (“the half brother”), had also been living in the hotel room; that the mother’s only source of income was the half brother’s Social Security benefits; that the mother was wanted for arrest in Montgomery County, in Elmore County, and in Florida; that the Montgomery County Sheriffs office had planned to arrest the mother the following day; that the mother might attempt to flee the area to avoid the warrants for her arrests or “become combative and possibly harm the children to avoid apprehension”; that the mother had a “known gambling problem” and had frequented the local gambling establishments; that the daughter, who, the aunt claimed, was believed to be pregnant, had not been receiving appropriate prenatal care; that the aunt believed that the children were possibly in danger as a result of living with the mother; and that, because the mother had left Florida without notifying anyone, the mother could potentially leave the area and lose contact with the family. The aunt’s ex parte motion was granted by the juvenile court pending a hearing on the matter.

At the ore tenus proceeding, held in October 2009, undisputed evidence indicated that the younger son had missed over 10 days of school, and that the daughter had missed more than 20 days of school, while living with the mother. Further, by the mother’s own testimony, it was revealed that the mother had experienced financial difficulties that had required her to move several times since 2005; the mother testified that, on two occasions, she and the children had lived in hotels. Additionally, the guardian ad litem testified that, although she believed the mother had treated acute medical problems that the children had suffered, she also believed the children had not received proper medical care while living with the mother. She explained that, after having been placed under the custody of the aunt, two of the children had been prescribed glasses. The record further shows that the children never had medical insurance while they lived with their mother. In light of those facts, the juvenile court had ample grounds upon which to adjudicate the children dependent. See Ala.Code 1975, § 12-15-102(8)a.(3) and (4) (providing that a child may be adjudicated dependent when a parent “neglects or refuses” to provide adequate medical care for the child or when a parent “fails, refuses, or neglects” to send the child to school regularly, as compelled to do so under Alabama law).

After a child is determined to be dependent by clear and convincing evidence, a juvenile court may award custody based on what that court determines to be “for the welfare and best interests of the child.” Ala.Code 1975, § 12-15-314(a)(4). The mother has not challenged the juvenile court’s decision that it is in the best interest of the children to be in the custody of the aunt; thus, we refrain from reviewing the custodial disposition.

The mother also challenges the juvenile court’s judgment as to visitation, including whether the juvenile court’s postjudgment order of December 8, 2009, purporting to alter the visitation arrangement is void. The mother argues that the postjudgment order is void because, she contends, it was issued after the expiration of the period within which a juvenile court may rule on a postjudgment motion.

In order to assess the merits of the mother’s arguments, we must determine whether the juvenile court’s judgment dated October 23, 2009, or the juvenile court’s order dated December 8, 2009, is effective, and only then may we determine whether the visitation awarded to the mother was proper.

Rule 1(B), Ala. R. Juv. P., provides, in part, that “[a] postjudgment motion is deemed denied if not ruled on within 14 days of filing.” However, Rule 59.1, Ala. R. Civ. P., which is made applicable to juvenile proceedings under Rule 1, Ala. R. Juv. P., provides that, “with the express consent of all the parties, which consent shall appear of record,” that period may be extended.

The record reveals that, after the final judgment was issued on October 23, 2009, the mother filed a postjudgment motion on November 6, 2009, which was properly filed within 14 days of the entry of the juvenile court’s judgment. See Rule 1, Ala. R. Juv. P. Before the hearing on the mother’s postjudgment motion, the mother filed a notice that all parties had agreed to extend the period within which the juvenile court could expressly rule on the mother’s motion to December 1, 2009. The hearing on the mother’s postjudgment motion was held on that date, during which the juvenile judge stated an intent to amend the judgment to grant the mother supervised visitation on the third weekend of each month in Florida, where the aunt lived, and also to state that visitation could be increased or changed upon the agreement of the parties. However, the juvenile court did not issue a postjudgment order until December 8, 2009, seven days after the December 1, 2009, deadline had expired.

The aunt argues that “it is well settled by case law and the [rjules that” the juvenile court judge’s statements during the hearing on the mother’s post-judgment motion “constitute[ ] an [ojrder from the trial court.” In fact, the opposite is true; Alabama “cases interpreting and implementing Rule 59.1, Ala. R. Civ. P., have made it clear [that] a trial judge can ‘dispose of a pending post-judgment motion only by entering a ruling granting or denying the motion.” Ex parte Chamblee, 899 So.2d 244, 247 (Ala.2004) (first emphasis added). In light of the facts of record, we agree with the mother that the order issued on December 8, 2009, is void.

We next address whether the juvenile court’s award of visitation to the mother in the original judgment was proper. The mother contends that the juvenile court erred in not setting forth a visitation schedule for the mother and in granting only supervised visitation. We address each issue in turn.

In A.M.B. v. R.B.B., 4 So.3d 468 (Ala.Civ.App.2007), we outlined the applicable law governing a trial court’s determination of visitation between a noncustodial parent and his or her children:

“[T]he determination of proper visitation
“‘“is within the sound discretion of the trial court, and that court’s determination should not be reversed by an appellate court absent a showing of an abuse of discretion.” Ex parte Bland, 796 So.2d 340 at 343 [ (Ala.2000) ]. “The primary consideration in setting visitation rights is the best interest of the child. Each child visitation case must be decided on its own facts and circumstances.” DuBois v. DuBois, 714 So.2d 308, 309 (Ala.Civ.App.1998) (citation omitted).’
“Williams v. Williams, 905 So.2d 820, 830 (Ala.Civ.App.2004).
“Although this court recognizes that visitation is a matter left to the sound discretion of the trial court, such discretion is not unbounded. This court has previously held that it is reversible error for a juvenile court to leave the matter of a noncustodial parent’s visitation rights to the sole discretion of a custodial parent or other legal custodian of the child. See, e.g., L.L.M. v. S.F., 919 So.2d 307 (Ala.Civ.App.2005) (reversing a juvenile court’s visitation award that placed the father in control of the mother’s visitation with the child), and K.B. v. Cleburne County Dep’t of Human Res., 897 So.2d 379 (Ala.Civ.App.2004) (reversing a juvenile court’s visitation award that essentially conditioned the mother’s right to visitation with her child upon the consent of the child’s aunt and uncle); see also D.B. v. Madison County Dep’t of Human Res., 937 So.2d 535, 541 (Ala.Civ.App.2006) (plurality opinion reversing a juvenile court’s judgment that made the mother’s visitation ‘ “subject to any conditions and limitations deemed to be necessary and appropriate’” by the child’s great aunt, who was awarded custody of the child).”

4 So.3d at 471-72.

In A.M.B., the juvenile court had awarded the mother supervised visitation as agreed to by the mother and the custodian. We remanded that case to the juvenile court “with instructions to set forth a specific visitation schedule so as to provide for reasonable contact between the mother and the child.” 4 So.3d at 472. Like the judgment at issue in the judgment entered by the juvenile court in this case awarded visitation to the mother “as may be agreed upon by the [aunt] and the mother, provided that such visitation shall be supervised by [the aunt] or such person as may be approved by [the aunt].” Therefore, as we did in A.M.B., we hold that the juvenile court erred in not setting forth a specific visitation schedule, especially because the terms of the mother’s visitation, as set forth in the juvenile court’s judgment, leave open the possibility for the aunt to unilaterally terminate the mother’s visitation altogether. See Bryant v. Bryant, 739 So.2d 53, 56-57 (Ala.Civ.App.1999).

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

We therefore affirm the judgment as to the juvenile court’s determination that the children are dependent. However, we reverse the judgment as to visitation, and we remand this case to the juvenile court with instructions to set forth an unsupervised visitation schedule for the mother and the children.

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

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

BRYAN and MOORE, JJ., concur in the result, without writings.

      . The mother’s notice of the parties' agreement to extend the juvenile court’s time to rule on her postjudgment motion contemplated that the hearing on that her motion would be held as scheduled on November 24, 2009. However, that hearing was apparently continued until December 1, 2009.

      . The aunt, in her brief to this court, also incorrectly treats the juvenile court’s decision as a finding of unfitness and a termination of parental rights, instead of a determination of dependency, which it was. The judgment, as well as the juvenile judge’s statements made at the hearing on the mother's postjudgment motion, indicates only that the children had been adjudged dependent.

      .When a juvenile court finds that a child is dependent and the custodial parent of that child is divested of his or her right to custody, without a termination of that parent's parental rights or a finding of unfitness, that parent retains "residual parental rights” to that child, as defined under Ala.Code 1975, § 12-15-102(23), which "includ[e], but [are] not necessarily limited to, the right to visitation, the right to withhold consent to adoption, the right to determine religious affiliation, and the responsibility for support, unless determined by order of the juvenile court not to be in the best interest of the child.”

      .The aunt argues that a natural parent’s prima facie right to custody of his or her child "can be overcome by clear and convincing evidence that removal from the parent’s custody is in the child’s best interests,” citing S.F. v. Department of Human Res., 680 So.2d 346, 347 (Ala.Civ.App.1996); Brown v. Alabama Dep’t of Pensions & Sec., 473 So.2d 533, 534 (Ala.Civ.App.1985); and G.L. v. State Dep’t of Human Res., 646 So.2d 81, 84 (Ala.Civ.App.1994). However, those cases that she cites to support her argument are inapplicable because they involve a trial court's determination to terminate parental rights, which has not occurred in this case.

      . In March 2009, when this action was commenced, the daughter was 13 years old, the older son was 12 years old, and the younger son was 10 years old.

      . The aunt does not cite a rule or caselaw to support her contention.


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

text:
    Ex parte COWABUNGA, INC., d/b/a Domino’s Pizza (In re Thomas W. Short v. Cowabunga, Inc., d/b/a Domino’s Pizza.)
    2090734.
    Court of Civil Appeals of Alabama.
    Jan. 21, 2011.

      Anthony N. Fox and Robert M. Ronn-lund of Scott, Sullivan, Streetman & Fox, P.C., Birmingham, for petitioner.
    James R. Bowles, Tallassee, for respondent.
   PER CURIAM.

Cowabunga, Inc., d/b/a Domino’s Pizza (“the employer”), filed a notice of appeal from an order entered by the Autauga Circuit Court (“the trial court”) finding that Thomas W. Short (“the employee”) had sustained an injury and that that injury is covered by the Alabama Workers’ Compensation Act (“the Act”), Ala.Code 1975, § 25-5-1 et seq., and requiring the employer to pay for medical treatment recommended by the employee’s authorized treating physician. We elect to treat the appeal as a petition for writ of mandamus; however, because the trial court’s order does not contain findings of fact and conclusions of law, which we hold are required under the Act, the employer has not shown “a clear legal right to the relief sought.” Ex parte Amerigas, 855 So.2d 544, 546 (Ala.Civ.App.2003). Therefore, we deny the employer’s petition with instructions to the trial court to enter an order containing appropriate findings of fact and conclusions of law.

An appeal will lie only from a final judgment, i.e.,

“‘a “terminal decision which demonstrates that there has been a complete adjudication of all matters in controversy between the litigants.” Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala.Civ.App.1986). Further, the judgment must be conclusive and certain with all matters decided....’ ”

Williams Power, Inc. v. Johnson, 880 So.2d 459, 461 (Ala.Civ.App.2003) (quoting Dees v. State, 563 So.2d 1059, 1061 (Ala.Civ.App.1990)). An order that contains a finding that a worker has sustained an injury as the result of an accident arising out of and in the course of the worker’s employment, thereby making the injury compensable under the Act, and that requires the payment of only medical benefits for that injury is not a final judgment. See SouthernCare, Inc. v. Cowart, 48 So.3d 632 (Ala.Civ.App.2009), writ quashed, Ex parte SouthernCare, Inc., 48 So.3d 635 (Ala.2010); Homes of Legend, Inc. v. O’Neal, 855 So.2d 536 (Ala.Civ.App.2003); and USA Motor Express, Inc. v. Renner, 853 So.2d 1019 (Ala.Civ.App.2003). Such an order does not completely adjudicate the workers’ compensation claim of the worker because the order omits any terminal decision as to the disability benefits due the worker. O’Neal, 855 So.2d at 538.

Based on the nonfinal nature of the trial court’s order in this case, the employee moves this court to dismiss the appeal. However, “[t]his court may elect to interpret the matter as a petition for a writ of mandamus, see Vesta Fire Ins. Corp. v. Liberty Nat’l Life Ins. Co., 893 So.2d 395 (Ala.Civ.App.2003),” which is “[t]he proper means of seeking appellate review of an interlocutory -order in this court.” Norman v. Norman, 984 So.2d 427, 429 (Ala.Civ.App.2007).

“Mandamus is an extraordinary remedy. An appellate court will grant a petition for a writ of mandamus only when ‘(1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court’s jurisdiction is properly invoked.’ Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala.2000) (citing Ex parte Mercury Fin. Corp., 715 So.2d 196, 198 (Ala.1997)).”

Ex parte Amerigas, 855 So.2d at 546. This court has jurisdiction to review interlocutory orders entered in workers’ compensation cases when the remedy of appeal would be inadequate. See Ex parte Alabama Power Co., 863 So.2d 1099, 1102 (Ala.Civ.App.2003). In this case, the employer moved both the trial court and this court to stay enforcement of the trial court’s order. Both the trial court and this court denied the motions to stay; the trial court also required the employer to immediately provide payment of medical benefits on behalf of the employee with the employer’s being subject to sanctions for its noneompliance. The employer thereafter obeyed the trial court’s order and began paying the employee’s medical benefits, and, presumably, it continues to do so. Awaiting review of the order by appeal would only force the employer to incur further expenses that it may not owe and that it may never recover from the employee who, as evidenced by the fact that the employer is now voluntarily paying temporary-total-disability benefits, is currently unable to earn wages. In light of those circumstances, we find that the employer’s right to appeal the final judgment that will ultimately be entered in this case, which may not be entered for a year or more, is inadequate. See Amerigas, 855 So.2d at 547-48 (Murdock, J., concurring in the result) (implying that an appeal would be inadequate in a similar situation).

The employer essentially argues that it has a clear legal right to a judgment denying the compensability of the employee’s injury and that the trial court, by finding the employee’s back injury to be compen-sable and awarding medical expenses, has refused to grant the employer its proper relief. We, however, are unable to address those points because the trial court has failed to enter findings of fact and conclusions of law. Section 25-5-88, Ala. Code 1975, requires circuit courts, when deciding any controversy as to the right to benefits under the Act, to determine that controversy by filing with the clerk of the circuit court “a statement of the law and facts and conclusions as determined by [the] judge.” In this case, the trial court decided the controversies regarding the compensability of the employee’s injury and the right of the employee to medical benefits under the Act, but it did not file the requisite findings of fact and conclusions of law, stating in its judgment only that the employee had sustained a personal injury due to an accident arising out of and in the course of his employment on May 29, 2009, and ordering the employer to “approve the medical treatment recommended by the [employee’s] authorized treating physician.” This court has repeatedly reversed similar judgments for failing to apprise this court of the basis for the trial court’s decision as contemplated by § 25-5-88. See, e.g., Belcher-Robinson Foundry, LLC v. Narr, 42 So.3d 774 (Ala.Civ.App.2010); and Grace v. Standard Furniture Mfg. Co., 29 So.3d 918 (Ala.Civ.App.2009).

In this case, the trial court, in its response to an order entered by this court directing the trial court to enter the appropriate findings of fact and conclusions of law, objected to this court’s directive stating that such detail is required of only final judgments. Some dicta in a prior opinion of this court does support that position, see SCI Alabama Funeral Servs., Inc. v. Hester, 984 So.2d 1207, 1211 (Ala.Civ.App.2007) (per curiam opinion with one judge concurring and four judges concurring in the result); however, the plain language of § 25-5-88 requires the making of findings of fact and conclusions of law as to every “determination” of a controversy regarding the right to benefits under the Act. In this case, the trial court effectively determined the controversies over the compens-ability of the employee’s back injury and his right to have the employer pay for the medical treatment recommended by his authorized treating physician. By the plain terms of § 25-5-88, the trial court was required to include a conclusive finding as to every fact responsive to the issues presented to and litigated by the parties as well as a recitation of the law applicable to those facts upon which the trial court relied in reaching its determination. See Fort James Holding Co. v. Morgan, 30 So.3d 458 (Ala.Civ.App.2009).

In its answer to the petition for a writ of mandamus, the trial court stated that it had found that the employee had injured his back in a fall while working for the employer and that it had rejected as not credible a co-employee’s testimony indicating that the employee had informed him that the employee’s back injury had occurred while the employee was moving his personal furniture. The employee admitted that he had a long-standing prior lower-back problem for which he had received emergency-room treatment on March 23, 2009, and that he had moved his own furniture in April 2009. However, the trial court did not set forth any of its factual findings explaining why it discounted the testimony of the co-employee. Furthermore, the employer maintained at the hearing that, even if the employee had fallen at work, the medical and radiographic evidence indicated that he had not experienced any change in his already damaged lumbar spine, which had been documented in an earlier study from March 2009. See Hokes Bluff Welding & Fabrication v. Cox, 33 So.3d 592, 602-03 (Ala.Civ.App.2008) (holding that undisputed radiological findings showing continuance of identical preexisting condition effectively disproved claim that lifting episode resulted in new or aggravated injury). The trial court has not addressed the employer’s contention that the medical and radiological evidence conclusively proves that the fall did not medically cause an injury to the employee.

For the reasons stated earlier, we deny the employer’s petition for the writ of mandamus. However, because of our holding in this opinion that the trial court must make findings of fact and conclusions of law, the trial court should now enter an order containing appropriate findings of fact and conclusions of law. Based on our holding in this opinion, once the trial court enters such an order, the employer may seek review of that order by filing a petition for the writ of mandamus in this court.

PETITION DENIED WITH INSTRUCTIONS.

THOMPSON, P.J., concurs.

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

BRYAN, J., concurs in part and dissents in part, with writing.

MOORE, J., concurs in part and dissents in part, with writing, which THOMAS, J., joins.

BRYAN, Judge,

concurring in part and dissenting in part.

I respectfully dissent from the main opinion insofar as it (1) determines that the trial court’s order is subject to the requirements found in § 25-5-88, Ala. Code 1975, mandating findings of fact and conclusions of law and (2) requires the trial court to make findings of fact and conclusions of law pursuant to § 25-5-88. Section 25-5-88 provides, in pertinent part:

“At the hearing ... the [trial] court ... shall decide the controversy. This determination shall be filed in writing with the clerk of [the trial] court, and judgment shall be entered thereon in the same manner as in civil actions tried in the [trial] court and shall contain a statement of the law and facts and conclusions as determined by [the trial] judge.”

Section 25-5-88, by referencing a “judgment,” requires a final judgment to contain findings of facts and conclusions of law. However, I do not read that section as requiring an interlocutory order, such as the one in this case, to contain findings of fact and conclusions of law. This court has stated, albeit in dicta, that § 25-5-88 applies to final judgments only. See Sign Plex v. Tholl, 863 So.2d 1113, 1117 (Ala.Civ.App.2003) (“Of course, because the trial court has not entered a final judgment in this case, § 25-5-88 has not yet come into play.”); and SCI Alabama Funeral Servs., Inc. v. Hester, 984 So.2d 1207, 1211 (Ala.Civ.App.2007) (per curiam opinion with one judge concurring and four judges concurring in the result) (stating that “the trial court’s failure to enter a final judgment precludes our consideration of the trial court’s compliance with § 25-5-88”). Based on the plain language of § 25-5-88, I would hold that that section applies to final judgments only. I concur with the main opinion in all other respects.

MOORE, Judge,

concurring in part and dissenting in part.

I agree that the trial court must enter appropriate findings of fact and conclusions of law. However, I believe that the order entered by the trial court constituted a final judgment from which an appeal, not a petition for a writ of mandamus, lies.

Section 25 — 5—81(a)(1), Ala.Code 1975, provides that a controversy between an employer and an employee regarding “the right to compensation ... or the amount thereof’ shall be submitted to the circuit court in the county that would have jurisdiction of a civil action sounding in tort between the parties. Although “compensation” is defined, generally, so as not to include medical benefits, see Ala.Code 1975, § 25-5-1(1), § 25-5-77(a), Ala.Code 1975, provides that the same tribunal that decides a controversy as to compensation shall also decide controversies over medical benefits. See Ex parte Publix Super Markets, Inc., 963 So.2d 654, 658 (Ala.Civ.App.2007). The legislature did not provide any special procedure applicable to controversies over medical benefits, so it must be assumed that the legislature intended that the tribunal deciding those controversies would use the same procedure as is applicable to compensation controversies. See Ex parte Publix Super Markets, Inc., 963 So.2d at 658.

Section 25-5-88, Ala.Code 1975, provides that a circuit court to which the parties have submitted a dispute “shall decide the controversy” in writing and that the clerk of the circuit court shall enter judgment thereon. Section 25-5-81(a)(l) provides that “[t]he decision of the judge hearing the [controversy] shall be conclusive and binding between the parties, subject to the right of appeal provided for in this article.” Section 25-6-81 (e) provides that any aggrieved party may appeal within 42 days “[fjrom an order or judgment.” Reading those three provisions together, it becomes apparent that the legislature envisioned that a judgment deciding a controversy submitted to a circuit court regarding the right to, or the amount of, benefits recoverable under the Workers’ Compensation Act, § 25-5-1 et seq., Ala. Code 1975 (“the Act”), would be deemed final and appealable. SCI Alabama Funeral Servs., Inc. v. Hester, 984 So.2d 1207, 1212 (Ala.Civ.App.2007) (Moore, J., concurring in the result).

In the past, however, this court has not relied on the language of the Act; it has instead relied on the general rules relating to finality of judgments applicable to civil actions. Pursuant to § 12-22-2, Ala.Code 1975, an appeal from a judgment of a circuit court can be made only “[f]rom any final judgment.” That language has long been read as preventing an appeal from an order that does not entirely put an end to the controversy between the parties as pleaded. See, e.g., First Alabama Bank of Montgomery, N.A. v. Martin, 381 So.2d 32 (Ala.1980); and In re Estate of Amason, 347 So.2d 393 (Ala.1977). Importing the requirements of § 12-22-2 into Alabama’s workers’ compensation laws, see Ex parte DCH Reg’l Med. Ctr., 571 So.2d 1162, 1164 (Ala.Civ.App.1990), this court has wrestled with whether a judgment awarding only some of the benefits available to an injured worker may be considered final. In many cases, this court has viewed orders similar to the one at issue in this case as being interlocutory in nature, see, e.g., SouthernCare, Inc. v. Cowart, 48 So.3d 632 (Ala.Civ.App.2009), writ quashed, Ex parte SouthernCare, Inc., 48 So.3d 635 (Ala.2010); SCI Alabama Funeral Servs., Inc., 984 So.2d 1207; Homes of Legend, Inc. v. O’Neal, 855 So.2d 536 (Ala.Civ.App.2003); USA Motor Express, Inc. v. Renner, 853 So.2d 1019 (Ala.Civ.App.2003); and International Paper Co. v. Dempsey, 844 So.2d 1236 (Ala.Civ.App.2002), while in other cases we have treated similar orders as final judgments, see Fluor Enters., Inc. v. Lawshe, 16 So.3d 96 (Ala.Civ.App.2009); BE & K, Inc. v. Weaver, 743 So.2d 476 (Ala.Civ.App.1999); Mike Makemson Logging v. Colburn, 600 So.2d 1049 (Ala.Civ.App.1992); and Ex parte DCH Reg’l Med. Ctr., 571 So.2d 1162 (Ala.Civ.App.1990). Those cases treating such an order as interlocutory appear to rest on the fact that the order did not completely adjudicate the entire workers’ compensation “claim.” However, § 25-5-88 does not require adjudication of the entire claim; it requires only a “determination” of the “controversy” or “controversies” submitted for resolution, which, obviously, may include only a part of the overall “claim.”

Although civil cases may require a “complete adjudication” in order to satisfy the finality requirements of § 12-22-2, see Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala.Civ.App.1986), the same is not true of workers’ compensation cases.

“In enacting the workers’ compensation laws, the legislature created a wholly new and different remedy unlike the right to civil damages existing under the common law. See Ex parte Publix Super Markets, Inc., 963 So.2d 654, 658 (Ala.Civ.App.2007). The legislature also created procedures unique to workers’ compensation law to enforce that remedy. See Birmingham Belt R.R. v. El lenburg, 215 Ala. 395, 896, 111 So. 219, 220 (1926) (“Without further analysis of the matter, we think compensation proceedings are quite as distinct in purpose and procedure from the ordinary action of law as is a suit at law from a suit in equity.’). The rules of procedure applicable to ordinary civil actions do not apply to the extent that they conflict with the procedure set out in the Workers’ Compensation Act. See Rule 81(a)(31), Ala. R. Civ. P.; Pittman Constr. Co. v. Boles, 233 Ala. 187, 188, 171 So. 268, 268 (1936) (“It must be noted that the procedure under this act is governed by its terms and requirements and not by the ordinary method of procedure.’).”

SCI Alabama Funeral Servs., Inc., 984 So.2d at 1212 (Moore, J., concurring in the result). Because the legislature has specified that an order or judgment determining a controversy as to the right to, or the amount of, benefits due under the Act is final and appealable, this court should never have turned to any other test for determining the finality of a workers’ compensation judgment.

The March 15, 2010, order entered by the trial court satisfies all the tests for finality established in the Act. The parties essentially submitted two controversies to the trial court: (1) Did the employee sustain an accident arising out of and in the course of his employment on May 29, 2009? and (2) Did that accident result in an injury for which the employee requires the medical treatment recommended by his authorized treating physician? The trial court resolved both of those issues in favor of the employee and ordered the employer to approve and pay for the treatment recommended by the employee’s authorized treating physician. Having “decide[d] the controversies],” the order entered by the trial court became “‘conclusive and binding,’ i.e., final, and ‘subject to the right of appeal,’ i.e., appeal-able.” SCI Alabama Funeral Servs., Inc., 984 So.2d at 1212 (Moore, J., concurring in the result).

If an order finding an injury compensa-ble and awarding medical benefits were not final within the meaning of the Act, the only potential method for appellate review of such an order would lie in the petition for a writ of mandamus, which applies to interlocutory orders. See Ex parte Alabama Power Co., 863 So.2d 1099 (Ala.Civ.App.2003). However, it is not “ ‘ “the proper function of [a petition for a writ of mandamus] to re-examine, or correct errors in any judgment or decree Ex parte C & D Logging, 3 So.3d 930, 936 (Ala.Civ.App.2008) (quoting State v. Cobb, 288 Ala. 675, 678, 264 So.2d 523, 526 (1972), quoting in turn State v. Williams, 69 Ala. 311, 316 (1881)). A petition for the writ of mandamus, unlike an appeal or a petition for the writ of certiorari, may not be granted for the purpose of reviewing a final judgment or order. See Ex parte Amerigas, 855 So.2d 544, 547 (Ala.Civ.App.2003). A petition for a writ of mandamus “ ‘cannot be used as a substitute for an appeal.’ ” Ex parte Southeast Alabama Med. Ctr., 835 So.2d 1042, 1045 (Ala.Civ.App.2002) (quoting Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998)). Thus, this court cannot use a petition for a writ of mandamus to determine whether a circuit court appropriately found a worker’s injury to be compensable and properly awarded medical benefits on account of that injury. Ex parte C & D Logging, 3 So.3d at 937. To the extent the main opinion concludes otherwise, I respectfully dissent.

Because of the unavailability of any other method of review, an order or judgment deciding all present controversies surrounding an injured worker’s right to medical benefits should be subject to appeal, regardless of whether such an order or judgment would be characterized as being nonfinal, interlocutory, or interim under civil law. Otherwise, as happened in this case, an employer could be subject to an immediately enforceable judgment worth many thousands of dollars. If the finality of that order or judgment depends on resolution of issues not even ripe for consideration, such as whether to award permanent-disability benefits, see Ex parte DCH Reg’l Med. Ctr., 571 So.2d at 1164-65, or issues not even in controversy, such as the amount of temporary-total-disability benefits due the injured worker, the employer may only obtain appellate review, if ever, long after the medical benefits have been expended and after any error in awarding those benefits probably cannot be fully remedied. Meanwhile, the injured worker may forego securing other financial resources to redress the injury in reliance on an erroneous order and find himself or herself subject to a large judgment for reimbursement of the compensation and medical benefits paid by his or her employer. See Hedgemon v. United Parcel Serv., Inc., 832 So.2d 656 (Ala.Civ.App.2002).

On the other hand, the appeal of an order or judgment may delay the receipt by an injured worker of needed medical benefits, which delay would be contrary to the general purpose of the workers’ compensation laws. See Brown v. Murray Sec. Guard Co., 404 So.2d 79, 81 (Ala.Civ.App.1981). In Ex parte Lumbermen’s Underwriting Alliance, 662 So.2d 1133 (Ala.1995), our supreme court addressed the same basic concern in relation to the stay of compensation payments during appeals. After noting that several states do not allow for stays of judgments awarding compensation payments, 662 So.2d at 1137 n. 3, the supreme court stated:

“This is an area of workers’ compensation law that the Alabama Legislature might wish to address by a statute requiring that an employer make a showing of ‘irreparable harm,’ in addition to filing a supersedeas bond, in order to obtain a stay of a judgment in favor of an injured worker.”

662 So.2d at 1137. The supreme court correctly recognized that the problem of properly balancing an injured worker’s need for immediate benefits against an employer’s right to appeal remains a subject exclusively within the province of the legislature. Thus, it is the legislature, not this court, that may provide any mechanism by which an injured worker can avoid the delays concomitant with the appeals process.

I note, however, that in Ex parte Lumbermen’s Underwriting Alliance, supra, the supreme court refused to issue a writ of mandamus directing the lower court to dismiss a tort-of-outrage action the injured worker had filed against the employer’s workers’ compensation administrator for allegedly frivolously appealing a workers’ compensation judgment and using the stay as a means to coerce a favorable post-judgment settlement. That holding signals that civil liability may be imposed on an employer or other workers’ compensation payor that wrongfully uses the appeals process to intentionally inflict emotional distress on an injured worker. I further note that the withholding of necessary medical treatment causes only increased and prolonged injury' and disability that, if the injury is compensable, will only add to the ultimate costs of the claim. See, e.g., Team America of Tennessee v. Stewart, 998 So.2d 483, 488 (Ala.Civ.App.2008) (affirming a judgment finding an employer, that for 31 months had unreasonably failed to provide a panel of 4 orthopedic surgeons, liable for temporary-partial-disability benefits accruing in the meantime). Those considerations should prevent employers from needlessly filing appeals of awards of medical benefits until the legislature acts.

As it stands, the legislature has spoken on the matter and has decided that, when a circuit court enters an order deciding a controversy as to the compensability of an injury and adjudicates the right of an injured worker to medical benefits, that order is final and appealable although it does not completely resolve the entirety of the workers’ compensation claim. Therefore, I believe this court should overrule those cases in conflict with the plain language of § 25-5-88 and that we should henceforward treat orders like the one entered in this ease as final judgments.

The trial court objected to filing findings of fact and conclusions of law on the sole basis that it believed that its judgment was not final. Having concluded that the judgment is final, I see no need to address the applicability of § 25-5-88 to nonfinal judgments as the main opinion and Judge Bryan’s writing do. I do, however, concur with the main opinion that the judgment does not satisfy § 25-5-88 for the reasons set forth in that opinion.

THOMAS, J., concurs.

      . On October 25, 2010, this court entered an order notifying the trial court that this court had opted to treat the employer’s appeal as a petition for the writ of mandamus and allowing the trial court to file an answer, if it wished to do so. The trial court responded by filing an answer on October 26, 2010.

      . Section 25-5-88 specifically provides that a "judgment shall be entered thereon in the same manner as in civil actions tried in the said circuit court_” In his writing, Judge Bryan interprets this clause as mandating that only “final judgments” shall be entered by the clerk of the court, presumably referring to orders meeting the requirements of Ala.Code 1975, § 12-22-2. However, I read this clause merely as directing the clerks of the circuit courts that, once they receive a written determination of a controversy in a workers' compensation case, they must enter judgment on that controversy just as they would enter judgment in a civil action, i.e., by inputting the judgment into the State Judicial Information System. See Rule 58(c), Ala. R. Civ. P. I do not discern from this clause any legislative intent to import the finality requirements from civil actions into the workers’ compensation laws.

      . Had the trial court found in favor of the employer, the employee would have had a right to an immediate appeal because the judgment would have fully and finally concluded the claim. See, e.g., Mitchell v. Robinson Foundry, Inc., 603 So.2d 1048 (Ala.Civ.App.1992). It seems incongruous to hold that an employee can immediately appeal an adverse compensability determination but that an employer cannot.

      . On appeal, the employer does not question the authority of the trial court to enter an order requiring immediate payment of medical benefits upon notice, a hearing, and sufficient evidence. It should be noted that such a procedure is unknown in civil cases. An injured plaintiff cannot petition a court to find a defendant liable for his or her injuries and order the defendant to pay the plaintiff's ongoing medical expenses in advance of a final assessment of damages. Hence, the question whether such an order would be final and appealable under § 12-22-2 has never arisen. Some caselaw suggests that such an order would be final and appealable. See Ex parte Elyton Land Co., 104 Ala. 88, 91, 15 So. 939, 940 (1893) ("The test of the finality of a decree to support an appeal is not whether the cause remains in fieri, in some respects, in the court of chancery, awaiting further proceedings, necessary to entitle the parties to the full measure of the rights it has been declared they have; but whether the decree which has been rendered, ascertains and declares these rights — if these are ascertained and adjudged, the decree is final, and will support an appeal.”).