source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    Arthur Lane SKINNER v. Raymond C. BEVANS.
    2110147.
    Court of Civil Appeals of Alabama.
    Dec. 21, 2012.

      Darlene McGough Gibson, Greenville, for appellant.
    James T. Patterson of Vernis & Bowling of Southern Alabama, LLC, Mobile; and Lewis S. Hamilton of Powell & Hamilton, Greenville, for appellee.
   PITTMAN, Judge.

Arthur Lane Skinner appeals from a judgment entered on a jury verdict of $35,000 in favor of Raymond C. Bevans on Bevans’s assault-and-battery claim against him and from summary judgments in favor of Bevans as to seven counterclaims he asserted against Bevans. We affirm in part, reverse in part, and remand for a new trial.

Facts and Procedural History

Skinner and Bevans are neighbors in rural Butler County. Bevans’s property fronts on a public road; Skinner’s property is landlocked, but he has access to the public road via a right-of-way easement that runs through the property of another neighbor. Bevans’s fence line is near the easement. On September 18, 2007, Be-vans was on the right-of-way outside his fence spraying herbicide on weeds along the fence line when, according to Bevans, Skinner drove up, parked the pickup truck he had been driving, and stared at him. The parties differ about what happened next. According to Bevans, he turned his back on Skinner and was continuing his spraying when he heard Skinner say, “You m_f_, I owe you this.” Skinner then struck Bevans repeatedly with a metal-tipped rake handle, injuring Bevans’s head, ear, and arm. Skinner, on the other hand, claimed that Bevans walked to the pickup truck and, as the parties were exchanging words, sprayed him in the face with the herbicide, after which Skinner reached into the bed of his truck, retrieved the rake handle, and swung at Bevans to stop the spraying. There was a factual dispute at trial as to whether Skinner’s easement was 25 feet wide or only 15 feet wide and — if the easement was only 15 feet wide — whether Skinner was standing on the easement during the altercation and assault.

Skinner left the scene, and Bevans called the Butler County sheriffs department. He filed a criminal complaint against Skinner, and was taken to the hospital, where his ear was stitched. Skinner was arrested the following day pursuant to a warrant charging assault in the second degree, a Class C felony, see Ala. Code 1975, § 13A-6-21. On February 26, 2008, Skinner was indicted by a Butler County grand jury for the same offense.

On September 16, 2009, Bevans filed the instant civil action against Skinner, alleging assault and battery and demanding a jury trial. On October 14, 2009, Skinner, acting pro se, filed an answer that stated, in its entirety: “I am denying all allegations in your complaint.” On June 18, 2010, Skinner was acquitted of the criminal-assault charge. On August 12, 2010, Skinner, acting through counsel, filed a motion for leave to assert counterclaims that, he said, he had not been required to assert in his answer because the counterclaims were the subject of “another pending action,” see Rule 13(a), Ala. R. Civ. P., and had “matured or [been] acquired” after he had answered the complaint, see Rule 13(e), Ala. R. Civ. P. The trial court granted Skinner leave to amend his answer to include the counterclaims.

On January 20, 2011, Skinner asserted seven counterclaims: trespass to land; assault and battery; false imprisonment; malicious prosecution; defamation; negligence; and “emotional distress.” Skinner did not demand a jury trial on the counterclaims. Bevans denied the material allegations of Skinner’s counterclaims and asserted various affirmative defenses. Be-vans did not demand a jury trial on the counterclaims, and Bevans later withdrew his own demand for a jury trial on the assault-and-battery claim set forth in his complaint. Skinner objected to the withdrawal of Bevans’s jury demand, and the trial court disallowed the withdrawal, pursuant to Rule 38(d), Ala. R. Civ. P. Skinner argued that he was also entitled to a jury trial on his counterclaims, despite his having failed to demand one, because his counterclaims arose out of the same transaction or occurrence set forth in Bevans’s complaint, were not “new,” and, therefore, did not activate a new 30-day period for demanding a jury trial. The trial court rejected that argument and bifurcated the action, setting Bevans’s claim for a jury trial and the counterclaims for a bench trial.

After the jury rendered a verdict for Bevans on his assault-and-battery claim, Bevans moved for a summary judgment as to Skinner’s counterclaims. Skinner filed a Rule 59, Ala. R. Civ. P., motion for a new trial, arguing that the trial court had erred in instructing the jury on his duty to retreat, which duty, he said, had been abolished by § 13A-3-23(b), Ala.Code 1975. Skinner also filed a response in opposition to Bevans’s summary-judgment motion, and Bevans filed a response to Skinner’s Rule 59 motion. Following a hearing on both motions, the trial court denied Skinner’s motion for a new trial and granted Bevans’s motion for a summary judgment as to each of Skinner’s counterclaims.

Skinner appeals, raising three issues: whether the trial court erred (1) in charging the jury on the law of self-defense and the duty to retreat, (2) in entering a summary judgment in favor of Bevans on each of his counterclaims, and (3) in concluding that he had waived a jury trial on his counterclaims.

Standard of Review

Each of the issues Skinner raises presents a question of law for which our review is de novo. Espinoza v. Rudolph, 46 So.3d 403, 412 (Ala.2010). An appellate court reviews de novo the trial court’s interpretation of procedural rules, United States v. Elmes, 532 F.3d 1138, 1141 (11th Cir.2008), and statutes, Scott Bridge Co. v. Wright, 883 So.2d 1221, 1223 (Ala.2003). In addition, we review a summary judgment de novo, applying the same standard of review as the trial court applied. Turner v. Westhampton Court, L.L.C., 903 So.2d 82, 87 (Ala.2004).

The Jury Charge on Self-Defense

During a charge conference, the trial court stated that it intended to give the jury the following self-defense instruction requested by Bevans:

“In order to claim self-defense, ... Skinner must establish that he could not retreat or withdraw from the altercation in safety. If he could have retreated or withdrawn in safety then self-defense is not a defense [to] the claims of [Be-vans].”

Skinner objected, and the following occurred:

“MS. GIBSON [Skinner’s counsel]: He does not have to retreat.
“MR. HAMILTON [Bevans’s counsel]: And why not?
“MS. GIBSON: In self-defense, use of force that is reasonable and appears to be necessary for protection against a threatened battery. Skinner did not chase after Bevans. He may stand his ground and use any force short of that likely to cause serious injury. You do not have to retreat.
“MR. HAMILTON: I believe if [you] look in the criminal code it requires you retreat.
“MS. GIBSON: It does not.
“THE COURT: Well, I will go back and look and make sure.”

The trial court gave the charge requested by Bevans. At the conclusion of the court’s oral charge and before the jury retired to consider its verdict, Skinner’s counsel renewed her objection to the court’s charge on the duty to retreat.

In his motion for a new trial, Skinner argued, among other things, that a 2006 amendment to § 13A-2-23(b) had abolished any duty to retreat under the circumstances presented by this case. Citing Blake v. State, 61 So.3d 1107 (Ala.Crim.App.2010), and other decisions by the Court of Criminal Appeals, Skinner insisted that the trial court had erred in charging the jury on a duty to retreat. In Blake, supra, the Court of Criminal Appeals stated:

“[T]he amendment to § 13A-3-23(b), AIa.Code 1975, which removed from the defense of self-defense the duty to retreat and which allows an individual to stand one’s ground, became effective June 1, 2006. Specifically, the 2006 amendment to § 13A-3-23(b), Ala.Code 1975, provides:
“ ‘ “A person who [otherwise satisfies the criteria of self-defense] in using physical force, including deadly physical force, and who is not engaged in an unlawful activity and is in any place where he or she has the right to be has no duty to retreat and has the right to stand his or her ground.” ’ ”

61 So.3d at 1108-09 (quoting Williams v. State, 46 So.3d 970, 971 (Ala.Crim.App.2010)).

“[A] major change enacted by the new ‘stand your ground’ law involves incidents that occur outside of the home.... [A] century’s worth of case law and statutes became obsolete with the passage of the ‘stand your ground’ legislation. Where the Alabama Code had once expressly required a duty to retreat, it has now been eliminated by [§ 13A-3-23(b) ] ....
“Whereas, in Alabama, a person was required to retreat if reasonable from an attack anywhere outside the dwelling, now that person can ‘stand his or her ground’ anywhere they have a right to be.”

Jason W. Bobo, Following the Trend: Alabama Abandons the Duty to Retreat and Encourages Citizens to Stand Their Ground, 38 Cumb. L.Rev. 339, 362-63 (2008) (footnotes omitted).

Lest there be any doubt as to the applicability of the new stand-your-ground legislation to the defense of self-defense in civil actions, the legislature made it clear that the law establishes not only an affirmative defense, but also immunity from criminal prosecution and civil action. Section 13A-3-23(d), Ala.Code 1975, provides:

“A person who uses force, including deadly physical force, as justified and permitted in this section is immune from criminal prosecution and civil action for the use of such force, unless the force was determined to be unlawful.”

The Court of Criminal Appeals has held that a trial court’s failure to give a correct instruction on the right to stand one’s ground is not harmless because the jury could have rejected the defendant’s defense of self-defense based on the erroneous belief that the defendant had a duty to retreat. See Blake, 61 So.3d at 1109; Williams, 46 So.3d at 971-72; and Jackson v. State, 993 So.2d 45, 48 (Ala.Crim.App.2007).

We conclude that, if, at the time of the assault, Skinner was in a place where he had a right to be, then he was entitled to have the jury charged on the stand-your-ground provision of § 13A-3-23(b). The trial court erred in failing to instruct the jury that it must resolve the factual dispute as to where Skinner was when the assault took place — i.e., whether he was on his easement, a place where he had a right to be, or whether he was outside the easement and in a place where he did not have a right to be — in order to determine whether Skinner was entitled to stand his ground pursuant to § 13A-3-23(b). On retrial, the trial court should instruct the jury that it must first resolve the predicate question — whether Skinner was in a place he had a right to be when the assault took place — before determining the applicability of § 13A-3-23(b).

The Summary Judgments on Skinner’s Counterclaims

Initially we note that all but one of Skinner’s counterclaims were compulsory. That is so because all the counterclaims (a) arose out of the same transaction or occurrence set forth in Bevans’s complaint, see JJ’s Heating & Air Conditioning, Inc. v. Gobble-Fite Lumber Co., 572 So.2d 1243, 1244-45 (Ala.1990) (quoting Myers v. Clayco State Bank, 687 S.W.2d 256, 260-61 (Mo.Ct.App.1985), quoting in turn Cantrell v. City of Caruthersville, 859 Mo. 282, 221 S.W.2d 471 (1949)), (b) were logically related to the claim made the subject of Bevans’s complaint, see O’Donohue v. Citizens Bank, 350 So.2d 1049 (Ala.Civ.App.1977), and all but one, the malicious-prosecution counterclaim, (c) existed at the time of the service of Skinner’s answer, see 1 Champ Lyons, Jr., & Ally W. Howell, Alabama Rules of Civil Procedure Annotated § 18.1 (4th ed. 2004).

“A counterclaim which does not exist at the time of the service of an answer cannot be compulsory since the existence of a counterclaim is determined at the time of service of the answer. Therefore, the right to assert a counterclaim which accrues only after serving the pleading is not waived by its omission. A counterclaim maturing or acquired after pleading is a permissive counterclaim which may be presented as a supplemental pleading with the approval of the court.”

Id. at 358 (citations omitted).

Skinner’s argument that none of his counterclaims “matured or was acquired,” see Rule 13(e), Ala. R. Civ. P., until June 18, 2010, when he was acquitted of the criminal-assault charge, is simply incorrect. Only the malicious-prosecution claim falls in the category of a late-maturing counterclaim. That is true because the elements of a malicious-prosecution cause of action are: “(1) that [Bevans] instituted a prior judicial proceeding against [Skinner]; (2) that in instituting the prior proceeding [Bevans] acted without probable cause and with malice; (3) that the prior proceeding ended in favor of [Skinner ]; and (4) that [Skinner] was damaged as a result of the prior proceeding.” Wal-Mart Stores, Inc. v. Goodman, 789 So.2d 166, 174 (Ala.2000) (emphasis added). “A malicious-prosecution cause of action is the classic example of a claim that is ‘linked to a jural event’ — one in which all the acts giving rise to the claim have been completed but the claim is nonetheless delayed pending the outcome of another judicial proceeding.” SouthTrust Bank v. Jones, Morrison, Womack & Dearing, P.C., 939 So.2d 885, 897 (Ala.Civ.App.2005).

Likewise, Skinner’s argument that he need not have asserted the counterclaims in his initial answer because they were “the subject of another pending action,” see Rule 13(a), Ala. R. Civ. P., is also incorrect. “[T]he exception to Rule 13(a) does not encompass pending criminal- actions.” Woodward v. DiPalermo, 98 F.R.D. 621, 623-24 (D.D.C.1983); see also 20 Am.Jur.2d Counterclaim, Recoupment, and Set-off § 15 at 279 (2005).

We also note that none of Skinner’s counterclaims was barred by a statute of limitations. “Compulsory counterclaims are not defeated by general statutes of limitation,” 1 Lyons & Howell, supra § 13.11 at 373, and Skinner’s sole permissive counterclaim, the malicious-prosecution counterclaim, was filed on January 11, 2011 — within two years of the date it accrued or matured on June 18, 2010, see § 6-2-38(l).

The trial court’s entry of a summary judgment in favor of Bevans is due to be affirmed as to four of Skinner’s seven counterclaims — trespass, false imprisonment, malicious prosecution, and defamation — because Skinner, the party who had the burden of proof at trial, did not establish the elements of those torts. See Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999). Skinner’s three remaining counterclaims — assault and battery, negligence, and “emotional distress” — will necessarily be encompassed within the issues to be decided upon a new trial, as we discuss herein.

Trespass. Skinner alleged that Be-vans trespassed upon his right-of-way easement during the parties’ altercation on September 18, 2007. The trial court held that Skinner’s claim was without substantive merit, citing Williams v. Moore, 36 So.3d 533, 542 (Ala.Civ.App.2008) (holding that “ ‘ “the gist of any trespass action is the interference with a right to possession of property. Absent such right of possession, there can be no action based on trespass.” ’ ” (quoting Drummond Co. v. Walter Indus., Inc., 962 So.2d 753, 782 (Ala.2006), quoting in turn Avery v. Geneva Cnty., 567 So.2d 282, 289 (Ala.1990))), and Duke v. Pine Crest Homes, Inc., 358 So.2d 148, 150 (Ala.1978) (stating that the holder of an easement has a right to damages for an unreasonable interference with the use of an easement). At the trial of this case, Skinner acknowledged that Bevans had not interfered with his use of the easement.

Skinner argues that Duke is inapposite because it involved a dispute between the holder of an easement and the owner of the servient estate, whereas the present case deals with a dispute between the holder of an easement and an outsider or stranger. We acknowledge the existence of that factual distinction, but we discern no difference in the applicable law based on the identity of the one who has allegedly interfered with the use of the easement, and Skinner has cited no authority in support his argument.

“Rule 28(a)(10), Ala. R.App. P., requires that arguments in an appellant’s brief contain ‘citations to the cases, statutes, other authorities, and parts of the record relied on.’ Further, ‘it is well settled that a failure to comply with the requirements of Rule 28(a)(10) requiring citation of authority in support of the arguments presented provides this Court with a basis for disregarding those arguments.’ State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 822 (Ala.2005) (citing Ex parte Showers, 812 So.2d 277, 281 (Ala.2001)). This is so, because ‘ “it is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.” ’ Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003) (quoting Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)).”

Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (Ala.2007). Because Skinner had no possessory right in the easement and failed to demonstrate that Bevans had interfered with his use of the easement, he failed to meet his burden of establishing the elements of his trespass claim.

False Imprisonment. Section 6-5-170, Ala.Code 1975, provides that “[f]alse imprisonment consists in the unlawful detention of the person of another for any length of time whereby he is deprived of his personal liberty.” A false-imprisonment claim accrues on the date of arrest, Jennings v. City of Huntsville, 677 So.2d 228, 230 (Ala.1996), not at some later time when, as Skinner apparently assumes, the arrestee is acquitted of the underlying criminal offense. Our supreme court has held that “[i]f an arrest is made pursuant to a warrant issued by a lawfully authorized person, neither the arrest nor the subsequent imprisonment is considered ‘false.’ ” Karrick v. Johnson, 659 So.2d 77, 79 (Ala.1995) (citing Goodwin v. Barry Miller Chevrolet, Inc., 543 So.2d 1171 (Ala.1989)).

The proposition stated in Karrick, supra, is even more true after the adoption of § 13A-3-23(e), a part of Alabama’s stand-your-ground law, which provides:

“A law enforcement agency may use standard procedures for investigating the use of force described in subsection (a), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force used was unlawful.”

(Emphasis added.) Section 13A-3-23(e) is virtually identical to the corresponding provision of the Florida stand-your-ground law, § 776.032(2), Fla. Stat. Ann., which provides:

“A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.”

A Florida commentator has explained that,

“[u]nder section 776.032(2) of the Florida statutes, the police are forbidden to arrest or detain a suspect unless they have evidence establishing probable cause that the force used was unlawful. Thus, although the law requires self-defense claims to be investigated, an individual claiming he or she acted in self-defense cannot even be arrested unless the police have evidence that the person’s actions do not fit within the requirements of the statute.”

Zachary L. Weaver, Florida’s “Stand Your Ground” Law: The Actual Effects and the Need for Clarification, 63 U. Miami L.Rev. 395, 409 (2008) (emphasis added; footnote omitted). Section 13A-3-23(e) has not been discussed in a reported Alabama decision, but, assuming that it is interpreted the same way as the corresponding Florida provision is interpreted, Skinner’s arrest can be assumed to have been the result of an investigation that determined there was probable cause to believe that Skinner used unlawful force. Accordingly, Skinner failed to meet his burden of establishing the elements of a false-imprisonment claim.

Malicious Prosecution: As previously discussed, in order to survive Be-vans’s summary-judgment motion as to the malicious-prosecution claim, Skinner was required to present substantial evidence indicating “that in instituting the prior proceeding [Bevans] acted without probable cause and with malice.” Wal-Mart Stores, Inc. v. Goodman, 789 So.2d at 174. In Whitlow v. Bruno’s, Inc., 567 So.2d 1235 (Ala.1990), our supreme court stated:

“It is almost platitudinous to restate the well-entrenched rule that in malicious prosecution cases the finding of an indictment by a grand jury, against a defendant in a prior judicial proceeding, constitutes prima facie evidence of the existence of probable cause. Lumpkin v. Cofield, 536 So.2d 62 (Ala.1988). As further noted in Lumpkin, however, ‘[s]uch a prima facie defense can be overcome by a showing that the indictment “was induced by fraud, subornation, suppression of testimony, or other like misconduct of the party seeking the indictment.” ’ Id. at 64 (citation omitted).”

567 So.2d at 1237-38. Skinner speculated, but presented no evidence indicating, that the grand-jury indictment “ ‘ “was induced by fraud, subornation, suppression of testimony, or other like misconduct of the party seeking the indictment,’’d ” Whitlow, 567 So.2d at 1238. Specifically, he stated, in opposition to the summary-judgment motion, that he “doubt[ed] very seriously [that Bevans’s grand-jury testimony] was an accurate account of the incident of September 18, 2007.” Accordingly, Skinner failed to meet his burden of establishing the elements of a malicious-prosecution claim.

Defamation. Skinner alleged that his reputation as “a man of peace” had been tarnished by the publication on the front page of the South Alabama News of an article concerning his arrest.

“‘The elements of a cause of action for defamation are: 1) a false and defamatory statement concerning the plaintiff; 2) an unprivileged communication of that statement to a third party; 3) fault amounting at least to negligence; and 4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication of the statement.’ ”

Drill Parts & Serv. Co. v. Joy Mfg. Co., 619 So.2d 1280, 1289 (Ala.1993) (quoting McCaig v. Talladega Publ’g Co., 544 So.2d 875, 877 (Ala.1989)). The trial court ultimately concluded that, because the evidence indicated that the article had been published no later than October 19, 2007, but Skinner’s counterclaim had not been filed until January 20, 2011, any possible defamation claim was barred by the statute of limitations set forth in § 6-2-38(k), Ala.Code 1975 (“All actions for libel or slander must be brought within two years.”).

Although the trial court erred in determining that the defamation claim was a time-barred permissive counterclaim, see Romar Dev. Co. v. Gulf View Mgmt. Corp., 644 So.2d 462 (Ala.1994); 1 Lyons & Howell, supra, § 13.11 at 373, we may

“affirm the trial court on any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected, by the trial court. This rule fails in application only where due-process constraints require some notice at the trial level, which was omitted, of the basis that would otherwise support an affirmance, such as when a totally omitted affirmative defense might, if available for consideration, suffice to affirm a judgment, or where a summary-judgment movant has not asserted before the trial court a failure of the nonmovant’s evidence on an element of a claim or defense and therefore has not shifted the burden of producing substantial evidence in support of that element.”

Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003) (citations omitted).

In its judgment, the trial court noted that “there is no allegation whatsoever in the counterclaim that [Bevans] instigated the publication of said article, or that said article was ... not merely a listing of the arrests and charges.” Apparently, therefore, the court considered arguments that Skinner had failed to connect Bevans to the allegedly defamatory statements and had failed to establish that the statutory privilege for the impartial reporting of arrest reports, found in 13A-11-161, Ala. Code 1975, was inapplicable.

Skinner did not attach the allegedly defamatory article to his counterclaim or submit the article as an exhibit to his motion opposing Bevans’s summary-judgment motion. He provided no information regarding the content of the article, nor did he allege either that Bevans had been instrumental in the publication of the article or that Bevans had been quoted in the article. Moreover, as the trial court’s judgment implies, Skinner failed to present any evidence indicating that the publication was not privileged. Accordingly, Skinner failed to meet his burden of establishing the elements of a defamation claim.

Jury Trial on Skinner’s Counterclaims

It is unnecessary to decide whether the trial court erred in concluding that Skinner had waived the right to a jury trial on his counterclaims alleging trespass, false imprisonment, malicious prosecution, and defamation. Because Skinner was unable to “‘produce sufficient evidence to prove each element of [those four counterclaims], [Bevans] is entitled to a summary judgment, [and] a trial would be useless.’ ” Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999) (quoting Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989) (Houston, J., concurring specially)). As to the remaining counterclaims— assault and battery, negligence, and “emotional distress” — we hold that, by failing to make a jury demand in his amended answer on January 20, 2011, Skinner did not waive his right to a jury trial on those claims.

It is true that “[a]n amended or supplemental pleading sets in motion the 30-day period for demanding a jury trial for new issues raised in that pleading.” 1 Lyons & Howell, supra, § 38.6 at 890. In Ex parte Twintech Industries, Inc., 558 So.2d 923 (Ala.1990), our supreme court explained “new issues” as follows:

“A review of the cases wherein this Court has found that an amendment or later pleading raised a ‘new issue’ indicates that a new issue is one of an entirely different character from those already raised, or one based on a set of facts different from those that support the original claims. In Ex parte Reynolds, [447 So.2d 701 (Ala.1984)], this Court held that the petitioner had raised new legal issues in his amendment and, therefore, that his right to a jury trial on those issues had not been waived. 447 So.2d at 703. In that case, Reynolds’s original complaint requested only equitable relief, whereas his amendment added a claim for fraud. Reynolds, at 702-03. Similarly, in Ex parte Town of Citronelle, 428 So.2d 600 (Ala.1983), this Court held that where the earlier pleadings had contemplated only equitable relief, a cross-claim for money damages raised a ‘new issue.’ 428 So.2d at 603. In Ole South Bldg. Supply Corp. v. Pilgrim, 425 So.2d 1086 (Ala.1983), the plaintiff substituted a claim for fraud for his original equitable claim and thus became entitled to a jury trial. 425 So.2d at 1087. Finally, in Mobley v. Moore, 350 So.2d 414 (Ala.1977), this Court held that the trial judge had not abused his discretion in granting a request for a jury trial when the tenor of the action was changed from one seeking equitable relief to one seeking damages. 350 So.2d [at] 416-17.”

558 So.2d at 925 (emphasis added). See also Ex parte Cheshire, 55 So.3d 1245 (Ala.Civ.App.2010) (holding that husband’s counterclaims raising legal issues and seeking damages presented issues of a different character than wife’s divorce action seeking equitable relief).

In the present case, Skinner’s counterclaims alleging assault and battery, negligence, and “emotional distress” presented neither issues of “an entirely different character” from those raised by Bevans nor issues that were “based on a set of facts different from those that support[ed]” Bevans’s assault-and-battery claim. See Twintech, 558 So.2d at 925.

Conclusion

The summary judgments in favor of Be-vans as to Skinner’s counterclaims alleging trespass, false imprisonment, malicious prosecution, and defamation are affirmed. The judgment entered on the jury verdict in favor of Bevans is reversed, and the cause is remanded for a new trial. On the retrial of Bevans’s complaint, Skinner will have the right to a jury trial on his counterclaims alleging assault and battery, negligence, and “emotional distress.”

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      .Rule 13(a), Ala. R. Civ. P., provides, in pertinent part:

        “Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if: (1) at the time the action was commenced the claim was the subject of another pending action....”
      (Emphasis added.)

      . Rule 13(e), Ala. R. Civ. P., provides:
      "A claim which either matured or was acquired by the pleader after serving a pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading.”

      . Rule 38(d) states that "[a] demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties except where an opposing party is in default under Rule 55(a).”

      . Section 13A-11-161, Ala.Code 1975, provides:
      "The publication of a fair and impartial report of the return of any indictment, the issuance of any warrant, the arrest of any person for any cause or the filing of any affidavit, pleading or other document in any criminal or civil proceeding in any court, or of a fair and impartial report of the contents thereof, or of any charge of crime made to any judicial officer or body, or of any report of any grand jury, or of any investigation made by any legislative committee, or other public body or officer, shall be privileged, unless it be proved that the same was published with actual malice, or that the defendant has refused or neglected to publish in the same manner in which the publication complained of appeared, a reasonable explanation or contradiction thereof by the plaintiff, or that the publisher has refused upon the written request of the plaintiff to publish the subsequent determination of such suit, action or investigation.”


author: PER CURIAM.

text:
    M.B. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2110319.
    Court of Civil Appeals of Alabama.
    Dec. 21, 2012.
    Nicholas C. Laster, Birmingham, for appellant.

      Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for ap-pellee.
   PER CURIAM.

M.B. (“the mother”) became pregnant with R.B. (“the child”) when she was 12 years old and living in Puerto Rico. The mother relocated to the United States, where the child was born in May 2006. In June 2006, the mother moved with the child to Alabama, where she began residing with her sister. The mother testified that her sister did not allow the mother to attend school regularly and that her sister made her care for the child and the sister’s children. The mother and her sister had a verbal altercation, after which her sister kicked the mother out of her home.

The Jefferson County Department of Human Resources (“DHR”) became involved with the mother and the child in August 2006, when DHR sought and received a pick-up order relating to the child. In January 2007, the Jefferson Juvenile Court, based on the stipulation of the parties, determined that the child was dependent, awarded legal and physical custody of the child to DHR, and ordered the mother to complete a parenting-skills course and to comply with reunification efforts made by DHR. Because the mother was herself a minor, the juvenile court noted that she was being placed in a foster-care placement with the child.

Over the next two years, the mother and the child resided in six different foster-care placements, all of which the mother disrupted. Caren Hampton, the DHR social worker overseeing the mother’s case, testified that she had not received any information indicating that the mother was not properly caring for the child during that time. Hampton further testified that, throughout that period, “[t]here was no major concern about [the child’s] safety.”

The mother was moved to a group home in November 2008, after she disrupted her previous foster-care placement by sneaking a boy into the home. At that time, the child was placed in a separate foster-care placement from the mother. The mother consistently visited with the child despite their separation.

During her last foster-care placement, the mother gave birth to her infant daughter, K.B. After leaving her last foster-care placement in May 2011 upon her graduation from high school, the mother was placed in an independent-living program with the Safe Alternatives for Families and Youth (“SAFY’). She was placed in her own apartment, and K.B. was placed with her.

The mother had been having consistent, unsupervised weekend visitation with the child until September 2011. According to Hampton, those visits initially went well; Hampton testified that she had not received any information that the mother was putting the child in any type of danger during the unsupervised visitations. In fact, Caren Hampton, the DHR social worker assigned to the mother and the child, testified on cross-examination as follows:

“Q: Okay. From the time that [the mother] was given unsupervised visits until the date prior to the September [2011] court date, have you got any calls stating that [the mother] was putting her child in any type of danger?
“A: No.
“Q: So the visits w[ere] going well up until that point?
“A: Yes.”

However, in September 2011, the mother had her unsupervised weekend visitation with the child suspended. Hampton testified that DHR had made a determination in September 2011 to suspend the mother’s unsupervised visitation with the child and to remove K.B. from the mother’s home based primarily on the photograph of the child making a gesture, known colloquially as “flipping the bird,” that had appeared on the mother’s Face-book page, which, according to Hampton, DHR had characterized as poor parenting. It was undisputed that that photograph had been placed on the mother’s Facebook page by T., a friend of the mother’s, and that the mother did not have the means or knowledge to remove the photograph. Around that same time, the child reported that the mother had weapons in her apartment; the mother denies having had weapons in her apartment, but she did say that the child had overheard a conversation in which she asked how old she had to be to purchase a gun. The mother testified that she had since ended relationships with persons who, in her opinion, were a bad influence on her.

The mother was attending Virginia College at the time of trial, and she was scheduled to start a job at a fast-food restaurant the day following the trial; she testified that she would earn $7.25 per hour at that job. She explained that as a ward of the state she received $845 per quarter to go to school and that she paid $50 of that money as rent. She did not testify concerning payment of other expenses, but she did admit that she could not live independently without assistance from SAFY. She said that SAFY would provide $150 for food but that she received food stamps instead. The mother said that she wanted to save money to buy an automobile and that she had already saved $900. She also explained that, when she began working, she would have to pay some money to SAFY and that SAFY would put the money in an account so that she would have money when she left the program.

DHR filed a petition to terminate the mother’s parental rights to the child in November 2010. According to Hampton, the decision to seek termination of the mother’s parental rights was based upon the length of time the mother and the child had been in foster care and upon the behavior of the mother during that period. Hampton noted that DHR had considered the behaviors of the mother that had disrupted her foster-care placements and had resulted in the child’s being placed in a separate foster-care placement. Hampton further explained that DHR had concluded that the mother “ha[d] not gathered the resources or tools to redefine herself and change her behaviors.”

After a trial in November 2011, the juvenile court entered a judgment on December 6, 2011, terminating the mother’s parental rights to the child. The mother filed a timely postjudgment motion, which was denied. She then timely appealed the judgment terminating her parental rights to this court.

“A juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights. Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990).”

B.M. v. State, 895 So.2d 319, 331 (Ala.Civ.App.2004). A juvenile court’s judgment terminating parental rights must be supported by clear and convincing evidence. Bowman v. State Dep’t of Human Res., 534 So.2d 304, 305 (Ala.Civ.App.1988). “Clear and convincing evidence” is “ ‘Evidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.’ ” L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002) (quoting Ala. Code 1975, § 6-11-20(b)(4)).

The termination of parental rights is governed by Ala.Code 1975, § 12-15-819. That statute reads, in part:

“(a) If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child and to terminate the parental rights, the juvenile court shall consider the following factors including, but not limited to, the following:
“(7) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.
“(12) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.”

On appeal, the mother argues that the record does not contain clear and convincing evidence to support the juvenile court’s decision to terminate her parental rights to the child. She notes that she was still a minor at the time her parental rights were terminated, and she contends that the evidence indicated that, in fact, her conduct or condition was likely to change in the foreseeable future because she was enrolled in college and had stopped associating with people who were a bad influence. We agree that the evidence presented at the trial does not support the conclusion that termination of the mother’s parental rights was warranted at this time.

“This court has consistently held that the existence of evidence of current conditions or conduct relating to a parent’s inability or unwillingness to care for his or her children is implicit in the requirement that termination of parental rights be based on clear and convincing evidence.”

D.O. v. Calhoun Cnty. Dep’t of Human Res., 859 So.2d 439, 444 (Ala.Civ.App.2003). We determined in D.O. that the mother in that case had taken the necessary steps to improve her circumstances, including seeking employment and continuing to pursue alcohol-abuse counseling, such that, at the time of the termination trial, termination of her parental rights was not warranted based on her current circumstances. D.O., 859 So.2d at 443-44; see also K.M. v. Shelby Cnty. Dep’t of Human Res., 628 So.2d 812 (Ala.Civ.App.1993) (holding that termination of parental rights was premature when evidence showed that minor mother, who had previously suffered from behavioral problems and who had previously run away from 11 foster-care placements, had begun stabilizing so as to become a good parent by time of trial).

Although the mother conceded that she had exercised poor judgment in respect to the photograph, that indiscretion does not amount to parental abuse, neglect, or harm that would justify suspension of her unsupervised visitation with the child, see K.D. v. Jefferson Cnty. Dep’t of Human Res., 88 So.3d 893 (Ala.Civ.App.2012), much less termination of her parental rights. See Santosky v. Kramer, 455 U.S. 745, 764, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (quoting Addington v. Texas, 441 U.S. 418, 427, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979)) (holding that clear-and-convincing-evidence standard is intended to prevent courts from terminating parental rights based on “ ‘a few isolated instances of unusual conduct [or] ... idiosyncratic behavior’ ”). Without that interruption, it appears that the family would have been progressing toward reunification, the goal established by DHR and our legislature. See § 12-15-101(b)(3), Ala.Code 1975.

Based on our review of the record, we conclude that the evidence does not support the juvenile court’s finding that the mother’s “conduct or condition [is] such as to render [the mother] unable to properly care for the child and such conduct or condition is unlikely to change in the foreseeable future.” As Hampton admitted, DHR made the decision to seek the termination of the mother’s parental rights based on her disruption of her past foster-care placements, not on her current circumstances. The record reflects that, despite some poor behavior in her foster-care placements, the mother in the present case, like the mother in D.O., has taken steps to improve her circumstances. Although some evidence in the record indicates that the mother has exercised poor judgment at times, the overall tendency of the evidence reflects that the mother has progressed and has gained skills for independent living.

Therefore, we conclude that the evidence indicates that the mother could, in the foreseeable future, become a suitable parent. Her graduation from high school, her decision to attend Virginia College, and her taking a full-time job at a fast-food restaurant show that the mother has made efforts to become more self-sufficient. Her decision to end relationships she had determined to be detrimental to her success is also indicative of her desire to improve her circumstances for the benefit of the child. Based on the evidence in the record before this court regarding the mother’s current conditions, we cannot agree that termination of the mother’s parental rights is warranted at this time. Accordingly, we reverse the judgment of the juvenile court terminating the parental rights of the mother, and we remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

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

THOMAS, J., dissents, without writing.


text:
    ABSOLUTE DRUG DETECTION SERVICES, INC., and Chauncey Thuss, Jr. v. REGIONS BANK and Nisa Jordan.
    2110494.
    Court of Civil Appeals of Alabama.
    Dec. 21, 2012.

      Kevin W. Jent of Wiggins, Childs, Quinn & Pantazis, LLC, Birmingham, for appellants.
    Larry B. Childs and Heath A. Fite of Waller, Lansden, Dortch & Davis, LLP, Birmingham, for appellees.
   PITTMAN, Judge.

Absolute Drug Detection Services, Inc. (“ADDS”), and Chauncey Thuss, Jr. (“Thuss”), the owner of ADDS, appeal from a summary judgment in favor of Regions Bank (“Regions”) and Nisa Jordan (“Jordan”), an employee of Regions.

This action arises out of allegedly unauthorized transactions that occurred involving bank accounts ADDS had with Regions. ADDS and Thuss filed the action in May 2009, naming as defendants Regions, Jordan, Eric Reed (“Reed”), Adrienne Reed d/b/a Jeffco Chem-Dry, Sprint Communications, and Eric Reed d/b/a Analytical Testing Group. Against Regions and Jordan, ADDS and Thuss asserted claims of negligence, “willfulness,” and wantonness; additionally, they stated a breach-of-contract claim against Regions only. ADDS and Thuss alleged that Regions and Jordan had improperly permitted Reed to execute transactions that had not been authorized by Thuss and to become a signatory on ADDS’s bank accounts.

In August 2011, all defendants filed summary-judgment motions. ADDS and Thuss responded in opposition to those motions, and a hearing on the motions was held on October 4, 2011. On October 12, 2011, the trial court entered a partial summary judgment in favor of Regions and Jordan, but it denied the motions of the other defendants. Regions and Jordan thereafter filed motions for the entry of a Rule 54(b), Ala. R. Civ. P., certification of the partial summary judgment as a final judgment as to the claims asserted against them, which the trial court granted on November 14, 2011. ADDS and Thuss timely appealed; the appeal was transferred by the supreme court to this court pursuant to Ala.Code 1975, § 12-2-7(6).

The record reveals the following undisputed facts. ADDS is a corporation located in Birmingham that provides drug testing and related services for its clients. Thuss is the owner of ADDS; at all relevant times, Reed was the business manager for ADDS. ADDS had two bank accounts with Regions: a checking account and a money-market account. Jordan was the branch operations manager at the Regions Southside branch location, where ADDS conducted most of its transactions.

The deposit agreement entered into by Thuss, on behalf of ADDS, and Regions provided:

“If you discover an unauthorized payment or other discrepancy, you must promptly notify us in writing of the relevant facts. Your report must identify the specific time or debits that you are challenging.
“If you fail to comply with your duty to examine your statements and account activity and report errors, discrepancies and unauthorized transactions, in addition to any and all other rights and remedies available to us, we shall have the defenses contained in § 4-406(d) of the Uniform Commercial Code (UCC) ... In addition, if your claim involves a series of items containing unauthorized signatures or alterations by the same wrongdoer, you shall be precluded from asserting against us any unauthorized signature or alteration by the same wrongdoer on any item paid in good faith on or after 10 calendar days after the first statement describing the first altered or unauthorized item was sent or made available to you ....
“Without regard to the care or lack of care of either you or us, if you fail within 30 calendar days after the statement or item is sent or made available to discover and report with respect to an item (i) your unauthorized signature, or (ii) any unauthorized or missing endorsement, or (in) any alteration on an item, you shall be precluded from asserting against us the unauthorized signature, the unauthorized or missing endorsement or alteration on that item. This absolute preclusion applies (i) to each item that you fail to report within 30 calendar days and (ii) regardless of the legal theory you assert. By this provision, you and we intend to shorten the absolute statutory preclusion period for unauthorized signatures and alterations specified in § J)-h06(f) of the UCC and to establish a contractual condition precedent for reporting claims involving unauthorized or missing endorsements.
“Except for transactions covered by the Electronic Funds Transfer Act or unauthorized debits involving Substitute Checks, you must report any other problems with your account within 30 calendar days of the date we send or make available the statement or items, failing which you will be precluded from asserting the problems against us, even if we fail to exercise ordinary care.”

(Emphasis added.)

The deposit agreement also imposed the burden of reporting unauthorized fund-transfer payments within 30 calendar days of the mailing of monthly statements, which listed the transfers of funds, including wire transfers; the agreement stated that if ADDS failed to report any unauthorized transactions or other discrepancies, the transfers were deemed authorized after the 30 days had elapsed.

Reed held all bookkeeping responsibilities at ADDS and did not answer or report to a superior; thus, no one checked Reed’s work. One of those responsibilities was to review ADDS’s monthly bank statements and to check, and then report, unauthorized transactions and discrepancies. Additionally, Thuss had entrusted Reed with his signature stamp for Reed to use when necessary. The deposit agreement also addressed the use of a signature stamp:

“Since we have no way of determining the validity of checks or other written orders bearing facsimile signatures, which includes the use of a signature stamp, [ADDS] hereby release[s] the Bank from any liability for unauthorized use of any facsimile signature device.”

Thuss was the only authorized person whose name was listed as a signatory for ADDS’s bank accounts. Reed was never authorized as a signatory on the accounts, never directed by Thuss to be so listed, and, with the exception of a few specific occasions, never authorized to withdraw funds from either of ADDS’s accounts. The record establishes that a person must be listed as a signatory on an account to be permitted to withdraw money from that account. Further, Regions required that, in order to add a new signatory on an account, the existing signatory must authorize the addition of the new signatory either by coming to the bank in person or by having the new signatory sign a signatory card in the presence of a notary. The record reveals that Reed was added as a new signatory on the ADDS accounts on September 12, 2008, but that the addition of Reed’s name as a signatory on the accounts was not authorized by Thuss; Thuss did not go to the bank on that date and did not provide a notarized signature to authorize Reed’s addition; though the stamp of Thuss’s signature does appear from the record to have been affixed on one of the pertinent documents, the signature was not notarized.

In September 2008, the record reveals, Thuss became concerned about the financial situation of ADDS when some of the laboratories used by ADDS refused to release test results because those laboratories had not been paid by ADDS for previous work performed. In a letter dated December 22, 2008, to Regions, Thuss stated:

“Looking at the September [2008] statement it appears total deposits of $20,369.00 were made. There were two wire transfers total $3,050.00 which appears to go to two labs. There was also a bank debit for $2,000.00 but I cannot tell where it went or what it was for. Interestingly enough, it occurred on September 12, 2008, the same day the signature card was changed by Eric [Reed] and Nisa Jordan.”

The second time Thuss informed Regions of unauthorized activity on the ADDS account statements was in May 2010 in a list of allegedly unauthorized transactions involving the ADDS checking account. That was the first time ADDS and Thuss raised any concern regarding transactions involving the ADDS checking account. Lists that were compiled and disclosed by ADDS and Thuss during discovery reflected purported unauthorized transactions from May 2007 to December 2007 and from January 2008 through September 2008; approximately 176 of the 239 transactions listed as unauthorized were transactions executed by Reed’s use of Thuss’s signatory stamp, while the remainder were transactions drawn from ADDS’s checking account.

The trial court, in its judgment, stated that the claims asserted by ADDS and Thuss against Regions and Jordan were barred by Ala.Code 1975, § 7-4-406(d) and (f) and § 7-4A-505, as well as by the deposit agreement entered into by Regions and ADDS. On appeal, ADDS and Thuss assert that the trial court erred in entering a summary judgment in favor of Regions and Jordan because, ADDS and Thuss assert, they presented evidence sufficient to present a general issue of material fact as to whether Regions and Jordan acted in good faith and exercised ordinary care in processing the transactions claimed to be improper; they assert that the trial court ignored Ala.Code 1975, § 7-4-406(e), which, they contend, states that § 7-4-406(d) and (f) do not apply in situations in which the bank did not pay in good faith and, additionally, that the bar set forth in § 7 — 4—406(d) does not automatically apply when there is evidence indicating that the bank failed to exercise ordinary care in paying an item and such failure contributed to a loss.

It is well settled that an appellate court reviews a summary judgment de novo, using the same standard applied by the trial court. Neal v. Sem Ray, Inc., 68 So.3d 194, 196 (Ala.Civ.App.2011). Under Rule 56(c), Ala. R. Civ. P., we must review the evidence to determine whether the movant established that no genuine issue of material fact existed, thereby entitling the mov-ant to a judgment as a matter of law. If the movant makes that showing, the non-movant thereafter bears the burden to adduce “substantial evidence” to rebut the movant’s showing that there is no genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin Cnty., 538 So.2d 794, 797-98 (Ala.1989). “[Sjubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). We apply the de novo standard of review to each issue raised in the present appeal.

This case turns on the applicability of the statutory bars asserted by Regions and Jordan, which in turn depend on the timing of the reports made by ADDS and Thuss to Regions of unauthorized activity on ADDS’s accounts. Under Ala.Code 1975, § 7-4-406(0, a customer has a strict 180-day period within which to report suspected unauthorized transactions; the deposit agreement, however, expressly shortens the period to 30 calendar days. Critically, § 7-4-406(0 applies expressly without regard to the care exercised by the bank. Therefore, according to the deposit agreement and § 7-4-406(0, when read together, the failure of ADDS to report any unauthorized transaction after the lapse of 30 days of having received the monthly account statement reflecting those transactions absolutely bars any claims ADDS might otherwise have asserted against Regions based on those allegedly unauthorized transactions. Additionally, unauthorized wire transfers must be reported within one year of a customer’s receiving notice sufficient to have compelled the customer to report the unauthorized transaction under Ala.Code 1975, § 7-4A-505. That statute applies to transfers of funds, including wire transfers, and operates as a complete rule of repose in favor of the bank after one year has passed from the customer’s having been notified of a questionable transaction.

ADDS and Thuss, in their brief to this court, argue in detail that the statutory bars of §§ 7-4-406(d) and 7-4A-505 are inapplicable, citing evidence that Jordan acted in bad faith because she processed the transactions despite knowing that only Thuss was an authorized signatory on the accounts. Jordan’s failure to make sure that Reed was authorized as a signatory on the accounts is the only evidence to which ADDS and Thuss point as demonstrative of Jordan’s alleged bad faith. Jordan’s (alleged) culpability, however, is negated by Thuss’s actions; because Reed had Thuss’s signature stamp, it was reasonable for Jordan to permit him to conduct the transactions. In other words, any additional culpability on Jordan’s part for having allowed Reed to conduct the transactions is negated by the undisputed fact that Thuss had entrusted, ostensibly with no accountability, his signature stamp to Reed for Reed to use at his discretion. Moreover, it is undisputed that Thuss did not review the monthly bank statements and that he delegated to Reed the responsibility of identifying and reporting unauthorized transactions and other discrepancies.

The terms of the deposit agreement clearly reflect that Regions presumes that when another person possesses the signature stamp of a customer, that person possesses the stamp as an agent of the customer. It follows that the strict language of the provision in the deposit agreement limiting Regions’ liability based on the unauthorized use of a signature stamp is intended to emphasize the authority vested in a person who possesses the stamp and, in turn, the diligence expected of a customer to guard against misuse of the stamp. The terms implicitly but unquestionably iterate the need to monitor the use of a signature stamp when a customer has entrusted it to be used at the discretion of an agent of the customer. The deposit agreement requires precisely the level of diligence that would have protected ADDS and Regions against the scheme allegedly implemented by Reed in this case. The requirement that unauthorized transactions be reported at the first opportunity and the presumption placed upon the use of a signature stamp were included in the deposit agreement as safeguards to protect Regions and ADDS against loss.

ADDS and Thuss argue that § 7-4-406(d) is the statutory bar that, under different circumstances, would be applicable here, but, they assert, Jordan acted in bad faith by allowing Reed to conduct transactions and, therefore, that they are not be barred from asserting claims against Regions and Jordan. Aside from the general authority of § 7-4-406(d), which bars claims against a bank only so long as the bank has not acted in bad faith, ADDS and Thuss do not cite any statute or caselaw to support the notion that Jordan’s conduct was sufficient so as to foreclose application of § 7-4-406(d). If we consider, in isolation and in a light most favorable to them, ADDS and Thuss’s argument that Jordan erred by allowing Reed to execute transactions while Reed was not authorized as a signatory on the accounts, Jordan’s conduct, at most, demonstrated that she may have failed to exercise ordinary care in conducting everyday business; her actions certainly did not rise to the level of bad faith, especially in light of Thuss’s shortfalls and the aforementioned effect his shortfalls had on negating Jordan’s culpability.

This case comes down to a question of deadlines. After receiving the monthly account statement for each account, ADDS was required to report any unauthorized transactions listed in that account statement within 30 calendar days pursuant to the terms agreed upon in the deposit agreement and without regard to Regions’ exercise of reasonable care, or failure to exercise reasonable care, as expressed in § 7-4-406(f). ADDS and Thuss reported unauthorized activity on two occasions: in December 2008 and in May 2010. As to the claims based on the activity reported in May 2010, under Ala.Code 1975, § 7-4-406(f), those claims were barred because the activity was made known to ADDS and Thuss in account statements in 2007 and 2008. To the extent that the activity reported at that time included wire transfers, those claims were barred under Ala. Code 1975, § 7-4A-505.

Next, we address the validity of claims based on the unauthorized-activity report in Thuss’s letter to Regions in December 2008. In that letter, Thuss mentioned three transactions but only raised concerns as to one of those transactions: a bank debit that had taken place in September 2008. However, those transactions were not reported within the 30-day reporting period and, thus, were not timely asserted. Thuss fell short of fulfilling his responsibilities as the signatory on ADDS’s accounts, and his failure to exercise the diligence required by the deposit agreement effectively disabled the safeguards contemplated by the terms of the agreement and, instead, only helped perpetuate Reed’s alleged wrongdoing; had Thuss complied with the terms of the deposit agreement, any loss resulting from Reed’s alleged wrongdoing would have been mitigated.

AFFIRMED.

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

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

      . The record, pursuant to Rule 10(f), Ala. R.App. P., has been supplemented with a copy of the trial court’s partial-summary-judgment order entered in favor of Regions and Jordan.

      . The trial court’s judgment was based on its interpretation of the deposit agreement and the statutory provisions together. Though ADDS and Thuss did not challenge the terms of the deposit agreement or whether the time limits set forth in the statutes may be modified by the deposit agreement, we nonetheless acknowledge that the parties were free to contractually modify the statutory time limits pursuant to Ala.Code 1975, §§ 7-1-302 and 7-4A-501.

      . In their brief, ADDS and Thuss also assert that Regions and Jordan permitted Reed to deposit payments addressed to ADDS and Thuss in other, personal accounts belonging to Reed. However, claims grounded upon such unauthorized activity were not asserted in the complaint, and, thus, arguments as to such claims are not properly before us in this appeal.


author: PER CURIAM. THOMPSON, Presiding Judge,

text:
    T.J. v. CALHOUN COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2110794.
    Court of Civil Appeals of Alabama.
    Jan. 11, 2013.

      Adrienne Michele LaBudde of LaBudde & Russell, Anniston, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, chief counsel, and Kimberly J. Dobbs, asst. atty. gen., Department of Human Resources.
   PER CURIAM.

Following an investigation conducted by the Calhoun County Department of Human Resources (“DHR”), the Calhoun Juvenile Court (“the juvenile court”) entered a shelter-care order on January 24, 2012, awarding the legal custody of Jo.J. and Ja.J. (“the children”) to DHR, who immediately placed the children in the care of S.J. (“the father”). That same date, the juvenile court entered an order authorizing law-enforcement officials to assist DHR in procuring from the home of the children’s mother, T.J. (“the mother”), certain personal items and furniture used by or belonging to the children. The juvenile court subsequently entered a judgment on April 4, 2012, declaring the children dependent, awarding custody of the children to the father, and ordering DHR to supervise the family pending further orders. The mother appeals from that judgment.

Although the mother attacks the dependency judgment on numerous grounds, we find one issue raised by the mother — whether the evidence is sufficient to sustain a finding of dependency — dis-positive. We agree with the mother that the record does not contain sufficient evidence indicating that the children are dependent.

Section 12-15-102(8)a., Ala.Code 1975, defines a “dependent child” as

“[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[, Ala.Code 1975,] or neglect 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 the dependency petition, DHR asserted that the children were dependent because it “appears” that the mother has “some serious mental health issues” for which “[s]he is currently not receiving any treatment.” We interpret the petition as alleging that, due to the mother’s existing mental-health problems, the mother was “unable or unwilling to discharge ... her responsibilities to and for the child[ren].” See § 12-15-102(8)a.6., Ala.Code 1975.

The evidence in the record shows that, during an initial investigation regarding a report against the father, Robin McNeal, a ehild-abuse-and-neglect investigator for DHR, developed a suspicion that the mother was suffering from a mental-health problem. When McNeal questioned the mother on that point, the mother informed McNeal that, “at one time,” she had received counseling from “the mental health center” but that she had stopped going because she did not believe she needed it. The mother clarified at the adjudicatory hearing that eight or nine years earlier she had voluntarily sought counseling in Jacksonville at a mental-health center because, she said, “I thought I needed somebody to talk to, and it didn’t work out.” The mother testified that she had never been diagnosed with a mental-health problem or taken any medication for a mental-health problem. McNeal testified that, after meeting with the mother, she concluded that the mother was not receiving any mental-health treatment at the time of the investigation.

DHR initially attempted to present evidence through McNeal’s testimony regarding its basis for questioning the mother’s current mental-health status, but the juvenile court sustained a hearsay objection to that testimony. McNeal then testified as follows:

“Q. (By [counsel for DHR]) What was the concern that you identified, Ms. McNeal, as to requiring the mother to have a mental health assessment? What did you base that on?
“A. Behaviors of the mother to the child and the child’s reaction.
“Q. Did you have an opportunity to observe those behaviors by the mother?
“A. Those behaviors to the child?
“Q. Did you have an opportunity to observe the behavior of the mother?
“A. I have.
“Q. When you observed the behavior of the mother, what concerns did you have?
“A. Denial. She denied that any of that happened, and her explanation for what occurred was not feasible, in that she explained ... the hole in the wall at the bottom of the floor [as] being from her trying to get to the pipes approximately three and a half to four feet up to tighten pipes to prevent a sink from falling that was on the other side of the wall, and this was not feasible. You would have to go in from three and a half feet to — a plumber would have to do that.”

DHR removed the children from the mother’s home based primarily on the mother’s refusal to submit voluntarily to a mental-health assessment. McNeal testified as follows:

“Q. [By counsel for DHR] Was there any other concern! ] while you were investigating this case that you had with the mother that would, in your opinion, put the children at risk?
“A. Her refusal in sharing mental health information [and] in having an evaluation was concerning.”

According to McNeal, after informing the mother of her “concerns” and after the mother refused to consent to DHR’s request for a mental-health assessment, she “had to assume protective custody of the children.” At that point, DHR instituted shelter-care proceedings and obtained legal custody of the children.

DHR continued to separate the mother and the children based solely on the mother’s refusal to voluntarily cooperate with DHR by providing mental-health records and by submitting to a mental-health assessment. McNeal testified that, following the shelter-care hearing, DHR held an Individualized Service Plan meeting at which it again requested that the mother agree to a DHR-sponsored mental-health assessment, which the mother refused. McNeal testified as follows:

“Q. [By counsel for DHR] Now, in your opinion, as the [child-abuse/neglect] investigator regarding safety of [the children], would [DHR] recommend that those children be placed back without the necessary mental health assessment?
“A. No.
“Q. Why is that?
“A. Due to the — the mother has not cooperated in any way with mental health assessments. [DHR] wants to ensure the children’s safety through those mental health assessments.
“Q. Last question. Is the mother’s refusing to participate in any services to alleviate [DHR’s] involvement a remaining concern today?
“A. Yes.”

Fagan Ponder, the DHR foster-care worker who took over the case from McNeal as of January 26, 2012, testified as follows:

“Q. [By counsel for DHR] Let me ask you, Mr. Ponder, from reviewing the case, what would you identify that would be barriers that would need to be remove[d] if the children were placed back with the mom?
“A. First off, just the cooperation with DHR....”

Ponder additionally testified that the mother had sought visitation with the children through her attorney but that, as a condition to “getting visits,” the mother would have had to comply “with services or comply with mental health,” which the mother refused to do. Ponder testified that DHR could not ensure the safety of the children without “the appropriate mental health assessments to address the stability of the mother.”

The mother testified that DHR’s representatives had not requested that she undergo a mental-health assessment but, rather, had told her that, unless she did, she could not see the children. The mother testified that she would not agree to a DHR-sponsored mental-health assessment because, she said, “the way that they have done me, I don’t trust their employees.” The mother stated that she would agree to having a mental-health assessment by a doctor of her own choosing. The mother testified that she had sought an assessment through a mental-health facility in Tulloma, Tennessee, but the facility would not accept her method of payment, i.e., Alabama Medicaid; as a result, the mother had not obtained a mental-health assessment. The mother testified that she had moved to Tennessee on the Saturday following the shelter-care hearing and that her medical insurance has since been “frozen.” The mother stated that she would obtain a mental-health assessment as soon as her insurance allowed. At the adjudicatory hearing, the mother maintained that she would not agree to a mental-health assessment that was sponsored by DHR and would take place in Calhoun County.

The record establishes that, when it initially removed the children and thereafter prevented any contact between the mother and the children, DHR only suspected that the mother might have a mental-health problem. Regarding the basis for those suspicions, McNeal did not provide the juvenile court with any information she had obtained from other sources as to how a hole in the wall of the mother’s residence had been created. McNeal testified only that the mother had “denied” that some unknown event had occurred, apparently referring to how the hole in the wall had been created. McNeal also testified that she had disbelieved the mother’s explanation for how the hole was created, indicating that she had believed some other unstated version of events to be more plausible. However, DHR did not provide the juvenile court with evidence regarding that alternative version of events or supply the juvenile court with any basis for inferring that the unstated information necessarily indicated that the mother had created the hole while in the throes of some bizarre, erratic, or impulsive behavior due to a mental-health problem. Without such evidence, any conclusions the juvenile court may have reached as to what had happened and how those events pointed to the mother’s having a mental-health problem could be based only on speculation and conjecture. See In re Jertrude O., 56 Md.App. 83, 466 A.2d 885 (1983) (holding that juvenile court cannot remove child from home and continue shelter care based upon speculative possibility that child had been or would be abused or harmed by parent).

In the adjudicatory hearing, DHR did not present any psychological or psychiatric evidence to confirm its suspicions that the mother suffered from a mental-health problem. Rather than avail itself of the legal process to secure a mental-health assessment, see Rule 1A, Ala. R. Juv. P., and Rule 35, Ala. R. Civ. P.; see also § 12 — 15—130(c), Ala.Code 1975, or to compel production of any of the mother’s mental-health records, see Rule 1A, Ala. R. Juv. P., and Rule 34, Ala. R. Civ. P., DHR elected to present no evidence in the form of expert opinions or otherwise to substantiate its claim that the mother was suffering from a mental-health condition. Instead, DHR proceeded to the adjudicatory hearing upon the theory that it could withhold custody, and even visitation, from the mother until she submitted to a mental-health assessment or presented mental-health records that allayed its “concerns” that she had a mental-health problem.

The law, however, does not place the burden on a parent to prove his or her mental-health fitness to the State in order to sustain his or her custody rights. See In re M.L., 210 Cal.App.4th 1457, 1470, 148 Cal.Rptr.3d 911, 922 (2012) (“Mother had no duty to prove she did not have a mental health issue.”). DHR has not cited to this court a single case that states that a parent has an obligation to respond to its extrajudicial requests or demands for mental-health information, much less any authority stating that a juvenile court can make an adverse inference against the parent for refusing to cooperate with those requests or demands. Generally speaking, parents have a fundamental right to the custody of their natural children. See Ex parte E.R.G., 73 So.3d 634, 639 (Ala.2011). Accordingly, the law presumes that a custodial parent is fit in every respect to care for his or her children. See Griggs v. Barnes, 262 Ala. 357, 78 So.2d 910 (1955). In order for the State to intrude into the solicitude of a family and to alter the custodial rights of a parent, the State bears the burden of proving by clear and convincing evidence that the parent is unfit to care for the child. Ex parte E.R.G., supra. Until it discharged that burden, DHR had no lawful basis for requiring the mother to comply with any of its conditions in order to regain her custody rights.

Our review of the record reveals that, at best, DHR proved only that its workers had formed a suspicion that the mother may have a mental-health problem. It is not enough that the evidence raises only a question as to the dependency of a child. T.H. v. Jefferson Cnty. Dep’t of Human Res., 70 So.3d 1236, 1247 (Ala.Civ.App.2010) (Per Moore, J., with two judges concurring in the result). “The fear of harm to the child ... must be a real one predicated upon hard evidence; it may not be simply gut reaction or even a decision to err-if-at-all on the side of caution.” In re Jertrude O., 56 Md.App. at 100, 466 A.2d at 894. Unless DHR presents “clear and convincing evidence,” the dependency petition must be dismissed. § 12 — 15—310(b), Ala. Code 1975. “Clear and convincing evidence” is “ ‘[ejvidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.’ ” L.H. v. Lee Cnty. Dep’t of Human Res., 40 So.3d 747, 749 (Ala.Civ.App.2009) (quoting M.E. v. Shelby Cnty. Dep’t of Human Res., 972 So.2d 89, 92-93 (Ala.Civ.App.2007)). This court can affirm a finding that a parent has a mental-health problem that prevents that parent from rendering proper care and supervision to a child only if the juvenile court reasonably could have been clearly convinced of that fact from the evidence contained in the record. See Ex parte McInish, 47 So.3d 767, 778 (Ala.2008) (explaining appellate standard of review of judgments containing findings of fact required to be proven by clear and convincing evidence).

In a very similar situation, when DHR failed to present admissible expert testimony or other evidence of a mental disability, this court reversed a judgment terminating a parent’s parental rights because the evidence was insufficient to prove the mental disability of the parent whose child suffered from cerebral palsy. See C.S.B. v. Alabama Dep’t of Human Res., 26 So.3d 426 (Ala.Civ.App.2009). In that case, a majority of this court recognized that a juvenile court could recognize an obvious mental disability from the incoherent responses of the mother during direct and cross-examination but that the juvenile court could not extrapolate from that bare inference that the mother lacked the mental acuity to properly care for her child such that her parental rights should be terminated. More recently, in Washington v. State, 95 So.3d 26 (Ala.Crim.App.2012), the Court of Criminal Appeals held that a trial court could use its own observations to resolve a conflict among experts regarding the mental competency of a defendant to stand trial for capital murder, but the court did not hold that the trial court could decide the competency of the defendant based solely on its own observations.

In this case, the record does not contain conflicting evidence as to the mental health of the mother. She categorically denied any existing mental-health problem, and DHR presented no evidence indicating that she suffered from such a condition. The mother also gave perfectly rational responses to the questions from the attorneys and the juvenile court. The juvenile court may not have believed some of those responses, but it could not lawfully have determined from its mere observations of the mother that she had a mental-health problem that prevented her from properly caring for the children, or that threatened the children with harm, without the benefit of actual evidence to that effect.

The record is devoid of any evidence indicating that the mother had ever actually harmed or even threatened to harm the children, who were ages 12 and 15 at the time of the adjudicatory hearing. The record also does not include clear evidence that would lead a reasonable fact-finder to be convinced that the mother suffers from a mental-health problem that could endanger the safety of the children. Because the evidence in the record is insufficient to support the juvenile court’s finding of dependency, we reverse the juvenile court’s judgment and remand the case for the juvenile court to enter a judgment dismissing the dependency petition. See § 12-15-310(b), Ala.Code 1975.

The mother also argues that the juvenile court lacked the authority to enter an order allowing DHR to remove personal property from her home. In its shelter-care order, the juvenile court ordered a list of 22 items, including bedroom furniture and accessories, games, toys, clothing, and medications to be removed from the home of the mother. That list also included the family dog, a glass-top table, and an exercise machine. The juvenile court subsequently ordered DHR and the Calhoun County sheriff to obtain the dog and issued a writ of assistance directed to the sheriffs office to obtain the other items. On April 5, 2012, the juvenile court found the mother in contempt and issued a writ for her arrest based on her noncompliance with the foregoing orders.

Because they are not constitutional courts, juvenile courts only have power as is conferred upon them by statute. Ex parte K.L.P., 868 So.2d 454, 456 (Ala.Civ.App.2003). The mother argues that no statute expressly authorizes a juvenile court to order the removal of items from the home of a parent. The mother further points out that the Alabama Constitution of 1901 prohibits the State from taking private property without the owner’s consent, see Ala. Const, of 1901, art. I, § 23, and that § 18-1B-1, Ala.Code 1975, prevents State agencies invested with the power of eminent domain from taking private property for the private use of another. Therefore, the mother contends, the juvenile court did not have jurisdiction to enter any of the orders relating to the removal of the personal property from the mother’s home.

DHR responds that §§ 12 — 15—B14(a)(3)c. and 12 — 15—314(a)(4), Ala.Code 1975, give juvenile courts broad authority to enter any orders “as the juvenile court in its discretion shall deem to be for the welfare and best interests of the child.” However, those subsections relate solely to the disposition of the custody of “dependent children.” At the time the orders were entered, the children had not been declared to be dependent, and, as held above, the subsequent finding of dependency was erroneous. Subsections (a)(3)e. and (a)(4) of § 12-15-314 did not authorize the juvenile court to order the removal of the personal property from the home of the mother.

In In re K.P.R., 197 Ohio App.3d 193, 195, 966 N.E.2d 952, 953 (2011), a child was visiting with his noncustodial father when his mother unexpectedly died. The child thereafter remained in his father’s home. Id. The father, based on an order of the juvenile court of Warren County, Ohio, subsequently obtained some of the child’s belongings and furniture from the mother’s home. The child’s stepfather subsequently moved the court to order the father to return the items, and the court ordered the father to return some of the items. Id. On appeal, the father argued, among other things, that the juvenile court lacked any jurisdiction over the property dispute and, therefore, that it did not have the authority to permit the father to take the items in the first place or the authority to later require him to return those items. 197 Ohio App.3d at 199-200, 966 N.E.2d at 957. In vacating the order requiring the father to return the items, the Ohio Court of Appeals for the Twelfth District stated: “[W]e cannot locate any authority giving the juvenile court jurisdiction to order the disposition of property from the mother and stepfather’s home.” 197 Ohio App.3d at 200, 966 N.E.2d at 958.

No language in the Alabama Juvenile Justice Act (“the AJJA”), § 12-15-101 et seq., Ala.Code 1975, can be read broadly to imply that juvenile courts have jurisdiction over personal property owned by a parent, especially in light of the general constitutional and statutory prohibitions against a government’s taking of private property. Likewise, we cannot locate any authority in the AJJA that grants to juvenile courts the power to decide issues relating to the disposition of personal property, even if that personal property may be considered that of the children at issue and even if the disposition would serve the children’s best interests. Thus, we hold that juvenile courts do not have the authority to order the removal of personal property from the home of a parent.

We therefore conclude that the juvenile court lacked jurisdiction to enter the orders allowing the removal of the items of personal property from the home of the mother. An order entered without jurisdiction is void. See B.L.R. v. N.M.N., 69 So.3d 868, 870 (Ala.Civ.App.2011). “ ‘This court is required to dismiss an appeal from a void judgment.’” R.T. v. B.N.H., 66 So.3d 807, 812 (Ala.Civ.App.2011) (quoting Owens v. Owens, 51 So.3d 364, 367 (Ala.Civ.App.2010)). Thus, we dismiss the mother’s appeal as it relates to the orders entered by the juvenile court regarding the mother’s personal property, albeit with instructions to the juvenile court to vacate those void orders, R.T., 66 So.3d at 812, including the judgment finding the mother in contempt for violating those void orders. See Old Dominion Tel. Co. v. Powers, 140 Ala. 220, 227, 37 So. 195, 197 (1904) (holding that a defendant cannot be punished by contempt proceedings for disregarding a void order).

APPEAL DISMISSED IN PART; REVERSED AND REMANDED WITH INSTRUCTIONS.

BRYAN and MOORE, JJ., concur.

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

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

THOMPSON, Presiding Judge,

dissenting.

I believe that the juvenile court could have properly determined that the children were dependent based on the totality of the evidence presented to it. § 12-15-102(8), Ala.Code 1975; A.L.D. v. Calhoun Cnty. Dep’t of Human Res., 2 So.3d 855, 861 (Ala.Civ.App.2008) (“The trial court ‘must also consider the best interests of the child and may find dependency based on the totality of the circumstances.’ J.M. v. State Dep’t of Human Res., 686 So.2d 1253, 1255 (Ala.Civ.App.1996).”); Ex parte State Dep’t of Human Res., 890 So.2d 114, 120 (Ala.2004) (same). The evidence in this action, including that pertaining to the mother’s conduct during the pendency of this action and some of her responses during her testimony, support a conclusion that the DHR social workers were correct in having concerns about the mother’s mental health. The juvenile court was in the best position to observe the mother as she testified and to assess her demeanor. J.S.M. v. P.J., 902 So.2d 89, 96 (Ala.Civ.App.2004) (citing Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986)).

“The cold record before an appellate court, no matter how meticulous its transcription, is incapable of truly reflecting certain human actions and reactions that occur during a trial. The special nuances of the human voice and the infinite number of human facial expressions are incapable of transcription, and, yet, we recognize them as frequently highly indicative of credibility [or demeanor].”

Lilly v. Palmer, 495 So.2d 522, 525 (Ala.1986).

When, as here, a trier of fact fails to make specific findings of fact in its judgment, the appellate courts must assume that it made those factual findings necessary to support its judgment. Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996). A finding that DHR’s concerns about the mother’s mental health were warranted supports the juvenile court’s judgment, and it is undisputed that the mother refused to cooperate with DHR’s reunification goals to address that concern. The mother refused to sign a release allowing DHR access to her mental-health records and stated that she would submit to a mental-health evaluation in Tennessee. Immediately following the shelter-care hearing, the mother moved to Tennessee without providing her contact information to the DHR social workers. The mother admitted that she has no income, and the record contains no evidence regarding whether her residence is adequate or appropriate for the children. “Because this court is prohibited from reweighing the evidence on appeal or determining the credibility of witnesses, [we] cannot conclude that the juvenile court erred when it determined that the child was dependent.” B.R.G. v. G.L.M., 57 So.3d 137, 142 (Ala.Civ.App.2010). Given the totality of the evidence presented to the juvenile court in this case, I cannot say that the juvenile court erred in determining that the children were dependent

I also dissent from that part of the main opinion that reverses the juvenile court’s orders requiring the mother to turn over certain property. The record indicates that the mother disputed allowing the children to take some of their personal property, including property that DHR social workers indicated was needed to calm one of the children, who has been diagnosed with a condition on the autism spectrum. The juvenile court had to issue orders authorizing the sheriff to obtain that property. See § 12 — 15—314(a)(4), Ala.Code 1975 (A juvenile court may “make any other order as the juvenile court in its discretion shall deem to be for the welfare and best interests of the child.”).

THOMAS, J., concurs.

      . Because that judgment failed to address the mother’s request for visitation, this court remanded the case to the juvenile court to address that request, which it did, making the judgment final so as to support this appeal.

      . DHR received a report that the father was giving the children access to marijuana and alcohol, which report DHR concluded was unfounded.

      . The mother refused to sign an authorization to allow DHR to obtain any records from that visit, but the mother testified that she did not receive any form of evaluation or treatment at that time.

      . Later in her testimony, McNeal stated that she had learned of the hole in the wall from "the child," but she did not identify which child or what information the child had provided her regarding the hole.

      . We make no comment as to whether DHR would have been entitled to such discovery because that issue is not before us.

      . DHR did not include in its petition any other basis for asserting the dependency of the children. At trial, DHR did not attempt to present evidence relating to any other basis. In response to a single question, a DHR witness testified that he had no information regarding the mother’s current residence, and the mother testified at one point that she did not have any income at the time of the hearing; however, DHR did not try to prove or argue that the children were dependent based on the mother’s current housing situation or lack of income. Although we have held that this court can affirm a finding of dependency on legal grounds other than those stated in the petition, see T.H. v. Jefferson Cnty. Dep’t of Human Res., 70 So.3d at 1245, we may do so only consistent with the due-process rights of the parent. See Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003) (noting that judgment cannot be affirmed on a ground of which litigant had no notice). The mother had no notice that DHR was asserting the dependency of the children for any reason other than her alleged mental unfitness, and the parties did not litigate the issues whether her poverty or current residential conditions rendered her incapable of properly caring for the children. Under these circumstances, this court cannot affirm the judgment based on those grounds.