author: THOMAS, Judge. THOMPSON, Presiding Judge,

text:
    K.R. v. LAUDERDALE COUNTY DEPARTMENT OF HUMAN RESOURCES. J.W. v. Lauderdale County Department of Human Resources.
    2111220 and 2120020.
    Court of Civil Appeals of Alabama.
    April 19, 2013.
    Rehearing Denied as to case no. 2120020, June 28, 2013.

      Johnnie L. Franks, Florence, for appellant K.R.
    Charles Andrew Bottoms, Jr., Florence, for appellant J.W.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources.
   THOMAS, Judge.

D.N.R. was born in Pennsylvania on July 26,1993. D.N.R.’s father is unknown, and T.D. (“the biological mother”) consented to the termination of her parental rights on June 26, 1998, in the Court of Common Pleas of Lawrence County, Pennsylvania (“the Pennsylvania court”). D.N.R. lived with W.R.M. until W.R.M.’s death; however, the record does not reveal whether W.R.M. adopted D.N.R. W.R.M. was survived by her husband J.M.

The record contains a copy of the Pennsylvania court’s August 9, 2006, judgment that incorporated a consent agreement entered into by J.M. and J.W. (“the custodian”), the sister of W.R.M. The Pennsylvania court awarded primary physical custody and sole legal custody of D.N.R. to the custodian and awarded J.M. visitation and the right to review D.N.R.’s medical, dental, psychiatric, psychological, and academic records. The judgment of the Pennsylvania court included a provision in which K.R. (“the custodian’s sister”) would receive custody of D.N.R. upon the incapacitation or death of the custodian. D.N.R. moved to Alabama with the custodian in 2006.

On July 18, 2011, D.N.R.’s guardian ad litem filed a petition in the Lauderdale Juvenile Court asserting that D.N.R. was dependent and requesting that her custody be awarded to the Lauderdale Department of Human Resources (“DHR”). The petition alleged that D.N.R. lived with the custodian, that D.N.R.’s mother was deceased and her father was unknown, that the custodian was not providing for D.N.R.’s care, support, or education, and that D.N.R.’s health, safety, and well being were at risk. A shelter-care hearing was set for July 20, 2011. At the shelter-care hearing, the juvenile-court judge stated: “We are here today for a determination of the dependency and a 72-hour hearing.” DHR’s attorney and D.N.R.’s guardian ad litem stipulated to D.N.R.’s dependency; however, the custodian, who was acting pro se, never stipulated to D.N.R.’s dependency; she admitted only that D.N.R. had “a lot of issues.”

Nothing asserted in the pleadings or stated at the shelter-care hearing would have revealed the existence of the judgments of the Pennsylvania court to the juvenile court, although we note that the action underlying these appeals is case number JU-10-176.05 and it is apparent to this court that D.N.R. had been before the juvenile court at least three other times. Before witnesses were called, the attorneys and the juvenile-court judge had a discussion regarding a certain delinquency charge against D.N.R. in “the .04 case” that was scheduled to be heard by the juvenile court later that same day.

At the time of the July 20, 2011, shelter-care hearing, D.N.R. had lived with the custodian for more than five years; however, the juvenile-court judge questioned the custodian as to whether she had “paperwork showing that [she] ha[d] custody,” to which the custodian replied: “Not with me.” The juvenile-court judge said:

“The reason Pm asking these questions because if you are determined to be [D.N.RJs legal custodian, then we probably need to have an attorney appointed to represent you and your interests in these cases or in this case. So it would be very beneficial to all of us if you could find that paperwork and let us know because as far as we know, there’s no order that we know of saying you have custody of [D.N.R.], okay?”

Sarah Hendershot, a DHR employee, testified that DHR could not “establish who the legal guardian is right now.” The juvenile court heard testimony that DHR had treated D.N.R. “like a teenager that was found on the street” because DHR had no proof that the custodian had legal custody of D.N.R., although Hendershot also agreed that D.N.R. was accompanied in the shelter-care hearing by her “physical custodian, her aunt,” who “was providing home, supervision, and custody for [D.N.R.].” Hendershot testified that DHR had received information indicating that the custodian had been “possibly emotionally abusive” and had made “harmful statements” to D.N.R. Hendershot said that if the juvenile court awarded D.N.R.’s custody to DHR, part of the services provided to the custodian would be the determination of the “status of custody.” The juvenile court neither appointed an attorney for the custodian nor afforded her an opportunity to testify or to examine Hender-shot. The following exchange took place at the end of the shelter-care hearing:

“THE COURT: I think it’s sufficient. All right. Based on the evidence and testimony, along with the stipulations of the parties, the Court finds this hearing is being held within 72 hours. This pick-up is warranted and necessary under the conditions stated and [D.N.R.] is dependent and I will declare the child dependent today. Therefore, custody will remain with [DHR] pending an adjudicatory hearing which will be set, I guess, some time within the next 60 days. Anything else we need to take up at this time?
“[The custodian]: Judge?
“THE COURT: Yes, ma’am.
“[The custodian]: Those papers [indicating that the custodian was D.N.R.’s legal custodian] — I’ve been trying to get somebody’s attention. I think they’re downstairs, and I think I had them recorded.
“THE COURT: Okay. Well, if you find them, it will help them and assist them.
“[DHR’s attorney]: It’s a good start.
“[The custodian]: I’m pretty sure I took them and had them recorded.”

On July 21, 2011, the juvenile court entered its order, transferring pendente lite custody of D.N.R. to DHR, and, in a handwritten addition to its findings, it included a sentence that reads: “The Court finds the minor child dependent.” The custodian did not appeal the July 21, 2011, judgment.

D.N.R. was placed in a foster home, and the juvenile court set an adjudicatory hearing for August 26, 2011. On July 26, 2011, D.N.R. reached 18 years of age. A transcript of the August 26, 2011, adjudicatory hearing is included in the record. At that hearing W.R.M. was referred to as the “adopted mother” and the custodian was referred to as “the guardian.” The custodian was represented by an attorney at the August 26, 2011, hearing. DHR offered a report into evidence in which it confirmed that the custodian had been D.N.R.’s legal guardian and asserted that D.N.R. had been “diagnosed with Mental Retardation.” The custodian stipulated to D.N.R.’s dependency, and the juvenile court entered a judgment on August 26, 2011, again adjudicating D.N.R. dependent. The custodian did not appeal the August 26, 2011, judgment.

The case was set for a review hearing in January 2012, and, on January 30, 2012, the juvenile court entered an order in which it found “that reasonable efforts toward reunification [with the custodian] have been made, and the most appropriate plan is Adult Custodial Care.” The custodian did not appeal the January 30, 2012, judgment. DHR placed D.N.R. with the biological mother in Pennsylvania in June 2012.

On June 27, 2012, the custodian’s sister filed a motion to intervene for the purpose of seeking custody of D.N.R. On July 20, 2012, the biological mother and her partner, M.J.K., filed a petition for custody of D.N.R. That same day, the juvenile court signed a permanency-hearing-order form that included its findings that DHR had made reasonable efforts to reunite D.N.R. with the custodian and that, as of July 12, 2012, D.N.R. should be “returned to [the biological mother]” who was denoted as “the parent.” The custodian and the custodian’s sister opposed D.N.R.’s change of custody in several filings, including an emergency motion for the return of D.N.R. to Alabama and a motion for the appointment of a different guardian ad litem. A permanency hearing was held on July 20, 2012.

At the July 20, 2012, permanency hearing, Labrisca Cook, a DHR employee, was the only witness called to testify. Cook recommended that D.N.R.’s permanency plan should be “return to parent,” referring to the biological mother as the parent. Cook said that D.N.R. had been in foster care for one year and that at the time of the hearing she had been placed with the biological mother for one month. According to Cook, the biological mother was an approved foster parent in Pennsylvania; her house was approved by the Lawrence County Children and Youth Services in New Castle, Pennsylvania, and the Federal Bureau of Investigation had completed background checks on the biological mother. Cook testified that the biological mother and M.J.K. were capable of providing financially for D.N.R. and that D.N.R. desired to live with the biological mother. Cook stated that DHR had investigated the reason for which the biological mother’s parental rights had been terminated; however, she admitted that that investigation consisted of nothing more than asking the biological mother for explanation of the reason.

According to Cook, D.N.R. did not desire to live with the custodian, the custodian had not visited with D.N.R. in the past year, and the custodian had attended only two of three Individualized Service Plan meetings regarding D.N.R. She testified that, during the time that D.N.R. had lived with the custodian, D.N.R. had not had a bedroom in the custodian’s “spacious” house, although a younger child had a large bedroom with an attached bathroom. Cook said that D.N.R. had slept in a “little loft” that was not enclosed. Cook testified that the custodian had been “indicated [for] physical abuse, bizarre discipline, and also mental and emotional abuse as well.” On cross-examination Cook admitted that the findings of “indicated” for physical abuse and bizarre discipline resulted from her “withholding food and water” from D.N.R. She said that she was not aware whether the physical abuse/bizarre discipline occurred more than once, but there was testimony that D.N.R. had failed to provide water to the family’s pets, which was her chore, and that the custodian had once withheld water from D.N.R. for an unknown period as a method of discipline to teach D.N.R. the importance of her chore. Cook admitted that D.N.R. was “in good health” and of normal weight when she entered foster care.

On July 26, 2012, the juvenile court signed an order that stated that D.N.R. “shall be returned to [the biological mother],” but it failed to address the other pending motions. On August 6, 2012, the custodian and the custodian’s sister filed separate motions to reconsider the July 26, 2012, order, which the juvenile court denied on August 20, 2012. That same day, the juvenile court entered the following judgment that read, in its entirety:

“BASED UPON the report and recommendation of the guardian ad litem submitted on July 19, 2012, and the recommendation of [DHR], legal and physical custody of [D.N.R.] is hereby awarded to the biological mother[ ].
“All other pending motions and requests are hereby denied.”

DHR filed a postjudgment motion seeking a deletion of the portion of the August 20, 2012, judgment in which the juvenile court had specified that it had based its judgment on DHR’s recommendation and an amendment of the judgment to allow DHR to monitor D.N.R.’s placement with the biological mother. The juvenile court entered an amended judgment, deleting the requested portion of its judgment on August 23, 2012, and allowing DHR to monitor D.N.R.’s placement for a minimum of six months.

DHR and the guardian ad litem also filed a joint motion requesting an order requiring the custodian and the custodian’s sister to cease publishing “confidential information” in violation of Ala.Code 1975, § 12-15-133(g). Exhibits attached to the joint motion included a newspaper advertisement for a Web site where persons could post comments regarding the Laud-erdale family court, DHR caseworkers, or guardians ad litem. The custodian’s sister had posted a narrative in which she identified the juvenile-court judge, DHR employees, and attorneys involved in the underlying action by name, but she used fictitious or shortened names for D.N.R., the custodian, and the biological mother. Other persons, including the custodian, had posted comments on the Web site. The custodian’s comment did not include D.N.R.’s name.

On August 20, 2012, the juvenile court entered a “cease and desist order,” forbidding the custodian and the custodian’s sister from “dissemination of names, identities[,] or other confidential information which are protected by statu[t]e, via the newspaper, internet website and other social networking media, and/or by any other form.” On August 31, 2012, the custodian and the custodian’s sister filed separate appeals with this court, which we consolidated ex mero motu on October 5, 2012.

DHR’s Letter Brief

DHR, in a letter brief to this court, urges this court to dismiss the appeals, contending that D.N.R. was 18 years of age when she was adjudicated dependent on August 26, 2011. If that were true, we would grant DHR’s request, because, in order for a child to be adjudicated a dependent child, he or she must meet the definition of the term' “child” that is contained in Ala.Code 1975, § 12-15-102(3): “An individual under the age of 18 years, or under 21 years of age and before the juvenile court for a delinquency matter arising before that individual’s 18th birthday....” However, DHR fails to acknowledge the juvenile court’s handwritten addition to its July 21, 2011, order that included the sentence: “The Court finds the minor child dependent.” We conclude that D.N.R. was adjudicated dependent on July 21, 2011, which was 5 days before she reached the age of 18. Therefore, the appeals cannot be dismissed on the ground that DHR asserts.

The Custodian’s Sister’s Appeal

The custodian’s sister seeks our review of whether the juvenile court received clear and convincing evidence to support its July 21, 2011, dependency finding and of whether the juvenile court had jurisdiction over the cause. However, the custodian’s sister’s motion to intervene was denied on August 20, 2012, by the juvenile court. The custodian’s sister failed to raise an argument in her postjudgment motion that the juvenile court exceeded its discretion by denying her motion to intervene and, likewise, she has failed to raise that argument on appeal.

“ ‘ “Unless a person is a party to a judgment, he [cannot] appeal from that judgment. That fundamental principle is one of the oldest in Alabama jurisprudence.” Daughtry v. Mobile County Sheriff’s Dep’t, 536 So.2d 953, 954 (Ala.1988). “One must have been a party to the judgment below in order to have standing to appeal any issue arising out of that judgment.” Mars Hill Baptist Church of Anniston v. Mars Hill Missionary Baptist Church, 761 So.2d 975, 980 (Ala.1999) (emphasis added [in Boschert ]). See also Triple J Cattle, Inc. v. Chambers, 621 So.2d 1221 (Ala.1993).
“ ‘Boschert has never been a defendant, a representative, or a member of the plaintiff class in the Naef case. It is not an intervenor. Consequently, the notice of appeal filed by Boschert failed to invoke the appellate jurisdiction of this Court. For these reasons, the appeal must be dismissed.’
“[Boschert Merrifield Consultants, Inc. v. Masonite Corp.,] 897 So.2d [1048,] 1051-52 [ (Ala.2004) ].”

McCollum v. Keating, 5 So.3d 1283, 1287 (Ala.Civ.App.2008). Likewise, the custodian’s sister was neither a party nor an intervenor in the underlying action. The custodian’s sister has failed to invoke the appellate jurisdiction of this court, and her appeal is therefore is dismissed.

The Custodian’s Appeal — Subject-matter Jurisdiction

The custodian seeks this court’s review of a number of issues. Among her issues are assertions that the juvenile court lacked subject-matter jurisdiction to enter its July 21, 2011, dependency order and that, therefore, it lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified at Ala.Code 1975, § 30-3B-101 et seq., to award custody of D.N.R. to the biological mother on July 26, 2012.

No one argued to the juvenile court that it must comply with the directives of the UCCJEA, and no one informed the juvenile court in pleadings or at the July 20, 2011, shelter-care hearing that the Pennsylvania court had made an initial custody determination as to D.N.R. In fact, the first mention of the jurisdictional requirements of the UCCJEA comes on appeal to this court.

“However, in the context of a custody matter controlled by the UCCJEA, ‘jurisdiction to make a child custody determination is subject matter jurisdiction,’ and ‘an agreement of the parties to confer jurisdiction on a court that would not otherwise have jurisdiction under the [UCCJEA] is ineffective.’ Ala.Code 1975, § 30-3B-201, Official Comment (emphasis added).”

M.B.L. v. G.G.L., 1 So.3d 1048, 1051 (Ala. Civ.App.2008).

“ ‘[S]ubject-matter jurisdiction may not be waived; a court’s lack of subject-matter jurisdiction may be raised at any time by any party and may even be raised by a court ex mero motu.’ ” S.B. U. v. D.G.B., 913 So.2d 452, 455 (Ala.Civ.App. 2005) (quoting C.J.L. v. M.W.B., 868 So.2d 451, 453 (Ala.Civ.App.2003)). Questions of law, such as whether a court has subject-matter jurisdiction, are reviewed de novo. BT Sec. Corp. v. W.R. Huff Asset Mgmt. Co., 891 So.2d 310 (Ala.2004).

In this case, the Pennsylvania court made an initial custody determination as to D.N.R., and the juvenile court modified that determination. Thus, we conclude that this case is controlled by the UC-CJEA, which prescribes the requirements that must be met in order for a court of this state to modify an initial custody determination of another state. We must determine whether the juvenile court had jurisdiction to modify the Pennsylvania court’s judgment pursuant to § 30-3B-201(a)(1) or (2), Ala.Code 1975, (discussed infra) and either § 30-3B-203(l) or (2), Ala.Code 1975. Section 30-3B-203 provides, in its entirety:

“Except as otherwise provided in Section 30-3B-204, a court of this state may not modify a child custody determination made by a court of another state unless a court' of this state has jurisdiction to make an initial determination under Section 30-3B-201(a)(l) or (2) and:
“(1) The court of the other state determines it no longer has continuing, exclusive jurisdiction under Section 30-3B-202 or that a court of this state would be a more convenient forum under Section 30-3B-207; or
“(2) A court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.”

On July 20, 2011, Hendershot testified that D.N.R. “was without a parent, a natural parent, mother or father, that was this day able or capable of providing for her immediate care, supervision or control.” Hendershot testified that “[DHR] ha[s] no knowledge, no proof that [D.N.R.j’s alleged adopted mother [W.R.M.], ever had legal custody. She is now deceased, and so [W.R.M.’s] sister, [the custodian], has [D.N.R.] living with her [in Alabama].” Thus, we conclude that the requirements of § 30-3B-203(2) are satisfied because the juvenile court had before it evidence indicating that neither D.N.R., nor her parents, nor any person acting as her parent resided in Pennsylvania. Next, we analyze whether the requirements of either § 30-3B-201(a)(l) or (2) were satisfied.

Section 30-3B-201(a)(l) and (2) read:

“(a) Except as otherwise provided in Section 30-3B-204, a court of this state has jurisdiction to make an initial child custody determination only if:
“(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
“(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207 or 30-3B-208, and:
“a. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
“b. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.”

We determine that Alabama was D.N.R.’s home state and that the custodian was the person acting as her parent on July 18, 2011. Section 30-3B-102(7) defines “home state,” in pertinent part, as “[t]he state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding....” Section 30-3B-102(13) defines a “person acting as a parent” as

“[a] person, other than a parent, who:

“a. Has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding; and
“b. Has been awarded legal custody by a court or claims a right to legal custody under the law of this state.”

The juvenile court received undisputed evidence indicating that the custodian had physical custody of D.N.R. as defined by § 30-3B-102(14). “Physical custody” is defined in that statute simply as “[t]he physical care and supervision of a child.” Id. Alabama was D.N.R.’s home state; no parent or person acting as her parent in Pennsylvania had physical custody of D.N.R. within six months of July 18, 2011. The evidence presented to the juvenile court satisfied the requirements of § 30-3B-201(a)(l). Thus, we conclude that the custodian’s argument that the juvenile court lacked subject-matter jurisdiction to enter its July 21, 2011, dependency order and that it lacked continuing jurisdiction to award custody of D.N.R. to the biological mother must fail.

The Custodian’s Remaining Issues

For purposes of discussion, we categorize the custodian’s remaining issues as follows: (1) issues regarding the July 21, 2011, order, (2) issues regarding the July 26, 2012, order, and (3) an issue regarding the August 20, 2012, cease-and-desist order.

First, the custodian argues that the juvenile court violated her right to due process; she complains that the juvenile court failed to provide her with notice that the shelter-care hearing would be a “dependency” hearing and failed to provide her with representation by an attorney at that hearing. Furthermore, she alleges that the juvenile did not have before it clear and convincing evidence indicating that D.N.R. was dependent on July 21, 2011. Regardless of our views on the merits of these arguments, we lack jurisdiction to rule upon any issues pertaining to the July 21, 2011, order. “Written notice of appeal shall be filed within 14 days of the date of the entry of order or judgment appealed from, whether the appeal is to an appellate court or to the circuit court for trial de novo.” Rule 28(C), Ala. R. Juv. P. The custodian’s notice of appeal as to the July 21, 2011, order was required to have been filed no later than August 3, 2011, to be timely. Because the custodian did not file this appeal until August 31, 2012— more than a year after the 14-day period had expired — this court has no jurisdiction to consider her appeal insofar as it challenges the July 20, 2011, order. See Rule 2(a)(1), Ala. R.App. P. (“An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.”); R.P.M. v. P.D.A., 112 So.3d 49, 51 (Ala.Civ.App.2012). We, therefore, dismiss the custodian’s appeal in part.

In the second set of remaining issues— those pertaining to the July 26, 2012, order — the custodian argues (1) that the juvenile court did not have before it clear and convincing evidence indicating that D.N.R. was dependent on July 26, 2012, and (2) that the juvenile court should have granted her postjudgment motion, her emergency motion for the return of D.N.R. to Alabama, and her motion for the appointment of a different guardian ad litem. We address the issue regarding the dependency determination first.

‘With regard to the standard this court applies in reviewing a dependency determination, this court has stated:
“ ‘A finding of dependency must be supported by clear and convincing evidence. [Former] § 12 — 15—65(f)[, Ala. Code 1975 (now codified at § 12-15-310, Ala.Code 1975)]; M.M.S. v. D.W., 735 So.2d 1230, 1233 (Ala.Civ. App.1999). However, matters of dependency are within the sound discretion of the trial court, and a trial court’s ruling on a dependency action in which evidence is presented ore tenus will not be reversed absent a showing that the ruling was plainly and palpably wrong. R.G. v. Calhoun County Dep’t of Human Res., 716 So.2d 219 (Ala.Civ.App.1998); G.C. v. G.D., 712 So.2d 1091 (Ala.Civ.App.1997); and J.M. v. State Dep’t of Hu-
man Res., 686 So.2d 1253 (Ala.Civ.App.1996).
“J.S.M. v. P.J., 902 So.2d 89, 95 (Ala.Civ.App.2004). ‘Clear and convincing evidence’ is
“ ‘[e]vidence 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.’

“§ 6-ll-20(b)(4), Ala.Code 1975.”

T.E.W. v. T.S., 97 So.3d 157, 161 (Ala.Civ. App.2012).

The custodian, in a one-page argument, urges this court to discount the testimony of the only witness to testify at the July 20, 2012, permanency hearing because it “consisted of a lot of hearsay statements and leading questions” and because “nothing clearly and convincingly established that [D.N.R.] was dependent.” However, she has failed to refer this court to relevant legal authority supporting her argument. Her lone citation to M.G. v. J.T., 90 So.3d 762 (Ala.Civ.App.2012), does not support her argument. In that case a juvenile court did not have before it clear and convincing evidence of dependency because an adjudicatory hearing had not been conducted. 90 So.3d at 766.

“ ‘It is the appellant’s burden to refer this Court to legal authority that supports its argument. Rule 28(a)(10), Ala. R.App. P., requires that the argument in an appellant’s brief include “citations to the cases, statutes, [and] other authorities ... relied on.” Consistent with Rule 28, “[w]e have stated that it is not the function of this court to do a party’s
legal research.” Spradlin v. Spradlin, 601 So.2d 76, 78 (Ala.1992) (citing Henderson v. Alabama A & M University, 488 So.2d 392, 392 (Ala.1986) (“‘Where an appellant fails to cite any authority, we may affirm, for it is neither our duty nor function to perform all the legal research for an appellant.’ Gibson v. Nix, 460 So.2d 1346, 1347 (Ala.Civ.App.1984).”)).’ ”

Mullins v. Sellers, 80 So.3d 935, 945 (Ala.Civ.App.2011) (quoting Board of Water & Sewer Comm’rs of City of Mobile v. Bill Harbert Constr. Co., 27 So.3d 1223, 1254 (Ala.2009)).

Furthermore, the custodian had stipulated to D.N.R.’s dependency at the August 26, 2011, adjudicatory hearing, she did not testify or call witnesses at the July 20, 2012, permanency hearing, and she did not raise the issue of a lack of clear and convincing evidence of dependency in her August 6, 2012, postjudgment motion. Thus, we cannot consider her argument because she is raising it for the first time on appeal. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (this court may not consider arguments that are presented for the first time on appeal).

We next address the custodian’s argument that the juvenile court should have granted her August 6, 2012, postjudgment motion, which included a vague reference to her previously filed emergency motion for the return of D.N.R. to Alabama and her motion for the appointment of a different guardian ad litem, as to which the juvenile court had not entered a ruling.

“In general, whether to grant or to deny a posttrial motion is within the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal unless by its ruling the court abused some legal right and the record plainly shows that the trial court erred. See Green Tree Acceptance, Inc. v. Standridge, 565 So.2d 38 (Ala.1990).”

Flagstar Enters., Inc. v. Foster, 779 So.2d 1220, 1221 (Ala.2000).

The custodian’s bare allegation in her brief to this court that “the failure of the juvenile court in not setting aside its orders and returning [D.N.R.] to the custody of [the custodian] was plainly wrong and an abuse of discretion” does not demonstrate error to this court. However, the custodian cites Hamrick v. Hamrick, 508 So.2d 282 (Ala.Civ.App.1987), and Phillips v. Phillips, 395 So.2d 1040 (Ala.Civ.App. 1981), which explain that this court can reverse a judgment if the record discloses a manifest abuse of discretion. Hamrick, 508 So.2d at 284.

In her postjudgment motion, the custodian continued to point out to the juvenile court its alleged failings at the July 20, 2011, shelter-care hearing, at which, she said, “her rights as a the legal guardian were not only violated but also disregarded.” We might agree that the record discloses a manifest abuse of discretion regarding the July 20, 2011, shelter-care hearing and the July 21, 2011, order; however, the record does not disclose a similar manifest abuse of discretion with respect to the July 26, 2012, order. Thus, we affirm the juvenile court’s denial of the custodian’s August 6, 2012, postjudgment motion.

Finally, the custodian argues that the juvenile court violated her First Amendment right to free speech by granting DHR’s and the guardian ad litem’s joint motion to cease and desist.

“ ‘A court has a duty to avoid constitutional questions unless essential to the proper disposition of the case. Doughty v. Tarwater, 261 Ala. 263, 73 So.2d 540 (1954); Moses v. Tarwater, 257 Ala. 361, 58 So.2d 757 (1952); Lee v. Macon Co. Board, of Education, 231 F.Supp. 743 (M.D.Ala.1964).’ ”

Lowe v. Fulford, 442 So.2d 29, 33 (Ala. 1983) (quoting the trial court’s order).

We do not reach the custodian’s constitutional question because we determine that the juvenile court is incorrect that the custodian and the custodian’s sister had violated Ala.Code 1975, § 12-15-133(g), which pertains to the confidentiality of the records of juvenile proceedings. Subsection (g) provides in its entirety:

“(g) Except for the purposes permitted and in the manner provided by this section, whoever discloses or makes use of or knowingly permits the use of information identifying a child, or the family of a child, who is or was under the jurisdiction of the juvenile court, where this information is directly or indirectly derived from the records of the juvenile court or acquired in the course of official duties, upon conviction thereof, shall be guilty of a Class A misdemeanor under the jurisdiction of the juvenile court and also may be subject to civil sanctions. Provided, however, that nothing in this section shall be construed to prohibit or otherwise limit counsel from disclosing confidential information obtained from the juvenile court file of the child as needed to investigate the case of the client or prepare a defense for that client, provided that the disclosure is in furtherance of counsel’s representation of the party.”

We have reviewed the exhibits attached to the joint motion to cease and desist, and we agree with the custodian that the exhibits did not identify D.N.R. or D.N.R.’s family. Furthermore, the information contained in the exhibits was not derived from the records of the juvenile court. Because § 12-15-133 is intended to protect the identity of juveniles, not DHR employees, guardians ad litem, or juvenile-court judges, we remand the cause for the juvenile court to vacate its August 20, 2012, cease-and-desist order.

2111220 — APPEAL DISMISSED.

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

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

2120020 — APPEAL DISMISSED IN PART; JUDGMENT AFFIRMED IN PART AND REVERSED IN PART; AND CAUSE REMANDED WITH INSTRUCTIONS.

DONALDSON, J., concurs.

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

THOMPSON, P.J., concurs in part and dissents in part, with writing, which PITTMAN, J., joins.

THOMPSON, Presiding Judge,

concurring in part and dissenting in part in case no. 2120020.

I would not remand this action to require the juvenile court to vacate the August 20, 2012, cease-and-desist order. Even assuming that the exhibits attached to the motion seeking the order did not identify D.N.R. or D.N.R.’s family, as the main opinion asserts, the juvenile court’s order does nothing more that require K.R. and J.W. to comply with § 12-15-133(g), Ala.Code 1975. In ordering K.R. and J.W. to cease the “dissemination of names, identities or other confidential information which are protected by statu[t]e, via the newspaper, internet website and other social networking media, and/or by any other form” (emphasis added), the trial court essentially put them on notice that § 12-15 — 133(g) was applicable in this case and that the dissemination of confidential information was prohibited by law.

I find no basis on which to require the juvenile court to vacate the cease-and-desist order; therefore, I dissent from that portion of the opinion remanding the cause for the juvenile court to vacate that order. I concur with the remainder of the opinion.

PITTMAN, J., concurs.

      . The custodian is referred to as D.N.R.’s maternal aunt throughout the record; however, because we cannot determine from the record that W.R.M. (or W.R.M. and J.M.) adopted D.N.R., we cannot conclude that the custodian is D.N.R.’s maternal aunt by adoption.

      . Automatic-reversionary provisions regarding child-custody awards have no legal effect in Alabama. Daugherty v. Daugherty, 993 So.2d 8, 13 (Ala.Civ.App.2008).

      . Although it is not entirely clear, it appears that the delinquency charge was either dismissed or that D.N.R. was found “not guilty by reason of mental defect." Similarly unclear are certain oral and written statements in various pleadings and in on-the-record discussions between attorneys and the juvenile-court judge indicating that D.N.R. suffered from a mental impairment, lower-than-average intelligence, “mild MR,” or a mental defect.

      . The record contains a copy of the Pennsylvania court’s 1998 "order of consent” in which the biological mother consented to the adoption of D.N.R. and to the termination of her parental rights to D.N.R. W.R.M. is not referred to in that document.

      . DHR did not file a formal brief on appeal.

      . Pennsylvania has also adopted the UCCJEA. It is codified at 23 Pa. Cons.Stat. § 5401 et seq.

      . Alabama Code 1975, § 30-3B-102(l 1), broadly defines "modification” as
      "[a] child custody determination that changes, replaces, supersedes, or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination.”

      . We have not overlooked the possibility that J.M. might be D.N.R.’s parent by adoption and that he might reside in Pennsylvania. However, the juvenile court was not presented with evidence indicating that J.M. had adopted D.N.R.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    James F. HILGERS and Carolyn M. Hilgers v. JEFFERSON COUNTY. Jim Hilgers a/k/a James F. Hilgers v. Jefferson County. Hilgers Real Estate Investments, LLC v. Jefferson County. Hilgers Real Estate Investments, LLC v. Jefferson County. Jim Hilgers a/k/a James F. Hilgers v. Jefferson County.
    2120332, 2120333, 2120334, 2120335, and 2120336.
    Court of Civil Appeals of Alabama.
    June 21, 2013.

      Dawn Stith Evans of Guin, Stokes & Evans, LLC, Birmingham, for appellants.
    A. Allen Ramsey, Irondale, for appellee.
   THOMAS, Judge.

On October 28, 2011, Jefferson County filed five separate actions seeking to enforce liens for unpaid sewer-service charges against five separate parcels of property owned by James F. Hilgers and Carolyn M. Hilgers, Jim Hilgers a/k/a James F. Hilgers, or Hilgers Real Estate Investments, LLC (“the defendants”). At the request of the parties, the actions were consolidated for purposes of discovery and trial. On October 22, 2012, the defendants filed a request for production of documents, in which they sought, among other things, documents relating to the components of the sewer-service charges; that is, they desired information explaining what portion or percentage of the sewer-service charges were attributable to the following items: capital improvements, administration, operation, maintenance, and debt service.

On October 29, 2012, Jefferson County objected to the requested discovery, arguing that the requests were over-broad and that they indicated that the defendants wished to challenge the county commission’s authority to set sewer-service charges. Also on October 29, 2012, Jefferson County moved for a summary judgment in each case; the motions were supported by affidavits and exhibits showing the unpaid sewer-service charges on each parcel. On November 6, 2012, the defendants filed a motion to compel discovery, to which Jefferson County responded on November 13, 2012. The defendants filed an opposition to Jefferson County’s motions for a summary judgment on November 13, 2012. The parties later filed memorandums of law in support of their positions.

On December 17, 2012, the trial court entered a partial summary judgment in each action in favor of Jefferson County “as to liability.” After a hearing on damages, i.e., the amount of the unpaid sewer-service charges due for each parcel, the trial court entered a judgment in each action for the sewer-service charges due and owing on December 21, 2012. The defendants appealed each of the summary judgments in favor of Jefferson County on January 23, 2013. This court consolidated the appeals.

On appeal, the defendants’ main argument is that Jefferson County did not have the authority to impose liens on the parcels for unpaid sewer-service charges. The defendants further argue that they were entitled to the discovery they sought in their motion to compel and that the trial court’s entry of the summary judgments in favor of Jefferson County was premature because the discovery the defendants sought was still pending. We affirm.

We review a summary judgment de novo; we apply the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038 (footnote omitted). “[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12(d).

The issue central to the resolution of these appeals is whether Jefferson County has the authority to impose a lien on the property from which sewage is disposed through its sewerage system under Ala. Const.1901, Local Amendments, Jefferson County, § 4 (Off. Recomp.) (formerly Amendment No. 73) (“the Amendment”); Ala.Code 1975, § 11-81-166, a portion of the Kelly Act, codified at § 11-81-160 et seq.; and Act No. 619, Ala. Acts 1949 (“Act No. 619”). To decide these appeals, we must construe these provisions, mindful that one of the most basic principles of statutory construction is that words in a statute are to be given their commonly understood meaning, see DeKalb Cnty. LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275 (Ala.1998), and that we must presume that “ ‘every word, sentence, or provision [in a statute] was intended for some useful purpose, has some force and effect, and that some effect is to be given to each, and also that no superfluous words or provisions were used.’ ” Sheffield v. State, 708 So.2d 899, 909 (Ala.Crim.App.1997) (quoting 82 C.J.S. Statutes § 316 at 551-52 (1953)). We turn now to a discussion of the text of those provisions that are necessary to an understanding of the issue.

The Kelly Act, which was enacted in 1933, permits counties and incorporated municipalities to acquire, among other things, a sanitary sewer system. § 11 — 81— 161(a). To that end, a county may issue revenue bonds to acquire, improve, enlarge, extend, or repair a sanitary sewer system. § 11 — 81—166(a)(1). Further, § ll-81-166(b) requires that bonds issued under the Kelly Act “be made payable solely out of the revenues from the operation of a system or systems of the borrower,” and § ll-81-166(e) states that “[n]o bond or coupon issued pursuant to [the Kelly Act] shall constitute an indebtedness of the borrower issuing the same within the meaning of any state constitutional provision or statutory limitation.”

The Amendment was ratified in 1948. It provided that Jefferson County could incur bonded indebtedness exceeding the then three and one-half percent debt limit in order to finance improvements to its sewer system. The Amendment, in pertinent part, reads as follows:

“In addition to any indebtedness now authorized, Jefferson county may become indebted and may issue bonds therefor in an amount not exceeding 3 percent of the assessed valuation of the taxable property in said county in order to pay the expenses of constructing, improving, extending and repairing sewers and sewerage treatment and disposal plants in said county. Said bonds shall be general obligations of Jefferson county but shall also be payable primarily from and secured by a lien upon the sewer rentals or service charges, which shall be levied and collected in an amount sufficient to pay the principal of and interest on such bonds, replacements, extensions and improvements to, and the cost of operation and maintenance of, the sewers and sewerage treatment and disposal plants. Such sewer rentals or service charges shall be levied upon and collected from the persons and property whose sewerage is disposed of or treated by the sewers or the sewerage treatment or disposal plants and whether served by the part of the sewer system then being constructed, improved, or extended or by some other part of such system; and such charges or rentals shall be a personal obligation of the occupant of the property the sewerage from which is disposed of by such sewers or treated in such plants and shall also be a lien upon such property, enforceable by a sale thereof.
“The governing body of Jefferson county shall have full power and authority to manage, operate, control and administer the sewers and plants herein provided for and, to that end, may make any reasonable and nondiscriminatory rules and regulations fixing rates and
the Alabama Constitution in 1948 set a debt limit of three and one-half percent; Amend-charges, providing for the payment, collection and enforcement thereof, and the protection of its property. Liens for sewer rentals or service charges shall be foreclosed in such manner as may be provided by law for foreclosing municipal assessments for public improvements. This amendment is self-executing.
“The authority to issue bonds shall cease December 31, 1958. The authority to levy and collect sewer charges and rentals shall be limited to such charges as will pay the principal of and interest on the bonds and the reasonable expense of extending, improving, operating and maintaining said sewers and plants; and when the bonds shall have been paid off, service charges and rentals shall be accordingly reduced, it being the intent and purpose of this amendment that the expenses of needed improvements and extensions and maintenance and operation of the sewers and sewerage treatment and disposal plants and no other expenditures shall be paid from such service charges and rentals.”

Act No. 619, which was enacted in 1949, states in § 1 that it is intended to

“supplement [the Amendment], and to enable Jefferson County to construct, improve, extend and repair sewers and sewerage treatment and disposal plants in said County and to exercise the power and authority given by [the Amendment] to levy sewer rentals or sewer service charges upon and collect from the persons and property whose sewerage is disposed of or treated by such sewers or sewerage treatment or disposal plants and to make such rentals or charges a personal obligation of the occupant of the property the sewerage from which is disposed of by such sewers or treated in
ment No. 342 increased the debt limit to five percent in 1976.
such plants and also a lien upon such property and to provide effective means for the collection of such rentals or charges and to insure that revenue derived from such rentals and charges is applied as provided in [the Amendment]. This Act shall be liberally construed in conformity with such purpose.”

Section 4 of Act No. 619 grants the county commission the power to levy sewer rentals or service charges. That section further provides that “[s]uch sewer rentals or service charges may be collected from, and be a lien upon, any property served by the sewerage system prior to as well as after the time when improvements financed by the issuance of bonds authorized under [the Amendment] shall be begun.” Section 5 of Act No. 619, among other things, attempted to limit the sewer-service charges, where the service was based on the consumption of water alone, to an amount not to exceed 50% of the water bill of the property involved. Our supreme court struck down § 5 as unconstitutional in Shell v. Jefferson County, 454 So.2d 1331, 1337 (Ala.1984), because, it concluded, the attempt to limit the amount of the sewer-service charges conflicted with the language contained in the Amendment granting the county commission “full power and authority to ... fix[ ] rates and charges.”

Under § 7 of Act No. 619, sewer-service charges are charged to the parcel of real property from which the sewerage originated. Furthermore, § 9 of Act No. 619 provides that “unpaid [sewer-service charges] and all interest accruing thereon shall be a lien on such parcel of real property.” In addition to other rights set out in Act No. 619, § 13 empowers the county commission to foreclose on any lien for unpaid sewer-service charges “in any such manner as may be provided by law for foreclosing municipal assessments for public improvements,” which procedure is set out in Ala.Code 1975, § 11-48-1 et seq.

Based on the above-quoted and explained portions of the Amendment, Act No. 619, and the Kelly Act, the defendants argue that Jefferson County does not have the authority to assess the entire amount of unpaid sewer-service charges for each parcel of property as a lien against the property because, they contend, that right exists only in relation to revenue bonds issued under the Amendment and not to bonds issued under the Kelly Act. That is, the defendants contend that the unpaid sewer-service charges should be apportioned, with only those amounts that were charged to repay any bonds under the Amendment or those amounts related to the reasonable expenses of extending, improving, operating, and maintaining the sewer system being imposed as a lien on the parcels of real property. Thus, the defendants concede that a lien may be imposed upon their properties under the Amendment for the reasonable expenses of extending, improving, operating, and maintaining a sewer system.

However, the defendants argue that the Kelly Act grants Jefferson County no authority to impose a lien on real property as a result of the issuance of Kelly Act'bonds under § 11-81-166. Jefferson County contends that its power to set sewer-service charges, to collect sewer-service charges, and to impose a lien against a parcel of property serviced by the sewer system for unpaid sewer-service charges is not limited to only that portion of those charges that arise from the repayment of the bonds issued pursuant to the Amendment or that arise from the reasonable expenses of extending, improving, operating, and maintaining the sewer system. That argument is supported by Lunsford v. Jefferson County, 973 So.2d 327, 329 (Ala.2007), in which our supreme court affirmed a trial court’s judgment determining Ala.Code 1975, § 35-9-14, unconstitutional.

In Lunsford, landlords sued Jefferson County, seeking a judgment declaring that the county’s imposition of liens against properties owned by the landlords for unpaid sewer-service charges incurred by tenants violated § 35-9-14, which stated that bills for sewer service would be the sole responsibility of the tenant and that such bills would not “constitute a lien on the property where the sewer service was received.” Lunsford, 973 So.2d at 328 & 329. Based on the fact that the Amendment provided that the authority to issue bonds pursuant to the Amendment expired in December 1958 and based on the statement indicating that the purpose of the Amendment was “that the expenses of needed improvements and extensions and maintenance and operation of the sewers and sewerage treatment and disposal plants and no other expenditures shall be paid from such service charges and rentals,” the landlords argued that Jefferson County had no power to collect sewer-service charges under the Amendment after its authority to issue bonds under the Amendment had expired and after all bonds issued under the Amendment had been paid. Id. at 331. Our supreme court explained that the construction urged by the landlords “contradicted] the plain language of the [Ajmendment,” which clearly envisioned that sewer-service charges would be necessary to operate and maintain the sewer systems that had been constructed with the assistance of the bonds issued under the Amendment. Id. Based on the language of the Amendment indicating that sewer-service charges would be reduced after the payment of the bond debt incurred under the Amendment, our supreme court concluded that, “[cjlearly, the [Ajmendment does not contemplate the elimination of charges; in fact, it contemplates the continuation of the collection of service charges and rentals after the payment of the last of the bonded indebtedness.” Id. The language our supreme court relied upon makes it clear that, even after the bonds issued under the Amendment have been paid, Jefferson County could continue to levy and collect sewer-service charges to cover “the expenses of needed improvements and extensions arid maintenance and operation of the sewers and sewerage treatment and disposal plants.” Id.

Jefferson County also relies on Act No. 619 to support its right to impose liens for unpaid sewer-service charges. We note that many of the sections of Act No. 619 contain language nearly identical to, or similar to, the language utilized in the Amendment. Sections 4, 9, and 13 echo the rights of the county commission to set sewer-service charges, state that unpaid sewer-service charges are a lien upon the real property to which sewer services are provided, and grant the county commission the power to enforce the lien. Thus, like Jefferson County, we agree that Act No. 619 also provides a basis for Jefferson County’s power to impose a lien for the unpaid sewer-service charges on the property provided sewer services. However, Act No. 619 merely mirrors and further defines the rights of Jefferson County under the Amendment, and Jefferson County’s reliance on it does not completely resolve the remainder of the defendants’ arguments regarding apportionment of the unpaid sewer-service charges.

The defendants further argue that the language of the Amendment and the lack of language relating to the creation of a lien against the property serviced by the sewer system in the Kelly Act precludes that portion of sewer-service charges intended to pay off indebtedness associated with bonds issued pursuant to the Kelly Act from becoming a lien against the property to which sewer service is provided. This is so, they contend, because, unlike the Amendment, the Kelly Act contains no provision authorizing a lien on the property serviced by the sewer system and because the revenue bonds issued under the Kelly Act are for acquisition, improvement, enlargement, extension, and repair of the sewer system. Indeed, the Kelly Act does not contain any provisions speaking specifically to the power of a county to collect sewer-service charges, much less a provision relating to creation of a lien upon the property receiving sewer services. However, we cannot conclude that lack of such provisions lends support to the defendants’ argument.

In fact, the fact that bonds issued pursuant to the Kelly Act are for the purposes of acquiring, improving, enlarging, extending, and repairing the sewer system does not support the conclusion that Kelly Act bonds do not fall within the permitted use for continued sewer-service charges in the Amendment. That is, we cannot conclude that the use of Kelly Act bonds for the purpose of acquiring, improving, enlarging, extending, and repairing the sewer system is not equivalent to using those bonds as a means to finance “the expenses of needed improvements and extensions and maintenance and operation of the sewers and sewerage treatment and disposal plants,” which serve as a basis for Jefferson County’s continued power to levy and collect sewer-service charges and to impose liens for unpaid sewer-service charges under the Amendment. We agree with Jefferson County that the liens, including any portion that might have been intended to repay Kelly Act bond indebtedness, were properly imposed against the defendants’ properties under the power provided to it in the Amendment and Act No. 619.

We next consider the defendants’ arguments that the trial court erred in failing to rule on their motions to compel discovery and in failing to postpone ruling on the motions for a summary judgment pending further discovery. As noted above, the defendants sought, and were not provided, documents or other information relating to what portion or percentage of the sewer-service charges were attributable to the following items: capital improvements, administration, operation, maintenance, and debt service. They moved the trial court to compel production of that information, but the trial court never expressly ruled upon their motions. Further, in their memorandums in opposition to the motions for a summary judgment, the defendants briefly requested that the trial court either deny or decline to rule upon the summary-judgment motions pending their receipt of the requested discovery.

We first note that, although their brief on appeal relies on caselaw interpreting Rule 56(f), Ala. R. Civ. P., which governs the continuance of a summary-judgment ruling or hearing based on the pendency of discovery, the defendants never actually complied with the specific requirements of Rule 56(f). In their brief, the defendants quote McGhee v. Martin, 892 So.2d 398, 401 (Ala.Civ.App.2004) (quoting Wright v. State, 757 So.2d 457, 459 (Ala.Civ.App.2000) (internal citations omitted)), thusly: “ ‘Although the pendency of discovery does not alone bar a summary judgment, if the nonmoving party can demonstrate that the outstanding discovery is crucial to his case, then it is error for the trial court to enter a summary judgment before the discovery has been completed.’ ” However, the sentence following the quoted material from McGhee states: “ ‘To show that the discovery sought is crucial to his ease, the non-moving party should comply with Rule 56(f)....’” Our supreme court has stated that “[a] party seeking the shelter of Rule 56(f) must offer an affidavit explaining to the court why he is unable to make the substantive response required by Rule 56(e).” Hope v. Braman, 557 So.2d 1208, 1213 (Ala.1989). Conversely, our supreme court has noted that “[a] pending motion to compel production (Parrish [ v. Board of Comm’rs of Alabama State Bar, 533 F.2d 942 (5th Cir.1976) ]) and a motion to compel answers to interrogatories, which has been granted (Noble [ v. McManus, 504 So.2d 248 (Ala.1987) ]) when the evidence before the court clearly shows that the evidence sought is crucial to the non-moving party’s case, have been held sufficient compliance with Rule 56(f).” Reeves v. Porter, 521 So.2d 963, 965 (Ala.1988).

Assuming the motion to compel and the brief reference in the defendants’ memorandums of law in opposition to the motions for a summary judgment minimally meet the requirements of Rule 56(f), the issue is whether the evidence sought was, in fact, crucial to the defendants’ position that the liens imposed upon their properties could not have been imposed because at least some portion of the liens was attributable to repayment of bonds Jefferson County had issued pursuant to the Kelly Act. Because we have concluded that Jefferson County had the power under the Amendment and Act No. 619 to impose the liens at issue, regardless of whether any portion of those liens was attributable to repayment of indebtedness associated with bonds issued under the Kelly Act, the information the defendants sought to discover was not relevant to the resolution of the legal issue presented to the trial court in the motions for a summary judgment. Thus, we conclude that the trial court did not err by considering the summary-judgment motions before the defendants received the requested information and that the trial court did not err by failing to rule on the motion to compel before entering the summary judgments in favor of Jefferson County.

2120332 — AFFIRMED.

2120333 — AFFIRMED.

2120334 — AFFIRMED.

2120335 — AFFIRMED.

2120336 — AFFIRMED.

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

      . In light of the arguments made on appeal, the amount of the unpaid sewer-service charges assessed for each parcel is not relevant to the outcome of these appeals.

      . As explained in Lunsford v. Jefferson County, 973 So.2d 327, 328 n. 1 (Ala.2007), § 224 of

      . Although a reading of the opinion issued in Shell might lead one to conclude, as do the defendants, that Act No. 619 was struck down in its entirety, we cannot agree. The determination that Act No. 619 was unconstitutional was based solely upon its attempt to limit the county commission’s ability to set sewer-service charges; the only section of Act No. 619 that attempted to limit the county commission’s power was § 5. Thus, we conclude that Shell implicitly determined that only § 5 of Act No. 619 was unconstitutional. This reading of Shell is bolstered by the principle that ”[c]ourts will strive to uphold acts of the legislature” and the fact that Act No. 619 contained a severability clause in § 17, which indicated that the legislature desired that only the offending section of Act No. 619 be invalidated, leaving the remaining sections of Act No. 619, many of which contained language mirroring that used in the Amendment, "intact and in force.” City of Birmingham v. Smith, 507 So.2d 1312, 1315 (Ala. 1987); see also Mitchell v. Mobile Cnty., 294 Ala. 130, 134, 313 So.2d 172, 175 (1975) (”[I]f the remaining portions of an Act are complete within themselves, sensible and capable of execution, the Act will stand where invalid portions were deleted in accordance with a severability clause.”).


author: PER CURIAM. MOORE, Judge,

text:
    Ex parte M.H. (In re M.H. v. Honorable Calvin Williams.)
    2120661.
    Court of Civil Appeals of Alabama.
    June 21, 2013.
    Debora E. Palmer, Montgomery, for petitioner.
    Judge Calvin L. Williams, Montgomery, as respondent.
    Roianne Houlton Conner, Montgomery, for respondent B.H.
    Juliana Taylor, Montgomery, guardian ad litem.
   PER CURIAM.

PETITION DENIED. NO OPINION.

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

MOORE, J., dissents, with writing.

MOORE, Judge,

dissenting.

M.H. (“the mother”) petitions this court to issue a writ of mandamus or prohibition to the Montgomery Circuit Court (“the trial court”) requiring that court to vacate its pendente lite custody order transferring the custody of her minor child to D.H. and J.H. (“the paternal grandparents”).

Briefly, the minor child was born of the marriage between the mother and B.H. (“the father”), which marriage was dissolved by a divorce judgment entered by the trial court on May 26, 2010. Pursuant to that judgment, the mother and the father shared joint legal custody of the child with the mother having primary physical custody subject to certain specified visitation rights of the father. On April 4, 2012, the mother filed a petition to modify the custody and visitation provisions of the divorce judgment, alleging that the father had become mentally unstable due to his failure to follow the mental-health treatment plan that he was required to comply with pursuant to the terms of the divorce judgment. The mother subsequently alleged that the father had sexually abused the child during a November 2012 visit. The trial court held hearings on the matter on May 28, 2012, and April 10, 2013, at which the parties and the paternal grandparents, among others, testified. On April 12, 2013, the trial court entered a pendente lite order awarding temporary custody of the child to the paternal grandparents pending a final determination of the parties’ custody and visitation dispute.

The mother argues that the trial court could not award custody of the child to the paternal grandparents on a pendente lite basis without making a finding that she was unfit to exercise the custody rights awarded to her in the divorce judgment. See generally R.H.M. v. State Dep’t of Human Res., 648 So.2d 614, 616 (Ala.Civ. App.1994) (before a court can remove custody of child from a natural parent and award custody to a nonparent, the court must make an express finding of unfitness). However, in its April 12, 2013, judgment, the trial court specifically found that the mother had made more than one unfounded report of sexual abuse against the father, had unilaterally discontinued court-appointed counseling for the child, and had acted so as to disrupt the stability of the child, all to the detriment of the child. The trial court thereafter concluded that “the child does not have a parent to adequately provide for her needs and care.” Although the trial court did not use the word “unfit” when describing the mother, it made factual findings amounting to a determination that the mother could not properly care for the child, which is tantamount to a finding of unfitness. J.W. v. T.D., 58 So.Sd 782, 798 (Ala.Civ.App.2010) (Moore, J., dissenting) (citing Ex parte A.R.S., 980 So.2d 401, 404 (Ala.2007), Ex parte Terry, 494 So.2d 628 (Ala.1986), and Chandler v. Whatley, 238 Aa. 206, 208-09, 189 So. 751, 758-54 (1939)) (“Since Striplin [v. Ware, 36 Aa. 87 (1860) ], the appellate courts of this state have consistently considered ‘unfitness’ in the child-custody context as a shorthand way of referring to the parent’s inability to discharge the basic parental responsibilities of properly providing children food, clothing, shelter, medical care, education, nurturing, and protection.”). Thus, the mother is incorrect in her premise that the trial court did not make an express finding of unfitness before transferring custody of the child to the paternal grandparents.

The more fundamental question is whether the trial court had subject-matter jurisdiction to enter the pendente lite order. Athough that question is not addressed by the mother in her petition, this court has a duty to inquire sua sponte to assure that the trial court acted within its authority. See generally Stamps v. Jefferson Cnty. Bd. of Educ., 642 So.2d 941, 945 n. 2 (Aa.1994).

Traditionally, a circuit court, exercising equitable jurisdiction, could divest a natural parent of his or her custody of a child and award custody to a third party upon finding that the natural parent could not adequately care for the child and that the changed custody arrangement would serve the best interests of the child. See Strip-lin, supra. However, in Ex parte L.E.O., 61 So.3d 1042 (Aa.2010), our supreme court held that a child becomes dependent when the child is not receiving adequate care and supervision from his or her legal custodians, i.e., when the parents of the child are unfit by virtue of their being unable to adequately provide for the needs of the child. As noted by Justice Murdock in his dissent in Ex parte L.E.O., that holding

“blur[s], indeed largely remove[s], the line between true dependency cases, which fall within the limited, exclusive jurisdiction of the juvenile court and which are governed by the statutory dependency scheme, ... and mere third-party custody cases, which are governed by the standard announced in Ex parte Terry, 494 So.2d 628 (Aa.1986), and which fall within the jurisdiction of the juvenile court only if some other basis for juvenile-court jurisdiction exists.”

61 So.3d at 1055. In other words, based on the change in the definition of dependency established by the main opinion in Ex parte L.E.O., a circuit court no longer holds the power to award custody of a child of unfit parents to a third party. Only a juvenile court, exercising its dependency jurisdiction, and subject to legislated restrictions on that power, may do so.

Section 12-15-114(a), Aa.Code 1975, declares that a custody dispute solely between parents does not fall within the dependency jurisdiction of the juvenile courts. See also L.R.J. v. C.F., 75 So.3d 685 (Aa.Civ.App.2011). This case nominally presents as a custody-modification action between two natural parents; however, by virtue of the pendente lite order, this case has now evolved into an actual dispute between the mother and the paternal grandparents as to the dependency and custody of the child. See B.R.G. v. G.L.M., 57 So.3d 137, 140 n. 3 (Ala.Civ. App.2010) (noting that dispute among parents and relatives as to dependency of child fell within juvenile court’s jurisdiction despite the fact that original pleadings involved only parents). Thus, the “parental custody dispute” exception to the general dependency jurisdiction of juvenile courts does not apply to this case.

Like Justice Murdock, I believe the legislature did not intend to remove from circuit courts them historical power to protect children in this and similar contexts, and I maintain that Ex parte L.E.O. was wrongly decided, see L.E.O. v. A.L., 61 So.3d 1058, 1059-67 (Ala.Civ.App.2010) (Moore, J., concurring in the result), and G.H. v. Cleburne County Department of Human Resources, 62 So.3d 540, 551 (Ala.Civ.App.2010) (Moore, J., concurring in the result). However, this court is constrained by the decisions of our supreme court. See § 12-3-16, Ala.Code 1975. By finding both parents to be unfit and placing the child in the temporary protective custody of the paternal grandparents, the trial court, in effect, impermissibly exercised the exclusive dependency jurisdiction of a juvenile court, as defined by Ex parte L.E.O. Accordingly, its pendente lite order is void and is due to be vacated. Because a majority of the court has voted to deny the petition, I respectfully dissent.

      . In her petition, the mother notes that the paternal grandparents had not intervened or been joined as formal parties in the underlying action; rather, they merely testified as witnesses in the case. However, the mother does not make any legal argument that, because the paternal grandparents were not formal parties to the case, the trial court could not award pendente lite custody of the child to them. Therefore, that issue is waived. Ex parte Simpson, 36 So.3d 15, 25 (Ala.2009) ("Arguments not made as a basis for mandamus relief are waived.”).