author: MOORE, Judge.

text:
    D.V. v. COLBERT COUNTY DEPARTMENT OF HUMAN RESOURCES. W.C.C., Sr. v. Colbert County Department of Human Resources.
    2110590 and 2110591.
    Court of Civil Appeals of Alabama.
    Dec. 14, 2012.
    Rehearing Denied Feb. 15, 2013.

      Daniel Rosser, Tuscumbia, for appellant D.V.
    M. Chad Smith, Tuscumbia, for appellant W.C.C., Sr.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources.
   MOORE, Judge.

D.V. (“the mother”) and W.C.C., Sr. (“the father”), separately appeal from a judgment of the Colbert Circuit Court terminating their parental rights to W.C.C., Jr. (“the child”), who was born on March 20, 2008. We affirm.

Background

In April 2008, the Colbert County Department of Human Resources (“the Colbert County DHR”) filed in the Colbert Juvenile Court (“the juvenile court”) a dependency petition asserting that the child had tested positive for narcotics at his birth and that two safety plans that had been put into place by the Colbert County DHR with the mother had failed. That dependency action was assigned case no. JU-08-141.01. The Colbert County DHR was awarded custody of the child, and the child was placed with foster parents, L.S. and T.S., who lived in Lauderdale County. L.S., the foster father, was at that time and at all times relevant to this appeal employed by the Lauderdale County Department of Human Resources (“the Laud-erdale County DHR”); he supervises caseworkers assigned to the foster-care and protective-care units in the Lauderdale County DHR office.

On July 14, 2009, the Colbert County DHR filed a petition seeking to terminate the parental rights of the mother and the father to the child. That termination petition was assigned case no. JU-08-141.02.

On February 4, 2010, after an ore tenus hearing, the juvenile court entered a judgment terminating the parental rights of the mother and the father. The mother and the father separately appealed from that judgment to this court. The juvenile court determined that the record could not be certified as adequate for an appeal, and, as a result, this court, pursuant to Rule 28(D), Ala. R. Juv. P., transferred the cause to the Colbert Circuit Court (“the circuit court”) for a trial de novo. The circuit-court action was assigned case no. CV-10-107; however, the parties also refer to the proceedings before the circuit court as case no. JU-08-141.03.

Beginning in November 2011 and concluding in February 2012, the circuit court conducted a four-day ore tenus hearing on the Colbert County DHR’s petition to terminate the parental rights of the mother and the father. On March 8, 2012, the circuit court entered its judgment finding that the child was dependent; that the mother and the father were unable or unwilling to discharge their duties to and for the child; that the parents’ conduct or condition was unlikely to change; that the Colbert County DHR had made reasonable efforts to rehabilitate the mother and the father but that those efforts had failed; and that no viable alternatives to termination of the parents’ parental rights existed that would promote or be consistent with the child’s best interests or foster his need for permanency. Both the mother and the father timely appealed. We have consolidated the appeals.

2110590 — The Mother’s Appeal

The mother appeals, arguing that the evidence at trial was insufficient to establish grounds for termination and the lack of a viable alternative to termination of her parental rights. The mother also maintains that the circuit court erred in receiving evidence from DHR workers who, she alleges, had a patent conflict of interest.

Grounds for Termination

Section 12-15-319, Ala.Code 1975, a part of the Alabama Juvenile Justice Act (“the AJJA”), § 12-15-101 et seq., Ala. Code 1975, provides, in pertinent part:

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

The mother contends that the circuit court improperly terminated her parental rights because, she says, the Colbert County DHR based its petition solely on her alleged drug dependency, which, she claims, was not proven to be continuing at the time of the trial. See D.O. v. Calhoun Cnty. Dep’t of Human Res., 859 So.2d 439, 444 (Ala.Civ.App.2003) (“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”).

The undisputed evidence in the record indicates that the child tested positive for methadone and marijuana at birth, indicating that the mother had used those drugs while pregnant. Following his birth, the child remained hospitalized for two weeks to deal with the effects of his exposure to narcotics in útero. After that two-week period, the mother moved in with the father under the supervision of W.R., one of the mother’s maternal aunts, pursuant to a safety plan developed by the Colbert County DHR. After receiving reports of gunfire in the home from W.R., the Colbert County DHR implemented a new safety plan requiring the mother and the child to reside with D.T., another of the mother’s maternal aunts, without the father. That plan failed, according to Chasity Butler, a Colbert County DHR social worker, when the mother left the child locked in a bedroom with Da.V., her oldest child, where D.T. could not reach the child. At that point, the Colbert County DHR took the child into custody and placed the child in foster care.

Angel Geiske, the director of Turning Leaf Therapeutic and Social Service Providers, testified that she had performed a substance-abuse assessment on the mother at the request of the Colbert County DHR. Based on the information provided by the mother, Geiske concluded that the mother could participate in an intensive outpatient-treatment program, but, Geiske testified, she also had determined that, if the mother was not maintaining abstinence from opiates/opioids and marijuana, the mother would need to complete an inpatient-treatment program. Geiske testified that, based on her evaluation, she concluded that the mother was at high risk of addictive behaviors.

Butler testified that, although the mother had agreed to enroll at the “Freedom House” inpatient-treatment program in June 2008, the mother elected to participate in an outpatient-treatment program instead. The Colbert County DHR admitted into evidence a letter dated April 20, 2009, from Beth Sweat, the program coordinator of Freedom House. In that letter, Sweat stated that, although the mother had graduated from Freedom House’s outpatient program, the mother had experienced issues while participating in the outpatient program and had failed to report obtaining repeated refills of pain medications and using pain medication on other occasions. As a result, Sweat stated that she had recommended that the mother complete a residential-rehabilitation program.

Butler also testified that the mother had relapsed in 2009 and that Freedom House and the Colbert County DHR had insisted that the mother complete an inpatient-treatment program but that the mother had refused, again choosing to complete an outpatient program. Butler testified that completion of an inpatient-treatment program remained a part of the Colbert County DHR’s requirements for the mother up until the termination hearing, but, she said, the mother had not complied with that requirement.

According to the mother, she could not be admitted to an inpatient-treatment program without failing a drug screen, and, she said, she did not want to test positive. The mother testified that she had completed two outpatient-treatment programs, one at Freedom House and another at “River-Bend.” Records from Turning Leaf, which were introduced into evidence, established that Turning Leaf had conducted 27 drug screens on the mother between April 28, 2008, and May 5, 2011. According to Geiske, nine of those screens had been “specimen positive” for some narcotic or drug and three had been “inferred positives.” The remaining 15 of the mother’s 27 drug screens had been negative.

The mother testified that she had disputed the results of many of those 12 positive drug screens and that, as a result of what she described as repeated false positives on those drug screens, she grew distrustful of the Colbert County DHR’s drug screeners. The mother testified that, to prove that the results of the Colbert County DHR’s drug screens were inaccurate, she had submitted to drug screens conducted by independent drug screeners and that those drug screens had come back negative. She admitted that, at some point, she had refused to submit to any further drug screens by the Colbert County DHR’s agent, but, the mother testified, she had offered to obtain an independent drug screen whenever the Colbert County DHR wanted one. According to Geiske, however, the mother’s independently obtained drug screens had not specifically tested for methadone as had the drug screens performed by Turning Leaf.

According to the mother, the Colbert County DHR had not attempted to rehabilitate her or to reunite her with the child since 2009. The mother testified that the Colbert County DHR had not sought a drug screen from her for at least six months preceding the termination hearing. The mother admitted that, three months before the termination hearing, she had obtained a narcotic pain medication from her physician for her back pain; she testified, however, that she was taking that medication only when needed.

Butler, however, testified that the mother had admitted to “being back on opiates, which she has been documented numerous times to being an opiate addict.” Butler acknowledged that the mother had a prescription for the opiates, but, Butler testified, that usage was considered to be a relapse because the mother was an opiate addict. Butler also testified that the mother had refused a total of eight drug screens between the December 2009 termination hearing in the juvenile court and May 2011. Butler acknowledged that, as of May 2011, the Colbert County DHR had stopped sending a technician to the mother’s residence to perform drug screens because of safety concerns prompted by the intimidating and threatening behaviors of the mother and her paramour, L.R., with whom the mother was living. Butler explained that the mother had refused to submit to a drug screen as recently as February 2012 at the North Alabama Visitation Center, where she exercised visitation with the child.

Based on the foregoing evidence, the circuit court reasonably could have been clearly convinced that the mother suffers from an addiction to opiates that had directly harmed the child while in útero and that continued to expose the child to harm even up to the time of the trial. See M.H. v. Jefferson Cnty. Dep’t of Human Res., 42 So.3d 1291, 1294 (Ala.Civ.App.2010) (“If a fact-finder reasonably could have been clearly convinced from the evidence in the record that a parent is unwilling or unable to discharge his or her parental responsibilities to and for the child, this court may not reverse a judgment terminating parental rights arising from ore tenus proceedings in a termination-of-parental-rights case.”). The mere fact that the Colbert County DHR did not obtain a positive drug test from the mother showing she had abused illegal drugs in the two years preceding the trial on its petition to terminate the mother’s parental rights, as the mother argues, does not require this court to ignore the other evidence tending to prove that the mother had not overcome her addiction to legal drugs by the time of the trial, which evidence the circuit court obviously found clear and convincing.

The mother nevertheless contends that her parental rights could not be terminated because she is currently exercising custody of her two other children, one of which was born after the child, with the approval of the Franklin County Department of Human Resources (“the Franklin County DHR”). The mother argues that it would be inconsistent for the State to conclude that she is capable of caring for her two other children while at the same time finding her incapable of caring for the child such that her parental rights should be terminated.

The evidence relating to that argument shows that the mother has two other children who were living with her and L.R., her paramour, in Franklin County at the time of the trial. The older child was 15 at the time of the trial, and the younger child was 2. According to the mother, the Franklin County DHR had opened dependency cases on those children and had placed “FOCUS” workers in the home to supervise the mother’s parenting. At some point, the mother testified, those children had been returned to her unrestricted custody based, in part, on the FOCUS reports. Neither party introduced any records from FOCUS, the Franklin County DHR, or the Franklin Juvenile Court in regard to the other children, and neither party presented any evidence regarding the conditions and circumstances under which those children were residing at the time of the trial.

The mother has not directed us to any statute or caselaw that prevents a court from terminating a parent’s parental rights to one child solely because the parent is currently exercising custody as to other children. See Rule 28(a)(10), Ala. R.App. P. Admittedly, it appears inconsistent for a court to terminate a parent’s parental rights to one child while that parent retains those rights as to other children. However, the record does not indicate that the Franklin County DHR or the Franklin Juvenile Court had the same information and evidence before it as was presented at the adjudicatory hearing before the circuit court. The record also does not reveal whether the Franklin County DHR and the Franklin Juvenile Court had additional evidence that was not presented in the adjudicatory hearing in this case that enabled them to reach their opinion, if indeed they did, that the mother could safely and independently parent the other two children. Even if all concerned State agencies considered the identical evidence, the mother would have this court assume that any error in creating this seemingly inconsistent situation lies with the circuit court in this action, rather than with the Franklin County authorities. However, as we have previously determined, the circuit court had before it sufficient evidence to sustain its judgment terminating the mother’s parental rights. Thus, we reject the mother’s contention that the circuit court erred in terminating her parental rights for the above-stated reason.

Viable Alternatives

The mother asserts that the circuit court erred in finding that no viable alternatives existed because, she says, the Colbert County DHR failed to properly authenticate certain home studies and, as a result, failed to admit those home studies into evidence. The circuit court, however, allowed Butler to testify that the Colbert County DHR had received the home studies of R.R. and T.R., the paternal aunt and uncle, and L.D. and B.D., the father’s niece and her husband, but that neither of those homes had been approved.

After objecting to the circuit court’s consideration of the contents of the home studies, the mother’s attorney cross-examined Butler regarding the contents of the home studies. Because the mother elicited the very testimony to which she now objects, if the circuit court’s consideration of that information was error, it was invited error. See McKinley v. McKinley, 277 Ala. 471, 172 So.2d 35 (1965) (recognizing that a party cannot complain on appeal that the trial court considered an issue that that party consented to submit to the trial court). It is well settled that “ ‘[a] party may not predicate an argument for reversal on “invited error,” that is, “error into which he has led or lulled” ’ ” the pertinent adjudicative body. Wood v. State Pers. Bd., 705 So.2d 413, 422 (Ala.Civ.App.1997) (quoting Atkins v. Lee, 603 So.2d 937, 945 (Ala.1992), quoting in turn Dixie Highway Express, Inc. v. Southern Ry., 286 Ala. 646, 651, 244 So.2d 591, 595 (1971)). We, therefore, find no reversible error in the circuit court’s consideration of the home studies.

The mother also asserts that the Colbert County DHR failed to obtain psychological evaluations of the relatives to corroborate their alleged lack of protective capacity that had been identified in the home studies. The mother, however, has failed to establish that the Colbert County DHR was required to offer expert testimony on that issue. Although she relies on J.A. v. Etowah County Department of Human Resources, 12 So.3d 1245 (Ala.Civ.App.2009), and E.S.R. v. Madison County Department of Human Resources, 11 So.3d 227 (Ala.Civ.App.2008), neither of those cases supports her argument that DHR is required to obtain expert testimony when excluding relative resources as a placement option on the basis of a lack of protective capacity.

Conflict of Interest

Finally, the mother asserts that the circuit court exceeded its discretion in considering evidence offered by DHR’s employees who, she alleges, had a conflict of interest. She asserts that Ala. Admin. Code (Dep’t of Human Res.), Rule 660-5-B9-.06, prohibits employees of DHR who have a conflict of interest from participating in dependency cases and that, because such a conflict existed in this case, the circuit court should not have accepted testimony from those witnesses employed by or affiliated with DHR and the foster parents. Assuming without deciding that the administrative rule upon which the mother relies supports her argument, the mother failed to sufficiently apprise the circuit court of her argument.

Although the mother’s attorney questioned whether the foster father believed a conflict of interest existed, the mother did not cite to the circuit court the administrative rule on which she relies and failed to argue that, because such a conflict existed, the circuit court should not consider testimony offered by anyone employed by or affiliated with DHR. As a result, the mother’s argument on this point is not properly preserved for appellate review. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.”); and Etherton v. City of Homewood, 700 So.2d 1374, 1377-78 (Ala.1997) (quoting Bevill v. Owen, 364 So.2d 1201, 1203 (Ala.1979)) (“ ‘It is a fundamental rule of appellate procedure that, regardless of [the] merits of [the] appellant’s contentions, appellate courts will not review questions not decided by the trial court.’ ”).

2110591 — The Father’s Appeal

Grounds for Termination

The father initially challenges the circuit court’s judgment finding grounds to terminate his parental rights. The father asserts that he completed all the objectives established for him by the Colbert County DHR, i.e., he successfully completed an intensive outpatient-treatment program, he voluntarily reduced his narcotic medication, he successfully completed a parenting class, and he maintained contact with the child by regularly visiting him. Thus, the father asserts, the evidence failed to establish any grounds for terminating his parental rights.

The evidence in the record establishes that the father was released from prison in 2005 after serving close to 30 years for bank robbery and the revocation of his parole. Since being released, the father had not been involved in criminal activity, but he had been arrested in 2008 for driving while intoxicated; that charge was later reduced to reckless driving.

The father was not employed at the time of the trial, but he was receiving disability income as a result of arthritis and a back and knee injury he had sustained while he was in prison. According to the father’s physical evaluation that had been completed for the Social Security Administration, his back pain was worsened by “sitting, straining, lifting, or attempted overhead activity.” The father testified that, because of his physical problems, he cannot run. The father had been prescribed Xa-nax and Oxycontin to treat his conditions, but, the father testified, he had asked for a milder pain medication to appease the Colbert County DHR’s concerns about his medication intake. The father, however, testified that he still needed the stronger medication to properly treat his pain, and he admitted at the termination hearing that he was addicted to his pain and anti-anxiety medications.

The father testified that he had participated in “Individualized Service Plan” (“ISP”) meetings with the Colbert County DHR and that the Colbert County DHR had asked him to take parenting classes, which he had successfully completed, and to submit to a substance-abuse evaluation, which he also had done. As a result of that evaluation, the father had been referred to intensive outpatient treatment. Although the father did not attend the specific program that the Colbert County DHR had recommended, he testified that he had participated in and completed an outpatient substance-abuse program that he described as more rigorous than the one that had been recommended by the Colbert County DHR; the father also testified that he had submitted to random drug screens.

According to the drug screens that were admitted into evidence, the father had produced positive drug screens for opiates, benzodiazepines, cocaine, and marijuana. Although the father had prescriptions for the opiates and benzodiazepines, he admitted that he was addicted to those narcotics. The father also testified that the positive result for cocaine and marijuana had been in error. Despite that testimony, the father admitted to having smoked marijuana after being released from prison, but he denied that he had inhaled. He denied ever having used cocaine.

Butler testified that, during the father’s visits, the child often removed himself from the play situation because, she believed, the father’s interaction with the child was “very aggressive” and “very loud and abrasive.” Butler also testified that the father had often made inappropriate remarks to the child and had physically interacted with the child in such a way that the visitation monitor or the Colbert County DHR caseworker had felt it necessary to intervene in the visit.

Based on the foregoing evidence, the circuit court reasonably could have been clearly convinced that the father continued to suffer from an addiction to narcotic pain medication of such duration that it rendered him unable to properly parent the child. See § 12-15-319(a)(2). We acknowledge that other evidence conflicted with such a finding, but the circuit court, as the trier of fact, resolved that dispute against the father. We must defer to the circuit court’s interpretation of the evidence. See J.C. v. State Dep’t of Human Res., 986 So.2d 1172 (Ala.Civ.App.2007).

Viable Alternatives

The father also challenges the circuit court’s finding that no viable alternatives to termination of his parental rights existed. He asserts that R.R. and her husband, T.R., and L.D. and her husband, B.D., were two viable alternatives to termination of his parental rights; he also asserts that maintaining the status quo, with the child in foster care, was a viable alternative. As this court previously has recognized, however:

“Although a juvenile court is required to consider alternatives to termination under Ex parte Beasley, 564 So.2d [950] at 954 [ (Ala.1990) ], the juvenile court is not required to accept any suggested alternative as ‘viable’ simply because it exists. ‘We have recently explained ... that a “fit and willing” relative is one who can care for the child’s physical, emotional, mental, and other needs during the child’s minority. J.B. v. Cleburne County Dep’t of Human Res., 991 So.2d 273, 283 (Ala.Civ.App.2008).’ B.H. v. Marion County Dep’t of Human Res., 998 So.2d 475, 481 (Ala.Civ.App.2008). The determination of whether a viable alternative to termination exists in a given case is a question of fact. T.V. v. B.S., 7 So.3d 346, 352 (Ala.Civ.App.1998) (citing J.B., 991 So.2d at 282). Our review of a juvenile court’s decision on the viability of a particular alternative is governed by the ore tenus rule. T.V., 7 So.3d at 353.”

J.A., 12 So.3d at 1254.

Although it appears from the evidence in the record that R.R. and T.R. clearly desired to have custody of the child, the circuit court heard testimony from which it could reasonably have been clearly convinced that their ages and their alleged inability to understand the father’s limitations and drug issues prevented them from serving as an appropriate placement resource for the child.

According to the foster mother, R.R. and T.R. had shown interest in obtaining custody of the child in April 2009, when, she explained, the mother had suffered a relapse of her drug addiction and the Colbert County DHR had changed the permanency plan for the child to relative placement. The foster mother testified that she, R.R., and T.R. had disagreed at times as to the proper care to be provided to the child and that she questioned whether R.R. could discern when the child was ill and whether she could properly care for the child when the child was ill. She also stated that she believed R.R. had allowed the father and other family members to smoke while holding the child or while in the child’s immediate presence, which was contraindicated for the child’s asthma. She also testified that, according to R.R., the child “had stopped breathing” on one occasion at R.R.’s house, but no one had called for medical assistance or taken the child to the doctor.

The foster mother expressed other concerns regarding the child’s visiting with R.R. and T.R. at their home. She testified that, on several visits, the father had been intoxicated and, even though he had been visibly shaking, R.R. had defended him. The foster mother also expressed concern about so many family members and relatives coming in and out of R.R.’s house. Finally, the foster mother testified that she believed R.R., who was in her mid 60s, and T.R., who was estimated to be 85, were too old to raise or care for the child. Thus, clear and convincing evidence supports the circuit court’s finding as to R.R. and T.R.

As to L.D. and B.D., the evidence establishes that they are younger, in good health, employed in the education field, have no health or drug issues, have no criminal histories, and have a son only a year or two older than the child. However, the circuit court received evidence indicating that the mother had written a letter to the Colbert County DHR in which the mother alleged that L.D. and B.D. had assisted the father in selling and hiding drugs and guns. Also, Butler explained that the Colbert County DHR had received an anonymous report indicating that the father had engaged in a drug deal in L.D.’s front yard while the child was visiting there. Butler admitted that she did not know who had made that report and that the allegations could not be confirmed. Butler also testified that, after learning of those allegations, L.D. and B.D. had withdrawn as a potential resource for the child. Additionally, the foster mother testified that she had many of the same concerns with them as she had with R.R. and T.R.

Although the home of L.D. and B.D. appeared to offer a suitable placement resource for the child, L.D. admitted that she had withdrawn as a potential resource before the termination petition was first heard in the juvenile court. The record contains no indication that L.D. ever contacted the Colbert County DHR to indicate a renewed interest in serving as a placement resource, and there was no indication that L.D. had continued to visit with the child or to otherwise maintain a bond or relationship with him. Therefore, as the trier of fact, the circuit court could have rejected L.D.’s expressed interest in obtaining custody of the child as a last-minute alternative to termination. See, e.g., C.T. v. Calhoun Cnty. Dep’t of Human Res., 8 So.3d 984, 989 (Ala.Civ.App.2008) (affirming the trial court’s finding that a relative suggested as a placement resource for the first time at the termination hearing was not a viable alternative to termination); and B.S. v. Cullman Cnty. Dep’t of Human Res., 865 So.2d 1188, 1196-97 (Ala.Civ.App.2003) (accord). Because the evidence supports the circuit court’s finding, our deferential standard of review mandates that we accept it even if we might have reached a different conclusion.

Finally, we reject the father’s argument that maintaining the status quo was a viable alternative to termination of his parental rights. The child, who is now 4 years old, has been in foster care since he was 18 days old. Based on the evidence, it appears that both the mother and the father continue to take narcotics. The father admitted that he is addicted to his narcotic medications; the mother is living with L.R., who is, according to the record, a convicted drug offender, she has refused to attend an inpatient-treatment program, and, in the year preceding the termination hearing in circuit court, she continued to fail drug screens or to refuse to submit to required drug screens. As we have previously recognized: “At some point, ... the child’s need for permanency and stability must overcome the parent’s good-faith but unsuccessful attempts to become a suitable parent.” M.W. v. Houston Cnty. Dep’t of Human Res., 773 So.2d 484, 487 (Ala.Civ.App.2000); see also K.A.P. v. D.P., 11 So.3d 812, 820 (Ala.Civ.App.2008) (“[T]he appellate courts generally hold that maintaining an indefinite custody arrangement with a third party is not in the best interests of the child.”). We, therefore, reject the father’s argument that maintaining the status quo is a viable alternative to termination of the father’s parental rights.

Conclusion

Based on the foregoing, we affirm the circuit court’s judgment.

2110590 — AFFIRMED.

2110591 — AFFIRMED.

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

      . The father’s paternity had not been adjudicated at that time.

      . R.R. and T.R., the child’s paternal aunt and uncle, who had been allowed to intervene in the termination action in the juvenile court, also filed a notice of appeal from the February 4, 2010, judgment.

      .On March 23, 2012, the circuit court entered an amended judgment, making clerical corrections to the March 8, 2012, judgment, pursuant to Rule 60(a), Ala. R. Civ. P.

      . Geiske explained that an "inferred positive" indicated that the mother had refused to be screened or had not returned Turning Leaf's call within a certain period and that, pursuant to the agreement entered into by the mother, Turning Leaf inferred that she would have tested positive if she had submitted to the test. Geiske testified that the time allowed for the return call was set by agreement.

      . It is unclear whether the mother’s testimony was intended to refer to the November 2011 or to the February 2012 hearing date.

      . As stated previously, the foster father was employed by the Lauderdale County DHR as a supervisor. The mother maintains that several witnesses testifying on behalf of the Colbert County DHR, therefore, had a conflict of interest.

      . Ala. Admin. Code (Dep’t of Human Res.), Rule 660-5-39-.06, provides, in pertinent part:
      "(1) A child-placing agency with authority to approve foster homes and to place children in approved foster family boarding homes or foster family free homes shall:

      “(e) The State Department of Human Resources, Family Services Partnership, Office of Foster Care, is to be notified when a DHR employee. State Office or County Office, or DHR Official makes application to become a foster care provider. The homes of DHR Officials or DHR employees shall not be approved for use as a foster home provider if there is a possible conflict of interest situation, e.g., personnel that engage in the placement or supervision of foster children, or personnel that regulate the licensing or approval of homes or facilities for the placement of children. The State Department of Human Resources will provide a written statement regarding whether there is a possible conflict.
      "(f) A licensed child-placing agency shall not conduct or approve a foster home study on any of its employees or officials, which includes board members, volunteers or anyone else who has direct affiliation with the agency. Arrangements must be made with another licensed child-placing agency or licensed social worker to conduct and approve the study, make a placement, provide post-placement supervision and for reapproval of the home.”
      (Underlining and bold typeface in original.)

      . The father first testified that his arrest for driving while intoxicated had occurred in 2002. The father, however, was in prison until 2005. He then testified that he was arrested in December 2007 and that he remembered the date because the Colbert County DHR was placing a significant amount of pressure on him in connection with this case. The child, however, was not born until March 2008, so the Colbert County DHR would not have been involved with the father as a result of this case in December 2007. Subsequent testimony at the hearing established that the father’s arrest for driving while intoxicated occurred in December 2008.

      . The mother testified that she had written that letter based on the foster mother's advice and with the foster mother’s help, but she stated that the allegations were false and that she actually approved of L.D. and B.D. as relative placements. The foster mother denied the mother’s account.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    J.D. v. LAUDERDALE COUNTY DEPARTMENT OF HUMAN RESOURCES and T.T.
    2111221.
    Court of Civil Appeals of Alabama.
    Feb. 1, 2013.

      Lindsey Mussleman Davis of Holt, Mus-sleman, Kelley & Morgan, Florence, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth L Hendrix, asst. atty. gen., Department of Human Resources, for appellee Lauder-dale County Department of Human Resources.
   THOMAS, Judge.

J.D. (“the father”) appeals from an August 20, 2012, judgment of the Lauderdale Juvenile Court declaring T.T.D. (“the child”) dependent and awarding custody of the child to the Lauderdale County Department of Human Resources (“DHR”). Because we conclude that the father is correct in arguing that the juvenile court lacked subject-matter jurisdiction to enter its dependency judgment, we dismiss the appeal with instructions that the juvenile court vacate its August 20, 2012, dependency judgment and that it amend its temporary custody orders to comply with Ala. Code 1975, § 30-3B-204, as explained below.

On May 17, 2012, T.T. (“the mother”) took the child from his home in Texas, where he was residing with the father, his custodial parent by virtue of a temporary-custody judgment entered by the 256th District Court of Texas (“the Texas district court”), to Alabama. Under the Texas district court’s judgment, the mother had only supervised visitation with the child. Based on information indicating that the child had been kidnapped by his noncustodial parent, the child was removed from the custody of the mother by the Florence City Police.

DHR sought and received a pick-up order granting it temporary custody of the child on May 18, 2012. At the time the child was placed in DHR’s custody, he made disclosures regarding alleged physical and sexual abuse perpetrated upon him by his father. On May 21, 2012, DHR filed a dependency petition seeking to have the child declared dependent. DHR, though its caseworker Laura Traynor, informed the juvenile court that a custody proceeding regarding the child was pending in the Texas district court.

On May 23, 2012, the father filed a “Limited Response to Petition and Motion to Restore Custody to Custodial Parent.” In that motion, the father informed the juvenile court that he had been awarded custody of the child in an April 2012 order of the Texas district court, that the mother had been awarded only supervised visitation with the child in that order, that the mother had kidnapped the child from Texas on May 17, 2012, that the allegations of physical and sexual abuse made against him had been investigated and “ruled out” by the Texas Department of Family and Protective Services, and that the mother had unsuccessfully sought to have the Texas custody proceeding dismissed based on jurisdictional grounds. The father attached as exhibits to his motion, among other things, the April 2012 custody order, documentation related to the Texas Department of Family and Protective Services’ ruling him out as a perpetrator of physical and sexual abuse against the child, and an order from the Texas district court stating that it would not decline to exercise jurisdiction over the custody of the child and declaring that it had exclusive, continuing jurisdiction over the child’s custody under Texas’s version of the Uniform Child Custody Jurisdiction and Enforcement Act (“the UCCJEA”), codified at Tex. Family Code Ann. § 152.101 et seq.

On May 23, 2012, the juvenile court entered a shelter-care order maintaining custody of the child with DHR and ordering that neither parent have unsupervised contact with the child. That order also set an adjudicatory hearing on the matter for June 19, 2012. On June 18, 2012, the father moved to have the shelter-care order vacated, arguing that the order did not comply with the directives of Ala.Code 1975, § 30-3B-204, a part of Alabama’s version of the UCCJEA. Section 30-3B-204 reads, in pertinent part:

“(a) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
“(c) If there is a previous child custody determination that is entitled to be enforced under this chapter, or a child custody proceeding has been commenced in a court of a state having jurisdiction under Sections 30-3B-201 through 30-3B-203, [Ala.Code 1975,] any order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under Sections 30-3B-201 through 30-3B-203. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires.
“(d) A court of this state which has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of a state having jurisdiction under Sections 30-3B-201 through 30-3B-203, shall immediately communicate with the other court. A court of this state which is exercising jurisdiction pursuant to Sections 30-3B-201 through 30-3B-203, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.”

At the scheduled hearing on June 19, 2012, the father appeared through counsel, who argued that the juvenile court lacked jurisdiction to adjudicate the dependency of the child. The court continued the adjudicatory hearing and took the father’s argument under advisement at that time. On July 16, 2012, the juvenile court amended its shelter-care order by stating that DHR was awarded custody “pendente lite.” The July 2012 order further set the matter for an adjudicatory hearing on August 17, 2012.

The father, on July 25, 2012, moved to vacate the amended shelter-care order. After an adjudicatory hearing on August 17, 2012, the juvenile court entered a judgment adjudicating the child to be dependent and awarding custody to DHR on August 20, 2012. The juvenile court entered a separate order on the same date denying the father’s pending motions. The father timely appealed to this court.

On appeal, the father argues that the juvenile court lacked jurisdiction to enter its August 20, 2012, dependency judgment. DHR, while not formally conceding error on the part of the juvenile court, does indicate in its brief that the juvenile court’s judgment is “seemingly void” because the juvenile court failed to communicate with the Texas district court as required by § 30-3B-204(d) and failed to place any limitations on its temporary-custody orders as contemplated by § 30-3B-204(c). We appreciate the candor of DHR in admitting the probable error committed by the juvenile court.

This court has considered similar jurisdictional issues before. See, generally, M.W. v. C.W., 60 So.3d 301, 305 (Ala.Civ.App.2010); S.C. v. J.T.C., 47 So.3d 1253, 1257 (Ala.Civ.App.2010); R.W. v. G.W., 2 So.3d 869, 871 (Ala.Civ.App.2008); and M.B.L. v. G.G.L., 1 So.3d 1048, 1051 (Ala.Civ.App.2008).

“[T]he Uniform Child Custody Jurisdiction and Enforcement Act (‘the UC-CJEA’), codified at Ala. Code 1975, § 30-3B-101 et seq., controls decisions regarding whether a court of this state has jurisdiction to make a child-custody determination or to modify another state’s child-custody determination. M.J.P. v. K.H., 923 So.2d 1114, 1116-17 (Ala.Civ.App.2005). A ‘child-custody determination,’ as defined in the UCCJEA, includes any judgment providing for the legal or physical custody of a child or providing visitation with a child. § 30-3B-102(3). A ‘child-custody proceeding’ is defined in the UCCJEA to include not only divorce actions involving the custody of a child, but also ‘neglect, ... dependency, ... [and] termination of parental rights’ actions in which the issue of child custody is addressed. § 30-3B-102(4).”

R.W., 2 So.3d at 871. An Alabama circuit or juvenile court may not make any custody determination — neither an initial custody determination nor a determination as to modification of custody — regarding a child unless that court has jurisdiction to make an initial custody determination under the UCCJEA, which jurisdiction typically turns on whether Alabama is the home state of the child. See Ala.Code 1975, § S0-3B-201 and -203 (providing when a court of this state may make an initial custody determination or modify the custody determination of a court of another state). However, in situations in which a child-custody proceeding is pending in another state or a previous child-custody determination exists, an Alabama court may exercise temporary emergency jurisdiction under § 30-3B-204 when a child is present in this state and “it is necessary in an emergency to protect the child because the child ... is subjected to or threatened with mistreatment or abuse.” § 30-3B-204(a). The temporary emergency jurisdiction that an Alabama court may exercise pursuant to § 30-3B-204 is “extremely limited,” see 1 So.3d at 1051, and an Alabama court must comply with the manner of exercising that jurisdiction set out in that section. LaRose v. LaRose, 71 So.3d 651, 657 (Ala.Civ.App.2011).

Section 30-3B-204, as quoted above, requires an Alabama court exercising temporary emergency jurisdiction (1) to enter a temporary order that is limited in time and that requires the person seeking a custody determination to obtain a custody order from the applicable court in the state having jurisdiction within that time limitation and (2) to immediately communicate with the court in the other state to resolve the emergency and to determine the effective duration of the temporary emergency order. The juvenile court in the present case did neither. In addition to entering temporary orders that did not comply with the requirements of § 30-3B-204, the juvenile court went further and adjudicated the dependency of the child despite the fact that the child was the subject of a custody proceeding in, and the subject of a custody judgment of, the Texas district court. This the juvenile court could not do. M.W., 60 So.3d at 305; S.C., 47 So.3d at 1257.

As we explained in M.W., a juvenile court exercising temporary emergency jurisdiction under § 30-3B-204 does not have jurisdiction to adjudicate dependency and award custody by virtue of the limited jurisdiction provided to it. M.W., 60 So.3d at 301. In M.W., a maternal grandmother sought to have her grandchildren declared dependent and to be awarded custody of those children; the children resided with her in Alabama at the time she filed her dependency petition. Id. at 302. The maternal grandmother had previously sought custody of the children in a Georgia court, but that court had denied her request. Id. Because the children were the subject of a Georgia custody judgment, because the children’s mother was still a resident of Georgia, and because the record did not reflect that the Georgia court had declined to exercise its continuing, exclusive jurisdiction over the children, the Alabama juvenile court could exercise only temporary emergency jurisdiction over the children. Id. at 303. Accordingly, this court concluded that the juvenile court’s dependency judgments had been entered without jurisdiction, were void, and would not support an appeal. Id. at 805. We dismissed the appeal, but we instructed the juvenile court to vacate its dependency judgments and to amend its temporary orders to comply with § 80-3B-204. Id.

Similarly, in S.C., this court determined that the allegations contained in a maternal grandmother’s petition seeking to declare a child dependent and seeking custody of that child, who was a resident of Virginia, permitted the Alabama juvenile court to exercise temporary emergency jurisdiction pursuant to § 30-3B-204. S.C., 47 So.3d at 1256. However, we further explained that the exercise of temporary emergency jurisdiction “did not authorize the juvenile court to conduct [a] subsequent dependency proceeding.” Id. at 1257. Instead of setting the matter for a dependency trial in its temporary orders, we explained, the juvenile court was required by § 30-3B-204 to specify a definite period during which the maternal grandmother could seek a custody order from a Virginia court or an order from a Virginia court declining to exercise jurisdiction. Id. We concluded that the juvenile court’s judgment declaring the child dependent and awarding the maternal grandmother custody of the child had been entered without jurisdiction and was therefore void; we dismissed the appeal with instructions that the juvenile court vacate its dependency judgment and amend its temporary-custody order to comply with § 30-3B-204. Id. at 1257-58.

The child in the present case is the subject of a Texas district court order awarding custody of the child to the father. The Texas district court has not declined to exercise its jurisdiction over the child. The juvenile court was permitted to exercise temporary emergency jurisdiction under § 30-3B-204. However, despite being apprised of the limitations of its jurisdiction, the juvenile court not only failed to comply with § 30-3B-204 in its temporary orders but went further and adjudicated the dependency of the child in violation of the UCCJEA. See M.W., 60 So.3d 301.; S.C., 47 So.3d at 1257. Thus, as in M.W. and S.C., the judgment of the juvenile court is void, and this appeal is dismissed with instructions that the juvenile court vacate its August 20, 2012, judgment, that it comply with the requirements of § 30-3B-204 by amending the orders entered under its emergency temporary jurisdiction to include the appropriate limitations on those orders, and that it communicate with the Texas district court “to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.” § 30-3B-204(d).

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . Because we find the father's jurisdictional argument dispositive, we pretermit the father’s other argument on appeal. See L.R. v. C.G., 78 So.3d 436, 442 (Ala.Civ.App.2011) (citing Favorite Mkt. Store v. Waldrop, 924 So.2d 719, 723 (Ala.Civ.App.2005)) (stating that this court would pretermit discussion of certain issues in light of the dispositive nature of another issue).

      . On July 23, 2012, the mother filed what she entitled a "Petition for Custody.” However, the mother did not pay a separate filing fee, see Farmer v. Farmer, 842 So.2d 679, 681 (Ala.Civ.App.2002) (holding that the payment of a filing fee is a jurisdictional prerequisite to the commencement of an action), and the mother did not properly serve the petition on any party under Rule 4, Ala. R. Civ. P. See M.M. v. B.L., 926 So.2d 1038, 1041-42 (Ala.Civ.App.2005) (finding a judgment terminating the parental rights of a father void because the petitioner had not properly served the petition on the father under Rule 4 but instead had merely served the petition on his attorney under Rule 5, Ala. R. Civ. P., providing for the service of pleadings filed subsequent to the filing of an original complaint). Because it appears that the mother never answered the dependency petition, because the mother’s "petition” seeks a return of custody based on allegations that the child is not dependent based upon her conduct or condition, and because the "petition” requests that DHR be relieved of its obligations to the child, we consider the "petition” to be an answer and a request for return of custody upon the denial of DHR’s dependency petition as opposed to a separate custody petition. Therefore, we deem the mother’s request for return of custody to have been implicitly denied when the juvenile court entered its August 20, 2012, judgment declaring the child dependent and awarding custody of the child to DHR. Thus, no issues remain pending before the juvenile court, and its August 20, 2012, judgment is final.

      . DHR does not dispute that Alabama is not the child’s home state.

      . We have further noted that an order entered under a juvenile court’s temporary emergency jurisdiction must "speciffy] a definite period for the [party seeking the custody order] to obtain a custody order from the applicable [court in the other state] ... or to obtain an order from [the court in the other state] declining to exercise jurisdiction because the Alabama juvenile court was a more appropriate forum.” S.C., 47 So.3d at 1257. However, we note that the record contains a Texas district court order on the mother’s jurisdictional challenge in which that court denied the mother’s request that it decline jurisdiction on the asserted ground of forum non conveniens and in which it further stated that it had continuing, exclusive jurisdiction over the child.


text:
    FLORENCE SURGERY CENTER, L.P., d/b/a Shoals Outpatient Surgery, and SCA-Florence, LLC v. EYE SURGERY CENTER OF FLORENCE, LLC; Valley Surgery Center, L.L.C.; and Alabama State Health Planning and Development Agency.
    2110812.
    Court of Civil Appeals of Alabama.
    Feb. 8, 2013.

      Dorman Walker, JoClaudia Moore, and Neah Mitchell of Balch & Bingham, LLP,. Montgomery, for appellants.
    David M. Hunt and Joseph W. Carlisle of Gilpin Givhan, P.C., Birmingham, for appellee Eye Surgery Center of Florence, LLC.
    Mark D. Wilkerson and Dana H. Bill-ingsley of Wilkerson & Bryan, P.C., Montgomery, for appellee Alabama State Health Planning and Development Agency.
    Richard J. Brockman, Angela C. Cameron, Zachary D. Trotter, and M. Margaret Lester of Johnston Barton Proctor & Rose, Birmingham, for amici curiae Alabama Nursing Home Association and Assisted Living Association of Alabama, and provisionally, the Home Care Association of Alabama, in support of the State Health Planning & Development Agency’s application for rehearing; G. Gregory Locklier, General Counsel, Alabama Hospital Association, Montgomery, for amicus curiae the Alabama Hospital Association, in support of the State Health Planning and Development Agency’s application for rehearing; and Alvin L. “Peck” Fox of Maynard Cooper & Gale, P.C., Montgomery, for amicus curiae the Alabama Hospice and Palliative Care Organization, in support of the State Health Planning and Development Agency’s application for rehearing.
   On Application for Rehearing

MOORE, Judge.

This court’s opinion of November 30, 2012, is withdrawn, and the following is substituted therefor.

On November 30, 2012, this court issued an opinion reversing a decision of the Alabama State Health Planning and Development Agency’s Certificate of Need Review Board (“the CONRB”) concluding that Eye Surgery Center of Florence, LLC (“ESC”), was not required to obtain a new certificate of need to operate an eye-only ambulatory surgery center at a site owned by Valley Properties, LLC, upon which Valley Surgery Center, L.L.C., had formerly operated an eye-only ambulatory surgery center. Following the issuance of that opinion, the Alabama State Health Planning and Development Agency (“SHPDA”) timely filed an application for rehearing. This court subsequently granted the motions of the Alabama Hospital Association, the Assisted Living Association of Alabama, the Alabama Hospice and Palliative Care Organization, and the Alabama Nursing Home Association to be designated as amici curiae and to file briefs in support of SHPDA’s application for rehearing. See Rule 29, Ala. RApp. P.

After SHPDA and the amici curiae filed their briefs in support of rehearing, the attorney for the Florence Surgery Center, L.P., doing business as Shoals Outpatient Surgery, and its general partner SCA-Florence, LLC (hereinafter referred to collectively as “FSC”), the only parties that appealed from the decision of the CONRB, filed a letter with this court stating, in pertinent part:

“... I am writing to inform the Court that after entry of the Court’s November 30, 2012 opinion, the interest of my client[s], Florence Surgery Center, L.P. d/b/a Shoals Outpatient Surgery and SCA-Florence, LLC, in this matter was resolved. Consequently, my elient[s] will not file a brief in response to the Alabama State Health Planning and Development Agency’s application for rehearing, and do[ ] not want to participate further in this case.”

This court ordered ESC, Valley Surgery Center, L.L.C., and SHPDA, as well as the amici curiae, to file letter briefs, if they so elected, regarding the effect of that letter and its contents on the appeal. In their letter brief, SHPDA and the amici curiae argue that the issues on appeal have become moot and that this court may withdraw its opinion issued on original submission. ESC argues in its letter brief that the letter should be construed as a motion to voluntarily dismiss the appeal, justifying the withdrawal of the opinion issued on original submission. We elect to follow the path outlined by SHPDA and the amici curiae.

In Caldwell v. Loveless, 17 Ala.App. 881, 85 So. 307 (1920), the Alabama Court of Appeals noted that, while an appeal was pending, the parties to the appeal had sold their interests in the subject of the appeal to other parties and had settled the case. Based on those circumstances, the court determined that the appeal had become moot because of the absence of a present justiciable controversy. The court stated:

“The necessary requisite to appellate jurisdiction is the existence of an actual controversy; therefore it is not within the province of this court to decide abstract or hypothetical questions, which are disconnected from the gravity of actual relief, or from the determination of which no practical result can follow. Nor is it the province of this court to consider a fictitious case, submitted merely for the purpose of testing the right to do a particular thing.
“The general rule is, if pending an appeal, an event occurs which renders it impossible for the appellate court to grant any relief, the appeal may be dismissed: There are many instances in which such condition may arise. It may arise by the act of the appellant himself. Woodruff v. Austin, 16 Misc. Rep. 543, 38 N.Y.S. 787 [ (1896) ] .... Similarly it arises where a litigation has ceased to be between parties having adverse interests, etc. It has also been held, where all substantial interest in the controversy has been parted with or extinguished, the court will not hear the appeal merely to determine the rights to costs. Randolph v. Rosser, 7 Port. 249 [(1838)].”

17 Ala.App. at 382, 85 So. at 307-08.

In his letter to this court, the attorney for FSC informed the court that it had “resolved” its interest after this court issued its opinion on original submission. Whether that resolution occurred via a settlement, through conveyance, or by some other means is not apparent, but, because FSC, the only appellant, no longer has an interest in the outcome of this appeal, the appeal has become moot because of the absence of a continuing actual controversy. Any opinion on the issues presented would no longer affect the rights of FSC or provide FSC with any “actual relief’ from which a “practical result can follow.” Caldwell, supra. Any opinion would, in fact, decide only “abstract or hypothetical questions,” which this court is generally forbidden from answering. Caldwell, supra; see also Alabama Nursing Home Ass’n v. Alabama State Health Planning Agency, 554 So.2d 1032 (Ala.Civ.App.1989).

FSC’s resolving its interest in the appeal only after the court issued an opinion does not present a basis for a different outcome. In Rothenberg v. Connecticut Mutual Life Insurance Co., 161 So.2d 875 (Fla.Dist.Ct.App.1964), the District Court of Appeal of Florida had issued an opinion in a mortgage-foreclosure dispute. Before the time had lapsed for filing a petition for rehearing and before a “mandate” had been issued by the court, the parties informed the court that the issues had been resolved through settlement. The court investigated the matter and determined that the parties had settled in good faith. The court held that, under those circumstances, it had discretion “to grant a dismissal on the basis requested by the parties or to allow its decision to stand and be given such effect as the court may deem appropriate consistent with the subsequent action of the parties.” 161 So.2d at 876. The court noted that, in McKenzie v. Chastain, 181 Ga. 807, 184 S.E. 276 (1936), a case in which the parties settled the matter after the appeal had been decided, but while it was still pending on motion for rehearing, the Georgia Supreme Court had “recognized the cause as having become moot, vacated its judgment and withdrew its opinion and dismissed the cause.” 161 So.2d at 877. Finding that the settlement had rendered its opinion moot, and further finding no circumstances requiring preservation of its original opinion, the court withdrew and vacated the original opinion and dismissed the appeal.

In U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S. 18, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994), the United States Supreme Court noted that “ ‘judicial precedents are presumptively correct and valuable to the legal community as a whole. They are not merely the property of private litigants and should stand unless a court concludes that the public interest would be served by a vacatur.’ ” 513 U.S. at 26 (quoting Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27, 40, 114 S.Ct. 425, 126 L.Ed.2d 396 (1993) (Stevens, J., dissenting)). Alabama jurisprudence further recognizes that, although an appeal may have become moot, the appeal may yet be decided if it is in the public interest to do so. Willis v. Buchman, 240 Ala. 386, 387, 199 So. 892, 894 (1940) (on rehearing). This case, however, does not fall within the public-interest exception to the mootness doctrine.

“‘The criteria for applying the public interest exception to the mootness doctrine include the public nature of the question, the desirability of an authoritative determination for the purpose of guiding public officers, and the likelihood that the question will generally recur.’ [1A C.J.S. Actions § 81 (2005) ] (footnote omitted). However, this ‘exception is construed narrowly ... and a clear showing of each criterion is required to bring a case within its terms.’ In re Adoption of Walgreen, 186 Ill.2d 362, 365, 238 Ill.Dec. 124, 710 N.E.2d 1226, 1227 (1999).”

Chapman v. Gooden, 974 So.2d 972, 989 (Ala.2007) (emphasis added). In this case, it is highly unlikely that the precise issue before this court is likely to recur. As FSC argued in its initial briefs to this court, the issues raised in the appeal involve the first and only transaction of its kind in the history of the CONRB — the leasing, without first obtaining a certificate of need, by one health-care provider of the site and equipment formerly used by another health-care provider to operate an eye-only ambulatory surgery center. In its reply brief, FSC particularly disclaimed any attempt to raise broader issues involving other types of more common transactions that had been previously approved by the CONRB without the issuance of a new certificate of need.

Furthermore, in considering the merits of the application for rehearing filed by SHPDA, this court recognizes that some of the language present in the opinion issued on original submission could be interpreted as exceeding the scope of the issues presented. Had FSC not filed its letter, it is likely this court would have at least revised the opinion to remove the misleading language and to narrow its holding to the particular transaction at issue, rendering any subsequent opinion inapplicable to the vast majority of transactions the CONRB considers. Therefore, any revised opinion likely would have had little to no impact on the manner in which the CONRB handles more common business transactions among health-care providers. As such, any revised opinion would have had minimal precedential value. Hence, we conclude that all the factors necessary to proceed under the public-interest exception are not present in this case and that the general rule that this court will not decide moot appeals applies. This court further finds that it would serve the public interest to withdraw and vacate the opinion on original submission to assure that it does not improperly influence future CONRB actions. See U.S. Bancorp Mortg. Co., supra.

Accordingly, this court hereby withdraws and vacates its opinion issued on November 30, 2012, and dismisses this appeal. To clarify, by withdrawing and vacating our opinion issued on original submission, we intend that that opinion will have no legal force and effect, as if it had never been issued. See U.S. Bancorp Mortg. Co., supra. By dismissing the appeal, we intend that the parties will be returned to the same position they occupied before the filing of the appeal, with the CONRB decision governing their rights. See Gary Powers Dev., Inc. v. State Home Builders Licensure Bd., 852 So.2d 778, 781 (Ala.Civ.App.2002) (quoting FDIC v. Equitable Life Assurance Soc’y of the United States, 289 Ala. 192, 196, 266 So.2d 752, 754 (1972)) (“The dismissal of an appeal ordinarily leaves the appellant ‘in the same position as if no appeal had been taken.’ ”).

APPLICATION GRANTED; OPINION OF NOVEMBER 30, 2012, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED.

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

      . Valley Surgery Center, L.L.C., did not file a letter brief with this court.