author: BRYAN, Justice.

text:
    BOARD OF EQUALIZATION AND ADJUSTMENT OF SHELBY COUNTY v. SHELBY 39, LLC.
    1120084.
    Supreme Court of Alabama.
    Aug. 30, 2013.
    William R. Justice of Wallace, Ellis, Fowler, Head & Justice, Columbiana, for appellant.
    W. Scott Simpson and Christina M. Saunders of Simpson, McMahan, Glick & Burford, PLLC, Birmingham, for appellee.
   BRYAN, Justice.

The Board of Equalization and Adjustment of Shelby County (“the Board”) appeals from a consent judgment reflecting an agreement between the Board and Shelby 39, LLC (“Shelby 39”). The Board argues that the circuit court lacked subject-matter jurisdiction over certain matters decided by the consent judgment. We affirm.

The Board inspects, reviews, revises, and fixes the value of all property returned to or listed with the county tax assessor for each year. § 40-3-16, Ala.Code 1975. Shelby 39 is a real-estate developer. In 2009, 39 subdivision-property lots (“the lots”) owned by Shelby 39 were assessed for taxation at a market value of $44,940 each. Shelby 39 protested the assessment to the Board, and the Board upheld the assessment. On July 12, 2010, Shelby 39 appealed the Board’s decision to the circuit court, pursuant § 40-3-24, Ala.Code 1975. The appeal remained pending in the circuit court for an extended period. During the pendency of the appeal, Shelby 39 amended its notice of appeal to challenge the 2010 and 2011 assessments of the lots. The Board filed a motion to strike the amended appeal regarding the 2010 assessment, but the Board did not move to strike the amended appeal regarding the 2011 assessment. The Board’s motion to strike alleged that there is no statutory authority for such an amendment and that Shelby 39 failed to follow the required procedures before an assessment may be reviewed by the circuit court.

During the pendency of the appeal, the Board and Shelby 39 agreed to settle the dispute regarding the value of the lots for the years 2009, 2010, and 2011. The parties filed an agreement stipulating to the value of the lots and asking the circuit court to enter a consent judgment reflecting that agreement. Accordingly, the circuit court entered a consent judgment establishing, for taxation purposes, the value of the lots at $35,000 per lot for each of the years 2009, 2010, and 2011. The Board did not reserve any issue for appeal. Despite agreeing to the consent judgment, the Board appealed to this Court, pursuant to § 40-3-25, Ala.Code 1975.

On appeal, the Board argues that the consent judgment should be vacated insofar as it set the values of the lots for 2010 and 2011 because, the Board says, the circuit court lacked subject-matter jurisdiction to set those values. The Board does not argue that the circuit court lacked jurisdiction to determine the 2009 values. Typically, a party may not appeal from a consent judgment. However, an exception exists- for consent judgments entered in excess of a court’s jurisdiction. In Jetton v. Jetton, 502 So.2d 756, 759 (Ala.1987), this Court explained:

“This Court has held that generally consent judgments are not reviewable on appeal because the consent of the parties waives prior irregularities and constitutes a release of errors. Echols v. Star Loan Co., 290 Ala. 76, 274 So.2d 51 (1973); City of Bessemer v. Brantley, 258 Ala. 675, 65 So.2d 160 (1953); Gossett v. Pratt, 250 Ala. 300, 34 So.2d 145 (1947). 4 C.J.S. Appeal & Error § 213 p. 629-30 (1957) provides:
“ ‘Since a party may appeal only from an involuntary adverse judgment, it is a well settled general rule, declared in some states by express statutory provision, that a party is not aggrieved by a judgment, order, decree, or ruling regularly rendered or made, on agreement or otherwise, with his express or implied consent, and therefore he cannot appeal or sue out a writ of error to review it, even though there has been an attempt to reserve the right to appeal.... A party consenting to a judgment is conclusively presumed to have waived all errors, except those going to the jurisdiction of the court.’ ”

In response, Shelby 39 seems to argue that a court’s subject-matter jurisdiction may not be challenged on appeal following the entry of a consent judgment. Citing various cases, Shelby 39 argues that a consent judgment may be set aside only for fraud or mistake, which are not issues in this case. For example, in Hanson v. Hearn, 521 So.2d 953, 954 (Ala.1988), this Court stated: “[A] consent judgment is in the nature of a contract or a binding obligation between parties and can be set aside only upon a showing of fraud or mistake.” See also State Highway Dep’t v. Parsons, 623 So.2d 285, 290 (Ala.1993) (“ ‘[Settlement] agreements ... will not be set aside except for fraud, collusion, accident, surprise or some ground of this nature.’ ” (quoting Brocato v. Brocato, 332 So.2d 722, 724 (Ala.1976))); and Frasemer v. Frasemer, 578 So.2d 1346, 1348 (Ala.Civ.App.1991) (“The consent judgment acts as a final settlement of the claims raised, under which the parties waive errors and irregularities, absent fraud or mistake.”). The cases cited by Shelby 39 concern when the merits of a consent judgment may be reviewed if the trial court had jurisdiction to enter the judgment; those cases should not be read as stating that a consent judgment may not be challenged for lack of subject-matter jurisdiction. “‘[J]urisdietion over the subject matter cannot be created by waiver or consent’ ” and “ ‘th[at] matter may be raised on appeal.’ ” Mobile & Gulf R.R. v. Crocker, 455 So.2d 829, 831-32 (Ala.1984) (quoting Norton v. Liddell, 280 Ala. 353, 356, 194 So.2d 514, 517 (1967)). It is axiomatic that a court without subject-matter jurisdiction over a case cannot enter a judgment, even a consent judgment, deciding the merits of the case. Thus, we will consider whether the circuit court had subject-matter jurisdiction to enter the consent judgment regarding the values of the lots for 2010 and 2011.

The Board argues that the circuit court lacked jurisdiction as to the 2010 and 2011 valuations because, the Board says, Shelby 39 did not follow the proper procedure for appealing those valuations to the circuit court. The Board notes that, “[i]n order to invoke the trial court’s jurisdiction in a tax appeal, the taxpayer must strictly comply with the statute that governs the procedures for that appeal.... Strict compliance with the statute is jurisdictional.” State Dep’t of Revenue v. Garner, 812 So.2d 380, 383-84 (Ala.Civ.App.2001) (stating that a circuit court lacked jurisdiction over an appeal when taxpayers failed to comply with the requirement found in § 40-2A-9(g)(l), Ala.Code 1975, directing the taxpayers either to pay the disputed amount or to file a supersedeas bond).

Initially, we discuss the procedures for challenging valuation, which differ depending on whether the valuation of the property increases. In this case, the record does not contain the 2010 and 2011 tax assessments, and it is unknown whether the valuation of the lots for those years increased over the previous year’s valuation. If valuation of the property “is increased by the ... [B]oard ... over the assessed value thereof for the next proceeding year, the taxpayer shall be furnished ... with a statement showing separately the value of ... his or her real property.” § 40-7-25. A taxpayer may file an objection to the valuation of the property with the Board “within 30 calendar days of the date of the statement.” Id.

If the valuation of the property has not increased over the next preceding year, § 40-3-20, Ala.Code 1975, governs objections to the Board. That section provides that, upon the Board’s review of property returned to or listed with the assessing official, or tax assessor,

“the assessing official shall give notice by publication once a week for two consecutive weeks in a newspaper published in the county. If no newspaper is published in the county, the notices shall be posted in three public places in each precinct of the county. The notices shall state that the assessed valuations of all property listed for taxation have been fixed as provided by law, that the tax return lists showing the assessed valuations are in his or her office and open for public inspection, that the board of equalization will sit at the courthouse of the county on the date specified by the Department of Revenue to consider any protests that may be filed by any taxpayer as herein provided, and that any taxpayer, who is not satisfied with the valuations of his or her property as fixed and entered on the return lists as required herein, may file objections in writing to the assessed valuations with the secretary of the board, within 30 calendar days of the date of final publication of the notice.”

§ 40-3-20.

Section 40-3-16 provides that tax agents or representatives working with the Board should seek to interview each taxpayer who files a protest. If the interview does not result in an agreement, the Board must hold a hearing to consider the taxpayer’s protest if the protest was filed “within time.” § 40-3-16. After the hearing, the Board sets the final valuation, see § 40-3-19, Ala.Code 1975, and the taxpayer may appeal that final valuation to the appropriate circuit court under § 40-3-24. Section § 40-3-25 provides for an appeal from the circuit court’s judgment to this Court.

The Board argues that the circuit court lacked jurisdiction to enter the consent judgment deciding the 2010 and 2011 values because, the Board says, Shelby 39 did not follow the proper procedure, outlined above, for perfecting the appeal to the circuit court. The alleged irregularities may be broadly classified into two groups — the procedures before Shelby 39’s amendments of the notice of appeal appealing the 2009 assessment to the circuit court and the amendments of that notice of appeal themselves. Regarding that first group, although we are concerned about whether the proper procedures were followed, the Board’s argument is unpersuasive in light of the sparse record in this case. The record contains no evidence establishing which processes were or were not followed by both the Board and Shelby 39 regarding the 2010 and 2011 assessments. Shelby 39’s brief implies that the statutory procedures were not followed, but the record does not affirmatively indicate that. Thus, the Board asks us to set aside parts of a consent judgment, which the Board itself agreed to, based on allegations that cannot be verified by the record. “It is the duty of ... the appellant[ ] to demonstrate an error on the part of the trial court; this court will not presume such error on the part of the trial court.” G.E.A. v. D.B.A., 920 So.2d 1110, 1114 (Ala.Civ.App.2005). “An appellate record cannot be factually enlarged or altered by factual allegations found in a party’s brief_The record on appeal must disclose the facts upon which the alleged error is founded before such an error may be considered by this court.” Grider v. Grider, 578 So.2d 1363, 1364 (Ala.Civ.App.1991). The Board has not established that the circuit court lacked subject-matter jurisdiction on the ground that the proper procedures were not followed before Shelby 39’s amendments to the notice of appeal.

However, the Board also argues that Shelby 39 could not invoke the circuit court’s appellate jurisdiction for the 2010 and 2011 assessments simply by amending its notice of appeal to the circuit court for the 2009 assessment. Before the circuit court, Shelby 39 relied on Ex parte Jefferson Smurfit Corp., 951 So.2d 659 (Ala.2006), in arguing that it could appeal the 2010 and 2011 assessments by amending its notice of appeal. In that case, this Court concluded that a taxpayer petitioning for a refund under the Taxpayer Bill of Rights, § 40-2A-1 et seq., Ala.Code 1975 (“the TBOR”), may amend a notice of appeal to the circuit court to include another tax year that occurred after the filing of the notice of appeal. Adopting a flexible approach, this Court reasoned that neither the TBOR nor the Alabama Rules of Civil Procedure require a taxpayer to initiate a new action in the circuit court. Although this case does not involve the TBOR, we see no reason why the reasoning of Ex parte Jefferson Smurfit would not apply to this case. Like that case, neither the applicable statutory provisions in this case nor the rules of civil procedure prohibit Shelby 39 from amending its notice of appeal to include the 2010 and 2011 assessments.

The Board notes two additional differences between this case and Ex parte Jefferson Smurfit; neither of those differences compel a decision in favor of the Board. The Board notes that the TBOR contains a provision stating that the TBOR is to be “liberally construed to allow substantial justice,” § 40-2A-2(Z )a, Ala.Code 1975, and that the applicable statutory provisions in this case do not contain such a provision. Although this Court in Ex parte Jefferson Smurfit cited the TBOR’s “liberal construction” provision, it did so to bolster the main point that neither the TBOR nor the rules of civil procedure prohibited the amendment of the notice of appeal. The Board also notes that in Ex parte Jefferson Smurfit the preliminary administrative process was fully complied with before the taxpayer amended the notice of appeal. However, as noted, in this case the record is unclear regarding what procedures were or were not followed regarding the 2010 and 2011 assessments before the amendments to the notice of appeal; the Board has failed to present a record supporting its contention on this point.

At the end of its brief, the Board briefly mentions State v. Murphy, 45 Ala.App. 637, 235 So.2d 888 (Civ.1970). In that case, the Court of Civil Appeals concluded that the circuit court, in a tax appeal concerning assessments for a particular year, lacked jurisdiction to prospectively decide assessments for future years that had not been appealed. This case does not involve prospective relief regarding unappealed assessments. Thus, Murphy is inapplicable.

Based on the record before us, we affirm the circuit court’s consent judgment.

AFFIRMED.

MOORE, C.J., and BOLIN, MURDOCK, and MAIN, JJ., concur.

      . For instance, in its brief, Shelby 39 asserts that "the Board stopped sending any tax notifications to Shelby 39 after Shelby 39 initiated suit in the circuit court," Shelby 39's brief at 16, an assertion that the Board does not address in a reply brief. The record does not contain evidence supporting or contradicting Shelby 39's assertion.


source: Caselaw Access Project

author: MOORE, Chief Justice. SHAW, Justice

license: Public Domain

text:
    Ex parte Michael Anthony SOCKWELL (In re Michael Anthony Sockwell v. State of Alabama).
    1120561.
    Supreme Court of Alabama.
    Aug. 30, 2013.
    Thomas Cleary, Jerilyn Bell, and Daniel Ashworth of The Legal Aid Society-CDP, Brooklyn, New York; and Kindaka Sanders, Selma, for petitioner.

      Submitted on petitioner’s brief only.

       Justice Wise was a member of the Court of Criminal Appeals when that court considered this case.

   MOORE, Chief Justice.

WRIT DENIED. NO OPINION.

STUART, BOLIN, PARKER, MAIN, and BRYAN, JJ., concur.

MURDOCK and SHAW, JJ., concur in part and dissent in part.

WISE, J., recuses herself.

SHAW, Justice

(concurring in part and dissenting in part).

The Court of Criminal Appeals held that the petitioner, Michael Anthony Sockwell, failed to allege under Rule 32.1(e), Ala. R.Crim. P., that his claim of a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), was based on newly discovered evidence. Sockwell v. State (No. CR-08-1540, Aug. 24, 2012), — So.3d — (Ala.Crim.App.2012) (table). However, as this Court recently held in Ex parte Beckworth, [Ms. 1091780, July 3, 2013] — So.3d — (Ala.2013), a claim that a petitioner’s constitutional rights were violated under Brady may be alleged under Rule 32.1(a), Ala. R.Crim. P., and not be required to meet the elements of a claim of newly discovered material facts under Rule 32.1(e). Sockwell claims that he properly alleged his Brady claim under Rule 32.1(a); I would grant the petition as to this ground to review whether his allegations were sufficient to entitle him to an evidentiary hearing. As to the remaining issues in the petition, I concur to deny certiorari review.

MURDOCK, J., concurs.


author: THOMAS, Judge.

text:
    L.H. v. L.S., Sr.
    2120402.
    Court of Civil Appeals of Alabama.
    Aug. 16, 2013.

      L. Scott Johnson, Jr., of Johnson & Sipper, L.L.C., Montgomery, for appellant.
    LaKesha B. Shahid of Shahid & Hosea LLC, Montgomery, for appellee.
   THOMAS, Judge.

L.H. (“the mother”) and L.S., Sr. (“the father”), are the parents of two children. In August 2007, the Montgomery Juvenile Court entered a judgment awarding the parties joint custody of their children. The 2007 judgment is not contained in the record on appeal.

In February 2010, the mother filed in the juvenile court a petition to modify custody and to hold the father in contempt. The case was tried in September and November 2010, after which the juvenile court entered a judgment on June 29, 2011, awarding the mother sole physical custody of the children and awarding the father generous visitation rights; the parties continued to share joint legal custody of the children. On July 28, 2011, the father filed a motion to alter, amend, or vacate the juvenile court’s judgment. The following day, on July 29, 2011, the guardian ad litem for the children filed what he entitled a “Motion for New Trial,” which he described as being filed pursuant to Rule 60, Ala. R. Civ. P. In his motion, the guardian ad litem alleged that “new information” had come to light that would support the grant of a new trial; some of the new information related to an incident that had allegedly occurred six months earlier, but some of the new information related to events that had occurred after the entry of the June 29, 2011, judgment. Because it was filed more than 14 days after the entry of the June 29, 2011, judgment and because it requested that the judgment be set aside based, in part, on newly discovered evidence, we construe the guardian ad litem’s motion as a Rule 60(b)(2) motion. Young v. Southeast Alabama Med. Ctr., [Ms. 2111258, Feb. 8, 2013] — So.3d —, —(Ala.Civ.App.2013) (noting that an appellate court “construe[s] a motion by its ‘essence’ and not by its nomenclature”).

The juvenile court denied the father’s postjudgment motion by entry of the denial directly into the State Judicial Information System (“SJIS”) on August 3, 2011; the entry states that the father’s motion is “denied pursuant to the 14-day rule,” which is a reference to Rule 1(B), Ala. R. Juv. P., which requires that a post-judgment motion in a juvenile case be filed within 14 days of the entry of the judgment to which it is directed. The juvenile court set the guardian ad litem’s motion for a hearing on August 17, 2011, and directed the mother to respond. The hearing on the guardian ad litem’s motion was continued at the mother’s request.

On August 18, 2011, the father filed a motion for an ex parte order, in which he alleged that the mother had refused to take the children to football camp at “high school A,” that the father had enrolled them at football camp at “high school B,” that the mother had enrolled the older child in high school A despite his desire to attend high school B, and that the older child would be ineligible to play football at high school A. The father requested that the juvenile court grant him legal and physical custody of the children and order that the children be enrolled in high school B. The juvenile court entered an order on August 23, 2011, that awarded temporary legal and physical custody of the children to the father and ordered that they be enrolled in high school B. The juvenile court set an evidentiary hearing on the motion for September 14, 2011; however, that hearing was continued several times and was ultimately held on November 21, 2012.

At the November 21, 2012, hearing, the parties agreed that the guardian ad litem had withdrawn his Rule 60(b) motion and that the hearing was to proceed solely on the issue of the award of ex parte custody to the father in August 2011. After the hearing, the juvenile court entered an order on January 16, 2013, in which it awarded the father custody of the children and awarded the mother specified visitation. The mother timely filed a postjudgment motion directed toward the January 2013 judgment. On February 8, 2013, the juvenile court rendered an order denying the mother’s postjudgment motion, which was entered on February 13, 2013. On February 15, 2013, the mother filed in the juvenile court what she entitled a “Motion to Dismiss Pursuant to Rule 12(b)(1), Ala. R. Civ. P., and Motion to Dissolve All Orders Entered after June 29, 2011.” In that motion, which is more properly construed as a Rule 60(b)(4) motion seeking to have the January 29, 2013, judgment set aside on the ground of voidness, the mother argued that the juvenile court lacked jurisdiction to entertain the father’s purported postjudgment motion and the guardian ad litem’s motion because they were filed more than 14 days after the entry of the June 29, 2011, judgment and further contended that all the orders and judgments entered by the juvenile court after the entry of the June 29, 2011, judgment were void. The mother also filed a notice of appeal on February 15, 2013.

On appeal, the mother asserts the same general argument presented in her “Motion to Dismiss”: that the juvenile court lacked jurisdiction to entertain the father’s ex parte motion for custody and that its January 29, 2013, judgment is void. We agree.

As explained above, the father’s purported postjudgment motion was filed too late to invoke the juvenile court’s jurisdiction to revisit the June 29, 2011, judgment. However, the guardian ad litem’s motion, having been brought pursuant to Rule 60(b), did not suffer the same defect, because a Rule 60(b) motion is not a post-judgment motion that must be filed within 14 days of the entry of the judgment to which it is directed. See E.S.R. v. Madison Cnty. Dep’t of Human Res., 11 So.3d 227, 231 (Ala.Civ.App.2008). When the guardian ad litem’s motion was withdrawn, however, the June 29, 2011, judgment was no longer subject to a collateral attack, and that judgment remained the unchallenged final judgment on the mother’s modification petition.

Based on his ex parte motion, the father was awarded custody of the children without notice to the mother or a hearing. However, the father’s ex parte motion was not part of a custody-modification proceeding that invoked the jurisdiction of the juvenile court; no modification petition was filed in the juvenile court, no filing fee was paid, and the mother was not served with process instituting a new action. See Farmer v. Farmer, 842 So.2d 679, 681 (Ala.Civ.App.2002).

This case is similar to Farmer, in that the father in the present case, like the father in Farmer, had filed an untimely postjudgment motion directed toward the final custody judgment. See Farmer, 842 So.2d at 680. The father in Farmer attempted to convert his untimely post-judgment motion to a petition to modify at a hearing set on that motion. Id. The father in the present case filed his motion for ex parte order- within three weeks of the entry of the juvenile court’s order denying his postjudgment motion as untimely filed. In both situations, the court lacked jurisdiction over the attempt to modify or change the provisions of the earlier final judgment without the institution of a new action for that purpose. Id. at 680-81. As we explained in Farmer:

“The father’s petition to modify was not properly before the trial court for at least two reasons — failure to pay a docketing or filing fee and failure to properly serve the mother. The failure to properly serve the mother deprived the trial court of jurisdiction, see Ex parte Pate, 673 So.2d 427, 428-29 (Ala.1995), as did the failure of the clerk to collect a filing fee. See Carpenter [v. State ], 782 So.2d [848,] 850 [(Ala.Crim.App.2000)]. The trial court’s judgment was void for lack of jurisdiction.”

Id. at 681. Thus, we conclude that the juvenile court could not entertain the father’s motion for ex parte order filed after the entry of the June 29, 2011, final judgment, because no custody action was pending before it over which it had jurisdiction.

Accordingly, the juvenile court’s January 16, 2013, judgment is void. In addition, its August 23, 2011, order awarding ex parte custody to the father is void. Because a void judgment will not support an appeal, we dismiss the mother’s appeal. Furthermore, we instruct the juvenile court to vacate its January 16, 2013, judgment and its August 23, 2011, order.

The mother’s request for an attorney fee on appeal is denied.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . We note that, although the version of § 12-15-117(a), Ala.Code 1975, that was in effect at the time the mother filed her modification petition did not provide the juvenile court with jurisdiction over a custody-modification action arising from a juvenile-court custody determination originally made in a paternity proceeding, see Ex parte L.N.K., 64 So.3d 656, 658 (Ala.Civ.App.2010), §§ 12-15-117(a) and 12-15-115(a)(7) were amended effective May 2012 to provide for such jurisdiction. Our legislature, in § 12-15-117.1(a), expressly made those amendments retroactive so that all modification actions arising from juvenile-court custody determinations made in a paternity proceeding that were filed in juvenile court between January 1, 2009, and May 13, 2012, "shall be deemed valid.”

      .We would be remiss if we did not point out that Rule 60(b)(2) provides that a party may seek to have a judgment set aside based on "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)[, Ala. R. Civ. P.].” There is a distinct and important difference between newly discovered evidence and new evidence. As our supreme court has explained:
      "There can be no Rule 60(b)(2) relief for evidence which has come into existence after the trial is over simply because such a procedure would allow all trials perpetual life. ‘Newly discovered evidence' means evidence in existence at the time of trial of which the movant was unaware.... And for a litigant to obtain a new trial on the ground of newly discovered evidence, it must appear that his reasonable diligence before trial would not have revealed this evidence which he failed to discover.”

        Moody v. State ex rel. Payne, 344 So.2d 160, 163 (Ala.1977).

      . The father filed an identical motion as a verified motion on August 22, 2011.

      . Two nonevidentiary hearings were also held; one on February 29, 2012, and the other on November 7, 2012.

      . The order does not specify whether the father was awarded only sole physical custody (or “primary physical custody” as he requested at trial) or if he was also awarded sole legal custody of the children. The order states simply that “[t]he Father's Verified Motion for Ex Parte Order is granted.” As noted in the text, the father’s motion requested that the mother be ordered to enroll the children in high school B.

      . Even if we were to consider the father’s motion as a counterclaim or a cross-claim filed in response to the guardian ad litem’s Rule 60(b) motion, once that motion was withdrawn and the June 29, 2011, judgment was no longer subject to being set aside on collateral attack, the father's ex parte motion could not stand on its own as a basis for the juvenile court’s exercise of jurisdiction.


author: DONALDSON, Judge.

text:
    F.W. v. T.M. and K.M.
    2120430.
    Court of Civil Appeals of Alabama.
    Aug. 16, 2013.

      Norma M. Wells, Albertville, for appellant.
    'James D. Walker, Albertville, for appel-lees.
   DONALDSON, Judge.

F.W. appeals from a judgment of the Marshall Juvenile Court (“the juvenile court”) awarding T.M. and K.M. (“the foster parents”) custody of M.S. (“the child”).

Facts and Procedural History

A.S. (“the mother”) gave birth to the child at Huntsville Hospital on October 22, 2011. Because of the mother’s erratic behavior and her refusal to feed the child following birth, the hospital staff removed the child from the mother’s hospital room and contacted the Department of Human Resources. Around the time of the child’s birth, the child’s father, J.H. (“the father”), had been detained in the Marshall County jail for allegedly telephoning a bomb threat into his place of employment. On October 24, 2011, the Marshall County Department of Human Resources (“DHR”) filed a petition alleging that the child was dependent and requesting that the child be removed from the custody of the mother. The juvenile court granted DHR’s request for removal and placed the child in the legal custody of DHR. On October 25, 2011, DHR placed the child into the physical custody of the foster parents. Following a shelter-care hearing on October 26, 2011, the juvenile court determined that the child would remain in the legal custody of DHR. The juvenile court conducted an adjudicatory hearing on November 29, 2011, and, on November 30, 2011, the juvenile court entered an order adjudicating the child to be dependent. The juvenile court awarded legal custody of the child to DHR, and the child remained in the physical custody of the foster parents.

Following the removal of the child from the mother, DHR sought to locate a suitable relative placement for the child. As the juvenile court noted in its final judgment rendered in this case in January 2013, “[a] number of different relative placements, too lengthy to list here, were determined unsuitable by DHR, for a variety of reasons, including unwillingness to accept the child and/or prior indicated reports of child abuse.” The record shows that in January 2012 F.W. contacted DHR with a request that she and her husband, C.W., be considered for relative placement of the child. F.W. is the sister of the child’s maternal grandmother, thus making F.W. and C.W. the child’s maternal great-aunt and great-uncle. Shortly thereafter, DHR approved F.W. and C.W. as a suitable relative placement for the child. The record indicates that DHR planned to transfer the child from the foster parents’ home on February 8, 2012. On February 1, 2012, the foster parents filed a petition to intervene in the dependency case. In the petition, the foster parents requested that the juvenile court enter emergency relief to prevent DHR from removing the child from the foster parents’ physical custody and “that the Court enter such orders concerning temporary and permanent custody of the minor child as may be in the best interest of the minor child, including, if the Court deems appropriate, temporary and permanent custody [with the foster parents].” The record reveals that the foster parents based their petition on the allegation that F.W. and C.W. were unable to care for the child due to concerns with F.W.’s and C.W.’s health and based on F.W.’s and C.W.’s close association with and location to family members and others who engaged in illegal or illicit activity. The record indicates that, at a hearing on February 7, 2012, DHR opposed the foster parents’ petition to intervene based on their lack of standing and that DHR opposed the foster parents’ motion for an emergency order preventing the removal of the child from their physical custody. On February 7, 2012, F.W. and C.W. filed a motion to intervene, in which they also requested permanent custody of the child. The record reveals that the juvenile court granted their petition without opposition from any party. On February 21, 2012, the foster parents amended their petition to request termination of the mother’s parental rights. The record indicates that the foster parents also filed a separate petition for termination of the mother’s parental rights. On March 15, 2012, the juvenile court entered an order granting the foster parents’ request to intervene.

On or about April 1, 2012, DHR removed the child from the foster parents’ home and placed the child in the physical custody of F.W. and C.W. The juvenile court held a hearing on April 4, 2012, on the foster parents’ petition for emergency relief. The juvenile court determined from the evidence presented at the hearing that the conditions surrounding F.W. and C.W. were troublesome, but did not rise to a level requiring the removal of the child from F.W. and C.W.’s home.

Ore tenus testimony was taken at the trial of the case on December 4, 2012, and January 2, 2013. In its final judgment, entered on January 4, 2013, the juvenile court noted that the issue that had been tried was narrow:

“The sole issue for the Court’s determination was: (1) pursuant to the Alabama Juvenile Justice Act (2008), as amended, should custody of the child be awarded to [F.W. and C.W.], as a relative placement; or should custody of the child be awarded to the [the foster parents]. The child was found to be dependent by prior Order of the Court, and the continuing dependency of the child was stipulated by all parties present and not at issue.”

The juvenile court made the following findings of fact, among others:

“The Court took evidence ore tenus. After long and careful deliberation, the Court finds by clear and convincing evidence, material and relevant in nature, the following:
“On April 5, 2012, this Court entered an Order which provided in part [that DHR was to place the child with F.W. and C.W., but that J.D.W., M.D.W., P.B., L.H., C.H., and L.D. were to have no contact with the child and were not to be on or around the property of F.W. and C.W.’s home while the child was present].
“[F.W. and C.W.] are both fifty-five (55) years of age. [C.W.] has recently suffered from three (3) separate heart attacks, and has a surgically implanted defibrillator to regulate his cardiac condition. [C.W.] draws Social Security disability in the amount of approximately $1,800.00 to $1,900.00 per month related to his heart condition. ... [F.W.] suffers from fibromyalgia and arthritis. She previously applied for Social Security disability, but her disability claim was denied. [F.W.] has not been employed in recent years. [F.W. and C.W.] smoke cigarettes.
“[C.W.]’s mother, [M.W.], owns approximately ten (10) acres of land located [in Marshall County] ... (‘the ... family property’). [F.W. and C.W.] reside in a two-bedroom home located upon the ... family property (‘[F.W. and C.W.]’s home’). [M.W.] also lives on the ... family property, in an adjacent home. Also located upon the ... family property are the following; (1) a trailer currently occupied by [J.D.WJ; (2) a camper which is owned by [P.C.B.], one of [J.D.WJ’s paramours; (3) a woodworking shop used by [C.W.]; and (4) a barn.
“[F.W. and C.W.] have five adult children: (1) daughter, [L.W.]; (2) son, [J.D.W.]; (3) daughter, [M.D.W.]; (4) daughter, [S.W.]; and (5) [Ch.WJ. Of these, [L.W.] lived within [F.W. and C.WJ’s home at the time this Petition was filed, but had moved out of state at the time of hearing. Throughout the pendency of this litigation, [F.W. and C.W.’s] son, [J.D.W.], has lived intermittently in the trailer adjacent to [F.W. and C.W.’s] home and located on the ... family property. [F.W. and C.W.’s] daughter, [M.D.W.], currently resides just down the street, within walking distance of the ... family property. The testimony is unclear where [S.W.] resides. [Ch.W.] lives in Guntersville, Alabama. From the testimony, it appears that [Ch.W.] maintains little contact with the rest of the ... family.
“[J.D.W.] was convicted in April, 2012, of felony theft of property in the second degree. Additionally, [J.D.W.] grew marijuana plants on the ... family property with equipment provided by, or at least purchased by [F.W.]. Furthermore, [J.D.W.] has been the subject of numerous other arrests and criminal investigations, including alleged domestic violence related to [P.C.B.], who at the time of hearing, was also living on the ... family property on an intermittent basis. At some time in late 2012 or early 2013, the Marshall County Sheriffs Department recovered a stolen Ford pickup truck from the barn located on the ... family property. The guardian ad litem’s testimony in this matter indicates that [J.D.W.] was likely involved in the theft of this vehicle, or at least its concealment on the ... family property; however, the current status of any criminal charge related to this incident is unclear.
“The Court is convinced that [J.D.W.] is habitually involved in nefarious and/or criminal activity, including drug related activity, theft and domestic violence.
“[M.D.W.] was convicted in April, 2011, of felony fraudulent use of a credit card. [S.W.] has, in the past, been employed as a ‘stripper’....
“In addition to [F.W. and C.W.’s] adult children, [C.W.’s] sister, [D.W.M.], recently lived upon the ... family property for approximately two (2) to three (3) weeks. [D.W.M.] was recently arrested and charged with manufacturing crystal methamphetamine in DeKalb County, Alabama. [D.W.M.] lived upon the ... family property immediately following her making bond and being released from the DeKalb County Jail, pending the above-referenced charges. [D.W.M.] testified at Court that she could not pass a drug test on the day of hearing.
“Since the time of this Court’s April 5, 2012 Order, which provided that [J.D.W.] and [P.C.B.] were not to be on or around the premises of [F.W. and C.W.’s] home, both have moved into the trailer and/or camper on the ... family property, and were currently residing there at the time of the last hearing in this matter. Furthermore, other persons who were excluded from the premises under the terms of this Court’s April 5, 2012, [order] have routinely parked in front of [M.W.’s] house on the ... family property, and then walked to [F.W. and C.W.’s] home and conversed with [F.W. and C.W.] from the surrounding yard area.
“On the other hand the [the foster parents] are both approximately thirty-nine (39) years old. [K.M. and T.M. are employed]. The [foster parents] have been married for over three (3) years, and own their home.... [T.M.] has one (1) son by a previous marriage, who is over the age of eighteen (18). The [foster parents] have no known health problems, nor any criminal history. The [foster parents] were previously investigated and approved as licensed foster parents by DHR.”

(Footnotes omitted.) The record indicates that DHR had submitted a report to the juvenile court in December 2012, which stated that, based on a home study conducted on F.W. and C.W.’s residence, F.W. and C.W. were a suitable relative placement. The report further indicated that DHR strongly opposed the foster parents’ petition for permanent custody of the child.

In its judgment, the juvenile court made the following conclusions of law:

“1. The child remains a dependent child, as that term is defined under [§] 12 — 15—102(3)[, Ala.Code 1975];
“2. [F.W. and C.W.] are ‘relatives’ of the child, for purposes of establishing priority pursuant to [§] 12-15-314(a)(3)(c)[, Ala.Code 1975];
“3. [F.W. and C.W.] are not ‘fit’ and ‘able’ relatives of the child, under [§] 12-15-314(a)(3)(c)[, Ala.Code 1975], and therefore not entitled to priority for custody and/or placement, for the following reasons[:]
“a. [F.W. and C.W.] have an unstable home and housing situation, due to the fact that they live in a home owned by [M.W.], with no lease or other formal arrangement, and therefore, could be removed from said home at the whim of [M.W.];
“b. [F.W. and C.W.] reside in extremely close proximity to, and maintain extremely close contact with, their son [J.D.W.], who is a recently convicted felon, and who[] has been habitually involved in constant criminal and nefarious activity, including domestic violence, involvement with illicit drugs, and theft of property;
“c. That other children and relatives of [F.W. and C.W.], besides [J.D.W.], live, stay intermittently, or visit frequently upon the ... family property, including [D.W.M.]; [M.D.W.] and [SWJ;
“d. That the other children or relatives of [F.W. and C.W.], besides [J.D.W.], mentioned within paragraph (3)(c), above, include convicted felons, persons charged with manufacturing crystal methamphetamine; and persons employed as ‘strippers’;
“e. That the conduct of [F.W. and C.W.] throughout the pendency of this proceeding has shown it impractical and unlikely that [F.W. and C.W.] will take real and serious steps to eliminate or limit contact between the persons referenced within paragraphs (3)(b) through (3)(d), above, and the minor child;
“f. Furthermore, even if [F.W. and C.W.] were willing to limit such contact referenced in paragraph (3)(e), above, because [M.W.] owns their home, as well as the entire surrounding ... family property, [F.W. and C.W.] do not have the legal ability to exclude these persons from the ... family property;
“g. [C.W.] suffers from a severe heart condition, which has disabled him;
“h. [F.W. and C.W.] will be in their early seventies by the time this child reaches the age of majority;
“i. [F.W. and C.W.] have inadequate financial means to support the child, in that the [F.W. and C.W.’s] sole source of income is the Social Security Disability received by [C.W.];
“4. Even if [F.W. and C.W.] were determined to be ‘fit’ and ‘able’ relatives of the child under [§] 12-15-314(a)(3)(c)[, Ala.Code 1975], the Court determines that custody or placement of the child with [F.W. and C.W.] would not be in the best interest of the child, for the same reasons stated within paragraph(s) (3)(a) through (3)(i), above, and also for the following reasons:
“a. Based on this Court’s observations, [F.W. and C.W.] have a proven track record of raising children that are ill-adjusted, unsuccessful and generally unproductive, demonstrated by the fact that, of their five adult children, two are convicted felons; one works as a ‘stripper;’ one lived within their home with her husband until shortly before trial; and the only adult child who appears successful has little to no contact with [F.W. and C.W.];
“b. The guardian ad litem’s recommendation and testimony supports this conclusion, and the Court notes that, from the testimony, the guardian ad litem went to extraordinary lengths in conducting a thorough investigation and forming his recommendation;
“5. The Court finds that granting [the foster parents] both legal and physical custody of the minor child to be in the best interest of the minor child;
“6. In making this determination the Court is mindful that the minor child has developed a bond with [F.W. and C.W.]; however, the Court determines that the uprooting effect of a change in custody is outweighed by the positive good which will come about by placing custody with the [the foster parents];
“7. Based upon the foregoing, it is therefore ORDERED, ADJUDGED and DECREED that the [the foster parents] are hereby granted legal and physical custody of [the child];
“8. No further review is set in this matter, unless requested by one of the parties.
“9. DHR is hereby Ordered to deliver custody of the minor child over to the [the foster parents] within twenty-four (24) hours of the date of this Order.”

Following entry of the judgment on January 4, 2013, F.W. filed a timely appeal to this court.

Standard of Review

“In Ex parte Alabama Department of Human Resources, 682 So.2d 459 (Ala.1996), the Alabama Supreme Court stated the applicable principles of appellate review in the context of a challenge to a juvenile court’s custodial disposition of a dependent child:

“ ‘Appellate review is limited in cases where the evidence is presented to the trial court ore tenus. In a child custody case, an appellate court presumes the trial court’s findings to be correct and will not reverse without proof of a clear abuse of discretion or plain error. Reuter v. Neese, 586 So.2d 232 (Ala.Civ.App.1991); J.S. v. D.S., 586 So.2d 944 (Ala.Civ.App.1991). This presumption is especially applicable where the evidence is conflicting. Ex parte P.G.B., 600 So.2d 259, 261 (Ala.1992). An appellate court will not reverse the trial court’s judgment based on the trial court’s findings of fact unless the findings are so poorly supported by the evidence as to be plainly and palpably wrong. See Ex parte Walters, 580 So.2d 1352 (Ala.1991).’

682 So.2d at 460.”

J.J. v. J.H.W., 27 So.3d 519, 522 (Ala.Civ.App.2008).

Analysis

F.W. contends that the foster parents lacked standing to intervene in the case. F.W. asserts that § 12-15-307, Ala. Code 1975, a part of the Alabama Juvenile Justice Act, codified at § 12-15-101 et seq., Ala.Code 1975, prohibits foster parents from being made a party to a juvenile case. § 12-15-307 provides:

“Relative caregivers, preadoptive parents, and foster parents of a child in foster care under the responsibility of the state shall be given notice, verbally or in writing, of the date, time, and place of any juvenile court proceeding being held with respect to a child in their care.
“Foster parents, preadoptive parents, and relative caregivers of a child in foster care under the responsibility of the state have a right to be heard in any juvenile court proceeding being held with respect to a child in their care.
“No foster parent, preadoptive parent, and relative caregiver of a child in foster care under the responsibility of the state shall be made a party to a juvenile court proceeding solely on the basis of this notice and right to be heard pursuant to this section.”

F.W. also contends that the Foster Parents’ Bill of Rights Act, codified at § 38-12A-1 et seq., Ala.Code 1975, prohibits the foster parents from being made parties to an action in the juvenile court. § 38-12A-2 states, in pertinent part:

“The Department of Human Resources shall ensure that each foster parent shall have all of the following rights:
“(14) The right to notice and an opportunity to be heard, including timely information concerning all court hearings. This notification may include, but is not limited to, notice of the date and time of the court hearing, the name of the judge or hearing officer assigned to the case, the guardian ad litem, the location of the hearing, and the court docket number. The notification shall be made upon receipt of this information by the department. Although not a party to the case, the foster parent may attend court hearings at the discretion of the judge.”

These statutes, however, do not contain language that can be construed as barring absolutely foster parents, or for that matter relative caregivers like F.W. and C.W., from intervening in a dependency case to assert a claim for custody. Rather, the plain language of § 12-15-307 prohibits the court from making a foster parent or a relative caregiver, like F.W. or C.W., a party solely based on the rights established by the statute. Section 38-12A-2 states that foster parents are not to be deemed a party to the action based on the fact that they are required to be provided notice of, and a right to be heard at, a juvenile proceeding, but the plain language of the statute does not prohibit a foster parent from petitioning to intervene in an action before the juvenile court. Stated otherwise, both statutes provide that foster parents are entitled to notice and a right to be heard but are not to be compelled to be parties to the proceedings based on these rights. Similarly, we note that § 12-15-121(a), Ala.Code 1975, allows “[a] juvenile petition alleging ... dependency [to] be signed by any person 18 years of age or older,” which would include a foster parent or a relative caregiver.

Under Rule 24, Ala. R. Civ. P., an interested party may petition a court to intervene in a civil case. Rule 24(b), which governs permissive intervention, provides that “[u]pon timely application anyone may be permitted to intervene in an action ... when an applicant’s claim or defense and the main action have a question of law or fact in common.” This court has routinely recognized that relative caregivers and foster parents may seek and be granted intervention in a dependency action. See B.V. v. Macon Cnty. Dep’t of Human Res., 14 So.3d 171, 175 (Ala.Civ.App.2009)(finding that foster parents failed to successfully intervene in the case); J.P. v. S.S., 989 So.2d 591 (Ala.Civ.App.2008)(aunt and uncle who had physical custody of child were allowed to intervene to petition for permanent custody); S.P. v. E.T., 957 So.2d 1127 (Ala.Civ.App.2005)(the juvenile court granted the petitions of the child’s aunt and foster parent to intervene in a dependency proceeding initiated by DHR). We conclude thát the juvenile court correctly granted the foster parents’ petition to intervene in this case, just as the juvenile court was correct in granting F.W. and C.W.’s motion to intervene. Thus, both sets of parties had standing to seek custody of the child before the juvenile court.

F.W. next contends that the juvenile court erred in denying her and C.W.’s request for custody and that the juvenile, court’s judgment and findings of fact are not supported by the evidence. “Whether a relative is suitable to assume custody of a child and whether such placement serves the best interests of the child are both questions of fact to be determined by the juvenile court.” R.L.M.S. v. Etowah Cnty. Dep’t of Human Res., 37 So.3d 805, 812 (Ala.Civ.App.2009) (citing T.B. v. Cullman Cnty. Dep’t of Human Res., 6 So.3d 1195, 1204-05 (Ala.Civ.App.2008)).

“A relative seeking custody of a dependent child has no vested right, constitutional or otherwise, to the child; rather, a relative may obtain custody of a dependent child only by proving that he or she is suitable, fit, and qualified to receive and care for the child and that the best interests of the child would be served by awarding custody of the child to the relative. See J.B. v. Cleburne County Dep’t of Human Res., 991 So.2d 273, 282-83 (Ala.Civ.App.2008). Naturally, a relative may appeal a judgment rejecting his or her petition for custody of a child on the ground of insufficiency of the evidence supporting that judgment. See, e.g., B.H. v. Marion County Dep’t of Human Res., 998 So.2d 475 (Ala.Civ.App.2008). That appeal would concern solely whether the record contains sufficient evidence to support a finding that the relative is unfit, a finding that the relative is unqualified to receive and care for the child, or a finding that the best interests of the child would not be served by placement with the relative.... Id.”

G.P. v. Houston Cnty. Dep’t of Human Res., 42 So.3d 112, 123 (Ala.Civ.App.2009) (opinion on application for rehearing).

The goals of the Alabama Juvenile Justice Act include “preserv[ing] and strengthen[ing] the family of the child whenever possible” and providing “a preference at all times for the preservation of the family.” § 12 — 15—101(b)(1) and (8), Ala. Code 1975. Further § 12-15-314, Ala. Code 1975, provides a statutory preference for relative placement of a dependent child. That statute states:

“(a) If a child is found to be dependent, the juvenile court may make any of the following orders of disposition to protect the welfare of the child:
“(3) Transfer legal custody to any of the following:
“c. A relative or other individual who, after study by the Department of Human Resources, is found by the juvenile court to be qualified to receive and care for the child. Unless the juvenile court finds it not in the best interests of the child, a willing, fit, and able relative shall have priority for placement or custody over a non-relative.”

Despite the statutory preference for a willing, fit, and able relative, the law does not require the juvenile court to award custody to a relative caregiver “without regard to the best interest of the child and without an eye toward achieving permanency for the child.” B.H. v. Marion Cnty. Dep’t Human Res., 998 So.2d 475, 480 (Ala.Civ.App.2008). In B.H. this court held:

“[A] related caregiver may, in some circumstances, be a suitable permanent alternative for a child; however, the relative preference does not require an automatic award of custody to a ‘fit and willing’ relative or supplant the juvenile court’s responsibility to determine whether that related caregiver is, in fact, the most appropriate placement to ensure permanency and stability in the child’s life.”

Id. at 481 (citing 42 U.S.C. § 671(a)(15)(C) and (E)(ii)).

In the present case, F.W. contends that the juvenile court made erroneous findings of fact, on which it based its determination that F.W. and C.W. were not “fit” and “able” relatives of the child. Those findings, however, were made following the presentation of ore tenus evidence and after “long and careful deliberation.”

“ ‘ “[T]he trial court has the advantage of observing the witnesses’ demeanor and has a superior opportunity to assess their credibility, [and, therefore, an appellate court] cannot• alter the trial court’s judgment unless it is so unsupported by the evidence as to be clearly and palpably wrong.” ’ Ex parte Fann, 810 So.2d 631, 636 (Ala.2001) (quoting Ex parte D.W.W., 717 So.2d 793, 795 (Ala.1998)). The trier of fact, and not this court, has the duty of resolving conflicts in the evidence. Ethridge v. Wright, 688 So.2d 818, 820 (Ala.Civ.App.1996).
“ ‘ “[The appellate court is not] allowed to reweigh the evidence in this case. This [issue] ... turns on the trial court’s perception of the evidence. The trial court is in the better position to evaluate the credibility of the witnesses ... and the trial court is in the better position to consider all of the evidence, as well as the many inferences that may be drawn from that evidence....’”
“Ex parte Patronas, 693 So.2d 473, 475 (Ala.1997) (quoting Ex parte Bryowsky, 676 So.2d 1322, 1326 (Ala.1996)).”

D.C.S. v. L.B., 84 So.3d 954, 961-62 (Ala.Civ.App.2011).

In its judgment, the juvenile court concluded that the evidence established that F.W. and C.W., although they may have been willing to accept custody of the child, were not “fit” and “able” and that placement with them would not have been in the child’s best interest. The juvenile court expressed concern with various relatives of F.W. and C.W. who lived in close proximity to their residence or who frequently visited the family property. The evidence supports the finding that J.D.W., who had a history of drug convictions and domestic violence, resided in a camper or a trailer in close proximity to F.W. and C.W.’s residence. Although F.W. contends that the testimony indicated that the camper and trailer were located next to M.W.’s home, and not in close proximity to her and C.W.’s home, the evidence as to this issue is disputed. Testimony also indicates that J.D.W.’s trailer was only a few dozen steps from F.W. and C.W.’s home. The record also supports the juvenile court’s finding that F.W. assisted J.D.W. in purchasing a mechanism that she believed he would use to grow tomatoes but that he ultimately used to cultivate marijuana on the family property. The juvenile court’s finding that D.W.M., C.W.’s sister, had “recently lived on the family property for approximately two to three weeks” following an arrest for manufacturing crystal methamphetamine is supported by the testimony. F.W. disputes the finding that S.W. had recently been employed as an adult dancer, but F.W.’s own testimony at trial supports the finding that S.W. had been employed in such a capacity.

There existed additional evidence to support the juvenile court’s conclusions that F.W. and C.W. live in a home with no lease or other formal arrangement with M.W., the property owner, thus calling into question their legal right to exclude others from the property.

Further, the juvenile court questioned F.W. and C.W.’s physical ability to raise the child. Both C.W. and F.W. are 55 years old and have health issues. F.W. testified that she suffers from fibromyalgia and arthritis, although she stated that she has both under control. She stated that she had suffered panic attacks in the past. She testified that she no longer drives and that .she has not renewed her driver’s license since it was revoked 1991 for a conviction of driving under the influence. The record reveals that C.W. had had three recent heart attacks and that he had a defibrillator implanted to regulate his heart condition. Both F.W. and C.W. admitted to smoking at least half a pack of cigarettes per day. The record reveals that the sole source of income for F.W. and C.W. was C.W.’s disability payments.

As the trier of fact, the juvenile court had the opportunity to observe 15 witnesses over 2 days of receiving testimony. The witnesses included F.W., C.W., and several of their children and relatives. The juvenile court was in a position to judge for itself how the witnesses presented themselves and “to judge, based on the appearance and demeanor of the witnesses presented to it, which included [some of F.W. and C.W.’s children], the results of [F.W. and C.W.’s] parenting skills.” B.H., 998 So.2d at 482 (citing J.W. v. C.H., 963 So.2d 114, 119 (Ala.Civ.App.2007)). The juvenile court carefully considered all arguments advanced by all parties, and it determined that it was in the best interest of the child to be in the custody of the foster parents. That is a finding of fact for the trial court to make, and a finding that the appellate court is prohibited from making. Ex parte R.T.S., 771 So.2d 475, 476-77 (Ala.2000) (noting that the appellate court must not engage in fact-finding or “reweigh the evidence and substitute its judgment for that of the trial court”). A trial court’s discretionary ruling must be affirmed if it is supported by “any credible evidence.” Ex parte D.W.W., 717 So.2d 793, 795 (Ala.1998). The decision to award custody to the foster parents is within the discretion afforded to the juvenile court. The record does not establish that the discretion afforded to that court was abused, nor is a plain error presented. We therefore affirm the juvenile court’s judgment awarding custody of the child to the foster parents and denying F.W.’s petition for custody.

AFFIRMED.

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

      . The record indicates that the juvenile court ultimately placed the petition to terminate the mother’s parental rights on its administrative docket pending the outcome of the dependency case. DHR’s response to the amended petition stated that:
      “[t]he [foster parents'] petition and their attempt to amend it is ‘premature’ in this action in that DHR has not determined that the child will not be reunited with her [sic] parents, or that any type of termination actions/adoption actions will ever be initiated. Until DHR has exhausted the statutorily required efforts to reunite this family and termination efforts are indicated, the [foster parents’] petition to intervene is ‘premature’ and should be denied under the previously established precedent set in K.W.[ v. J. G., 856 So.2d 859 (Ala.Civ.App.2003)].”

      . The notice of appeal indicates that only F.W. appealed the juvenile court’s judgment. Also, DHR did not participate in this appeal.


author: PITTMAN, Judge.

text:
    C.D.M. v. W.B.H.
    2120520.
    Court of Civil Appeals of Alabama.
    Aug. 16, 2013.

      Sharon Doviet, Huntsville, for appellant.
    John R. Campbell, Huntsville, for appel-lee.
   PITTMAN, Judge.

C.D.M. (“the mother”) appeals from a judgment of the Madison District Court, finding her in contempt of court and declining to find W.B.H. (“the father”) in contempt of court for violating a January 3, 2012, judgment modifying custody and visitation arrangements for the parties’ minor child. We affirm in part and reverse in part.

Procedural History

On December 11, 2012, the father filed a petition for custody and a motion for contempt sanctions, asserting that the trial court’s original custody order had awarded the parties joint legal custody of the child with the father having “periods of secondary physical custody/visitation rights with the minor child in accordance with the ‘Visitation/Physical Custody Schedule’ ” and that that original order had been modified by agreement of the parties and further order of the court on January 3, 2012. The father asserted that, since the entry of the January 3, 2012, judgment, the mother had refused to schedule and pay for travel arrangements for the father to visit the child during the summer and Christmas visitation periods set forth in the judgment. The father sought a judgment directing the mother to comply with the terms of the trial court’s January 3, 2012, judgment and holding the mother in contempt and an award of attorney fees; he also sought “sole” physical custody of the child and child support.

The mother filed an answer denying the allegations in the father’s petition. The trial court entered an order on January 24, 2013, setting the matter for a hearing on February 26, 2013, specifying the courtroom of the Madison County courthouse in which the hearing was to be held. Pursuant to the mother’s motion to reset, the trial court rescheduled the hearing for February 11, 2013. The mother later filed an amended answer and a counterpetition and a motion for contempt sanctions. In her counterpetition, the mother asserted that the January 3, 2012, judgment required the father to notify the mother within five days of his obtaining a job, so that child support could be recalculated and modified, but that the father had failed to comply with those requirements. The mother further asserted that the father had failed to pay her $296 in past-due medical expenses in accordance with the trial court’s judgment and that the father had failed to comply with “the method of notification” the father had been ordered to use in arranging travel plans for the child’s visitation. The mother requested that the trial court, among other things, hold the father in contempt for his failure to notify her of his employment, modify the father’s child-support obligation, modify prior judgments by requiring the father to bear the cost of travel expenses for the child for visitation purposes, modify the father’s visitation schedule with the child, and award her attorney fees.

The trial court entered a judgment on February 27, 2013, which stated, in pertinent part:

“After taking evidence and testimony ore terms and upon consideration of said pleadings, evidence and testimony, the Court makes the following findings regarding material changes affecting the child’s welfare since this Court’s previous Order and issues its Orders and Findings as follows:
“1. The mother willfully avoided direct communication with the father, i.e. telephone and text messages. As a result of the mother’s willful conduct, the father was not allowed the opportunity to exercise his summer vacation in 2012 as outlined in this Court’s Order, dated January 3, 2012.
“2. On or about October 14, 2012, the father sent a certified letter to the mother advising the mother that he no longer had internet access and would like to correspond via phone or mail to plan for Christmas visitation. It is uncontroverted that the mother received the letter and did not make any attempt to communicate with the father other than email, even with knowledge of the father’s lack of internet access.
“3. On or about November 14, 2012, the father sent a certified letter to the mother advising the mother that he no longer had internet access and would like to correspond via phone or mail to plan for Christmas visitation. It is uncontroverted that the mother received the letter and did not make any attempt to communicate with the father other than email, even with knowledge of the father’s lack of internet access.
“4. As a result of the mother’s willful conduct in avoiding direct contact with the father, the father was not allowed the opportunity to exercise his Christmas vacation in 2012 as outlined in this Court’s Order, dated January 3, 2012.
“5. This Court finds that the mother is in willful contempt of this Court’s Standard Parenting Clauses; to wit, paragraph 4, which was made part of this Court’s Order, dated January 3, 2012; to wit, the mother willfully failed to make herself available for direct communication with the other [parent] for the purposes of discussion pertaining to the minor child.
“6. This Court has previously found the mother to be in contempt. Specifically, as addressed in paragraph 1 of the Final Order, dated February 25, 2010,
“ ‘The court has previously denied the mother’s request for continuance. Regarding the mother’s motion to have the court withdraw its contempt order of September 28, 2009, the court denies the same but modifies the jail sentence by splitting the five day sentence for contempt to serve two days. PROVID- ■ ED HOWEVER, said remaining sentence for the mother of three days is suspended and she may purge herself from said contempt by hereafter remaining in complete compliance with this Court’s prior orders as modified. The contempt of the mother shall remain purged from enforcement as long as the mother complies with all prior, current and future orders of this court and remains in said compliance.’ (emphasis added).
“7. Therefore, pursuant to this Court’s Order, dated February 25, 2010, and the mother’s failure to abide by all prior, current and future orders of this Court and to remain in compliance, the mother is to surrender herself to the Madison County Jail to serve the balance of her previous contempt sentence; to wit, three (3) days.
“8. The father is awarded make-up visitation with the minor child as follows:
“a. Summer visitation, 2013, the father will have two (2) additional weeks.
“b. Christmas visitation, 2013, the father will have two (2) additional days.”

The trial court denied the father’s custody-modification petition. It further modified the January 3, 2012, judgment to require the parents to “make themselves available for direct communications with the other for the purpose of discussion pertaining to the minor child, to include visitation arrangements.” According to the trial court’s judgment, “[djirect communications means any form of communication, to include text, phone, letter, or any other electronic means.” The trial court modified the amount of the father’s child-support obligation to $301 per month, found that there was insufficient proof presented by the mother of a willful contempt committed by the father, required the mother to reimburse the father $3,000 resulting from her contemptuous behavior, and denied all other relief. The mother filed a post-judgment motion; that motion was denied by the trial court on March 18, 2013. The mother timely filed her notice of appeal to this court.

Facts

The father testified that he lives in Huntsville, where he has lived for 10 years. He testified that the mother had married, that her husband is in the United States Army, and that the mother and her husband had relocated with the parties’ child, first to Virginia and then to Alaska. The father testified that, once the mother and the child had relocated to Alaska, issues had arisen with regard to his visitation with the child. According to the father, at the time of the hearing, it had been over a year since he had seen the child. The father testified that, when he had tried to contact the mother to make travel arrangements and discuss dates for the child’s summer visitation, she had informed him that he was outside the required 30-day notice period and that the child was not going to attend her summer visitation in Alabama. He testified that, in an effort to work out the child’s travel arrangements, he had telephoned the mother on several occasions, but had had to leave messages, and he thought he had also sent the mother a few text messages. He testified that “it took a little while for her to respond to my phone calls and finally talk to me on the phone to inform me that [the child] would not be coming for her summer visitation.” He stated that, when the mother had finally responded to his communications, it was after the 30-day notice period had passed.

The father testified that he has an email address but that he does not have access to e-mail on a regular basis. He stated that he does not have a computer and that he had communicated that fact to the mother and that that is why he had resorted to telephone calls and text messages to contact the mother. He also stated that he had sent certified letters and had had his attorney write letters on his behalf, but the mother had not responded to those letters. The father presented a certified letter, dated October 14, 2012, that he had written to the mother requesting that she telephone him to plan for the child’s Christmas visitation, informing her that he no longer had Internet access, and requesting that she telephone or mail him a response. A certified-mail receipt indicated that that letter had been received on October 19, 2012. The father stated that he had spoken to the child on the telephone twice a week, that he had tried to speak to the mother about scheduling visits when he made those telephone calls, and that, at one time, after asking the child to put the mother on the telephone, he had heard the mother say that she did not want to talk at that time.

The father admitted that he had not sent the mother an e-mail or a letter with information regarding who would be flying with the child for the visits. He stated that he has a “smartphone,” which he uses to access the Facebook social-networking Web site. He stated, however, that he did not know whether his smartphone had the capability to send e-mail and that he had never tried to use it for e-mail. He stated that the last time he had updated his Facebook page, he had done so from a friend’s computer. He stated that he has friends who have Internet access but that he had not asked if he could send an e-mail from their computers. He testified that he owns an AK.-47 assault rifle that he could probably sell and use the proceeds to buy himself a computer.

The father testified that he had been employed by Turner Beverage, delivering beer, for over a year. He stated that he had told the mother that he had gotten a job when he had informed her that he would not be able to visit the child for spring break in 2012. He admitted, however, that he had failed to inform the mother within five days after he had obtained a job or to pay to have his child support recalculated and a modified agreement drafted reflecting the new child-support amount, as required by the January 3, 2012, judgment.

The mother testified that she wanted the judgment to state that she and the father would communicate by e-mail to protect them so that they could be accountable for their conversations. She testified that there had been discrepancies or misunderstandings in the past and that, if everything is in an e-mail, they can refer back to the e-mails instead of arguing about what the other said. She stated that she could use an e-mail in case of litigation to protect herself and to make sure she is doing what she is supposed to do. She testified that the father had never e-mailed her the information she would need to purchase airline tickets for his Christmas or summer visitation with the child. She admitted, however, that she had refused to speak to the father on the telephone.

Discussion

On appeal, the mother first argues that the trial court erred by issuing sanctions against her without first issuing notice pursuant to Rule 70A(c)(2), Ala. R. Civ. P. Rule 70A(c)(2) states, in pertinent part, that

“the person against whom the [contempt] petition is directed shall be notified (1) of the time and place for the hearing on the petition and (2) that failure to appear at the hearing may result in the issuance of a writ of arrest pursuant to Rule 70A(d), [Ala. R. Civ. P.,] to compel the presence of the alleged con-temnor.”

The mother does not argue that she had not been apprised of the time and place for the hearing on the father’s petition; indeed, she concedes on appeal that the case was reset due to a scheduling conflict of the mother’s counsel. Thus, we interpret the mother’s argument as an assertion that the court’s failure to notify the mother that her failure to appear at the hearing could result in a writ being issued for her arrest requires reversal of the contempt finding. The mother argues that, “regardless of whether a party shows up for trial, the Rule 70A requirements must still have been met for the issuance of sanctions.” The mother does not provide any citation to authority in support of that assertion, however, and we are unable to locate any authority on point.

“It is the appellant’s burden to refer [an appellate 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 [an appellate] 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).’)).”

Board of Water & Sewer Comm’rs of the City of Mobile v. Bill Harbert Constr. Co., 27 So.3d 1223, 1254 (Ala.2009). Because the mother has cited no legal authority supporting her argument that the trial court erred to reversal in failing to notify her that her failure to attend the hearing could result in the issuance of a writ for her arrest, we decline to address that argument. We note, however, that, because the mother was present at the hearing and had been given notice of the time and date of the hearing and no writ for her arrest was issued, it appears, at first glance, that any deficiency in the hearing notice amounted only to harmless error. See Rule 45, Ala. R.App. P.

Although the argument is not properly developed, it appears that the mother is also attempting to argue that she was denied due process to the extent the trial court referenced and relied upon the 2010 order in ordering the mother to serve the suspended jail time. In Fludd v. Gibbs, 817 So.2d 711, 714 (Ala.Civ.App.2001), this court stated that “[a] finding of criminal contempt is appropriate where a party has shown disobedience to a court’s order and where the acts complained of were specific, identifiable violations from the past.” The father’s contempt motion in the present case referenced that the mother had been previously held in contempt, and it is clear from the court’s prior orders and the father’s motion that criminal contempt was contemplated. See Fludd, 817 So.2d at 714. Like in Fludd, we conclude that the mother had sufficient notice that she was facing sanctions for criminal contempt. Id.

The mother next argues that the trial court erred in finding her in contempt because, she says, “the required elements of contempt were not in evidence.”

“ ‘Rule 70A, Ala. R. Civ. P., governs contempt proceedings that arise out of civil actions. Rule 70A(a)(2)(C)(ii) defines criminal contempt as “[w]illful disobedience or resistance of any person to a court’s lawful ... order, rule, or command, where the dominant purpose of the finding of contempt is to punish the contemnor.” In order to establish that a party is in criminal contempt of a court order, a contempt petitioner must prove beyond a reasonable doubt that the party against whom they are seeking a finding of contempt was subject to a “ ‘lawful order of reasonable specificity,’ ” that the party violated that order, and that the party’s violation of the order was willful. Ex parte Ferguson, 819 So.2d 626, 629 (Ala.2001) (quoting United States v. Turner, 812 F.2d 1552, 1563 (11th Cir.1987))’
“L.A. v. R.H., 929 So.2d 1018, 1019 (Ala.Civ.App.2005). Furthermore, we have held that, ‘[a]bsent an abuse of discretion, or unless the judgment of the trial court is unsupported by the evidence so as to be plainly or palpably wrong, the determination of whether a party is in contempt is within the sound discretion of the trial court.’ Shonkwiler v. Kris ka, 780 So.2d 703, 706 (Ala.Civ.App.2000).”

Preston v. Saab, 43 So.3d 595, 599 (Ala.Civ.App.2010).

The mother argues that the trial court’s January 3, 2012, judgment was ambiguous because the parties’ agreement called specifically for an e-mail to schedule the father’s summer and Christmas visitation with the parties’ child, whereas the trial court’s “Standard Parenting Clauses” directed the parties to make themselves available for direct communications with each other for the purposes of discussion pertaining to the minor child. The mother argues that, because those two provisions conflict, “there was no order of reasonable specificity” and, thus, no violation of that order by the mother. In Nave v. Nave, 942 So.2d 372, 379 (Ala.Civ.App.2005), this court determined that the divorce judgment in that case was reasonably susceptible to two meanings and was, therefore, ambiguous. This court determined that, because the judgment was ambiguous, “the trial court could not have found beyond a reasonable doubt that the father willfully violated a lawful order of reasonable specificity.” 942 So.2d at 379. This court stated in Nave:

“An agreement, including one merged into a divorce judgment, is ambiguous when it is reasonably susceptible to more than one meaning. Ex parte Littlepage, 796 So.2d 298 (Ala.2001).
“ ‘When a trial court adopts a separation agreement, it is merged into the final judgment of divorce. A judgment of divorce is to be interpreted or construed like other written instruments. Whether an agreement is ambiguous is a question of law to be determined by the trial court. If the agreement is susceptible to more than one meaning, then an ambiguity exists. If only one reasonable meaning clearly emerges, then the agreement is unambiguous.’
“Wimpee v. Wimpee, 641 So.2d 287, 288 (Ala.Civ.App.1994) (citations omitted).”

942 So.2d at 378.

In the present case, we agree with the mother that the January 3, 2012, judgment was reasonably susceptible to two meanings with regard to the father’s summer and Christmas visitation with the child. Specifically, it appears that the mother read the judgment as requiring only e-mail communication with regard to that visitation; the language of the parties’ agreement that was incorporated into the judgment supports such a reading. The trial court, however, determined that the mother had violated the “Standard Parenting Clauses” that had also been incorporated into the judgment. The trial court determined that the mother had violated the portion of the judgment that related to the parties’ communication regarding the father’s summer and Christmas visitation; however, we conclude that the judgment was susceptible to two meanings with regard to communication between the parents about the father’s summer and Christmas visitation. Thus, like in Nave, the judgment in the present case was not one of reasonable specificity that the trial court could have found, beyond a reasonable doubt, that the mother had willfully violated. We therefore reverse the judgment insofar as it found the mother in contempt with respect to her failure to communicate with the father in a manner other than e-mails regarding his summer and Christmas visitations with the child.

The mother last argues that the trial court erred in failing to find the father in contempt. Specifically, she asserts that the father should have been held in contempt for his failure to inform her that he had gained employment and his resulting failure to have his child-support obligation recalculated, for his failure to email her regarding his summer and Christmas visitation with the child, and for his failure to pay her for past uninsured medical expenses when her testimony that he had failed to pay that debt was unrefuted. “When evidence in a contempt case is presented ore tenus to the trial court, the trial court’s finding regarding contempt is presumed correct.” Gilbert v. Nicholson, 845 So.2d 785, 791 (Ala.2002). We note that the trial court heard evidence indicating that the mother had evaded the father’s attempts to contact her, that the father did not have the ability to e-mail the mother, and that the mother had refused to otherwise communicate with the father. Thus, the trial court could have determined that any violation of the trial court’s judgment by the father was not willful. We conclude, therefore, that the trial court was within its discretion to decline to find the father in contempt.

Conclusion

We reverse the trial court’s judgment finding the mother in contempt, and we remand the cause for the trial court to enter a judgment consistent with this opinion. We affirm the judgment in all other respects.

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

THOMPSON, P.J., and THOMAS, MOORE, and DONALDSON, JJ„ concur.

      . The parties' agreement that was incorporated into the trial court’s January 3, 2012, judgment contains the following language with regard to the father's Christmas and summer visitation with the child:

        “The Father will email the Mother no later than thirty (30) days prior to the day that said visit shall begin, providing the Mother with the date and time that he is available to depart from the Huntsville International Airport. If the Father is not the person who will be flying to retrieve the minor child, he will email the Mother within the same time frame, providing the Mother with the full name and birth date of the person who will be flying to Alaska to retrieve the minor child, and the date and time that said person is available to depart from the Huntsville International Airport. Failure to email the Mother with the information no later than thirty (30) days in advance of the visit shall result in forfeiture of the visit.”
      The trial court's "Standard Parenting Clauses,” however,' which were also incorporated into the judgment, contained the following language:
      "At all times hereafter, each parent shall keep the other informed of the respective business and home telephone numbers and their respective street and mailing addresses. Both parties will make themselves available for direct communications with the other for the purposes of discussion pertaining to the minor children; provided, however, neither parent will harass or burden the other with excessive or abusive telephone calls, or any other such non-productive communication. Both parents shall refrain from delegating their responsibility of communicating with the other parent to third parties, except in bona fide emergencies, and will at reasonable times and places make themselves available to communicate directly with the other parent pertaining to the needs and interest of the children.”


author: JOINER, Judge.

text:
    STATE of Alabama v. Melvin Scott KEITH.
    CR-12-0293.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 2013.
    Luther Strange, atty. gen., and Michael G. Dean, asst. atty. gen., for appellant.

      John T. Kirk, Montgomery, for appellee.
   JOINER, Judge.

Melvin Scott Keith was convicted in the Autauga County District Court of driving under the influence of alcohol, see § 32-5A-191, Ala.Code 1975. Keith appealed his conviction to the Autauga Circuit Court and requested a jury trial. On October 10, 2012, Keith filed what he styled as a “motion to dismiss and motion to suppress,” in which Keith contended that the Alabama Uniform Traffic Ticket and Complaint (“UTTC”) that charged Keith with driving under the influence of alcohol did not charge an offense because, he said, the UTTC alleged that Keith had violated “32-5A-191(A)l/2” and “[n]o such specific charge exists by said numbers under (A) of that statute.” (C. 41.) Keith argued — in the alternative — that the “breath test results” should be suppressed because, he said, “the officer failed to comply with the deprivation period required by the [Alabama] Department of Forensic Science[s].” (C. 41.)

On November 4, 2012, the State filed a response to Keith’s “motion to dismiss and motion to suppress” alleging that there “is no error in the UTTC charging [Keith] with driving while there was .08% or more by weight of alcohol in his blood and/or driving while under the influence of alcohol.” (C. 43.)

On November 7, 2012, the circuit court conducted a hearing on Keith’s “motion to dismiss and motion to suppress.” That same day, the circuit court issued an order granting Keith’s motion to dismiss; the order stated:

“[T]his cause is due to be dismissed ... in that the charging instrument (A 1/2) of 32-5A-191, Code of Alabama is improper, its error arising from the lack of specificity by the charging officer and a failure to give accurate notice of the charge brought against the defendant.”

(C. 46.) Pursuant to Rule 15.7, Ala. R.Crim. P., the State appeals the circuit court’s ruling.

On appeal, the State contends that the circuit court “erroneously granted Keith’s motion to dismiss the [UTTC]” because, the State says, “the UTTC clearly alleged that Keith drove while under the influence of alcohol.” (State’s brief, p. 6.) Keith, on the other hand, contends that the UTTC’s citation to “32-5A-191(A)l/2” did not clearly advise him of the offense for which he was charged.

This Court has held
“It is fundamental that ‘the accused has a constitutional right to be informed of the charges against him.’ Wilbourn v. State, 452 So.2d 915, 916 (Ala.Cr.App. 984). ‘The constitutional right of an accused to demand the nature and cause of the accusation against him is not a technical right, but is fundamental and essential to the guaranty that no person shall be deprived of his liberty except by due process of law, nor be twice put in jeopardy for the same offense.’ Summers v. State, 348 So.2d 1126, 1132 (Ala.Cr.App.), cert. denied, 348 So.2d 1136 (Ala.1977), cert. denied, 434 U.S. 1070, 98 S.Ct. 1253, 55 L.Ed.2d 773 (1978). An instrument which purports to, but ‘fails to state an offense will not support a judgment of conviction.’ Barbee v. State, 417 So.2d 611, 614 (Ala.Cr.App.1982). The accused is entitled to ‘a plain, concise statement of the [charge] in ordinary language sufficiently definite to inform a defendant of common understanding of the offense charged.’ [Rule 13.2(a), Ala. R.Crim. P.]”

Corum v. City of Huntsville, 491 So.2d 1091, 1092 (Ala.Crim.App.1986).

In Smith v. State, 435 So.2d 158 (Ala. Crim.App.1983), this Court reversed Smith’s conviction for driving under the influence of alcohol because the information charging Smith with driving under the influence of alcohol was “void.” In reaching this conclusion, this Court found:

“The information charged that the defendant ‘did commit the offense of Driving Under the Influence in violation of Section 32-5A-191 of the Code of Alabama.’ The information is fatally defective because it does not specify whether the defendant was driving under the influence of alcohol (Section 32-5A-191(a)(2)[) ], under the influence of a controlled substance (Section 32-5A-191(a)(3)[) ], or under the combined influence of alcohol and a controlled substance (Section 32-5A-191(a)(4)[) ]. The information did not allege a criminal offense in that it failed to describe any offense condemned by Section 32-5A-191.”

435 So.2d at 158.

This Court, in Bishop v. State, 555 So.2d 317, 318 (Ala.Crim.App.1989), reversed a conviction for driving under the influence for “being in actual physical control of a vehicle while there was .10%[] or more by weight of alcohol in [Bishop’s] blood” and held that an information charging Bishop with driving under the influence was void because “the information did not charge this offense, or any other offense.” (Emphasis in original.) Specifically, this Court found that “[t]he information charged that Bishop ‘did commit the offense of [driving under the influence] in violation of 32-5A-191A1 of the Code of Alabama[,’]” and relying on our decision in Smith, supra, held that, although

“[§] 32-5A-191(a)(l) does cover the offense of driving or being in actual physical control of a vehicle while ‘[t]here is 0.10 percent or more by weight of alcohol in [one’s] blood[,]’.... the mere reference to this particular subsection was clearly not sufficient to apprise Bishop of the specific offense with which he was charged.”

Bishop, 555 So.2d at 318.

Thus, Smith and Bishop establish that a charging instrument that alleges only that a defendant “committed the offense of driving under the influence” and generally cites to § 32-5A-191, Ala.Code 1975, and a charging instrument that cites only to a specific section of § 32-5A-191, Ala.Code 1975, without more, is insufficient to advise a defendant of the offense for which he is being charged.

This Court has held, however, that when a charging instrument tracks the language of a particular Code section it is sufficient to put the accused on notice of the charges against him. See Sandlin v. State, 575 So.2d 1221 (Ala.Crim.App.1990)

Here, as stated above, Keith was charged with driving under the influence under § 32-5A-191, Ala.Code 1975, which provides as follows:

“(a) A person shall not drive or be in actual physical control of any vehicle while:
“(1) There is 0.08 percent or more by weight of alcohol in his or her blood;
“(2) Under the influence of alcohol;
“(3) Under the influence of a controlled substance to a degree which renders him or her incapable of safely driving;
“(4) Under the combined influence of alcohol and a controlled substance to a degree which renders him or her incapable of safely driving; or
“(5) Under the influence of any substance which impairs the mental or physical faculties of such person to a degree which renders him or her incapable of safely driving.”

Although Keith argued — and the circuit court agreed — that the UTTC at issue in this case did not charge Keith with an offense because it alleged that Keith had violated “32-5A-191(A)l/2” and “[n]o such specific charge exists by said numbers under (A) of that statute” (C. 41), the UTTC at issue in this case went beyond merely citing the Code section or merely stating that Keith was “under the influence.” See Bishop, supra. Specifically, the UTTC under which Keith was charged provided that Keith

“[d]id unlawfully operate a motor vehicle or other vehicle at or near CR-39 within the County of Autauga at or near CR-39 ALT in violation of Section 32-5A-191(A)l/2 (Code of Alabama, 1975) duly adopted and in force at the time the offense was committed more particularly described as:
“Did drive or he in actual physical control of a vehicle while there was 0.08% or more by weight of alcohol in his/her blood and/or while under the influence of alcohol.”

(C. 42.) Thus, the UTTC clearly tracked the language of both § 32-5A-191(a)(l) and (a)(2), Ala.Code 1975, and was sufficient to advise Keith of the offense for which he was being charged. See Sand-lin, supra.

Accordingly, the judgment of the circuit court granting Keith’s motion to dismiss is reversed, and this case is remanded to the circuit court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

WINDOM, P.J., and WELCH, KELLUM, and BURKE, JJ., concur.

      . In 1995, § 32-5A-191(a)(l), Ala.Code 1975, was amended to lower the blood-alcohol level at or above which a person is prohibited from operating a motor vehicle from 0.10 to 0.08 percent by weight of alcohol in his or her blood. See Act No. 95-784, Ala. Acts 1995.

      . The Alabama Supreme Court "has determined that § 32 — 5A—191 (a)(1) and § 32-5A-191(a)(2) do not constitute separate offenses but are alternative methods of proving the same offense.” Hastings v. State, 589 So.2d 795, 796 (Ala.Crim.App.1991) (citing Sisson v. State, 528 So.2d 1159 (Ala.1988)) (emphasis in original). Thus, here, it is permissible for the UTTC to charge Keith under both § 32-5A-191(a)(l) and (a)(2), Ala.Code 1975.