author: MAIN, Justice.

text:
    PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY v. Roger D. ALLEN et al.
    1121284.
    Supreme Court of Alabama.
    Jan. 10, 2014.

      Ivan B. Cooper of Lightfoot, Franklin & White, L.L.C., Birmingham; and Steve R. Burford of Simpson, McMahan, Glick & Burford, PLLC, Birmingham, for appellant.
    J. Mark Hart and Tracy T. Miller of Hand Arendall, LLC, Birmingham, for ap-pellee Roger D. Allen.
   MAIN, Justice.

Pennsylvania National Mutual Casualty Insurance Company (“Penn National”) brought this action against Roger D. Allen, Homeland Vinyl Products, Inc. (“Homeland Vinyl”), and Deric Miner, individually and as the personal representative of the estate of Jane Miner, in the Jefferson Circuit Court seeking a judgment declaring that it owed no duty of defense or indemnity to Allen for claims arising out of a fatal automobile accident that occurred in New Jersey. Allen, a New Jersey resident, moved the trial court to dismiss the claims against him for lack of personal jurisdiction. In response, the trial court dismissed the case in its entirety. Penn National appeals; we affirm.

I. Facts and Procedural History

On April 9, 2010, Allen and his girlfriend, Jane Miner, were involved in an automobile accident in Trenton, New Jersey. The couple was returning to their home in Trenton from a pleasure trip to Atlantic City, New Jersey. Allen was driving the vehicle at the time of the accident, although the vehicle was a company car issued to Miner by her employer. He claimed something crossed the interstate in front of him; he swerved to avoid the object but lost control of the vehicle. The vehicle left the roadway and overturned. Miner died as a result of the accident.

Both Allen and Miner were residents of Trenton, New Jersey. Miner had moved from Alabama to New Jersey approximately nine months before the accident. At the time she moved to New Jersey, Miner was employed as a sales representative for Homeland Vinyl, an Alabama corporation headquartered in Birmingham. Miner continued to work for Homeland Vinyl following her move to New Jersey. Homeland Vinyl provided Miner with a company car, the vehicle involved in the April 2010 accident. At the time of the accident, the vehicle was registered in Alabama and bore an Alabama license plate. The vehicle, however, had been garaged in New Jersey for the nine months following Miner’s move to New Jersey., The vehicle was insured by Penn National through a business automobile-liability policy issued to Homeland Vinyl.

On April 5, 2012, Miner’s son, Deric Miner, individually and as personal representative of Miner’s estate, filed a wrongful-death action against Allen in the Superior Court of New Jersey. The action alleged that Allen had operated the vehicle in a negligent or reckless manner and that his negligence or recklessness had caused the accident. When served with the New Jersey wrongful-death action, Allen notified his personal automobile-liability insurance carrier, Allstate Insurance Company (“Allstate”). According to Allen, Allstate informed Allen that “they would take care of it.”

Initially, rather than obtain counsel to represent Allen in the wrongful-death action, Allstate tendered Allen’s defense to Penn National. We note that Penn National is a Pennsylvania corporation with its principal place of business in Pennsylvania. On May 9, 2012, an Allstate claims representative sent the following correspondence to Penn National at its address in Harrisburg, Pennsylvania:

“Allstate NJ Insurance Company is the personal automobile insurance carrier for Roger D. Allen who was the permissive driver of a vehicle owned by Homeland Vinyl Products and reportedly insured by Penn National Insurance.
“Our insured has been served with the enclosed lawsuit by the attorney representing the Estate of Jane Miner relative to the above captioned matter.
“As the primary insurance carrier for coverage in this matter, kindly assign the lawsuit to counsel to provide a defense of Roger D. Allen.
‘Tour prompt response and attention to this matter is appreciated.”

On August 15, 2012, Penn National filed this declaratory-judgment action in the Jefferson Circuit Court seeking a judgment declaring that it owed no duty to defend or to indemnify Allen in the New Jersey wrongful-death action. Specifically, the complaint asserted that Homeland Vinyl’s guidelines with regard to the use of its company vehicles authorized only Miner to drive the vehicle and expressly prohibited use of the vehicle by any other person. Penn National further asserted that, because Allen was not authorized to operate the vehicle, he did not qualify as a permissive user entitled to coverage under the Penn National policy issued to Homeland Vinyl. Penn National named Allen, Homeland Vinyl, and Deric Miner, individually and as the personal representative of Miner’s estate, as defendants to its declaratory-judgment action. Of the parties, only Homeland Vinyl is an Alabama resident.

On February 26, 2013, Allen filed a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss Penn National’s action against him on the ground that the Jefferson Circuit Court lacked personal jurisdiction over him. In support of his motion, Allen submitted affidavits evidencing his lack of contacts with Alabama. According to Allen’s affidavit, he owns no real or personal property in Alabama; he does not work in Alabama; he does not pay taxes in Alabama; he has not entered into any contracts in Alabama; he conducts no business in Alabama; and he generally denied that he had any contacts with Alabama. To the contrary, he attested, he is a long-time citizen of New Jersey who lives, works, and pays taxes in New Jersey. Allen testified that Miner’s company vehicle had been garaged in New Jersey continuously since Miner’s move to New Jersey. He further attested that the accident made the basis of this action occurred in New Jersey and that the underlying wrongful-death action is pending in New Jersey.

Penn National opposed Allen’s motion to dismiss. It argued that the Jefferson Circuit Court held specific personal jurisdiction over Allen because, at the time of the accident, he was operating a vehicle registered in Alabama and because, following the filing of the underlying wrongful-death action, his insurance company demanded coverage on his behalf under the Penn National policy — a policy that had been issued for delivery in Alabama to an Alabama-based named insured corporation.

The trial court initially denied Allen’s motion to dismiss. Allen moved the trial court to reconsider its ruling. Following additional briefing by Allen and Penn National and oral arguments, the trial court vacated its previous order and dismissed Penn National’s declaratory-judgment action without prejudice as to all the defendants. This appeal followed.

II. Standard of Review

A Rule 12(b)(2), Ala. R. Civ. P., motion tests the court’s exercise of personal jurisdiction over a defendant. “ ‘An appellate court considers de novo a trial court’s judgment on a party’s motion to dismiss for lack of personal jurisdiction.’ ” Ex parte Lagrone, 839 So.2d 620, 623 (Ala.2002) (quoting Elliott v. Van Kleef 830 So.2d 726, 729 (Ala.2002)). But see Allsopp v. Bolding, 86 So.3d 952, 957-58 (Ala.2011) (recognizing that deference is due to pertinent trial court factual findings to the extent those findings are based on ore tenus evidence).

Additionally, the appropriate analysis and the parties’ respective burdens in a case testing personal jurisdiction are well settled. “ ‘ “The plaintiff has the burden of proving that the trial court has personal jurisdiction over the defendant.” ’ ” Ex parte McNeese Title, LLC, 82 So.3d 670, 674 (Ala.2011) (quoting Ex parte Excelsior Fin., Inc., 42 So.3d 96, 103 (Ala.2010), quoting in turn J.C. Duke & Assocs. Gen. Contractors, Inc. v. West, 991 So.2d 194, 196 (Ala.2008), citing in turn Ex parte Covington Pike Dodge, Inc., 904 So.2d 226 (Ala.2004)).

“ ‘ “ ‘In considering a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss for want of personal jurisdiction, a court must consider as true the allegations of the plaintiffs complaint not controverted by the defendant’s affidavits, Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253 (11th Cir.1996), and Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829 (11th Cir.1990), and “where the plaintiffs complaint and the defendant’s affidavits conflict, the ... court must construe all reasonable inferences in favor of the plaintiff.” Robinson, 74 F.3d at 255 (quoting Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.1990)).’ ”
‘Wenger Tree Serv. v. Royal Truck & Equip., Inc., 853 So.2d 888, 894 (Ala.2002) (quoting Ex parte McInnis, 820 So.2d 795, 798 (Ala.2001)). However, if the defendant makes a prima facie evidentiary showing that the Court has no personal jurisdiction, “the plaintiff is then required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof, and he may not merely reiterate the factual allegations in the complaint.” Mercantile Capital, LP v. Federal Transtel, Inc., 193 F.Supp.2d 1243, 1247 (N.D.Ala.2002) (citing Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir.2000)). See also Hansen v. Neumueller GmbH, 163 F.R.D. 471, 474-75 (D.Del.1995) (“When a defendant files a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2), and supports that motion with affidavits, plaintiff is required to controvert those affidavits with his own affidavits or other competent evidence in order to survive the motion.”) (citing Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir.1984)).’
“Ex parte Covington Pike Dodge, Inc., 904 So.2d 226, 229-30 (Ala.2004).”

Ex parte Excelsior Fin., Inc., 42 So.3d at 103 (emphasis omitted).

III. Analysis

Penn National contends that the trial court erred when it dismissed the claims against AJlen on a personal-jurisdiction ground. Penn National argues the Jefferson Circuit Court properly had specific personal jurisdiction over Allen because at the time of the accident: (1) Allen was operating a vehicle registered in Alabama and owned by an Alabama corporation, Homeland Vinyl, and (2) Allen, or someone acting on his behalf, sought insurance coverage under the automobile-liability policy Penn National had issued to Homeland Vinyl. We must decide whether these “contacts” with Alabama are sufficient to permit this state to constitutionally exercise personal jurisdiction over Allen.

We have previously summarized an Alabama court’s ability to exercise personal jurisdiction over a foreign defendant as follows:

“The extent of an Alabama court’s personal jurisdiction over a person or corporation is governed by Rule 4.2, Ala. R. Civ. P., Alabama’s ‘long-arm rule,’ bounded by the limits of due process under the federal and state constitutions. Sieber v. Campbell, 810 So.2d 641 (Ala.2001). Rule 4.2(b), as amended in 2004, states:
“ ‘(b) Basis for Out-of-State Service. An appropriate basis exists for service of process outside of this state upon a person or entity in any action in this state when the person or entity has such contacts with this state that the prosecution of the action against the person or entity in this state is not inconsistent with the constitution of this state or the Constitution of the United States.... ’
“In accordance with the plain language of Rule 4.2, both before and after the 2004 amendment, Alabama’s long-arm rule consistently has been interpreted by this Court to extend the jurisdiction of Alabama courts to the permissible limits of due process. Duke v. Young, 496 So.2d 37 (Ala.1986); DeSotacho, Inc. v. Valnit Indus., Inc., 350 So.2d 447 (Ala.1977). As this Court reiterated in Ex parte McInnis, 820 So.2d 795, 802 (Ala.2001) (quoting Sudduth v. Howard, 646 So.2d 664, 667 (Ala.1994)), and even more recently in Hiller Investments Inc. v. Insultech Group, Inc., 957 So.2d 1111, 1115 (Ala.2006): ‘Rule 4.2, Ala. R. Civ. P., extends the personal jurisdiction of the Alabama courts to the limit of due process under the federal and state constitutions.’ (Emphasis added.)”

Ex parte DBI, Inc., 28 So.3d 635, 643 (Ala.2009). See also Ex parte McNeese Title, 82 So.3d at 673.

“ ‘Two types of contacts can form a basis for personal jurisdiction: general contacts and specific contacts. General contacts, which give rise to general personal jurisdiction, consist of the defendant’s contacts with the forum state that are unrelated to the cause of action and that are both “continuous and systematic.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 9, 415, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); [citations omitted]. Specific contacts, which give rise to specific jurisdiction, consist of the defendant’s contacts with the forum state that are related to the cause of action. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Although the related contacts need not be continuous and systematic, they must rise to such a level as to cause the defendant to anticipate being haled into court in the forum state. Id.’
“Ex parte Phase III Constr., Inc., 723 So.2d 1263, 1266 (Ala.1998) (Lyons, J., concurring in the result). Furthermore, this Court has held that, for specific in personam jurisdiction, there must exist ‘a clear, firm nexus between the acts of the defendant and the consequences complained of.’ Duke v. Young, 496 So.2d 37, 39 (Ala.1986). See also Ex parte Kamilewicz, 700 So.2d 340, 345 n. 2 (Ala.1997).
“In the case of either general in per-sonam jurisdiction or specific in person-am jurisdiction, ‘[t]he “substantial connection” between the defendant and the forum state necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State.’ Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). This purposeful-availment requirement assures that a defendant will not be haled into a jurisdiction as a result of ‘ “the unilateral activity of another person or a third person.” ’ Burger King, 471 U.S. at 475, 105 S.Ct. 2174, quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417,104 S.Ct. 1868, 80 L.Ed.2d 404 (1984).
“Only after such minimum contacts have been established does a court then consider those contacts in the light of other factors — such as the burden on the defendant of litigating in the forum state and the forum state’s interest in adjudi-eating the dispute, Burger King, 471 U.S. at 476-77,105 S.Ct. 2174 — to determine whether the exercise of personal jurisdiction over the nonresident defendant comports with ‘ “traditional notions of fair play and substantial justice.’” Brooks v. Inlow, 453 So.2d 349, 351 (Ala.1984), quoting International Shoe [Co. v. Washington ], 326 U.S. [310,] at 316, 66 S.Ct. 154 [ (1945) ]. See also Burger King, 471 U.S. at 476-77, 105 S.Ct. 2174.”

Elliott v. Van Kleef, 830 So.2d 726, 730-31 (Ala.2002).

A defendant is constitutionally amenable to specific jurisdiction in a forum if the defendant possesses sufficient minimum contacts with the forum to satisfy due-process requirements and if the exercise of jurisdiction by the forum comports with “ ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). See Ex parte Kohlberg Kravis Roberts & Co., 78 So.3d 959, 972 (Ala.2011) (quoting Ex parte McInnis, 820 So.2d 795, 802-03 (2001)). This two-part test embodies the controlling due-process principle that a defendant must have “fair warning” that a particular activity might subject it to the jurisdiction of a foreign sovereign. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). See Ex parte Kohlberg Kravis Roberts & Co., 78 So.3d at 970.

In the present case, Penn National concedes that Allen lacks the “continuous and systematic” contacts with Alabama sufficient to confer general personal jurisdiction over Allen. Rather, it contends that trial court may exercise specific personal jurisdiction based on the following contacts: (1) at the time of the accident Allen was driving a car registered in Alabama; (2) the car was owned by an Alabama company; (3) the insurance policy covering the vehicle was issued to an Alabama named insured and was delivered to that insured in Alabama; and (4) Allen has made a claim for coverage under that “Alabama” policy.

We have recently summarized the test for determining whether sufficient minimum contacts exist for the purpose of exercising specific personal jurisdiction:

“Over the course of the development of minimum-contact analysis following International Shoe Co. and its progeny, this Court, in Elliott v. Van Kleef, supra, and its progeny, has essentially formulated a test for ascertaining whether there are sufficient minimum contacts for a court to exercise specific personal jurisdiction over a nonresident defendant: (1) The nonresident defendant’s contacts must be related to the plaintiffs cause of action or have given rise to it. Ex parte Kohlberg Kravis Roberts & Co., 78 So.3d at 971 (citing Burger King Corp. v. Rudzewicz, 471 U.S. at 472). (2) By its contacts the nonresident defendant must have purposefully availed itself of the privilege of conducting business in the forum state. Ex parte City Boy’s Tire & Brake, Inc., 87 So.3d 521, 529 (Ala.2011). See Hanson v. Denckla, 357 U.S. 235, 253 (1958); see also Burger King, 471 U.S. at 474-75. (3) The nonresident defendant’s contacts with the forum must be ‘such that the nonresident defendant “ ‘should reasonably anticipate being haled into court’ ” in the forum state.’ Ex parte Excelsior Fin., Inc., 42 So.3d at 101 (quoting Burger King Corp., 471 U.S. at 473, quoting in turn World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295 (1980)). See, e.g., Elliott v. Van Kleef, supra.

Ex parte Alamo Title Co., 128 So.3d 700, 711 (Ala.2013) (footnote omitted).

First we note that the connections between Penn National’s declaratory-judgment action and Allen’s supposed contacts with Alabama are tenuous. In its action, Penn National seeks a judgment declaring its coverage obligations related to another lawsuit pending in the Superior Court of New Jersey arising from an automobile accident that occurred in New Jersey, involving New Jersey residents. The only real connection between this action and Alabama appears to be the fact that Penn National’s named insured is located in Alabama, where the insurance policy was delivered. This contact, however, cannot be attributed to any purposeful action by Allen.

Indeed, there is no indication that Allen “purposely availed” himself of the protection of Alabama’s laws. Allen has had no direct connection to Alabama — there is no evidence indicating that he entered into any contracts in Alabama, that he committed any tortious conduct in Alabama, or that he directed any conduct or communication toward Alabama. At best, Allen’s contact with Alabama was indirect — at the time of the accident he was driving a car owned by an Alabama company and registered in Alabama. Although this car bore an Alabama license plate, it was a company car issued to Miner, who had kept the vehicle in New Jersey for nine months preceding the accident. It cannot be said that an isolated intrastate use of this vehicle in New Jersey by Allen was a purposeful availment by Allen of Alabama’s laws or that such use should have caused Allen to reasonably expect to be haled into the Jefferson Circuit Court.

Nor can we conclude that Allen’s request for a defense in the New Jersey wrongful-death action was “purposeful” in the jurisdictional sense. Penn National argues that because the policy under which he was requesting the defense was issued in Alabama, it will be governed by Alabama law. Thus, Penn National contends that when Allen demanded a defense under this “Alabama” policy, he purposefully availed himself of the protection of Alabama’s laws. This argument confuses choice-of-law issues with jurisdictional analysis. In fact, Alabama law might not apply if the case was filed in a jurisdiction applying different choice-of-law rules. See Gilbert Spruance Co. v. Pennsylvania Mfrs. Ass’n Ins. Co., 134 N.J. 96, 102, 629 A.2d 885, 888 (1993) (rejecting the lex loci contractus rule in favor of a “most significant connections” approach).

Furthermore, Allen argues that he never even requested a defense from Penn National; he merely forwarded the complaint in the underlying New Jersey wrongful-death action to his insurer, Allstate. Allstate’s New Jersey claims office then tendered Allen’s defense request to Penn National’s Pennsylvania home office. Even if Allstate’s defense tender is attributed directly to Allen, however, there is no evidence indicating that this claim for coverage involved any communication or affirmative act directed at Alabama. Rather, the claim was made directly to Penn National’s Pennsylvania office. Although the insurance contract was formed in Alabama, under these particular circumstances, we do not find that Allen’s request for a defense in the New Jersey wrongful-death action evidences purposeful availment. Accordingly, we hold that Allen’s demand for a defense from Penn National in the underlying New Jersey wrongful-death action does not give rise to specific personal jurisdiction in Alabama. See Hartford Cas. Ins. Co. v. JR Marketing, LLC, 511 F.Supp.2d 644, 650 (E.D.Va.2007) (holding that a request for defense did not constitute purposeful conduct toward the forum state).

Allen’s contacts with Alabama were no more than indirect and tangential, and the “ ‘nature and quality and the circumstances of their commission’ create only an ‘attenuated’ affiliation with the forum.” Burger King Corp., 471 U.S. at 476 n. 18 (quoting International Shoe, 326 U.S. at 318). Accordingly, we conclude that Allen’s contacts with Alabama do not support a finding of purposeful activity invoking the benefits and protections of Alabama law. Based on our analysis of the specific-personal-jurisdiction-minimum-contacts factors and the record before us, we conclude that the trial court correctly dismissed the claims against Allen for lack of personal jurisdiction.

IV. Conclusion

Based on the above, we affirm the trial court’s order dismissing Penn National’s declaratory-judgment action.

AFFIRMED.

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

      . The allegedly applicable guideline provided: “Only those employees that have been specifically authorized are allowed to drive Company vehicles. No member of an employee's family is authorized to drive a company vehicle under any circumstance.”

      . After the filing of Penn National’s declaratory-judgment action, Allen filed a third-party complaint in the underlying New Jersey wrongful-death action, seeking a declaration that Penn National, in fact, owes him defense and indemnity for claims arising from the accident.

      . Although Allen's Rule 12(b)(2), Ala. R. Civ. P., motion sought dismissal of only the claims against him, the trial court dismissed Penn National's declaratory-judgment action in its entirety. Whether the trial court properly dismissed the case in its entirety, or whether the trial court should have limited its dismissal to only the claims against Allen, is not an issue raised or addressed by the parties on appeal. Accordingly, that issue is not before us. The only appellee's brief filed on appeal is Allen's.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    P.S. v.JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2111222.
    Court of Civil Appeals of Alabama.
    June 28, 2013.
    Certiorari Quashed Nov. 15, 2013 Alabama Supreme Court 1121180.
    Keith E. Brashier of Gregory, Burns & Brashier, LLC, Birmingham, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Joshua G. Lane, asst. atty. gen., Department of Human Resources, for appellee.
   THOMAS, Judge.

P.S. (“the mother”) appeals the judgment of the Jefferson Juvenile Court terminating her parental rights to M.S. (“the child”) on August 23, 2012. We reverse the judgment and remand the cause for further proceedings consistent with this opinion.

In 2008, the Jefferson County Department of Human Resources (“DHR”) became involved with the mother, and she lost custody of her two older children, R.O. and K.F. (sometimes referred to collectively as “the siblings”), after DHR initiated dependency proceedings relating to the siblings. DHR reported that the mother had failed to protect the siblings when the mother’s then boyfriend hit K.F. with a belt, leaving severe bruises on his legs, arms, face, and back. In 2011, DHR became aware that the mother was pregnant with the child. It had “an alert” sent to the University of Alabama at Birmingham Hospital for it to inform DHR when the mother gave birth to the child. The child was born on April 19, 2011.

On April 22, 2011, DHR filed a complaint in the juvenile court, alleging that the child was dependent. DHR reported that the mother had “failed to inform her DHR worker that she was pregnant,” that her “past issues suggest she will not be able to properly care for the child,” and that the mother had lost custody of the siblings. The juvenile court issued a pickup order on April 22, 2011, and, that same day, DHR took custody of the child.

A shelter-care hearing was held on April 25, 2011, and, in an order signed by Judge W. Alan Summers that same day, custody of the child was awarded to the child’s maternal great-aunt and supervised visitation was awarded to the mother. The order included a specific finding that reasonable efforts to prevent the removal of the child from the mother had been unsuccessful. Those efforts were described as “investigation of allegations; in-home services; counseling; relative resources; [and] home evaluation.”

An order signed by Judge Elise Barclay indicates that a “preliminary hearing” was held June 1, 2011. The mother and her attorney were present. Apparently DHR and the mother submitted a “memorandum agreement” regarding the child and R.O. The memorandum agreement is not included in the record on appeal. The child was again adjudicated dependent, and he remained in the custody of his maternal great-aunt. The mother retained a right to supervised visitation, and she was required to participate in counseling, to complete a parenting-skills class, and to obtain stable housing and employment. According to DHR, the child’s maternal great-aunt relinquished custody of the child to DHR on June 27, 2011.

A dispositional hearing was held on September 14, 2011, regarding the child and the siblings. An order signed by Judge Barclay and dated September 14, 2011, indicates that the child remained dependent and that the mother retained her right to supervised visitation with the child. In that same order, DHR was relieved of the responsibility to make reasonable efforts to reunite the child with the mother. At that time the child was five months old.

On November 18, 2011, DHR filed a petition seeking the termination of the mother’s parental rights to the child. At that time the child had been in foster care for less than five months. DHR asserted that the mother had failed to provide for the material needs of the child, to obtain and maintain stable housing and employment, to attend parenting classes, or to visit the child. DHR further asserted that the mother’s parental rights should be terminated because the child was dependent, the mother was not a fit and suitable parent, DHR had made reasonable efforts to reunite the mother and the child, which were unsuccessful, and no viable alternatives to the termination of the mother’s parental rights existed.

On February 28, 2012, a permanency hearing was held by Judge Sandra Storm. An order dated February 28, 2012, indicates that the mother was required to participate in counseling, to complete parenting classes, and to obtain or maintain suitable housing and employment. The order specifically notes that “DHR was relieved of Reasonable Efforts on Sept. 15, 2011[,] due to lack of cooperation and progress with the [Individualized Service Plan] process.” The permanency plan for the child was “permanent relative placement” or “adoption with no identified resource”; the order indicates that the child’s foster parents did not intend to pursue adoption. The mother retained a right to supervised visitation and was not required to pay child support.

The termination-of-parental-rights trial was held on June 19, 2012. On August 23, 2012, the juvenile court entered a judgment terminating the mother’s parental rights. The judgment reads, in pertinent part:

“The court does find, pursuant to Title 12-15-319, Code of Alabama, 1975, that [the mother is] unable to discharge [he]r responsibilities to and for the child[ ]; that the conduct and condition of [the mother is] such as to render [her] unable to properly care for the child, and that such conduct and condition [is] unlikely to change in the foreseeable future.
“[The mother has] failed to adjust [her] circumstances to meet the child’s needs, pursuant to Title 12-15-319, Code of Alabama, 1975 and Title 12-15-301, Code of Alabama, 1975.
“The court also finds that there are no suitable relative resources willing or able to receive custody of the child[]. The court finds there is no viable alternative to termination of parental rights in this case.”

The mother filed a motion to alter, amend, or vacate the judgment on August 28, 2012, arguing that DHR had not provided clear and convincing evidence demonstrating that the mother’s parental rights should be terminated or that maintaining the status quo was not a viable alternative; she also argued that the date of the trial was incorrectly stated in the judgment. On August 29, 2012, the juvenile court rendered an order granting the mother’s postjudgment motion in part by correcting the date of the trial; in all other respects, it denied the mother’s motion. The order was not entered on the State Judicial Information System (“SJIS”) Case Detail Sheet. The mother filed an amended postjudgment motion seeking the termination of her parental responsibilities on September 6, 2012. The juvenile court rendered an order denying the mother’s amended postjudgment motion on September 11, 2012; that order was not entered in SJIS. The mother filed a notice of appeal on September 10, 2012.

The juvenile court’s orders on the mother’s postjudgment motions were not entered in SJIS as required by Rule 58(c), Ala. R. Civ. P. See Rule 1(A), Ala. R. Juv. P. However, because the juvenile court had timely rendered its orders pursuant to Rule 58(a)(l)-(4), Ala. R. Civ. P., the orders on the mother’s postjudgment motions were not denied by operation of law on the 14th day after their filing. See Committee Comments to the Amendment to Rule 59.1, Ala. R. Civ. P., effective October 24, 2008. On remand from this court, the juvenile-court clerk entered the August 29, 2012, and the September 6, 2012, postjudgment orders in SJIS. The mother’s appeal became effective when the juvenile-court clerk entered the rulings in SJIS on May 22, 2013. See Rule 4(a)(4), Ala. R.App. P. (“A notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after the entry and on the date thereof.”).

The mother seeks our review of two issues: whether the juvenile court’s findings of fact are supported by clear and convincing evidence and whether the juvenile court failed to consider a continuation of the status quo as a viable alternative to the termination of the mother’s parental rights to the cjiild.

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

At the termination-of-parental-rights trial, the mother testified that she had completed a parenting class in 2009, that she had submitted to a psychological evaluation, and that she had maintained housing for three years in an apartment provided by “the government.” The mother said that she had participated in, but had never completed, counseling. She admitted that she did not provide support for the child, and she testified that she did not have any income because she was not able to obtain employment. According to the mother, she could not work because she was disabled. The mother admitted that she had not informed DHR that she was pregnant with the child, but she testified that she had been unaware that she was pregnant because symptoms of a severe abdominal hernia had masked the signs of pregnancy. The mother further testified that until March 2012 she had visited the child twice a month, but she admitted that she had not visited the child since that time. According to the mother she had not exercised her supervised visitation with the child because the telephone number and address for DHR had changed and she did not have DHR’s contact information.

Heather Shugart, a DHR employee, testified that DHR had mailed a letter to the mother during the last week of April 2012 to inform the mother of DHR’s change of address and telephone number as of May 10, 2012. Shugart said that the mother had not visited the child in the six weeks preceding the termination trial; she said that the mother’s last visit with the child occurred on May 8, 2012. Shugart admitted that the mother had completed one series of parenting classes, but, although the mother had been required to “redo it after the birth of [the child],” she had not completed the second series of parenting classes. She confirmed the mother’s testimony that she had participated in but had never completed counseling. Shugart admitted that the mother had submitted to a psychological evaluation and that the mother’s apartment was organized and clean, although she testified that the mother had also lived in two unsuitable places since the child was born. Shugart testified that she had brought the child to the mother’s apartment for “therapeutic visits.” Shugart explained that at those visits she would “coach” the mother and teach her appropriate ways to care for the child. She said that child would cry and need care. When asked how much she had to coach the mother, Shugart said: “Not a whole lot.” Shugart said that the child had a genetic disorder that required the care of an orthopedic physician every three to six months and that the mother had not “take[n] the initiative” to become involved in the child’s treatment, but Shu-gart admitted that she had not informed the mother of the dates of the child’s medical appointments.

Shugart testified that the mother’s parental rights should be terminated because the child had medical issues and because the mother lacked financial stability and did not have transportation. She said she was concerned because the mother had been awarded only supervised visitation with the siblings and because the mother’s credibility was “skewed” due to her unwillingness to inform DHR that she was pregnant with the child.

At the close of the trial, the juvenile-court judge orally stated:

“All right. I want to thank you all and I will get an order to you. I will — I want to say something about this case. I haven’t quite made up my mind, but I will say that I think it would have helped me to have some medical records on your client, if there are any. And it would have helped me to have a psychological evaluation. I didn’t have any of that.
“Judges we rule on what we get. I have tried to sit here and think what would be going on with you. It looks to me like incredible passivity like just — I don’t know. I don’t understand it, but the children are getting older and older. It’s an unusual case. But not — you know, it is. It’s just kind of — very often, I try to understand what’s going on with a parent. I just don’t get it here.”

The grounds for termination of parental rights are set out in § 12-15-319(a), Ala. Code 1975, which provides 12 factors that a juvenile court must consider when determining whether a parent is unable or unwilling to discharge his or her parental responsibilities. In this case, the juvenile court terminated the mother’s parental rights, relying exclusively on § 12-15-S19(a)(12), which provides in its entirety:

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

Thus, we must determine whether the juvenile court was presented with clear and convincing evidence to support the judgment terminating the mother’s parental rights to the child based upon § 12-15-319(a)(12). “The party seeking to terminate parental rights must present clear and convincing evidence that the parent is not capable of or is unwilling to discharge his or her parental responsibilities.” K.W. v. J.G., 856 So.2d 859, 874 (Ala.Civ.App.2003) (citing V.M. v. State Dep’t of Human Res., 710 So.2d 915, 919 (Ala.Civ.App.1998)).

“This court fully recognizes the difficulty of cases such as this. Nevertheless, the termination of parental rights is a drastic measure, and we know of no means by which those rights, once terminated, can be reinstated. The evidence in these cases ‘does not rise to the level of being so clear and convincing as to support termination of the parental rights of the mother, such action being the last and most extreme disposition permitted by statute.’ East v. Meadows, 529 So.2d 1010, 1012 (Ala.Civ.App.1988). See also L.A.T. v. State Dep’t of Human Resources, 588 So.2d 471 (Ala.Civ.App.1991).”

V.M., 710 So.2d at 921; see also A.H. v. Houston Cnty. Dep’t of Human Res., 122 So.3d 846 (Ala.Civ.App.2013.)

We conclude that the juvenile court was not presented with evidence, “competent, material, and relevant in nature,” from which it could have been clearly convinced that the mother was unable or unwilling to discharge her parental responsibility to the child or that her conduct or condition rendered her unable to properly care for the child and that her conduct or condition was unlikely to change in the foreseeable future. See § 12-15-319(a).

DHR failed to present evidence indicating that the mother was unwilling to parent the child or describing the conduct or condition that made the mother unable to parent the child. In other words, DHR never revealed the mother’s parenting defect. Although we understand that, according to DHR, at some point in 2008 the mother failed to protect K.F., our review of the record reveals no evidence presented to the juvenile court that supports DHR’s assertion regarding K.F. Even assuming that DHR’s assertion is correct, the record contains no evidence presented by DHR regarding the mother’s inability or unwillingness to discharge her parental responsibility to the child. DHR failed to present evidence indicating that the mother had failed to protect the child, was unwilling to protect the child, or had a continuing relationship with the man who had allegedly harmed K.F. in 2008.

Likewise, we have not discovered evidence indicating that any conduct or condition of the mother would render her unable to parent the child. Accordingly, there is no evidence indicating that any conduct or condition that renders the mother unable to parent the child, if such exists, is unlikely to change in the foreseeable future.

Furthermore, DHR did not provide the mother the opportunity to correct any conduct or condition that might have been a barrier to reunification with the child; the mother was not informed of any “circumstance” she needed to adjust in order to meet the needs of the child. On September 15, 2011, when the child was five months old and had never lived with the mother, Judge Barclay relieved DHR of making reasonable efforts to rehabilitate the mother.

“A parent’s parental rights cannot be terminated on the ground that the parent did not adjust his or her circumstances to meet the needs of the children, or on the ground that efforts to rehabilitate the parent had failed, when the sole barrier to reunification was not communicated to the parent by DHR. See H.H. v. Baldwin Cnty. Dep’t of Human Res., 989 So.2d 1094, 1105 (Ala.Civ.App.2007) (opinion on return to remand) (Per Moore, J., with two judges concurring in the result) (‘The natural starting point in any fair and serious attempt to rehabilitate the parent and to reunite the parent with the child is identification of that characteristic, conduct, or circumstance that renders the parent unfit or unable to discharge his or her parental responsibilities to the child. Once DHR identifies the source of parental unfitness, the overarching goal of family reunification requires DHR to communicate its concerns to the parent and to develop a reasonable plan with the parent that is tailored toward the particular problem(s) preventing the parent from assuming a proper parental role.’).”

L.M. v. Shelby Cnty. Dep’t of Human Res., 86 So.3d 377, 388 (Ala.Civ.App.2011).

DHR failed to present clear and convincing evidence that would satisfy the requirements of § 12-15-319(a). Therefore, the juvenile court could not have properly determined that subsection (12) of that statute was an appropriate provision on which to base the termination of the mother’s parental rights. The judgment of the juvenile court is therefore reversed, and the cause is remanded for further proceedings.

Because we find the resolution of the mother’s first argument on appeal determinative of the appeal, we pretermit discussion of the mother’s argument that the continuation of the status quo was a viable alternative. See Favorite Mkt. Store v. Waldrop, 924 So.2d 719, 723 (Ala.Civ.App.2005) (stating that this court would preter-mit discussion of further issues in light of dispositive nature of another issue).

REVERSED AND REMANDED.

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

      . The parental rights of the child's unknown father were also terminated.

      . At the time of the termination-of-parental-rights trial regarding the child, R.O. was in foster care and K.F. was in the custody of his father. The mother’s parental rights to the siblings were not terminated.

      .Apparently, some of the proceedings below were conducted in conjunction with the proceedings relating to the siblings.

      . DHR alleged that the mother had not visited the child since May 2011 and that it had been difficult to contact the mother regarding visitation. However, in its report dated November 18, 2011, DHR reported that the mother's visitation rights had been “suspended” on May 18, 2011. In its report dated February 9, 2012, DHR reported that the mother had exercised her visitation rights with the child "at least once per month at the DHR Building.” We note that the September 14, 2011, order reads: "The terms of visitation may not be changed in an [Individualized Service Plan]”; the record does not contain any court orders suspending or reinstating visitation. However, the juvenile court did not base its termination of the mother’s parental rights on the mother's alleged failure to maintain regular visits with the child. See § 12 — 15— 319(a)(10), Ala. Code 1975.

      . The order indicates that the hearing was a permanency hearing and a "TPR — pre-TRIAL” regarding R.O. and the child.

      . See Ex parte M.D.C., 39 So.3d 1117 (Ala. 2009) (holding that a judgment terminating a parent's parental rights does not also extinguish that parent’s parental responsibilities, such as, for example, the duty to support the child).

      . See also Ex parte Mclnish, 47 So.3d 767 (Ala.2008) (explaining the standard of review to be used in evaluating whether the clear- and-convincing-evidence burden of proof has been met).

      .The mother offered documentary evidence indicating that she had applied for disability benefits, but she testified that she had not yet been approved to receive disability benefits.

      . We have affirmed judgments terminating the parental rights of a parent when a parent has failed or refused to remove himself or herself from a living situation that presented a danger to the parent’s child. See C.W. v. State Dep’t of Human Res., 826 So.2d 171, 173-74 (Ala.Civ.App.2002). However, because there is no evidence indicating that the mother is in a continuing relationship with the man who allegedly harmed K.F., we find no conflict between the holdings in this opinion and previous decisions of this court. See L.M. v. Shelby Cnty. Dep't of Human Res., 86 So.3d 377, 387-88 (Ala.Civ.App.2011) (determining that the record did not contain evidence sufficient to support a finding that the father was unwilling to protect the children from the potential harm presented by another person).


author: PITTMAN, Judge.

text:
    S.A. v. M.T.O. and S.P.O. J.B. v. M.T.O. and S.P.O.
    2120259 and 2120260.
    Court of Civil Appeals of Alabama.
    Oct. 25, 2013.
    Certiorari Petitions Denied Dec. 6, 2013 Alabama Supreme Court 1130165 and 1130166.
    Joseph (Jody) Willoughby of Day & Wil-loughby, P.C., Gadsden, for appellant S.A.

      Brynn Crain of Cusimano, Keener, Roberts, Knowles & Raley, LLC, Gadsden, for appellant J.B.
    Jack W. Torbert, Jr., Gadsden, for ap-pellees.
    Robert M. Echols, Birmingham, guardian ad litem for M.J.B.
   PITTMAN, Judge.

These consolidated proceedings concern the propriety of a final judgment entered by the Etowah Probate Court allowing M.T.O. and S.P.O. (“the petitioners”) to adopt a minor child, M.J.B. (“the child”). Because the probate court erroneously determined that a required consent or relinquishment could be implied under the evidence presented, we conclude that the judgment under review is void and, therefore, dismiss the appeals.

On October 15, 2012, the petitioners filed in the probate court a verified petition seeking to adopt the child. In pertinent part, the petitioners averred in their petition that the child, an infant born in January 2012, was in the custody of the Etowah County Department of Human Resources (“DHR”) and had been physically placed in the petitioners’ home on May 15, 2012; that the child’s mother and father were, respectively, S.A. (“the mother”) and J.B. (“the father”); and that the consents of the mother and the father to the proposed adoption “should be implied due to abandonment of the [child]” or because, the petitioners said, “the mother and father [had] not otherwise maintained a significant parental relationship -with the [child] for a period of six months.” Attached to the petition as an exhibit was a copy of an order entered by the Etowah Juvenile Court (“the juvenile court”) in its case no. JU-12-199.01, which apparently involved the child’s dependency; in that order, the rights of the petitioners to consent to the child’s travel and medical care were recognized by the juvenile court. Also on October 15, 2012, the probate court entered an interlocutory order (see Ala. Code 1975, § 26-10-18) granting the petitioners custody of the child, directing notice of the adoption proceeding to be given to the mother and the father, directing that a particular person (Beth Hughes) perform a post-placement investigation regarding the proposed adoption, appointing a guardian ad litem for the child, and setting the case for a dispositional hearing on December 18, 2012.

Between October 17 and October 29, 2012, DHR, the mother, and the father each filed motions to set aside the probate court’s interlocutory order, and the mother and the father each also sought, in the alternative, a stay of that order. Among the grounds asserted by all the movants were that DHR was “working toward reunification [of the child] with the mother and/or [a] possible relative placement,” that the juvenile court “ha[d] a pending case regarding the ... child,” and that the petitioners were foster parents of the child who had breached their contract with DHR. Further, the mother and the father separately averred in their motions that they had not abandoned the child and had remained in contact with the child by means of visitations scheduled by DHR, and both labeled the petitioners’ abandonment allegation as “an outright false statement.” Further, on October 30, 2012, a guardian ad litem who had been appointed by the juvenile court in the parallel proceeding involving the child filed a motion to set aside the probate court’s interlocutory order, averring that the petitioners were undermining active efforts on the part of DHR, that guardian ad litem, the mother, and the mother’s biological relatives toward reunification of the child and the mother’s family. After the petitioners had filed responses to the motions filed by counsel for DHR, for the mother, and for the father and by the guardian ad litem appointed by the juvenile court, the probate court set the motions for a hearing on December 18, 2012, the same date that court had previously scheduled for a dispo-sitional hearing.

According to testimony given on December 18, on November 7, 2012, the juvenile court entered an order removing the petitioners as foster parents of the child and placing the child in the physical custody of one of the child’s relatives, after which the petitioners apparently secreted the child from authorities. Thereafter, the probate court entered an order directing the petitioners “not to turn over custody of [the] child to any third parties pending further orders of’ that court. The conflict between the respective courts’ custody determinations prompted the issuance of an order on November 27, 2012, executed by four circuit-court judges and two district-court judges sitting in Etowah County that was directed to the sheriff of Etowah County and that mandated that the child be picked up from the petitioners and delivered to DHR. The mother then filed two motions in the probate court on November 30, 2012, one seeking the vacation of the probate court’s custody order and the other seeking dismissal of the adoption proceeding; both motions were based upon the petitioners’ loss of physical custody of the child by operation of the order of the juvenile court and the order executed by the judges of the circuit and district courts. The mother’s motions of November 30, 2012, in the probate court were also set for a hearing on December 18, 2012.

On December 18, 2012, the probate court called the case for a hearing. At that time, counsel for the petitioners requested that all the pending motions in the matter be taken up by the probate court separately and serially and that the courtroom be cleared of other parties and representatives while each movant’s motions were heard. The probate court granted the request of petitioners’ counsel and ordered the courtroom, in turn, cleared of persons not arguing DHR’s motions, the father’s motions, the mother’s motions, and the motion of the guardian ad litem that had been appointed by the juvenile court. During the hearing on her motions, the mother elicited testimony from Will Clay, the judge of the juvenile court who had presided over the dependency proceeding involving the child, and M.T.O., one of the petitioners. After all the motions had been argued and the probate court had indicated that they would be denied, the probate court then proceeded to bar from the courtroom anyone except the guardian ad litem that court had appointed, the petitioners, their counsel, and their sole witness, Bess Estis, a social worker who had made two visits to the petitioners’ home and who had prepared a post-placement report regarding the proposed adoption.

On the next day, December 19, 2012, the probate court entered orders denying all the pending motions that had been filed by the mother, the father, DHR, and the child’s guardian ad litem appointed by the juvenile court; an order appointing Estis to perform a post-placement investigation under Ala.Code 1975, § 26-10A-19(d)(l)d.; and a three-page judgment granting the proposed adoption. In its judgment, the probate court determined, in pertinent part, that the father and the mother had “failed to maintain a significant parental relationship with the [child] for a period in excess of six” months and that they had “impliedly and irrevocably consented to the” adoption. The father and DHR filed postjudgment motions to alter, amend, or vacate the final judgment, which were denied, and the mother and the father timely filed both notices of appeal from the judgment in the probate court and petitions for the writ of mandamus in this court; this court Consolidated the cases and directed that they be treated as appeals, and they have been captioned accordingly.

The mother and the father assert five identical issues. The first issue, whether the probate court properly entered its interlocutory order concerning the child’s custody during the pendency of the adoption proceeding, was rendered moot by the entry of the probate court’s final judgment granting the petition to adopt the child. See Ex parte A.M.P., 997 So.2d 1008, 1015 (Ala.2008) (“Once the final order of adoption is entered, the interlocutory order becomes moot.”). Similarly, the fourth and fifth issues— whether the probate court erred in permitting the introduction of purportedly inadmissible evidence at the dispositional hearing and whether it erred in accepting Estis’s post-placement investigation report despite, according to the mother and the father, supposedly lacking certain categories of required information — do not warrant disturbing the probate court’s judgment; those alleged errors were not first raised in the probate court and, therefore, have been waived. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“[An appellate court] cannot consider arguments raised for the first time on appeal; rather, [its] review is restricted to the evidence and arguments considered by the trial court.”); accord Alabama Dep’t of Human Res. v. B.V., 59 So.3d 700, 710 (Ala.Civ.App.2010) (applying rule to review of probate-court judgment).

However, the second issue raised by the mother and the father — whether the probate court erred in determining that the mother had impliedly consented to the adoption of the child — directly implicates the probate court’s very authority to grant the relief requested by the petitioners:

“ ‘ “The adoption of a child was a proceeding unknown to the common law. The transfer of the natural right of the parents to their children was against its policy and repugnant to its principles. It had its origin in the civil law and exists ... only by virtue of the statute which ... expressly prescribes the conditions under which adoption may be legally effected.
“ ‘ “Consent lies at the foundation of statutes of adoption, and under our law this consent is made absolutely essential to confer jurisdiction on the ... court to make an order of adoption, unless the conditions ... exist specially provided by the statute itself and which render such consent of the parents unnecessary. Unless such consent is given, or, for the exceptional causes expressly enumerated is dispensed with, the court has no jurisdiction in the matter.... The power of the court in adoption proceedings to deprive a parent of his child being in derogation of his natural right to it, and being a special power conferred by the statute, such statute must be strictly construed, and in order to warrant the exercise of the special power ... in opposition to the wishes and against the consent of the natural parent, on the ground that conditions prescribed by statute exist which make that consent unnecessary, the existence of such conditions must be clearly proven ... if the statute is open to construction and interpretation, it should be construed in support of the right of the natural parent.” ’ ”

Ex parte A.M.P., 997 So.2d at 1015-16 (emphasis added; quoting McGowen v. Smith, 264 Ala. 303, 305, 87 So.2d 429, 430-31 (1956), quoting in turn In re Cozza, 163 Cal. 514, 522-24, 126 P. 161, 164-65 (1912)); accord M.M. v. D.P., 37 So.3d 179, 183 (Ala.Civ.App.2009) (“Because the probate court did not find that the father had consented to the adoption, the probate court was without jurisdiction to grant the stepfather’s petition and its judgment purporting to do so is void.”).

The Alabama Adoption Code (“AAC”), Ala.Code 1975, § 26-10A-1 et seq., provides that for an adoption to have any legal effect, certain persons must give consent, including “[t]he adoptee’s mother.” Ala.Code 1975, § 26-10A-7(a)(2). As the Comment to that statute, which was published in the Alabama Code along with the statute itself, states, “the persons listed in section 26-10A-7 have an absolute veto power over the proposed adoption.” Moreover, that Comment, as well as the Comment following Ala.Code 1975, § 26-10A-24, leave no doubt that questions of consent take priority over issues regarding whether the proposed adoption is in the best interests of a proposed adop-tee. Finally, we note that under the AAC a probate court must find by “clear and convincing evidence” that “[a]ll necessary consents” to a proposed adoption “have been obtained.” See Ala.Code 1975, § 26-10A-25(b)(2); accord K.L.B. v. W.M.F., 864 So.2d 333, 339 (Ala.Civ.App.2002) (stating that the AAC “requires that implied consent must be found on ‘clear and convincing evidence’ ”).

Although there was no evidence presented that the mother expressly consented to the proposed adoption, the probate court in this case concluded, in pertinent part, that the mother’s consent could be implied because, that court determined, she had “failed to maintain a significant parental relationship with the [child] for a period in excess of six ... months.” The AAC provides that a consent required under § 26-10A-7 may be implied by, among other things, a parent’s “[k]nowingly leaving the adoptee with others without provision for support and without communication, or not otherwise maintaining a significant parental relationship with the adoptee for a period of six months.” Ala.Code 1975, § 26-10A-9(a)(3) (emphasis added). Consistent with settled rules of statutory construction, we must interpret the general phrase “not otherwise maintaining a significant parental relationship” in this context with reference to the specified circumstance listed, ie., knowingly leaving an adoptee both without support and without communication. Cf. Foster v. Dickinson, 293 Ala. 298, 300, 302 So.2d 111, 113 (1974) (“The words, ‘or otherwise’ in law when used as a general phrase following an enumeration of particulars are commonly interpreted in a restricted sense as referring to such other matters as are kindred to the classes before mentioned, receiving ejus-dem generis interpretation.”).

The record in this case in large measure consists of documentation submitted by the petitioners detailing the medical care administered to the child after the child had been hospitalized on two separate occasions between March 2012 and May 2012 with symptoms first of pneumonia and then of dehydration. That documentation does not reflect uniformly well upon the mother’s parenting during the four-month period between the child’s birth in mid-January 2012 and the child’s placement in foster care with the petitioners in mid-May 2012. Neither does the evidence of record of the mother’s loss of parental rights in a California proceeding as to an older sibling of the child inspire confidence in the mother’s ability to parent the child.

That said, however, it must be remembered that the legislature of Alabama has seen fit to mandate that a mother’s consent to a proposed adoption of her child shall be required and that that consent may be deemed implied under subsection (a)(3) of § 26-10A-9 only from the existence of a six-month period during which that mother has “[k]nowingly le[ft] the adoptee with others without provision for support and without communication” or has similarly failed to act to maintain a significant parental relationship. Not only does the record reflect no voluntary actions on the mother’s part during the first four months of the child’s life to leave the child in the care of others except for the limited purpose of obtaining medical services, but the record also reflects that the mother lost custody of the child involuntarily by judicial action after the child’s hospitalization during mid-May 2012. Further, despite the petitioners’ having affirmed, in a conclusory manner, in the verified petition to adopt that the mother had abandoned the child and had failed to maintain a significant parental relationship with the child for a six-month period preceding the filing of that petition, M.T.O. admitted during questioning by the mother in the probate court that the child had been picked up from the petitioners’ home by DHR personnel for periods of up to three hours weekly for visits with the mother. Because the child was physically removed from the mother’s home by order of the juvenile court, the only inference the record supports is that the mother did all she could have done between May 2012 and October 2012 to “maintain[ ] a significant parental relationship” with the child by attending scheduled visitation. Finally, the period between mid-October 2012, when the adoption petition was filed, and mid-December 2012, when the final judgment was entered, was less than six months, which is insufficient to permit an inference of implied consent to be drawn under § 26-10A-9(a)(3). See M.M., 37 So.3d at 183 (probate court’s finding that a parent had failed to visit or support a child for three months did not support determination of implied consent to adoption under § 26-10A-9(a)(3)).

Based upon the foregoing facts and authorities, we conclude that “clear and convincing evidence” was not adduced that the mother had impliedly consented to the adoption sought by the petitioners. As the mother and the father correctly note in connection with their third issue on appeal, the AAC mandates that “[i]f any party whose consent is required fails to consent” to a proposed adoption, the adoption proceeding “will be transferred to the court having jurisdiction over juvenile matters for the limited purpose of termination of parental rights.” Ala.Code 1975, § 26-10A-3. We hold that the probate court acted outside its jurisdiction in granting the petition to adopt in the absence of the required express or implied consent of the mother; we thus dismiss the appeals as being from a void judgment, see M.M., 37 So.3d at 183, with instructions to the Eto-wah Probate Court to vacate its final judgment of December 19, 2012.

APPEALS DISMISSED WITH INSTRUCTIONS.

THOMAS, MOORE, and DONALDSON, JJ., concur.

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

      . The petitioners and the guardian ad litem appointed by the probate court have moved to dismiss the mother’s appeal or, in the alternative, to strike all or part of the mother's appellate brief because of the mother’s inclusion of matters that, the movants contend, are dehors the record. On the authority of Roussel v. Payne, 352 So.2d 1364, 1370 (Ala.Civ.App.1977), we deny the motions, albeit not without noting that ”[t]his court in this instance, as in all instances, only considers relevant matters as shown by the record.”

      . We note that neither DHR nor the parents of the child petitioned for an extraordinary writ or moved for a stay of the probate court's proceedings between the entry of the probate court’s interlocutory order and the entry of the final adoption judgment.

      . The father's postjudgment motion to alter, amend, or vacate averred that the probate court was without power to enter a final adoption judgment without a post-placement investigation report and that Hughes, who had previously been appointed in the interlocutory order to perform the post-placement investigation, would be unable to perform such an investigation because the child was no longer capable of being observed in the petitioners’ home. However, Estis performed a post-placement investigation over the course of two visits, one of which occurred during the child’s presence in the petitioners’ home, and her authority was formally confirmed by an order of the probate court that was entered after she had testified at the dispositional hearing to her licensure as a social worker and her findings regarding the petitioners' home. Thus, at the time of the probate court’s final judgment, that court had, in fact, received a post-placement investigation report from ”[a]n individual appointed by the court,” see Ala.Code 1975, § 26-10A-19(d)(l)d., thereby negating that particular purported impediment to the probate court’s authority to enter its judgment.

      . Because the question of consent is of jurisdictional magnitude, and because the existence of subject-matter jurisdiction is open to question at any time, even ex mero motu, see C.J.L. v. 868 So.2d 451, 453 (Ala.Civ.App.2003), we deem immaterial the apparent position of the petitioners and of the guardian ad litem appointed by the probate court that the mother and the father somehow did not timely inject the issue of the absence of the mother’s consent into the probate-court proceedings.

      . Although the main opinion in K.L.B. was a plurality opinion of two judges of this court, two other judges separately expressed agreement in that case with the proposition that clear and convincing evidence of implied consent is necessary to sustain an adoption judgment based upon the presence of such implied consent. See 864 So.2d at 351 (opinion of Yates, P.J., concurring in the result, joined by Crawley, J., ”agree[ing] that, under the facts of th[at] case, there was not clear and convincing evidence” of implied consent).

      . In light of the contention of the petitioners and the guardian ad litem appointed by the probate court that the conclusory statement of implied consent in the petition itself amounts to evidence, we deem it pertinent to note here that our supreme court has recognized that " 'verification alone does not necessarily convert a pleading into an acceptable affidavit’ ” and that " '[i]f a verified pleading proves to be inadequate to serve as an affidavit, it should have no more effect than an unverified pleading.’ ” Ex parte Quinlan, 922 So.2d 914, 917 (Ala.2005) (quoting 5A Charles Alan Wright & Arthur K. Miller, Federal Practice & Procedure: Civil § 1339 (3d ed. 2004)).