author: PITTMAN, Judge. MOORE, Judge, dissenting.

text:
    TaMarkus J. KING v. Kimberly TILLMAN-GILBERT
    2160997
    Court of Civil Appeals of Alabama.
    August 10, 2018 Rehearing Denied September 28, 2018
    Melissa Isaak and Nichole Woodburn of The Isaak Law Firm, Enterprise, for appellant.
    Kimberly Tillman-Gilbert, appellee, pro se.
   PITTMAN, Judge.

TaMarkus J. King ("the father") appeals from a judgment of the Elmore Circuit Court ("the circuit court") awarding him limited visitation with C.T. ("the child"), a boy to whom Kimberly Tillman-Gilbert ("the mother") gave birth in 2007. We reverse and remand.

In late 2006, the mother and the father had a three-month sexual relationship during which the child was conceived. The mother and the father never married. The father subsequently married another woman and had two daughters by her, and the mother subsequently married another man and had three children by him. In 2008, the mother brought a child-support action against the father in the Perry Juvenile Court ("the juvenile court"); however, the juvenile court dismissed that action in March 2010 "due to [the mother's] refusal to abide by any orders of [the juvenile court]."

In January 2015, when the child was seven years old, the father brought the present action against the mother in the circuit court, seeking visitation with the child. In April 2016, the circuit court entered a pendente lite order determining that the father was the biological father of the child; awarding custody of the child to the mother; ordering the father to pay child support in the amount of $451 per month commencing May 1, 2016; ordering the father not to "directly or indirectly state to [the child] that [the father] is [the child's] father; and ordering the mother and the father "to establish a meeting (play date) for the children to all get together, and know one another," with "no restrictions as to who may come."

In May 2016, the father sent the circuit court a letter reporting that he could communicate with the mother only through Facebook, a social-media Web site; that he had attempted to contact the mother through Facebook twice in April and once in May about scheduling a play date; and that the mother had failed to respond. The circuit court treated the father's letter as a motion to find the mother in contempt and ordered the mother to appear and show cause why she should not be held in contempt for violating the circuit court's pendente lite order. After several continuances, the circuit court held the show-cause hearing. Thereafter, in September 2016, the circuit court entered an order finding that the play dates required by the pendente lite order had not occurred, ordering "the parties ... to meet for 3 hours beginning at 12:00 noon on 9-10-16 and 10-1-16 at [a designated restaurant] for the parties' child to be with and communicate with his father," and setting a hearing in October 2016 to review the parties' compliance with that order. Following that compliance hearing, the circuit court entered an order finding that the parties were in compliance.

In December 2016, the father filed a motion asking the circuit court to set a final hearing in the action. In response, the circuit court scheduled a final hearing in February 2017; however, that hearing was subsequently continued. In March 2017, the circuit court held another compliance hearing. Thereafter, the circuit court entered an order finding that the parties were in compliance and noting that the child still did not know that the father was his biological father and thought that the mother's husband was his father.

The circuit court commenced a final hearing in May 2017 and concluded it in August 2017. After the final hearing was concluded, the circuit court, in August 2017, entered a final judgment providing "that the parties have been exercising a play-date visitation schedule, whereby the parties and their children appear at a previously [designated] restaurant for the children and parents to see and visit with one another"; ordering that the parties were to continue to adhere to that play-date visitation schedule; ordering that the father was to continue to adhere to the provision in the pendente lite order prohibiting him from informing the child of the father's paternity; and ordering that the father was to continue paying child support in the amount of $451 per month.

The father timely filed a postjudgment motion challenging the circuit court's judgment insofar as it limited his visitation and prohibited him from informing the child of the father's paternity. Following a hearing on the father's postjudgment motion, the circuit court entered an order amending the judgment to specify that the monthly play dates were to occur on the last Saturday of each month but otherwise denying the relief sought by the father. The father then timely appealed to this court.

On appeal, the father argues that the circuit court erred in limiting his visitation because, he says, one three-hour play date per month does not afford him sufficient time with the child and because, he says, allowing the mother and her husband to attend his visits with the child has resulted in de facto supervised visitation because the mother and her husband have attended every play date. He also argues that the circuit court exceeded its discretion in prohibiting him from informing the child of the father's paternity.

The father acknowledges that "[a] trial court has broad discretion in determining the visitation rights of a noncustodial parent" and that "its decision in this regard will not be reversed absent an abuse of discretion," Carr v. Broyles, 652 So.2d 299, 303 (Ala. Civ. App. 1994) ; however, he asserts that, under Alabama law, "[a] noncustodial parent generally enjoys 'reasonable rights of visitation' with his or her child[ ]," Pratt v. Pratt, 56 So.3d 638, 641 (Ala. Civ. App. 2010) (quoting Naylor v. Oden, 415 So.2d 1118, 1120 (Ala. Civ. App. 1982) ). He acknowledges that a trial court may restrict a noncustodial parent's visitation to protect a child from conduct, conditions, or circumstances surrounding the noncustodial parent that endanger the child's health, safety, or well-being; however, he asserts that the circuit court had no evidence before it indicating that the father's conduct, conditions, or circumstances posed a danger to the child's health, safety, or well-being. To the contrary, the father argues that the undisputed evidence indicated that he is willing and able to care for the child; that he has a job; that he has been married for seven years; that he has two daughters, who are the child's half sisters; and that he is eager to form and maintain a meaningful parent-child relationship with the child. The mother's opposition to the father's being awarded "standard" visitation was based solely on her contention that the father had not come forward to assume the responsibilities of a parent earlier in the child's life. However, she admitted that the father had sought visitation in the child-support action she had brought in 2008; that, in that child-support action, she would agree only to the father's being awarded the limited, de facto supervised visitation that was later awarded the father by the circuit court in the pendente lite order entered in the present action; that the father had been unwilling to settle for such limited visitation; and that the juvenile court had dismissed the child-support action before ruling on the father's visitation. The record is clear that the mother has never been willing to facilitate or encourage a relationship between the father and the child. For example, she testified:

"Q. [By the father's counsel:] Let me ask you since these visits have been established, what have you done to make sure that [the child] feels comfortable around [the father]?
"A. I have brought him to the visitations.
"Q. Did you explain to him that he was there to see [the father]?
"A. The Court documentation does not say that he is there to come see [the father]. The Court documentation says play dates.
"Q. So as far as you're concerned, you just took [the child] there to just eat and play at Burger King?
"A. That's correct, according to what it says.
"Q. Do you understand that the reason for the visits were so that [the child] could establish a relationship with [the father]? Do you understand that?
"A. I understand that I'm to bring my child to the place that is designated and that's what we have done.
"Q. But you made no attempt to make sure that a relationship was established between [the child] and [the father]?
"A. It wasn't in the court -- I was not told that I had to do anything other than bring my child to the play dates.
"Q. So regarding [the child's] relationship with [the father], you are not going to do anything unless it is Court ordered; is that true?
"A. At this time, that's what I'm supposed to do, abide by the Court order because he brought it to court. That's what we're doing."

The United States Supreme Court has held that the parental rights of an unwed father who does not come forward to accept his responsibilities as a parent when his child is born is not entitled to the full protection of the United States Constitution. See, e.g., Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). However, the United States Supreme Court's decisions are not controlling in determining whether Alabama law affords an unwed father's parental rights protection. See Ex parte D.J., 645 So.2d 303 (Ala. 1994). As the father states in his brief, "[t]he State of Alabama has a public policy encouraging interaction between noncustodial parents and their children." See, e.g., Pratt, 56 So.3d at 641.

"In fashioning the appropriate restrictions [on the visitation awarded a noncustodial parent], out of respect for the public policy encouraging interaction between noncustodial parents and their children, see Ala. Code 1975, § 30-3-150 (addressing joint custody), and § 30-3-160 (addressing Alabama Parent-Child Relationship Protection Act), the trial court may not use an overbroad restriction that does more than necessary to protect the child[ ]. See Smith v. Smith, 887 So.2d 257 (Ala. Civ. App. 2003), and Smith v. Smith, 599 So.2d 1182, 1187 (Ala. Civ. App. 1991)."

Pratt, 56 So.3d at 641.

This court's decision in Carr v. Broyles, supra, is instructive. In Carr,

"Sandra Gail Broyles Carr [ ('Sandra') ] and Mike Lane Broyles [ ('Mike') ] were divorced in 1990. [Mike] was awarded custody of the parties' minor child [ ('the daughter'], a daughter who [was] five years old. [Sandra] was ordered to pay child support in the amount of $192.42 per month and was awarded visitation every other weekend, plus time in the summer and on holidays. [Sandra] made no child support payments to [Mike]. Her exercise of her visitation rights was sporadic, but she contended that [Mike] refused to let her see the daughter because she had not paid child support. [Mike] did let the daughter visit her maternal grandparents, but he informed them that he did not want the [daughter] around [Sandra].
"In February 1994 [Sandra] petitioned the trial court for a reduction in child support and for enforcement of her visitation rights. [Mike] counterpetitioned, asking the court to terminate [Sandra's] parental rights and to hold her in contempt for nonpayment of child support. After a hearing, the trial court refused to terminate [Sandra's] parental rights, found her to be in contempt of its prior order because of her failure to pay child support, ordered her incarcerated unless she paid $3,000 toward her arrearage within 60 days, modified her current child support obligation to $156.32 per month, ordered her to pay an additional $150 per month toward an arrearage of $9,012, and modified her visitation to one weekend each month and 48 hours at Christmas, with all visitation to be supervised by her parents."

652 So.2d at 300-01. Sandra then appealed to this court and asserted, among other things, that the trial court had exceeded its discretion in modifying her visitation privileges with the daughter. Reversing the trial court's judgment insofar as it had modified Sandra's visitation privileges, this court stated:

"Finally, we review the trial court's modification of [Sandra's] visitation privileges with the daughter. The trial court has broad discretion in determining the visitation rights of a noncustodial parent, and its decision in this regard will not be reversed absent an abuse of discretion. Alexander v. Alexander, 625 So.2d 433, 435 (Ala. Civ. App. 1993). Every case involving a visitation issue must be decided on its own facts and circumstances, but the primary consideration in establishing the visitation rights accorded a noncustodial parent is always the best interests and welfare of the child. Fanning v. Fanning, 504 So.2d 737, 739 (Ala. Civ. App. 1987).
"The record in this case reflects the following: [Sandra's] last regular visitation with the daughter occurred in February 1993, and she last saw the child in November 1993. The daughter has visited more recently with her maternal grandparents. [Mike] is in part responsible for this situation, because of his refusing to allow the daughter to visit with [Sandra] and his discouraging the grandparents from allowing the daughter to see [Sandra]. [Sandra's] financial situation has hampered her ability to obtain legal assistance in enforcing the visitation afforded her in the divorce judgment. She does not seek an increase in that visitation, but only to exercise the visitation privileges she was granted previously.
"Aside from [Sandra's] failure to pay child support, [Mike] stated that he denied visitation because of [Sandra's] lifestyle, especially the men whom she dates and with whom she has occasionally lived. The record reflects, however, that [Sandra] says she has never allowed a man to stay overnight if the daughter was staying with her and that the daughter has spent very little time around any of the men whom the mother has dated. [Mike] and his present wife, Christine, testified that in their opinions, the daughter's best interests would be best served if [Sandra's] parental rights are terminated and if Christine Broyles is allowed to adopt the daughter. Testimony reflected, however, that the daughter asks about [Sandra] and wants to see [Sandra] and her stepbrother.
"Our examination of the record reveals no evidence to indicate that [Sandra] is in any way incapable of caring for the daughter when the child is visiting with her. [Sandra's] 16-month-old son from her second marriage lives with her, and nothing in the record demonstrates any concern about the welfare of this child in her care. Of equal importance, no evidence in the record suggests that visiting with [Sandra] is in any way detrimental to the daughter. This court has previously held that if a divorce judgment is modified to limit a parent's visitation based on misconduct, the limitation ordered must be supported by evidence that the misconduct of the parent is detrimental to the child. Jones v. Haraway, 537 So.2d 946, 947 (Ala. Civ. App. 1988).
"Based on the record before us, we conclude that the trial court abused its discretion in reducing [Sandra's] visitation with the daughter. The trial court appears to have reduced [Sandra's] visitation privileges primarily because of her failure to meet her financial obligations toward her daughter. Reduced visitation on that basis is not in the best interests of this child. A noncustodial parent should be given the opportunity to maintain a meaningful relationship with her child. Speakman v. Speakman, 627 So.2d 963, 965 (Ala. Civ. App. 1993). The trial court's reduction of [Sandra's] visitation rights is not reasonable, given the evidence that the daughter wants to visit with [Sandra] and [her] sibling and that [Sandra] seeks the opportunity to re-establish her relationship with her daughter. We have previously approved limited visitation structured by a trial court to allow for a gradual reacquaintance between a [noncustodial parent] and his children who had not seen each other for some time. Fanning, 504 So.2d at 738-39. In Fanning, however, the trial court set time limits on the limited visitation and expanded the [noncustodial parent's] visitation schedule after allowing for time in which the [noncustodial parent] could re-establish his relationship with his children. The trial court in this case has allowed [Sandra] to become reacquainted with her daughter, but has made no provisions to allow her a reasonable opportunity to develop their relationship.
"Likewise, we conclude that the trial court abused its discretion in ordering that all visitation be supervised by the maternal grandparents. The testimony that [Sandra] is capable of caring for her daughter during visitation was undisputed. There is no evidence that visiting in [Sandra's] home has ever been, or will be, harmful to the daughter. This court has upheld supervised visitation in cases in which there were allegations of abuse on the part of the noncustodial parent or in instances in which the noncustodial parent experienced severe psychological problems. See, e.g., I.L. v. L.D.L., Jr., 604 So.2d 425 (Ala. Civ. App. 1992) ; Y.A.M. v. M.R.M., 600 So.2d 1035 (Ala. Civ. App. 1992) ; Watson v. Watson, 555 So.2d 1115 (Ala. Civ. App. 1989) ; Caldwell v. Fisk, 523 So.2d 464 (Ala. Civ. App. 1988). Those concerns are not present in this case. We reverse that portion of the trial court's judgment reducing and restricting [Sandra's] visitation with her daughter and remand this case to the trial court with instructions to set a more reasonable, expanded schedule of unsupervised visitation between [Sandra] and the daughter."

652 So.2d at 303-04.

In Carr, Sandra had not paid some of the child support she had been ordered to pay and had visited the daughter only sporadically. The record indicated that Sandra was solely responsible for her failure to pay child support and that both Sandra and Mike were responsible to some extent for Sandra's sporadic visitation with the daughter. This court held that Sandra's failure to pay child support and her failure to visit the child regularly, even to the extent that she was responsible for that failure, were not valid bases for limiting her visitation to 1 weekend each month and 48 hours at Christmas. In the present case, the record indicates that the father failed to pay child support at some unspecified times in the past and failed to visit the child regularly. The father testified that his failure to pay child support had resulted from his inability to locate the mother to pay her; the mother testified that he knew where she was located at all times. Even if we assume that the father was solely responsible for his failure to pay child support in the past, the mother's own testimony indicates that she shares some of the responsibility for the father's failure to visit the child regularly. Consequently, based on the authority of Carr, we conclude that the father's failure to pay child support in the past and his failure to visit the child regularly were not valid bases for limiting his visitation to one three-hour play date per month. As we noted in Carr, this court has "approved limited visitation structured by a trial court to allow for a gradual reacquaintance between a [noncustodial parent] and his child[ ] who have not seen each other for some time," 652 So.2d at 304. Thus, the limited play-date visitation the father was awarded pendente lite in the present case was appropriate; however, the record does not support the circuit court's maintaining such limited visitation in the final judgment.

In Carr, this court held that the trial court had exceeded its discretion in restricting Sandra's visitation to supervised visitation in the absence of any evidence indicating that her conduct, conditions, or circumstances posed a danger to the daughter's health, safety, or well-being. In the present case, the record contains no evidence indicating that the father's conduct, conditions, or circumstances pose a danger to the child's health, safety, or well-being. Therefore, we conclude that the circuit court exceeded its discretion in imposing de facto supervision on the father's visitation by allowing the mother and her husband to attend the father's visits.

"A noncustodial parent should be given the opportunity to maintain a meaningful relationship with [his] child." Carr, 652 So.2d at 304. The father and the child cannot form and maintain a meaningful parent-child relationship if the child does not even know that the father is one of his parents. Therefore, we conclude that the circuit court exceeded its discretion by prohibiting the father from telling the child about his paternity. Accordingly, we reverse the judgment of the circuit court and remand the cause for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

Thomas and Donaldson, JJ., concur in the result, without writings.

Moore, J., dissents, with writing, which Thompson, P.J., joins.

MOORE, Judge, dissenting.

I respectfully dissent.

In his brief to this court, TaMarkus J. King ("the biological father") argues that the Elmore Circuit Court ("the trial court") exceeded its discretion in limiting his visitation with C.T. ("the child") to three hours per month and in precluding the biological father from informing the child of his paternity. Specifically, the biological father cites Lehr v. Robertson, 463 U.S. 248, 262, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983), and a passage from Lehr quoted in K.H.M. v. D.L.I., 895 So.2d 950, 956 (Ala. Civ. App. 2003) (plurality opinion), for the proposition that he, as the biological father of the child, has certain parental rights to the child. The biological father argues that "the trial court's denial of [the biological father's] right to express to [the child] that [the biological father] is [the child's] father and its relegation of only three hours' visitation with his child essentially strips [the biological father] of all parental rights" and that the limited visitation awarded to the biological father "has greatly infringed on the parental rights of [the biological father] without justification or cause."

In Lehr, supra, the United States Supreme Court considered whether an unwed biological father had an absolute right to notice and an opportunity to be heard before his child could be adopted. The Court acknowledged that an unwed father has an inchoate interest in establishing a relationship with his child, but concluded that the mere existence of a biological link does not, in and of itself, establish any constitutional right to a continuing parental relationship with the child. Rather, the Court explained, an unwed biological father develops a liberty interest in personal association with his child when he demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of the child and building a substantial relationship with the child. The Court said:

"The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child's development. If he fails to do so, the Federal Constitution will not automatically compel a state to listen to his opinion of where the child's best interests lie."

463 U.S. at 262, 103 S.Ct. 2985 (footnote omitted). Because the unwed biological father in Lehr had not supported his child and had only rarely seen the child in the two years since her birth, the Court concluded that he did not have a sufficient liberty interest in maintaining a relationship with the child requiring the State of New York to provide him notice and an opportunity to be heard before the child could be adopted. In K.H.M., Presiding Judge Yates relied on the above-quoted passage from Lehr in deciding that an unwed father, whom the Montgomery Juvenile Court found had not abandoned his child, was entitled to pursue a relationship with that child.

In his brief to this court, the biological father argues that Lehr and K.H.M. support his claim that he has a right to unsupervised visitation and the right to inform the child of his parentage. By citing Lehr and quoting K.H.M. only insofar as it quoted Lehr, it is clear that the biological father in this case asserts that he has a federal constitutional right to a parental relationship with the child that, he says, has been infringed upon by the trial court. However, the United States Supreme Court has been very clear that the constitutional rights of an unwed father depend not on his biological connection to the child, but on the extent that the unwed father has seized his opportunity to develop an actual parenting relationship to the child. Based on those precedents, an unwed father who has not forged an actual parental relationship with his child despite ample opportunity to do so has no fundamental right to parent the child that would be entitled to the due-process and other protections afforded by the United States Constitution. See Lehr, supra ; see also Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) (unwed biological father who assumed no substantial child-rearing responsibilities was not entitled to due process to prevent adoption of his child).

In this case, Kimberly Tillman-Gilbert ("the mother") presented more than sufficient evidence to prove that the biological father had failed to grasp his opportunities to act as a real parent to the child. According to the mother, the biological father did not provide the mother any emotional or financial support during her pregnancy despite his knowledge of his paternity. After the child was born, the biological father first failed to show for genetic testing, but eventually did undergo testing that revealed his paternity. The biological father showed some interest in the child after the results of the genetic testing were obtained, but failed to consistently communicate or visit with the child. The mother married another man who, according to the mother, has served as the actual father figure for the child. The father did not communicate with the mother about the child except very sporadically and often failed to give the child birthday or Christmas gifts. The father did not file the underlying action to seek visitation with the child until 2015, when the child was already seven and a half years old. By that time, the biological father was essentially a stranger to the child, having had no interaction of any kind with the child for years.

The biological father disputed the mother's account by presenting some evidence indicating that the mother had not facilitated his relationship with the child and that her actions had led him to lose contact with the mother and the child. The trial court observed the parties while testifying, and its determination obviously indicates that the trial court did not believe that the father presented satisfactory evidence to explain his dereliction of his child-rearing duties. The trial court did not explicitly reject the father's version of events but, when it reviews a judgment, this court must presume that the trial court made those implied findings of fact necessary to sustain its judgment provided those findings are supported by the evidence. M.J.C. v. G.R.W., 69 So.3d 197, 200 (Ala. Civ. App. 2011). The biological father specifically argued to the trial court in his postjudgment motion that the judgment violated his constitutional rights. In rejecting that argument, the trial court must have impliedly found that, despite his opportunities, the father had not formed a sufficient parental relationship with the child to be treated as a real father with constitutionally protected parental rights to the child. Based on the record before this court, I cannot conclude that the trial court was plainly and palpably wrong in reaching that factual determination. Therefore, the judgment limiting the visitation between the biological father and the child and prohibiting the biological father from informing the child of his paternity does not violate federal constitutional law as the biological father argues.

To the extent that the father argues that the trial court's judgment violates his parental rights under Alabama law, I disagree with the main opinion on that point. First, the biological father has not cited any authority for the proposition that he has a right under Alabama law to disclose his paternity to the child. Thus, pursuant to Rule 28, Ala. R. App. P., his argument on that point should not even be considered. Assuming we could consider that argument, I cannot locate any Alabama cases, or cases from other jurisdictions, recognizing the right of an unwed father to inform his natural child of his paternity. Alabama law generally holds that the mother, as the sole custodian of a child born out of wedlock, see D.D. v. E.E.B., 707 So.2d 247 (Ala. Civ. App. 1997) ; Danford v. Dupree, 272 Ala. 517, 132 So.2d 734 (1961), has the right to name the child without using the surname of the natural father, see J.M.V. v. J.K.H., 149 So.3d 1100, 1103 (Ala. Civ. App. 2014). Upon establishing paternity, a legal father of a child born out of wedlock may petition to change the surname of the child, but a trial court may deny that petition if it concludes that changing the name of the child is not in the child's best interests. Id. By analogy, it would seem that a state court adjudicating the paternity of a child may likewise prohibit the legal father from disclosing his paternity if doing so is in the best interests of the child.

As in name-change cases, it would seem that the burden would have rested on the biological father to prove that disclosing his paternity to the child would be in the best interests of the child. However, the biological father did not introduce any evidence showing how the best interests of the child would be promoted by the sudden discovery of his paternity. He merely maintained, as he does on appeal, that the child should know him as his father because of their biological connection. On the other hand, the trial court heard from the mother that the child would be confused by the disclosure of his familial connection to the biological father because the child knows her husband as his father. The mother explained that the revelation of the true paternity of the child would only destabilize the family setting in which the child had thrived. Those exact same factors recently led this court, in J.M.V. v. J.K.H., supra, to conclude that a circuit court had erred in changing the surname of a child because it was not proven to be in the child's best interests. That same reasoning convinces me that the trial court did not err in prohibiting the biological father from disclosing his paternity to the child given the absence of any evidence indicating that such disclosure would serve the best interests of the child.

Turning to the visitation issue, once a court adjudicates the paternity of a child, that adjudication does not automatically bestow upon the newly declared legal father a right to standard visitation with his child. Rather, by statute, a court adjudicating paternity may include in its judgment "any other provision ... concerning ... visitation of the child." Ala. Code 1975, § 26-17-636(g). The mode and manner of visitation awarded to an unwed father in a paternity judgment is governed by the best interests of the child. See C.W.S. v. C.M.P., 99 So.3d 864, 869 (Ala. Civ. App. 2012) (stating, in an action to determine paternity of child in which juvenile court, among other things, awarded biological father supervised visitation with child, that "[a] determination of a noncustodial parent's visitation with a child is left to the sound discretion of the juvenile court, after a consideration of the best interests of the child, and this court will not reverse an award of visitation unless the record demonstrates that the juvenile court exceeded its discretion in determining the visitation award").

In deciding what form of visitation serves the best interests of the child, a trial court must consider, among many other factors, the history of the interpersonal relationship between the biological father and the child. See Ex parte Devine, 398 So.2d 686, 697 (Ala. 1981). In this case, it is undisputed that the biological father had no substantial relationship with the child. The mother summarized the history between the biological father and the child as follows:

"When you know that someone is your child, you will do anything to see them, and that is not what [the biological father]
did.... Now, for a parent that knows that a child is their biological child and for them to decide to stop making any effort to take care of them and see them, that is on that person. It is not on the other parent. I will not beg anybody to take care of my son. My child has been taken care of. [The child] has been taken care of for nine whole years by me.
"....
"And by his father, [the mother's husband], without any need or effort from anybody else...."

The mother argued before the trial court that it would be unconscionable to award the biological father standard visitation in light of that history. The main opinion basically concludes that the trial court should have determined that the mother had alienated the child from the biological father, but, based on its judgment denying the biological father standard visitation, the trial court obviously viewed the conflicting evidence differently. The trial court evidently determined that the biological father had voluntarily remained absent from the life of the child and that his past failures to discharge his parental responsibilities to and for the child weighed heavily against his claim for standard visitation. On appeal from ore tenus proceedings in visitation disputes, "this court does not substitute its resolution of disputed facts for the trial court's resolution of those facts." K.D.H. v. T.L.H. III, 3 So.3d 894, 899 (Ala. Civ. App. 2008).

In reaching my conclusion that the judgment should be affirmed, I do not disagree with the general propositions that a noncustodial parent should have a meaningful opportunity to maintain a relationship with a child and that visitation between a child and a noncustodial parent should be restricted only when necessary to protect the health, safety, and well-being of the child. 274 So.3d at 285. However, when a trial court determines from sufficient evidence that an unwed father squandered his opportunity to develop a meaningful relationship with his child and that it would not be in the child's best interests to thrust the child into his unsupervised care, I find that those general propositions of law do not warrant interference with that judgment. Based on the record before us, I cannot agree that the trial court abused its discretion such that its judgment should be reversed.

Thompson, P.J., concurs.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Ameena BAIG v. ALA-TUNE
    2170858
    Court of Civil Appeals of Alabama.
    September 28, 2018
    Ameena Baig, appellant, pro se.
    Submitted on appellant's brief only.
   MOORE, Judge.

Ameena Baig appeals from a judgment entered by the Montgomery Circuit Court ("the trial court") dismissing her complaint against Ala-Tune. We reverse the trial court's judgment.

Procedural History

On February 2, 2018, Baig filed in the trial court a complaint against Coliseum Motor Company ("Coliseum") and Ala-Tune, alleging, in part:

"6. On August 18, 2017, [Baig] purchased from Coliseum a used 2010 Nissan Altima [automobile] [for] the amount of $5,200 in cash.
"7. On August 31, 2017, just thirteen days later, that vehicle broke down and became inoperable.
"8. [Baig] ... had the vehicle towed to Coliseum to have the company assess the vehicle's condition and determine [the] next steps, as [Baig had] signed a warranty for the vehicle.
"9. On or about October 3, 2017, [Baig] filed a lawsuit in the Montgomery County District-Civil Division [ (the district court) ] against Coliseum, seeking damages related to the vehicle.
"10. At some point within the next few ... weeks, in Montgomery County, Alabama, Coliseum unlawfully converted [Baig's] vehicle to Ala-Tune, without [Baig's] knowledge or permission. [Baig] did not discover this fact until several months later, as detailed below.
"11. On December 19, 2017, [Baig's] case was heard before [the district court].
"12. During that hearing, [the district court] instructed Coliseum, via its employee/agent Michael Babston, to return title and possession of the vehicle at issue back over to [Baig].
"13. At that time, Coliseum ..., via Mr. Babston, did provide ... Baig with title of the vehicle.
"14. However, since the hearing concluded, Coliseum, via its employee Mr. Babston, has refused to provide [Baig] with the vehicle itself.
"15. In early-January 2018, just past the 14 day cut-off to file a timely post-judgment motion in [the district] [c]ourt, [Baig] learned for the first time that her vehicle was unlawfully in the possession of Ala-Tune and that Ala-Tune was illegally demanding a 'storage fee' for release of the vehicle.
"16. [Baig] filed a post-judgment motion with [the district court] to request [that court] to compel Coliseum to return the vehicle to [Baig;] however[,] due to the untimeliness of the motion, [Baig's] motion was denied.
"17. [Baig] has NEVER, at any time, received ANY written notice whatsoever from Coliseum that her vehicle was transferred to Ala-Tune. [Baig] has NEVER, at any time, received ANY written notice whatsoever from Ala-Tune that it has possession of her vehicle and/or is holding it for a 'storage fee.'
"18. [Baig] believes that this 'storage fee' is illegally being used as a ransom by Coliseum and/or Ala-Tune with the intent to deprive her of possession of the vehicle. The principal of Ala-Tune, Joseph Bocchino, verbalized to [Baig] that he intended to gain possession of the vehicle, which is illegal given that [Baig] is the lawful titleholder and owner of the vehicle.
"19. Given this statement by Mr. Bocchino and the actions of him and Mr. Babston, [Baig] believes that the two may be acting in concert to hold the vehicle for a ransom with the intent to steal the vehicle[,] which she legally owns and has title to.
"20. To date, which is close to two month[s] since the [district court] hearing concluded, Ala-Tune still has not provided [Baig] written notice of the 'storage fee' amount.
"21. [Baig] has taken every imaginable step to recover possession of her vehicle, even contacting the local police department to enlist their help. They require a court order to compel Coliseum and/or Ala-tune to return [Baig's] vehicle to her.
"22. [Baig] intended to re-sell the vehicle and/or its parts to a buyer she had lined up[;] however, due to Coliseum and/or Ala-Tune's unlawful possession of the vehicle, that sale fell through.
"23. [Baig] has no other choice but to file this Complaint against both Coliseum and Ala-Tune to request relief from this Honorable Court."

(Capitalization in original.)

Baig specifically requested, among other things, a judgment for the market value of the vehicle, the return of her vehicle, and punitive damages. On March 2, 2018, service was perfected on Ala-Tune.

On March 20, 2018, Coliseum filed a motion to dismiss the complaint. On April 18, 2018, Ala-Tune filed a response to the complaint. That response stated:

"I Joey Bocchino (owner of Alatune Auto Repair) was call[ed] in September 2017 to tow away a 2010 Nissan Altima by Donna Bozeman[,] the owner of Coliseum[,] ... from her car lot. I was told that the owner knew where her car was being stored and Mrs. Bozeman made the owner aware that we were charging a storage fee on a daily basis. At the time the owner was involved in a law suit with Mrs. Bozeman. After the owner lost the case she then made false allegations that I was going to jail for stealing her car when she knew where it was the entire time. I have been in business for 35 years. I have never stole anyone's car. I am still storing the car on my lot at this time. The owner ... called me one time and I explained everything to her and she said she was getting the money together to pick up her car so I have not filed the car abandon at this time."

On May 2, 2018, the trial court entered an order granting Coliseum's motion to dismiss. On May 14, 2018, the trial court entered a judgment stating: "This case is hereby DISMISSED as to all parties in the above-styled cause." (Capitalization in original.)

On May 16, 2018, Baig filed a motion to strike Ala-Tune's untimely response and requested that the trial court enter a default judgment or, in the alternative, enter a prejudgment writ of seizure against Ala-Tune. On May 30, 2018, Baig filed a motion requesting that the trial court "reconsider" the judgment of dismissal. Baig filed a second motion to "reconsider" on June 1, 2018. On June 21, 2018, Baig filed her notice of appeal to this court. This court transferred the appeal to the Alabama Supreme Court for lack of appellate jurisdiction; that court subsequently transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

Standard of Review

"[I]n considering whether a complaint is sufficient to withstand a motion to dismiss, we must take the allegations of the complaint as true, Ussery v. Terry, 201 So.3d 544, 546 (Ala. 2016) ; we do not consider ' "whether the pleader will ultimately prevail but whether the pleader may possibly prevail," ' Daniel v. Moye, 224 So.3d 115, 127 (Ala. 2016) (quoting Newman v. Savas, 878 So.2d 1147, 1149 (Ala. 2003) (emphasis added) ); and '[w]e construe all doubts regarding the sufficiency of the complaint in favor of the plaintiff.' Daniel, 224 So.3d at 127."

Ex parte Austal USA, LLC, 233 So.3d 975, 981 (Ala. 2017).

Discussion

On appeal, Baig argues that, because Ala-Tune filed its response more than 30 days after it was served with Baig's complaint, the trial court should have granted her motion to strike Ala-Tune's response and entered a default judgment or, in the alternative, granted her request for a prejudgment writ of seizure. In support of her argument, Baig cites Rules 55(a) and (b)(2), Ala. R. Civ. P., which, respectively, provide for the entry of a default by the clerk of the trial court and the entry of a default judgment by the trial court. We note, however:

"[I]t is well settled that an entry of a default judgment under Rule 55(b)(2), Ala. R. Civ. P., is a matter entrusted to the sound discretion of the trial court. Roberts [v. Wettlin], [431 So.2d 524,] 526 [ (Ala. 1983) ] ; and see, McBride v. McBride, 380 So.2d 886 (Ala. Civ. App. 1980), and Welch v. G.F.C. Credit Corp., 336 So.2d 1346 (Ala. Civ. App. 1976).
"Also, a movant is not entitled to a default judgment as a matter of right. Welch, 336 So.2d at 1349."

City of Gulf Shores v. Harbert Int'l, 608 So.2d 348, 357-58 (Ala. 1992) (footnote omitted).

Because Baig was not entitled to a default judgment as a matter of right simply because Ala-Tune responded to Baig's complaint 16 days late, we cannot conclude that the trial court exceeded its discretion in declining to enter a default judgment in Baig's favor. Gulf Shores, 608 So.2d at 357-58.

Baig also argues that the trial court erred in dismissing the complaint against Ala-Tune because, she says, Ala-Tune failed to detail in its response any defense pursuant to Rule 12(b), Ala. R. Civ. P. Rule 12(b) provides:

"Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19[, Ala. R. Civ. P.]. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, [Ala. R. Civ. P.,] and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."

Having reviewed the response filed by Ala-Tune as quoted above, we cannot conclude that that response could be construed as a motion to dismiss. Ala-Tune's response does not assert that, even "tak[ing] the allegations of the complaint as true," Baig may not " ' "possibly prevail." ' " Austal, 233 So.3d at 981 (emphasis omitted). Instead, it offers Ala-Tune's version of the facts in contradiction to Baig's asserted facts. Because Ala-Tune's response does not meet the requirements of Rule 12(b), we conclude that the trial court erred in dismissing Baig's complaint against Ala-Tune.

Baig also argues that the trial court erred in dismissing the complaint against Ala-Tune because, she says, Ala-Tune's response was untimely pursuant to Rule 12(a), Ala. R. Civ. P. Because we have already determined that the trial court's judgment dismissing the complaint against Ala-Tune was in error, we pretermit discussion of this argument.

Conclusion

Based on the foregoing, we reverse the trial court's judgment dismissing Baig's complaint against Ala-Tune, and we remand the cause for further proceedings.

REVERSED AND REMANDED.

Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.


author: PITTMAN, Judge.

text:
    Clarence Matthew THORNBURY v. MADISON COUNTY COMMISSION
    2170278
    Court of Civil Appeals of Alabama.
    September 28, 2018
    Bart Siniard, Tommy H. Siniard, and William L. Messervy of Siniard, Timberlake & League, P.C., Huntsville, for appellant.
    Frederick L. Fohrell and Katie G. Mooty of Wilmer & Lee, P.A., Huntsville, for appellee.
   PITTMAN, Judge.

Clarence Matthew Thornbury ("the claimant") appeals from a summary judgment entered by the Madison Circuit Court in November 2017 in favor of the Madison County Commission ("the Commission") on the claimant's workers' compensation claim against the Commission, which judgment had concluded that, as a matter of law, the Commission had not been the claimant's employer. We affirm.

In August 2016, the claimant sued the Commission, the City of Huntsville, and various fictitiously named parties, asserting that he had been diagnosed in April 2016 as having contracted one or more occupational diseases stemming from his destruction of methamphetamine-manufacturing equipment in the course of his work as a law-enforcement officer between 2001 and 2015. The Commission answered the complaint, denying that the claimant was entitled to relief because, among other things, the claimant was, in the Commission's view, a state employee and not a county employee and because the claimant had failed to file claims with the county pursuant to statute before commencing his civil action. In addition, the City of Huntsville moved to dismiss the claim against it, attaching various documents outside the pleadings pertaining to the operation of "The Madison-Morgan County Strategic Counterdrug Team" (or "STAC"); the claimant did not oppose that motion or object to any portion thereof, and the circuit court granted the City of Huntsville's motion to dismiss in September 2016.

The claimant later amended his complaint to assert a claim against a third defendant, identified as "the Office of Madison County District Attorney." The State Attorney General filed a motion on behalf of that defendant seeking dismissal on several asserted grounds, including (a) that the district attorney's "office" was not a legal entity susceptible to suit under Section 14 of the Alabama Constitution of 1901, and (b) that the exclusive remedy available to the claimant was to assert a claim under statutes governing the State Employee Injury Compensation Trust Fund ("SEICTF") pursuant to Ala. Code 1975, § 36-29A-1 et seq. (which, the attorney general asserted, had not been timely asserted within 90 days of the employee's medical diagnosis in April 2016). Similar to the City of Huntsville, the attorney general, in seeking the dismissal of "the Office of the Madison County District Attorney" as a party, attached a number of documents pertaining to the operation of STAC. Before that motion was adjudicated, however, all of the parties jointly stipulated in July 2017 to the dismissal of the "Madison County District Attorney's Office" as a party, again leaving the Commission as the sole defendant in the case.

In August 2017, the claimant moved for the entry of a partial summary judgment determining that the Commission was the claimant's employer and asserting that the Commission was estopped to deny that it, rather than the Madison County District Attorney, had employed him. In October 2017, the Commission -- citing, among other cases, Hooks v. Hitt, 539 So.2d 157, 159 (Ala. 1988) ("[b]y virtue of the fact that a district attorney is a state employee, ... those in his employ are also state employees") -- the Commission filed a motion seeking a summary judgment on the basis that the Commission was not the claimant's employer, to which motion the claimant filed a response in opposition. The circuit court, after a hearing, entered a summary judgment in the Commission's favor in November 2017 on the basis that the Commission was not the claimant's employer, thereby implicitly rejecting the claimant's claims of estoppel.

The claimant timely appealed from the summary judgment. Although the claimant does not challenge the binding authority of Hooks regarding his status as a state employee rather than a county employee, he nonetheless contends that the doctrines of equitable and judicial estoppel, both of which he had asserted in the circuit court, compelled a conclusion that the Commission was, in fact, the claimant's employer notwithstanding general principles of law governing employees of district attorneys. Our review of a summary judgment is subject to the following principles:

"A motion for summary judgment tests the sufficiency of the evidence. Such a motion is to be granted when the trial court determines that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The moving party bears the burden of negating the existence of a genuine issue of material fact. Furthermore, when a motion for summary judgment is made and supported as provided in Rule 56, [Ala. R. Civ. P.,] the nonmovant may not rest upon mere allegations or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Proof by substantial evidence is required."

Sizemore v. Owner-Operator Indep. Drivers Ass'n, Inc., 671 So.2d 674, 675 (Ala. Civ. App. 1995) (citations omitted).

Equitable estoppel, the doctrine invoked in the claimant's first argument on appeal, has been defined by our supreme court as

"the principle of law 'by which a party who knows or should know the truth is absolutely precluded, both in law and in equity, from denying, or asserting the contrary of, any material fact which, by [the party's] words or conduct, affirmative or negative, intentionally or through culpable negligence, [the party] has induced another, who was excusably ignorant of the true facts and who had a right to rely upon such words or conduct, to believe and act upon them thereby, as a consequence reasonably to be anticipated, changing [the other's] position in such a way that [the other] would suffer injury if such denial or contrary assertion were allowed.' "

Ellison v. Butler, 271 Ala. 399, 401-02, 124 So.2d 88, 90 (1960) (quoting 19 Am. Jur. Estoppel § 34 (1939) ).

Assuming, without deciding, that a genuine issue of fact as to the culpability, under estoppel principles, of the Commission regarding the Commission's conduct with respect to the claimant's employment status (i.e., its issuance of wage checks, its provision of counsel for the claimant in third-party suits naming him as a defendant, its settlement of previous workers' compensation claims brought by the claimant, etc.) existed, there is no evidence of record tending to support the proposition that the claimant, at the time that the circuit court entered its summary judgment in November 2017 rejecting the equitable-estoppel doctrine, had relied to his material harm upon that conduct. The sole alleged harm asserted by the claimant in the circuit court is that he did not timely provide notice of his condition under statutes and regulations governing the SEICTF and, therefore, had purportedly forfeited, as a matter of law, any rights to seek compensation from the SEICTF. That contention appears to have been derived from the attorney general's motion to dismiss, which had asserted that the claimant had been required to provide written notice of his condition to a supervisor within 90 days of his diagnosis. However, a close examination of the regulations promulgated by the State Director of Finance regarding SEICTF claims reveals that the premise underlying the claimant's assertion of detrimental reliance is faulty.

Pursuant to Ala. Code 1975, § 36-29A-1, the director of finance is authorized to set "terms and conditions" of the SEICTF, i.e., the "program to provide compensation for employees of the state and its agencies" suffering work-related injuries. Those regulations appear in the Alabama Administrative Code at Chapter 355-8-1. Among the terms defined by the regulations is "injury," which expressly includes both accidental injuries and "occupational disease[s]." Ala. Admin. Code (Dep't of Finance), r. 355-8-1-.02(a)(15). The term "occupational disease," in turn, is defined as "[a] disease arising out of and in the course of employment ... which is due to hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee[ ] is engaged." Ala. Admin. Code (Dep't of Finance), r. 355-8-1-.05(a)(1). The regulations adopted by the director of finance expressly state that "an injured employee or the employee's representative, within five days after the occurrence of an accident, shall give or cause to be given to the employer notice of the accident" and that "no benefits [under the SEICTF] shall be payable unless written notice is given within 90 days after the occurrence of the accident," Ala. Admin. Code (Dep't of Finance), r. 355-8-1-.04(q) (emphasis added); however, there is no corresponding reporting requirement stated in the regulations for occupational diseases, which instead provide that the "date of injury" as to an occupational disease is deemed to be "the first date of diagnosis," Ala. Admin. Code (Dep't of Finance), r. 355-8-1-.05(a)(6), and that a claim for compensation under the occupational-disease provisions of the regulations shall be brought within 2 years of the injury. See also Ala. Admin. Code (Dep't of Finance), rr. 355-8-1-.05(e) and 355-8-1-.04(r). That regulatory treatment of occupational diseases by the director of finance substantially mirrors that of the Alabama Workers' Compensation Act, Ala. Code 1975, § 25-5-1 et seq., under which failure to provide notice of an employee's contraction of an occupational disease is not a bar to a claim for benefits. See Williams v. Valley View Health & Rehab., LLC, 64 So.3d 638, 640 (Ala. Civ. App. 2010).

In Ellison, supra, our supreme court concluded that a judgment denying workers' compensation benefits to an alleged employee was due to be affirmed because, among other things, there was no evidence indicating that the alleged employee had "changed his position to his detriment" in reliance upon a collective-bargaining-agreement provision entered into between the alleged employer and the alleged employee's union indicating the applicability of state workers' compensation laws. 271 Ala. at 402, 124 So.2d at 90. Similarly, we cannot agree with the claimant in this case that equitable estoppel applied to bar the Commission from raising his employment by the state rather than by the county as an absolute defense to his workers' compensation claim because, at the time the summary judgment was entered, the claimant had not relied upon any conduct of the Commission to his detriment: his right to seek benefits from the SEICTF remained viable as of the date of that court's decision because two years had not elapsed following his date of diagnosis. See Ala. Admin. Code (Dep't of Finance), rr. 355-8-1-.05(a)(6), 355-8-1-.05(e), and 355-8-1-.04(r).

The claimant next asserts that the Commission is barred by the doctrine of judicial estoppel from denying that he was employed by the Commission. The elements of judicial estoppel are (1) a party's assumption of a clearly inconsistent position in a later proceeding compared to that assumed by that party in a previous proceeding; (2) that party's success in the previous proceeding such that acceptance of the party's position in the later proceeding would give rise to the perception that the first or second tribunal was misled by the party; and (3) the party's derivation of an unfair advantage or imposition of an unfair detriment on that party's opponent in the later proceeding. E.g., Lewis v. First Tuskegee Bank, 964 So.2d 36, 40-41 (Ala. Civ. App. 2007). In Lewis, this court concluded, in reviewing the propriety of lender-liability claims of fraud, deceit, negligence, and breach of fiduciary duty asserted by two parties against a junior mortgagee of real property previously owned by the parties, that those parties had not assumed a clearly inconsistent position by admitting, in a separate action brought against those parties by that mortgagee's assignee, that the parties owed the assignee the remaining balance of the note that the mortgage had secured. We opined in Lewis that "[t]here is no logical inconsistency where 'A' agrees that it owes a debt to 'B' but claims that 'C' is responsible to 'A' for the debt that 'A' owes to 'B.' " 964 So.2d at 41.

In this case, the claimant asserted that the Commission had successfully secured a judgment allowing it to receive a $7,500 subrogation payment in a previous civil action in the Madison Circuit Court that had involved another STAC officer, Madison Cty. v. James Edward McDaniel (Case No. CV-16-901337), based upon representations to that court that the Commission had provided benefits pursuant to workers' compensation laws to that officer and that the Commission was entitled to a portion of a settlement payment received from an alleged third-party tortfeasor. A close review of the "Joint Petition and Agreement for Settlement" filed by the Commission and McDaniel in that action reveals that the parties had represented that McDaniel "was employed by the Madison County Sheriff's Department," not by the Commission or by STAC. Nonetheless, the claimant seizes upon that settlement, asserting that he was a STAC officer in an identical position to McDaniel.

The record in this case at the time that the circuit court ruled on the parties' summary-judgment motions undisputedly indicated that the claimant was not in an identical position to McDaniel during his work with STAC. According to two substantially identical Memoranda of Understanding entered into in 2005 and 2006 by the Madison County District Attorney; the Madison County Sheriff; and the Cities of Madison, Huntsville, and Decatur, those agencies formed STAC as an inter-agency drug-enforcement task force and agreed to assign one or more persons to STAC, including two full-time officers from the Madison County Sheriff's Department and two full-time officers from the Madison County District Attorney's office. Those memoranda further provided that "[e]ach participating party shall be solely liable for any and all workers' compensation benefits for personnel employed by them [who] are injured in the course and scope of their duties while assigned to the STAC." Although a "Certificate of Assurance" executed by the Madison County District Attorney certified that the claimant was assigned by the district attorney as a full-time employee to STAC, the analogous "Certificate of Assurance" assigning McDaniel to STAC came from the Sheriff of Madison County, a different agency. We perceive no clear inconsistency between the Commission's decision to voluntarily assume liability under workers' compensation laws as to deputy sheriffs such as McDaniel and its insistence that the claimant, an investigator hired by the Madison County District Attorney, was not an employee of the Commission so as to warrant the entry of a judgment holding the Commission liable under workers' compensation laws for his claimed occupational disease.

Based upon the foregoing facts and authorities, we conclude that the circuit court correctly rejected the claimant's equitable-estoppel and judicial-estoppel arguments in entering its summary judgment in favor of the Commission. That judgment is affirmed.

AFFIRMED.

Thompson, P.J., and Thomas, Moore, and Donaldson, JJ., concur.

      We are not long detained by the claimant's contention that he did not qualify as an "employee" eligible to seek SEICTF benefits because his paychecks were issued by the Commission as a matter of administrative convenience rather than by the State Comptroller. Although the director of finance has defined the term "employee or worker" to include full-time state workers who are covered by the State Employees Insurance Board's medical-insurance plan and whose wages are paid through the office of the state comptroller," Ala. Admin. Code (Dep't of Finance), r. 355-8-1-.02(a)(10), we perceive no intent therein to exclude from coverage persons who might not be perfectly aligned with those regulatory provisions but who, like the claimant in this case, are nonetheless "employees of the state and its agencies, departments, boards, or commissions" within the scope of the SEICTF's enabling legislation. Ala. Code 1975, § 36-29A-1 ; cf. Ex parte Jones Mfg. Co., 589 So.2d 208, 210 (Ala. 1991) ("The provisions of a statute will prevail in any case of a conflict between a statute and an agency regulation.").

      The same rationale applies, a fortiori, to other persons identified by the claimant as to which the Commission may also have voluntarily assumed liability under workers' compensation laws, such as Stanford Bice, Randy Simmons, Steve Cothren, and Corey Walter Betuel -- deputy sheriffs and detention officers who were not shown of record to have performed any work on behalf of STAC.


author: THOMPSON, Presiding Judge.

text:
    H.C. v. S.L.
    2170819
    Court of Civil Appeals of Alabama.
    October 5, 2018
    Kelly R. Knight, Birmingham, for appellant.
    Submitted on appellant's brief only.
   THOMPSON, Presiding Judge.

This is the third time these parties, H.C. ("the mother") and S.L. ("the paternal grandmother"), have been before this court in an appeal of a judgment of the Jefferson Juvenile Court, Bessemer Division ("the juvenile court"). The litigation was initiated on August 12, 2015, when the paternal grandmother filed an action alleging that the mother's minor child was dependent and seeking an award of custody of the child. The juvenile court entered orders on September 1, 2015, and July 8, 2016, finding the child to be dependent and awarding pendente lite custody of the child to the paternal grandmother.

On December 22, 2016, after conducting an ore tenus hearing, the juvenile court entered a judgment determining that it had earlier found the child to be dependent and awarding custody to the paternal grandmother. This court reversed that judgment, holding that the juvenile court had erred in failing to contemporaneously determine whether the child was dependent such that the juvenile court would have jurisdiction to enter a custody award. H.C. v. S.L., 251 So. 3d 793 (Ala. Civ. App. 2017) (" H.C. v. S.L. I"). This court explained:

"In order to make a custodial disposition of the child at the time the December 2016 dispositional judgment was entered, the juvenile court was required to find that the child was dependent at the time of the disposition. T.B. v. T.H., 30 So.3d 429, 431 (Ala. Civ. App. 2009). ' "[I]n order to make a disposition of a child in the context of a dependency proceeding, the child must in fact be dependent at the time of that disposition." ' V.W. v. G.W., 990 So.2d 414, 417 (Ala. Civ. App. 2008) (quoting K.B. v. Cleburne Cty. Dep't of Human Res., 897 So.2d 379, 389 (Ala. Civ. App. 2004) (Murdock, J., concurring in the result) ). See also D.D.P. v. D.M.B., 173 So.3d 1, 3 (Ala. Civ. App. 2015) (same). If the child is not dependent at the time of the dispositional judgment, the juvenile court lacks jurisdiction to make a custody determination. M.D. v. S.C., 150 So.3d 210, 212 (Ala. Civ. App. 2014) ; L.R.J. v. C.F., 75 So.3d 685, 687 (Ala. Civ. App. 2011) ; see also C.C. v. B.L., 142 So.3d 1126, 1129 (Ala. Civ. App. 2013) ('In light of the juvenile court's finding that the child was not dependent, the juvenile court lacked jurisdiction to enter a judgment affecting the custody of the child, including visitation.')."

H.C. v. S.L. I, 251 So. 3d at 794.

On remand following the release of H.C. v. S.L. I, supra, the juvenile court entered an October 11, 2017, judgment in which it determined that, at the time of the entry of the December 22, 2016, judgment, the child had been dependent. The mother again appealed, and this court reversed the juvenile court's October 11, 2017, judgment. H.C. v. S.L., 260 So. 3d 884 (Ala. Civ. App. 2018) (" H.C. v. S.L. II"). This court held that clear and convincing evidence did not support the juvenile court's determination that the child had been dependent at the time of the entry of the December 22, 2016, judgment. In reaching that holding, this court reiterated that "the juvenile court could make a custodial disposition of the child only if it determined that the child was dependent at the time it entered the December 22, 2016, judgment." H.C. v. S.L. II, 260 So. 3d at 885. Accordingly, because this court held that the evidence did not support the juvenile court's finding that the child was dependent at the time of the entry of the December 22, 2016, judgment, this court reversed the juvenile court's October 11, 2017, judgment awarding custody to the paternal grandmother.

On remand for a second time, the juvenile court conducted a hearing at which it received the arguments of the parties' attorneys. On May 24, 2018, the juvenile court entered the judgment from which the current appeal is taken. In that May 24, 2018, judgment, the juvenile court stated that the child was not dependent at the time its December 22, 2016, judgment was entered because, at that time, the child was in the "custody" of the paternal grandmother. The juvenile court further found that it was in the child's "best interests" to remain in the "custody" of the paternal grandmother but that, because the child was no longer dependent, the juvenile court had no jurisdiction; the juvenile court then ordered the case "closed."

The mother filed a petition for a writ of mandamus in this court. However, the May 24, 2018, judgment was final and capable of supporting an appeal. Therefore, this court ordered that the petition for a writ of mandamus be treated as an appeal.

The mother argues on appeal that, in entering its May 24, 2018, judgment, the juvenile court failed to comply with this court's opinion in H.C. v. S.L. II, supra. The mother argues that the juvenile court was required to enter a judgment dismissing the dependency action and returning custody of the child to her.

" 'The issues decided by an appellate court become the law of the case, and the trial court has a duty to comply with the appellate mandate according to the true intent and meaning of the mandate as determined by the reviewing court's directions. Walker v. Carolina Mills Lumber Co., 441 So.2d 980 (Ala. Civ. App. 1983). When the mandate of the appellate court is not clear, the court's opinion should be consulted.' "

J.A.P. v. L.W.A., 910 So.2d 115, 122 (Ala. Civ. App. 2004) (quoting Ex parte McWhorter, 716 So.2d 720, 722 (Ala. Civ. App. 1998) ); see also Auerbach v. Parker, 558 So.2d 900, 902 (Ala. 1989) (same).

As is explicitly stated in both H.C. v. S.L. I, supra, and H.C. v. S.L. II, supra, a juvenile court lacks jurisdiction to enter a custody disposition if a child is not dependent. This court reversed the juvenile court's October 11, 2017, judgment finding that the child was dependent at the time it entered its December 22, 2016, judgment. H.C. v. S.L. II, supra. Thus, the determination that the child was not dependent at the time of the entry of the December 22, 2016, judgment became the law of the case. D.E.F. v. L.M.D., 76 So.3d 834, 837 (Ala. Civ. App. 2011) (citing Ex parte King, 821 So.2d 205, 209 (Ala. 2001) ). Based on the doctrine of law of the case, the juvenile court was precluded from again finding the child dependent and was instead required to comply with the holding of this court's opinion in H.C. v. S.L. II, supra. D.P. v. Limestone Cty. Dep't of Human Res., 64 So.3d 1109, 1111 (Ala. Civ. App. 2010).

Rather than entering a judgment in compliance with our opinion in H.C. v. S.L. II, supra, the juvenile court entered a new judgment finding that on December 22, 2016, the child was not dependent because, at that time, the child was in the pendente lite custody of the paternal grandmother. That determination contradicts its October 11, 2017, judgment (which was later reversed in H.C. v. S.L. II, supra ) determining that the child was dependent.

Further, the premise under which the juvenile court, in its May 24, 2018, judgment, purported to determine that the child was not dependent is erroneous. The juvenile court found that the child was not dependent because the paternal grandmother was a legal guardian or custodian willing and able to properly care for the child. See § 12-15-102(8)2., Ala. Code 1975 (defining a term "dependent child" as, among other things, a child whose parent, legal guardian, or legal custodian is not "willing and able to provide for the care, support, or education of the child"). However, the juvenile court had previously awarded the paternal grandmother only pendente lite custody of the child. There is no final, appealable order that awarded custody of the child to the paternal grandmother, other than the December 22, 2016, judgment and the October 11, 2017, judgment, both of which were reversed by this court. Thus, the paternal grandmother, although she had pendente lite custody of the child while the dependency action was being determined, was not the child's legal custodian or legal guardian such that a determination could be made as to whether the child was dependent while in her care. To decide otherwise would be to hold that any award of pendente lite custody in a dependency action would end the dependency of the child at issue in the action and result in an automatic transfer of custody of the child from his or her parent to the person or persons awarded pendente lite custody. See, e.g., J.P. v. S.S., 989 So.2d 591, 599 (Ala. Civ. App. 2008) ("The father would have this court hold that the dependency statute would no longer apply to protect a dependent child once it is established that DHR, as the legal custodian of the dependent child, had successfully placed the child in a suitable home for care when the child's parents were unwilling or unable to appropriately care for the child. Such a holding would defeat the intent of the Alabama Juvenile Justice Act ...."). Also, such a decision would not serve the purposes of this state's dependency statutes, which include the preservation of families and the reunification of families when a parent has lost custody of his or her child. § 12-15-101(b), Ala. Code 1975.

The mother has requested that, rather than reverse the May 24, 2018, judgment and remand this cause for further proceedings in the juvenile court, this court render a judgment in her favor. "The appellate court may, upon the reversal of any judgment or decree, remand the same for further proceedings or enter such judgment or decree as the court below should have entered or rendered, when the record enables it to do so." § 12-22-70, Ala. Code 1975. In order for this court to render a judgment, "the record must demonstrate that all facts on the issue in question are before the appellate court, and those facts must establish that the party is entitled to a judgment as a matter of law." Eubanks v. Hale, 752 So.2d 1113, 1134 (Ala. 1999).

In this case, we have previously held that the child was not dependent at the time the juvenile court entered its December 22, 2016, judgment and, therefore, that the juvenile court lacked jurisdiction to make a custody determination. Thus, the mother is entitled, as a matter of law, to the dismissal of the dependency action and a judgment returning custody to her. Eubanks v. Hale, supra. The child has been out of the mother's custody since August 2015, a significant portion of this young child's life. Given the history of this action, we grant the mother's request and render a judgment in her favor. The juvenile court's May 24, 2018, judgment is reversed, and this court hereby renders a judgment dismissing the dependency action and reinvesting custody of the child in the mother.

REVERSED AND JUDGMENT RENDERED.

Pittman, Thomas, Moore, and Donaldson, JJ., concur.


author: JOINER, Judge.

text:
    Jeffrey Jerone HARRIS v. STATE of Alabama
    CR-17-0115
    Court of Criminal Appeals of Alabama.
    August 10, 2018
    Leslie W. McElderry of McElderry Law, P.C., Mobile, for appellant.
    Steve Marshall, atty. gen., and Kristi O. Wilkerson, asst. atty. gen., for appellee.
   JOINER, Judge.

Jeffrey Jerone Harris appeals his convictions for attempt to commit a controlled-substance crime (distribution of cocaine), see §§ 13A-4-2, -12-203, and -12-211, Ala. Code 1975; attempt to commit a controlled-substance crime (distribution of marijuana), see §§ 13A-4-2, -12-203, and -12-211, Ala. Code 1975; unlawful possession of a controlled substance (cocaine), see § 13A-12-212(a)(1), Ala. Code 1975; first-degree unlawful possession of marijuana, see § 13A-12-213, Ala. Code 1975; and possession with the intent to deliver a cellular telephone to an inmate, see § 14-11-50(a), Ala. Code 1975. Harris was sentenced to 130 months' imprisonment on each conviction. Those sentences were to run concurrently. Harris was also ordered to pay all mandatory assessments and costs.

Facts and Procedural History

The evidence adduced at trial tended to establish the following. On the afternoon of May 9, 2016, Officer Michael Banks, an investigative officer with the Alabama Department of Corrections, left work at Holman Prison and saw a black vehicle pulled over on the shoulder of the road. After he drove several yards past the vehicle, Officer Banks saw a male, who was later identified as Adrian Pritchett, get out of the passenger side of the vehicle with a package in his hand. Officer Banks watched as Pritchett walked into the wooded area near the prison and then returned to the vehicle without the package. Officer Banks was aware of problems with people introducing contraband into the prison facility by leaving it in the woods for inmates to pick up later so he decided to detain Pritchett. At that time, the driver of the vehicle, who was later identified as Harris, got out of the vehicle and walked toward Officer Banks. Officer Banks directed Harris to get back into the vehicle, which he did. As Officer Banks detained Pritchett, Harris left the scene. Officer Banks then notified his supervisor what had just occurred and requested backup.

Correctional officers from Fountain Prison, which is close to Holman Prison, responded to the request for backup. They located Harris and his vehicle just as it began to turn onto the main highway leading from Holman Prison. At that point, they detained Harris. No testimony was presented that drugs or other contraband was found either on Harris or in the vehicle he had been driving.

Agent Deputy W.D. Favor with the Alabama Department of Corrections Investigation and Intelligence Division testified that a cursory search near where Pritchett had gone into the woods was conducted. As a result of that search, law-enforcement officers located a blue "birthday" bag containing two "football-size[d]" packages "wrapped in black tape." (R. 239-41.) It was later determined that that package contained 24.07 grams of marijuana, 5.44 grams of cocaine, "Newport" brand cigarettes, several cellular telephones and chargers, and super glue.

On July 29, 2016, Harris was indicted by the Escambia County grand jury for attempt to commit a controlled-substance crime (distribution of cocaine), see §§ 13A-4-2, -12-203, and -12-211, Ala. Code 1975; attempt to commit a controlled-substance crime (distribution of marijuana), see §§ 13A-4-2, -12-203, and -12-211, Ala. Code 1975; unlawful possession of a controlled substance (cocaine), see § 13A-12-212(a)(1), Ala. Code 1975; first-degree unlawful possession of marijuana, see § 13A-12-213, Ala. Code 1975; and intent to deliver a cellular telephone to an inmate, see § 14-11-50(a), Ala. Code 1975. At a pretrial conference on September 18, 2017, Harris moved to dismiss the indictment on the ground that the two counts of possession were lesser-included offenses of the two counts of attempted distribution.

Following a hearing, the circuit court denied that motion.

On September 20, 2017, a jury found Harris guilty of all counts as charged in the indictment. On November 1, 2017, Harris was sentenced as indicated above. Thereafter, he filed a timely notice of appeal.

Discussion

On appeal, Harris argues that his convictions for possession and attempted distribution arose from one incident and, thus, his possession convictions are lesser-included offenses of his attempted-distribution convictions and violate the prohibition against double jeopardy. The State agrees with Harris and contends that he is entitled to have his convictions for unlawful possession of cocaine and unlawful possession of marijuana vacated. For the reasons provided herein, we agree.

This Court has previously used the two-pronged test announced by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to determine whether two offenses are the same for double-jeopardy purposes:

"In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the United States Supreme Court held that 'where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.' The Blockburger test is a two-pronged test. First, 'the threshold inquiry under Blockburger is whether the alleged statutory violations arise from "the same act or transaction." ' State v. Watkins, 362 S.W.3d 530, 545 (Tenn. 2012). See also State v. Armendariz, 140 N.M. 182, 188, 141 P.3d 526, 532 (2006) ('The first part of the test requires the determination of whether the conduct underlying the offenses is unitary.'); R.L.G., Jr. v. State, 712 So.2d 348, 359 (Ala. Crim. App. 1997) ('Before the double jeopardy prohibition is triggered ... it must appear ... that the crimes arose out of the same act or transaction.' (citations omitted) ), aff'd, 712 So.2d 372 (Ala. 1998) ; and State v. Thompson, 197 Conn. 67, 72, 495 A.2d 1054, 1058 (1985) ('An analysis of the Blockburger test involves a threshold determination of whether the offenses arose out of the "same act or transaction," and a substantive analysis of whether they contain distinct elements.'). The Double Jeopardy Clause does not operate to prohibit prosecution, conviction, and punishment in a single trial for discrete acts of the same offense. See Swafford v. State, 112 N.M. 3, 810 P.2d 1223 (1991). Thus, whether a defendant's conduct constitutes the same act or transaction 'does not determine whether there is a double jeopardy violation; rather it determines if there could be a violation.' State v. Schoonover, 281 Kan. 453, 467, 133 P.3d 48, 62 (2006).
"Second, if the offenses did arise from the same act or transaction, then it must be determined whether each offense requires proof of an additional fact which the other does not, i.e., whether the two offenses are the 'same' for double-jeopardy purposes. '[A]pplication of the test focuses on the statutory elements of the offense,' Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 43 L.Ed. 2d 616 (1975), and is a rule of statutory construction based on the assumption that a legislature 'ordinarily does not intend to punish the same offense under two different statutes.'
Whalen v. United States, 445 U.S. 684, 692, 100 S.Ct. 1432, 63 L.Ed. 2d 715 (1980). See also Rutledge v. United States, 517 U.S. 292, 297, 116 S.Ct. 1241, 134 L.Ed. 2d 419 (1996) ('[W]e presume that "where two statutory provisions proscribe the 'same offense,' " a legislature does not intend to impose two punishments for that offense.') (quoting Whalen, 445 U.S. at 692, 100 S.Ct. 1432 ). It is well settled 'that a lesser included and a greater offense are the same under Blockburger.' Brown v. Ohio, 432 U.S. 161, 166 n. 6, 97 S.Ct. 2221, 53 L.Ed. 2d 187 (1977). See also Heard, supra, and Lewis v. State, 57 So.3d 807 (Ala. Crim. App. 2009)."

Williams v. State, 104 So.3d 254, 256-57 (Ala. Crim. App. 2012). The record indicates that Harris's multicount indictment charged him as follows:

"COUNT ONE
"Jeffery Jerone Harris, whose name to the Grand Jury is otherwise unknown, did, with the intent to commit the crime of unlawful distribution of a controlled substance, overtly act towards the commission of such offense by knowingly entering onto the premises of William C. Holman Correctional Facility to deliver cocaine to inmates confined in said facility, in violation of § 13A-4-2, § 13A-12-203, and § 13-12-211 of the Code of Alabama.
"COUNT TWO
"Jeffery Jerone Harris, whose name to the Grand Jury is otherwise unknown, did, with the intent to commit the crime of unlawful distribution of a controlled substance, overtly act towards the commission of such offense by knowingly entering onto the premises of William C. Holman Correctional Facility to deliver marijuana to inmates confined in said facility, in violation of § 13A-4-2, § 13A-12-203, and § 13A-12-211 of the Code of Alabama.
"COUNT THREE
"Jeffery Jerone Harris, whose name to the Grand Jury is otherwise unknown, did unlawfully possess a controlled substance, to-wit: cocaine, in violation of § 13A-12-212(a)(1) of the Code of Alabama.
"COUNT FOUR
"Jeffery Jerone Harris, whose name to the grand jury is otherwise unknown, did unlawfully possess marijuana for other than personal use, in violation of § 13A-12-213(a)(1) of the Code of Alabama."

(C. 50.)

We agree with both Harris and the State that both of Harris's attempted-distribution convictions and both of his possession convictions arose from the same act or transaction. The evidence presented at trial indicated that, on May 9, 2016, Harris drove Pritchett to Holman Prison and was present when Pritchett got out of his vehicle, went into the woods near Holman Prison with a package in hand, and reemerged without that package. Law-enforcement officers searched that area and located a blue "birthday" bag containing two "football-size[d]" packages "wrapped in black tape." (R. 239-41.) It was later determined that that package contained 24.07 grams of marijuana, 5.44 grams of cocaine, "Newport" brand cigarettes, several cellular telephones and chargers, and super glue. The charges quoted above from the indictment make clear that Harris's charges arose out of the same incident. (C. 50.)

Having established that the first prong from Blockburger has been met, we must now determine whether two of the convictions being challenged on appeal each require proof of a fact that the other two do not. Section 13A-1-8(b)(1), Ala. Code 1975, provides that "[w]hen the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if ... [o]ne offense is included in the other, as defined in Section 13A-1-9." Section 13A-1-9(a), Ala. Code 1975, provides:

"(a) A defendant may be convicted of an offense included in an offense charged. An offense is an included one if:
"(1) It is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged; or
"(2) It consists of an attempt or solicitation to commit the offense charged or to commit a lesser included offense; or
"(3) It is specifically designated by statute as a lesser degree of the offense charged; or
"(4) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission."

In Williams v. State, 104 So.3d 254 (Ala. Crim. App. 2012), this Court explained that,

" ' " 'to be a lesser included offense of one charged in an indictment, the lesser offense must be one that is necessarily included, in all of its essential elements, in the greater offense charged[,]' Payne v. State, 391 So.2d 140, 143 (Ala. Cr. App.), writ denied, 391 So.2d 146 (Ala. 1980), ... unless it is so declared by statute."
" ' James v. State, 549 So.2d 562, 564 (Ala. Cr. App. 1989). "Whether a crime constitutes a lesser-included offense is to be determined on a case-by-case basis." Aucoin v. State, 548 So.2d 1053, 1057 (Ala. Cr. App. 1989). "In determining whether one offense is a lesser included offense of the charged offense, the potential relationship of the two offenses must be considered not only in the abstract terms of the defining statutes but must also ... in light of the particular facts of each case." Ingram v. State, 570 So.2d 835, 837 (Ala. Cr. App. 1990) (citing Ex parte Jordan, 486 So.2d 485, 488 (Ala. 1986) ; emphasis in original). See also Farmer v. State, 565 So.2d 1238 (Ala. Cr. App. 1990).'
" Ford v. State, 612 So.2d [1317,] 1318 [(Ala. Crim. App. 1992)]. The 'particular facts' of each case are those facts alleged in the indictment. Thus, 'the statutory elements of the offenses and facts alleged in an indictment--not the evidence presented at trial or the factual basis provided at the guilty-plea colloquy--are the factors that determine whether one offense is included in another.' Johnson v. State, 922 So.2d 137, 143 (Ala. Crim. App. 2005)."

Williams, 104 So.3d at 264.

For his attempted-distribution-of-cocaine conviction, Harris was found to have violated §§ 13A-4-2, -12-203, and -12-211, Ala. Code 1975. For his possession-of-cocaine conviction, Harris was found to have violated § 13A-12-212(a)(1), Ala. Code 1975.

Section 13A-12-203, Ala. Code 1975, provides that "[a] person is guilty of an attempt to commit a controlled substance crime if he engages in the conduct defined in Section 13A-4-2(a), and the crime attempted is a controlled substance crime." "A person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act towards the commission of such offense." § 13A-4-2, Ala. Code 1975. Section 13A-12-211, Ala. Code 1975, provides that "[a] person commits the crime of unlawful distribution of controlled substances if, except as otherwise authorized, he or she sells, furnishes, gives away, delivers, or distributes a controlled substance enumerated in Schedules I through V." Section 13A-12-212(a)(1), Ala. Code 1975, provides, in pertinent part:

"(a) A person commits the crime of unlawful possession of controlled substance if:
"(1) Except as otherwise authorized, he or she possesses a controlled substance enumerated in Schedules I through V."

Cocaine is a Schedule II substance. See § 20-2-25, Ala. Code 1975.

Count I of the indictment charged that Harris "did, with the intent to commit the crime of unlawful distribution of a controlled substance, overtly act towards the commission of such offense by knowingly entering onto the premises of William C. Holman Correctional Facility to deliver cocaine to inmates confined in said facility, in violation of § 13A-4-2, § 13A-12-203, and § 13-12-211 of the Code of Alabama." (C. 50.) Additionally, Count III of the indictment charged that Harris "did unlawfully possess a controlled substance, to-wit: cocaine, in violation of § 13A-12-212(a)(1) of the Code of Alabama."

For his attempted-distribution-of-marijuana conviction, Harris was found to have violated the same sections of the Alabama Code quoted above, see §§ 13A-4-2, -12-203, and -12-211, Ala. Code 1975. For his first-degree unlawful-possession-of-marijuana conviction, Harris was found to have violated § 13A-12-213(a)(1), Ala. Code 1975. Section 13A-12-213(a)(1), Ala. Code 1975, provides, in pertinent part:

"(a) A person commits the crime of unlawful possession of marihuana in the first degree if, except as otherwise authorized:
"(1) He or she possesses marihuana for other than personal use."

Count II of the indictment charged that Harris "did, with the intent to commit the crime of unlawful distribution of a controlled substance, overtly act towards the commission of such offense by knowingly entering onto the premises of William C. Holman Correctional Facility to deliver marijuana to inmates confined in said facility, in violation of § 13A-4-2, § 13A-12-203, and § 13A-12-211 of the Code of Alabama." (C. 50.) Count IV of the indictment charged that Harris "did unlawfully possess marijuana for other than personal use, in violation of § 13A-12-213(a)(1) of the Code of Alabama." Id.

Based on the statutory elements of the offenses and the facts as alleged in the indictments, possession of cocaine and possession of marijuana are lesser-included offenses of attempted distribution of cocaine and attempted distribution of marijuana in this case. Specifically, the commission of the attempted distribution offenses as alleged in the indictment necessarily included all the elements of the possession offenses as alleged in the indictment. In other words, Harris could not have committed the attempted-distribution offenses without also having committed the possession offenses. Because Harris was convicted of both greater offenses and lesser offenses included within those greater offenses, his convictions for both attempted distribution and possession violate double-jeopardy principles. This Court has previously recognized that the "proper remedy when a defendant is convicted of both a greater and a lesser-included offense is to vacate the conviction and the sentence for the lesser-included offense." Williams, 104 So.3d at 265. Accordingly, this case is remanded for the circuit court to vacate Harris's convictions and sentences for possession of marijuana and possession of cocaine.

Conclusion

Based on the foregoing, this case is remanded with instructions to the circuit court to vacate Harris's convictions and sentences for possession of marijuana and possession of cocaine. Due return shall be made to this Court within 42 days of the date of this opinion.

REMANDED WITH INSTRUCTIONS.

Windom, P.J., and Welch, Kellum, and Burke, JJ., concur.

      Agent Deputy W.D. Favor explained that "[inmates] take the backing off of [the cellular telephone] and put super glue on it and stick it to the bottom of the metal bunk beds," in an effort to avoid discovery of the phones by prison personnel. (R. 241.)

      We note that Harris does not challenge his indictment for or conviction of Count V, which stated that Harris "did unlawfully and without authorization, possess with the intent to deliver or possess for delivery to an inmate in the custody of the Department of Corrections, to-wit: William C. Holman Correctional Facility, a cellular telephone, wireless communication device, or computer that allows input, output, examination or transfer of computer programs from one computer to another person, in violation of § 14-11-50(a), of the Code of Alabama." (C. 51.)

      Note from the reporter of decisions: On October 5, 2018, on return to remand, the Court of Criminal Appeals dismissed the appeal, without opinion.