J.B. v. J.R. and A.R. (Appeal from Morgan Juvenile Court: JU-21-12.02).

Rel: March 14, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2024-2025
_________________________

CL-2024-0838, CL-2024-0839, CL-2024-0840, CL-2024-0841,
and CL-2024-0842
_________________________

J.B.

v.

J.R. and A.R.

Appeals from Morgan Juvenile Court
(JU-21-12.01, JU-21-12.02, JU-21-12.03, JU-21-12.04,
and JU-21-12.05)

MOORE, Presiding Judge.

These appeals arise out of five judgments entered by the Morgan

Juvenile Court ("the juvenile court") following this court's decision in C.S.

v. Morgan County Department of Human Resources, [Ms. CL-2022-1246,
CL-2024-0838, CL-2024-0839, CL-2024-0840, CL-2024-0841, and CL-
2024-0842

Jan. 31, 2024] ___ So. 3d ___ (Ala. Civ. App.), cert. quashed, as to appeal

number CL-2022-1288, [Ms. SC-2024-0095, Sept. 13, 2024] ___ So 3d ___

(Ala. 2024). We dismiss appeal numbers CL-2024-0839 (case number JU-

21-12.02), CL-2024-0840 (case number JU-21-12.03), CL-2024-0841 (case

number CL-21-12.04), and CL-2024-0842 (case number JU-21-12.05) as

arising from void judgments. In appeal number CL-2024-0838, we

conclude that the juvenile court did not comply with our mandate in C.S.,

and we, therefore, reverse the judgment entered in case number JU-21-

12.01.

Background

A.J.S. ("the child") was born on June 30, 2020, out of a non-marital

relationship between C.S. ("the mother") and J.B. ("the father"). The

mother misled the father as to his paternity of the child and began raising

the child on her own. On January 22, 2021, the Morgan County

Department of Human Resources ("DHR") commenced a dependency

action relating to the child (case number JU-21-12.01). Through the

dependency proceedings, DHR obtained legal custody of the child and

placed the child in foster care with J.R. and A.R. ("the foster parents").

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The mother subsequently filed a petition to regain custody of the child or

to obtain unsupervised visitation with the child (case number JU-21-

12.02). In late September 2021, the mother informed the father of his

probable paternity of the child. In January 2022, after obtaining genetic-

test results confirming his paternity of the child, the father intervened in

the dependency action and petitioned the juvenile court to award him

custody of the child. The foster parents responded by filing a petition to

obtain custody of the child (case number JU-21-12.03), a petition to

terminate the parental rights of the mother and of the father to the child

(case number JU-21-12.04), and a petition to adopt the child (case

number JU-21-12.05).

The juvenile court consolidated the five actions relating to the child

and entered separate, but identical, judgments in each action. In

pertinent part, those judgments found the child to be dependent as to the

mother and the father, awarded custody of the child to the foster parents,

awarded the father visitation with the child, subject to automatic

suspension if he allowed the child to have contact with the mother, and

denied the foster parents' petitions to terminate the parental rights of

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the mother and of the father and to adopt the child. On appeal, this court,

in pertinent part, affirmed the judgment entered in case number JU-21-

12.02, which was at issue in the mother's appeal number CL-2022-1247;

dismissed appeal number CL-2022-1277, which was the foster parents'

appeal from the judgment entered in case number JU-21-12.01; affirmed

the judgments entered in case numbers JU-21-12.04 and JU-21-12.05,

which were at issue in the foster parents' appeal numbers CL-2022-1279

and CL-2022-1280, respectively; dismissed appeal number CL-2022-

1289, which was the father's appeal from the judgment entered in case

number JU-21-12.03; and reversed, in part, the judgment entered in case

number JU-21-12.01, which was at issue in the father's appeal number

CL-2022-1288 and remanded that case with instructions to the juvenile

court "to vacate the parts of the judgments finding the child dependent

as to the father," C.S., ___ So. 3d at ___, "to vacate the portions of the

judgments denying the father's [custody] petition and to enter new

judgments awarding the father custody of the child and implementing a

transition plan that serves the best interests of the child," id. at ___, and

"to vacate the provision automatically suspending the father's visitation

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upon his allowing unapproved contact between the child and the mother

and to take such other actions regarding the visitation between the father

and the child as are consistent with this opinion," id. at ___.

On September 19, 2024, the juvenile court entered separate, but

identical, judgments in the five actions relating to the child. In those

judgments, the juvenile court vacated the portions of the judgments that

had been reversed by this court and awarded the father custody of the

child. The juvenile court implemented a transition plan calling for the

child to be placed in the physical custody of the father for gradually

increasing periods between September 20, 2024, and November 3, 2024,

at which point the father would assume full-time physical custody of the

child. The juvenile court's judgment further awarded to the foster

parents the right to visit with the child on "the first weekend of each

month (the first Friday of the month) from 6:00 p.m. on Friday to Monday

at 8:00 a.m. and each third Thursday of the month from 6:00 p.m. until

8:00 a.m. the following day," with the visitation to begin on December 6,

2024. (Bold typeface omitted.)

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On October 1, 2024, the father filed a postjudgment motion in all

five cases requesting that the juvenile court vacate the visitation award

to the foster parents. On October 10, 2023, the juvenile court entered an

order in the cases denying the postjudgment motion, stating, in pertinent

part:

"That portion of the motion to vacate the visitation
awarded to [the foster parents] (one weekend per month and
the third Thursday night of each month) is denied. The
proceeding that was appealed is a dependency matter. The
Court of Civil Appeals, in the reversal of the [juvenile] court,
mandated that the [juvenile] court vacate that portion of the
[juvenile court's] order granting custody to [the foster parents]
and placing custody in the father. The [juvenile] court has
entered that mandated order transferring custody to the
father as ordered by the Court of Civil Appeals. The reversal
of one attempted disposition of the child at one particular
point in time, does not dictate to the juvenile court when it
would be in the child's best interest, absent that particular
disposition, to close the dependency proceeding or to make
some other disposition of the child. ([W.T.M. v. S.P.,] 899 So.
2d 842 [(Ala. Civ. App. 2003)]). The case cited is exactly on
point. The juvenile court placed custody with the foster parent
instead of the father (or other relative resources) and awarded
visitation to the father. In the matter at ha[n]d, the juvenile
court ruling was exactly the same. The juvenile court has
complied completely with the order of the Court of Civil
Appeals. The court is granted the right to make any other
order as the court i[n] its discretion shall deem to be for the
welfare and best interest of the child. ([§] 12-15-314[(a)](4)[,]
Alabama Code [1975]). The juvenile court is not attempting
to thwart the jurisdiction of the Court of Civil Appeals or fail

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to comply with the order. The Court is simply trying to allow
a child to adjust to the very drastic changes in her life that are
about to occur. The visitation can always be terminated if it
proves to no longer be in the best interest of the child."

On October 23, 2024, the father appealed the judgments insofar as they

awarded visitation to the foster parents. 1

Issue

In his postjudgment motion, the father argued to the juvenile court

that it had violated this court's mandate by awarding visitation to the

foster parents. On appeal, the father reiterates that argument, but he

also contends that the juvenile court lacked the statutory authority to

award visitation to the foster parents and that it violated the due-process

rights of the father by awarding visitation without notice to him and an

opportunity to be heard. We can consider only the first issue; the latter

two issues were not presented to the trial court and, thus, were not

preserved for appellate review. See J.M.L. v. Tuscaloosa Cnty. Dep't of

1The father identified DHR and the mother as appellees, but the

foster parents are the only adverse parties against whom the appeals
have been taken, so we have restyled the appeals to designate only the
foster parents as appellees. See Rule 3(c), Ala. R. App. P.
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Hum. Res., [Ms. CL-2023-0765, Apr. 26, 2024] ___ So. 3d ___ (Ala. Civ.

App. 2024).

Discussion

Before proceeding to the merits, we first address our jurisdiction

over the appeals that arise from the judgments entered by the juvenile

court following the issuance of our opinion in C.S. in the five actions.

Those actions include a dependency action commenced by DHR (case

number JU-21-12.01), a custody action commenced by the mother (case

number JU-21-12.02), a custody action commenced by the foster parents

(case number JU-21-12.03), a termination-of-parental-rights action

commenced by the foster parents (case number JU-21-12.04), and an

adoption action commenced by the foster parents (case number JU-21-

12.05). In C.S., supra, we reversed, in part, only the judgment entered

against the father in case number JU-21-12.01.2

2We recognize that we remanded the case for the juvenile court to

amend the "judgments," C.S., ___ So. 3d at ___, plural, but, in context, we
were referring to the judgment finding the child dependent as to the
father, the judgment denying the father's petition for custody, and the
judgment regulating the visitation between the father and the child, all
of which pertained to case number JU-21-12.01.
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Following our reversal of the judgment in case number JU-21-

12.01, the juvenile court entered amended judgments in all five actions,

and the father has appealed from all five judgments. Because case

number JU-21-12.03 was a void proceeding, the amended judgment

entered in that case is void. C.S., supra. The amended judgments

entered in case numbers JU-21-12.02, JU-21-12.04, and JU-21-12.05 are

void because the unqualified affirmance by this court of the final

judgments entered in those cases terminated the jurisdiction of the

juvenile court to take any action to modify those judgments. See Werborn

v. Pinney, 76 Ala. 291 (1884); Waterhouse v. Iowa Dist. Ct. for Linn Cnty.,

593 N.W.2d 141, 142 (Iowa 1999). Thus, we dismiss appeal numbers CL-

2024-0839, CL-2024-0840, CL-2024-0841, and CL-2024-0842, which

arise from the void judgments entered in those actions, see Vann v. Cook,

989 So. 2d 556, 559 (Ala. Civ. App. 2008) (holding that a void judgment

will not support an appeal and the court must dismiss an appeal from a

void judgment), all of which have been finally concluded.

Regarding the appeal from the amended judgment entered in case

number JU-21-12.01, we conclude that the juvenile court failed to follow

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our mandate. "It is well settled that, after remand, the trial court should

comply strictly with the mandate of the appellate court by entering and

implementing the appropriate judgment." Auerbach v. Parker, 558 So.

2d 900, 902 (Ala. 1989).

" 'It is the duty of the trial court, on remand, to comply
strictly with the mandate of the appellate court according to
its true intent and meaning, as determined by the directions
given by the reviewing court. ... The appellate court's decision
is final as to all matters before it, becomes the law of the case,
and must be executed according to the mandate ....' "

Ex parte Alabama Power Co., 431 So. 2d 151, 155 (Ala. 1983) (quoting 5

Am. Jur. 2d, Appeal and Error § 991 (1962)).

In C.S., supra, we determined that the record did not contain

sufficient evidence to sustain the finding that the child was dependent as

to the father, and we held that, as a fit natural parent, the father, not the

foster parents, should have been awarded custody of the child. In that

context, we ordered the juvenile court to award the father custody of the

child. Realizing that DHR had unduly interfered in the bonding process

between the child and the father, this court also ordered the juvenile

court to gradually transition the child into the custody of the father.

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On remand, the juvenile court partially complied with our mandate

by vacating the award of custody to the foster parents and awarding

custody of the child to the father. The judgment entered on remand in

case number JU-21-12.01 provides, in pertinent part:

"The full legal and physical custody of the child is hereby
vested with the father .... The father shall have the rights,
duties, privileges and obligations to make all decisions
regarding the health, education and welfare of the child. All
custody is hereby divested from the former custodians, [the
foster parents]."

The juvenile court further partially complied with our mandate by

implementing a transition schedule providing for the child to primarily

reside with the foster parents, while gradually spending more time with

the father, until November 3, 2024, when, the juvenile court ordered, the

child "shall be placed in the physical custody of the father and the

transition period shall be complete." However, the juvenile court further

included a visitation provision awarding the foster parents the right to

visit with the child overnight and unsupervised on the first weekend and

the third Thursday of each month commencing on December 6, 2024,

after the transition period had ended.

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That visitation provision violated our mandate. In common

understanding, and in the context of this case, at the end of the transition

period, the custody of the child was to be fully vested in the father. See

Ex parte Marshall Cnty. Dep't of Hum. Res., 234 So. 3d 519, 521 (Ala.

Civ. App. 2016) ("The child's custody is to be vested in the father at the

completion of the transitional period ...."). The juvenile court clearly

understood that this court had directed it to award the father full custody

of the child, but it apparently determined that an award of visitation to

the foster parents did not conflict with the award of full custody to the

father. However, "visitation rights are a part of custody determinations."

Denney v. Forbus, 656 So. 2d 1205, 1206 (Ala. Civ. App. 1995). An award

of full custody to a fit natural parent necessarily includes the right to

control visitation between the child and third parties. See Ex parte

E.R.G., 73 So. 3d 634 (Ala. 2011) (holding that a fit natural parent has a

fundamental right to control visitation between his child and third

parties that a court cannot override based on its own determination that

visitation would serve the best interests of the child). This court intended

that, upon completion of the transition period, the father would have the

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right, as the legal custodian and natural parent of the child, to determine

whether visitation with the foster parents would be in the best interest

of the child. This court did not intend that the juvenile court could award

visitation to the foster parents over the objection of the father, which

would be antithetical to the award of full custody.

In addition to depriving the father of his rights as a legal custodian,

the award of visitation to the foster parents also curtails his physical

custody of the child. "Overnight and other unsupervised 'visitation'

removes children from the presence and control of their parents and gives

complete control and authority over the child for a period of time to

another adult, essentially effecting a temporary or 'partial custody.' " See

R.S.C. v. J.B.C., 812 So. 2d 361, 369 (Ala. Civ. App. 2001) (plurality

opinion). The visitation award removes the child from the physical

custody of the father on the first weekend and every third Thursday of

every month and places the child into the custody of the foster parents.

Under that arrangement, the child will not transition completely into the

custody of the father as we intended and ordered.

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The juvenile court asserted that it could award visitation to the

foster parents pursuant to W.T.M. v. S.P., 889 So. 2d 572 (Ala. Civ. App.

2003) (plurality opinion), and Ala. Code 1975, § 12-15-314(a) ("If a child

is found to be dependent, the juvenile court may make any of the

following orders of disposition to protect the welfare of the child: ... (4)

Make any other order as the juvenile court in its discretion shall deem to

be for the welfare and best interests of the child."). We disagree. In

W.T.M., this court had remanded a dependency case to the Jefferson

Juvenile Court to make a final custodial disposition of the child, without

specifying the terms of the final custodial disposition. "[W]here [an

appellate] court gives no precise directions as to how a case is to proceed

as to a certain matter on remand, the lower court may proceed in any

manner that is not inconsistent with the [appellate] court's opinion."

Durbin v. Durbin, 818 So. 2d 409, 411 (Ala. Civ. App. 2001). The

Jefferson Juvenile Court awarded custody of the child at issue in W.T.M.

to relatives, but also awarded visitation to the former foster parent and

the former foster siblings. Judge Murdock, the author of the main

opinion in W.T.M., opined that the visitation award did not violate the

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vague remand instructions of this court and that the juvenile court could

use its broad power under the predecessor statute to § 12-15-314(a)(4) to

award visitation if it determined that that visitation would be in the best

interests of the dependent child.

In this case, however, this court determined that the child was not

dependent as to the father and directed that the father -- the fit natural

parent of the child, not a mere relative of the child -- be awarded full

custody of the child following a transition period. Unlike in W.T.M., in

C.S., this court gave precise instructions to the juvenile court regarding

the final custodial disposition of the child. Our decision left the foster

parents without any custodial rights to the child and, if anything, to be

consistent with our remand instructions, the juvenile court could only

have dismissed the foster parents as parties to the dependency action.

The opinion did not leave it to the discretion of the juvenile court to make

any other custodial disposition that it deemed to be in the best interests

of the child. The juvenile court could not rely on W.T.M. or § 12-15-

314(a)(4) to render a judgment awarding visitation to the foster parents

in contravention of our remand instructions. On remand, our opinion

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was the law of the case and " '[n]o judgment other than that directed or

permitted by the reviewing court may be entered.' " Ex parte Alabama

Power Co., 431 So. 2d at 155 (quoting 5 Am. Jur. 2d, Appeal and Error §

991 (1962)).

Finally, in C.S., because we intended for the juvenile court to

transition the child into his custody, we did not order the father to be

dismissed as a party to the dependency action at that time. Now that the

child has transitioned into his custody, the father should no longer be a

party to the dependency action because, as we determined in C.S., the

child is not dependent as to the father. Therefore, we now order the

juvenile court to dismiss the father as a party in case number JU-21-

12.01 and to relinquish any jurisdiction over him pursuant to our holding

in that case.

Conclusion

For the foregoing reasons, we dismiss appeal number CL-2024-

0839, CL-2024-0840, CL-2024-0841, and CL-2024-0842. In appeal

number CL-2024-0838, we hold that the juvenile court violated this

court's mandate in C.S. We therefore reverse the judgment entered in

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case number JU-21-12.01 insofar it awarded visitation rights to the foster

parents. We remand that case with further instructions for the juvenile

court to dismiss the foster parents and the father as parties to the

dependency action.

CL-2024-0838 -- REVERSED AND REMANDED WITH

INSTRUCTIONS.

CL-2024-0839 -- APPEAL DISMISSED.

CL-2024-0840 -- APPEAL DISMISSED.

CL-2024-0841 -- APPEAL DISMISSED.

CL-2024-0842 -- APPEAL DISMISSED.

Edwards, Hanson, Fridy, and Lewis, JJ., concur.

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