This case on working to “undo” an earlier termination of parental rights is useful in clarifying why parents can’t just agree to terminate the parental rights of one of them as part of their divorce. This is a common request parents make to divorce lawyers in Alabama, and from now on when people make it I’ll refer them to this note.
The case is Campton v. Miller, Case No. 2080182 (Ala. Civ. App. March 27, 2009). It presents as a post-divorce petition by Dad to modify a provision in his divorce from Mom to vacate the portion of the judgment terminating his parental rights. Mom and Dad had agreed on the provision in their divorce two years ago. It’s not clear from the opinion why Dad wanted to reverse it and start paying child support for a two year old child, so we’re left wondering whether Dad was suddenly overcome by an overwhelming surge of parental affection or just found out his kid won the lottery.
Whatever his motivation, Dad won in the trial court, which declared the termination of Dad’s parental rights void based on Ala. Rule of Civil Procedure 60(b), because no one held a hearing, no one appointed a Guardian Ad Litem to represent the (then unborn) child, no one presented any evidence regarding grounds for termination, and no one considered the child’s best interests. Later in a post-judgment order the trial court stated that the original order was void because the court granting it lacked jurisdiction.
Because the ruling from the trial court failed to address Dad’s visitation rights or his duty to pay child support, there was an exchange of post-trial motions followed by Mom’s appeal. The appeals court opted to consider her appeal as a petition for a writ of mandamus.
Under Rule 60(b)(4), the appeals court said, the trial court had the duty to relieve a party from a final judgment if the judgment is void. The judgment is void if the court rendering it lacked jurisdiction of the subject matter or the parties, or the court rendering it acted in a manner inconsistent with due process. Here, said the appeals court, the original order terminating Dad’s parental rights was void because the court issuing it, the circuit court, lacked jurisdiction to do so.
Pursuant to Ala. Code 1975, § 12-15-30(b) (6), juvenile courts have exclusive, original jurisdiction over proceedings seeking termination of parental rights. A circuit court has no subject-matter jurisdiction to terminate the parental rights of a parent incidental to a divorce judgment, even if the parties agree. See, generally, N.W.S.S. v. S.D.S., 747 So. 2d 339, 340-41 (Ala. Civ. App. 1999). A provision in a circuit court’s divorce judgment purporting to terminate parental rights is therefore void. H.M.J. ex rel. Blumenfeld v. S.L.A., 964 So. 2d 1245, 1246 (Ala. Civ. App. 2007) (citing N.W.S.S. v. S.D.S., supra, and R.H. v. D.W.M., 772 So. 2d 1183, 1186 (Ala. Civ. App. 2000) (both of which hold that circuit courts lack subject-matter jurisdiction to rule on petitions to terminate parental rights)). Therefore, the trial court correctly vacated the provision of the divorce judgment purporting to terminate the parental rights of the father. Campton at 12-13.
The appeals court brushed aside Mom’s objection that Dad couldn’t raise this issue two years after the divorce, saying that lack of jurisdiction could be raised at any time after a judgment is rendered.
The provision about the juvenile court having the exclusive jurisdiction to terminate parental rights still exists, but the legislature has recodified it as part of the new Juvenile Code. Instead of at Ala. Code § 12-15-30, you’ll find it now at Ala. Code § 12-15-114.
On the Ground in Alabama. So now Dad has his parental rights back. Presumably he will begin visitation with the child and paying child support. What happens now if the child has since been adopted by another father? Is that adoption now void, or voidable? Ms. Campton and Mr. Miller aren’t typical, but neither are they alone; other parents have convinced a divorce court judge to approve provisions like this at some point in the past. And remember: there’s no time limit on filing to reverse it.
I frankly don’t expect this issue to pop up all over the state. My sense is that most fathers whose rights have been terminated in a flawed manner by a divorce court lacking jurisdiction are happy to let sleeping children lie, along with the claim for the child support they would have to pay. But here’s a fun thought: presumably this works both ways. What about the moms who regret letting dads off the hook? If Mom sees Dad living it up with his (now large and unencumbered) wealth, will she be tempted to file to modify her divorce court judgment and reel Dad (and his now significant child support) back in?