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S.L.J.F. v. Cherokee County Dep't of Human Resources

Alabama Court of Civil Appeals

August 22, 2014

S.L.J.F.
v.
Cherokee County Department of Human Resources

Released for Publication June 17, 2015.

Appeal from Cherokee Juvenile Court. (JU-11-131.03, JU-11-136.03, and JU-13-38.02). Trial Judge: Sheri W. Carver.

For Appellant: Angela Cochran Morgan, Fort Payne.

For Appellee: Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen. Department of Human Resources.

THOMAS, Judge. Thompson, P.J., and Pittman and Donaldson, JJ., concur. Moore, J., concurs in the result, without writing.

OPINION

Page 608

THOMAS, Judge.

S.L.J.F. (" the mother" ) appeals the judgment of the Cherokee Juvenile Court terminating her parental rights to J.R.B. (" the son" ) in case no. JU-11-131.03. The mother was never married to C.B. (" the father" ), who is the father of the son and whose parental rights were also terminated. The mother also appeals the juvenile court's judgments terminating her parental rights to E.R.F., Jr. (" the half brother" ) in case no. JU-11-136.03 and to J.L.F. (" the half sister" ) in case no. JU-13-38.02 (the half brother and the half sister are hereinafter referred to collectively as " the half siblings" ). The juvenile court also terminated the parental rights of E.R.F., Sr. (" the husband" ), who is the father of the half siblings and the mother's husband. The husband has not appealed the termination of his parental rights.

As a threshold matter, we first address our jurisdiction to consider the mother's appeal. On June 10, 2014, the Cherokee Department of Human Resources (" DHR" ) filed a motion to dismiss the mother's appeal as untimely filed, which this court originally denied. However, " [w]e note that a denial of a motion to dismiss an appeal does not preclude reconsideration of the fundamental question of appellate jurisdiction after an appellate court has had an opportunity to review the record." Smith v. Smith, 919 So.2d 315, 316 n.1 (Ala.Civ.App. 2005). Upon review of the record, we have discovered the following additional facts that we were not aware of when we denied DHR's motion to dismiss the appeal.

The judgments in the underlying actions were entered on March 6, 2014. Without filing a postjudgment motion, the father filed a notice of appeal regarding the termination judgment relating to the son on March 14, 2014 (case no. JU-11-131.03). On March 21, 2014, 15 days after the juvenile court had entered its judgments, the mother filed a " Motion and Affidavit in Support of Motion for Leave to Appeal In Forma Pauperis" regarding the termination judgments relating to the son and the half siblings. In a juvenile action, " the notice of appeal shall be filed within 14 days (2 weeks) of the date of entry of the order or judgment appealed from." Rule 4(a)(1), Ala. R. App. P.

On June 24, 2014, this court initially determined that the mother's appeal was timely pursuant to Rule 4(a)(2), Ala. R. App. P. (" If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days (2 weeks) of the date on which the first notice of appeal was filed ...." ). Therefore, because the father had filed a timely notice of appeal regarding the termination judgment relating to the son, the mother had an additional 14 days from the date of the father's filing to perfect an appeal under Rule 4(a)(2); however, the mother's appeal

Page 609

could be deemed timely only regarding the termination judgment relating to the son. Thus, having reviewed the entire record, we now determine that we have jurisdiction to consider the mother's arguments on appeal only insofar as they pertain to the termination judgment relating to the son. The mother's appeal insofar as it pertains to the termination judgments relating to the half siblings in case no. JU-11-136.03 and case no. JU-13-38.02 is dismissed as untimely.

In December 2010, before the half sister was born, DHR became involved with the family after receiving reports of, among other things, alcohol abuse and domestic violence in the home. There is no indication in the record that the mother abused alcohol; instead, that allegation was against the husband, with whom the mother had often left the son and the half brother. At that time, DHR implemented the first of " at least" four safety plans. DHR placed the son with K.M. (" the aunt" ), the father's sister, and it placed the half brother with B.J.S. (" the maternal stepgrandfather" ) and C.S. (" the maternal grandmother" ) (hereinafter referred to collectively as " the maternal grandparents" ). The maternal grandparents lived in Georgia.[1] Thereafter, the half sister was born and the mother participated in a number of services intended to reunify the family. At times the mother made progress, and the son and the half siblings were temporarily reunited with the mother; however, as already mentioned, DHR implemented at least three other safety plans. In March 2013 the juvenile court awarded custody of the son and the half siblings to DHR, and DHR placed them together in a foster home. On September 23, 2013, DHR filed petitions seeking to terminate the parental rights of the father regarding the son and of the mother regarding the son and the half siblings.

The termination-of-parental-rights trial was held on November 20, 2013. On December 10, 2013, the juvenile court entered an order reserving its judgment. The juvenile court required DHR to evaluate the maternal grandparents and to report the results of a home study of the maternal grandparents' home pursuant to the Interstate Compact on the Placement of Children (" ICPC" ), codified at § 44-2-20 et seq., Ala. Code 1975. On March 6, 2014, DHR notified the juvenile court that placement of the children with the maternal grandparents was not approved. That same day, the juvenile court entered separate judgments terminating the father's parental rights to the son and terminating the mother's parental rights to the son and to the half siblings.[2] The father and the mother filed separate notices of appeal. The father's and the mother's appeals were consolidated ex mero motu by this court on April 4, 2014, and on July 23, 2014, we unconsolidated the appeals.

" This court's standard of appellate review of judgments terminating parental rights is well settled. A juvenile court's factual findings, based on ore tenus evidence, in a judgment terminating parental rights are presumed to be correct and will not be disturbed unless they are plainly and palpably wrong. See, e.g., F.I. v. State Dep't of Human Res., 975 So.2d 969, 972

Page 610

(Ala.Civ.App. 2007). Under express direction from our supreme court, in termination-of-parental-rights cases this court is 'required to apply a presumption of correctness to the trial court's finding[s]' when the trial court bases its decision on conflicting ore tenus evidence. Ex parte State Dep't of Human Res.,834 So.2d 117, 122 (Ala. 2002)(emphasis added). Additionally, we will reverse a juvenile court's judgment terminating parental rights only if the ...

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