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Ex parte J.C.

Alabama Court of Civil Appeals

October 24, 2014

Ex parte J.C.
v.
J.C.) (In re: H.W.R. and H.R. (Etowah Juvenile Court, JU-14-319.01)

Released for Publication June 17, 2015.

Appeal from: Etowah Juvenile Court (JU-14-319.01). Trial Judge: William D. Russell, Jr.

For Petitioner: Christopher R. Garner, Burns Garner Law Firm, Gadsden.

For Respondent: Mary K. Simmons, Gadsden.

THOMAS, Judge. Thompson, P.J., and Pittman, Moore, and Donaldson, JJ., concur.

OPINION

Page 624

PETITION FOR WRIT OF MANDAMUS

THOMAS, Judge.

J.C. (" the mother" ) and M.W.P. (" the father" ) were divorced by a judgment entered by the Etowah Circuit Court in November 2012. The circuit court incorporated the parents' agreement regarding, among other things not pertinent to this appeal, custody of their daughter, K.B.P. (" the child" ). The circuit court awarded the mother sole legal and physical custody of the child; it awarded the father specific visitation. The agreement named H.W.R. and H.R. as emergency-medical contacts for the child and referred to them as " the child's godparents."

On August 1, 2014, H.W.R. and H.R. (" the godparents" ) filed in the Etowah Juvenile Court a petition seeking custody of the child; in their petition, the godparents

Page 625

sought an ex parte order awarding them immediate custody. The godparents alleged that the child had resided with them the majority of her life and that the mother had " made threats" regarding removing the child from their care. The godparents alleged that the child was dependent because the parents were unable to care for the child. The godparents asserted that the mother had sporadically visited the child, had not maintained stable housing or employment, and had not supported the child and that the father had abandoned the child. The godparents requested a temporary award of sole legal and physical custody of the child. On August 4, 2014, after an ex parte hearing, the juvenile court entered an order (" the ex parte order" ) adjudicating the child dependent and awarding temporary custody of the child to the godparents. It awarded visitation to the mother at times " mutually agreed upon" by the godparents and the mother. It scheduled a hearing on the matter for September 17, 2014. Thereafter, on August 7, 2014, the godparents' summons and petition were served on the mother.

On August 12, 2014, the mother filed a motion to vacate the ex parte order. The mother alleged, among other things, that the ex parte order violated her due-process rights, that the juvenile court had improperly adjudicated the child dependent without conducting a dependency hearing, that the ex parte emergency hearing was improper because the child had not been subjected to abuse or neglect, that the juvenile court lacked jurisdiction to enter the ex parte order, and that the godparents lacked standing. On August 12, 2014, the juvenile court entered an order denying the mother's motion seeking to vacate the ex parte order. On August 14, 2014, the mother filed a motion seeking an immediate hearing or to vacate the ex parte order. The mother appended to the motion her affidavit, in which she testified that the godparents are unrelated to the child, that the mother had maintained stable housing and employment, that the child had resided with the mother, that the godparents had provided " child care" when the mother was working, and that the mother had supported the child. That same day, the juvenile court entered an order denying the mother's motion seeking an immediate hearing. The mother timely filed a petition for the writ of mandamus in this court on August 22, 2014, seeking a writ of mandamus compelling the juvenile court to dismiss the action because, she asserts, the juvenile court lacks jurisdiction over the matter. The mother also complains that the juvenile court improperly failed to conduct a hearing within 72 hours of the entry of the ex parte order, pursuant to § 12-15-308(a), Ala. Code 1975, and improperly adjudicated the child dependent without conducting a hearing at which she could participate.

" 'A writ of mandamus is an extraordinary remedy ... that should be granted only if the trial court clearly abused its discretion by acting in an arbitrary or capricious manner.' Ex parte Edwards,727 So.2d 792, ...

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