Ex parte M.F.B. In re: Matter of E.B. and Matter of G.B.
Juvenile Court, JU-15-280.02 and JU-15-281.02
PETITION FOR WRIT OF MANDAMUS
("the mother"), who is the mother E.B. and G.B.
("the children"), seeks the issuance of a writ of
mandamus directed to the Blount Juvenile Court mandating that
that court vacate several orders entered on October 21, 2016,
in ongoing cases concerning the custodial disposition of the
children following the entry of the juvenile court's
September 2015 judgment finding the children to be dependent
and awarding physical custody of the children to A.G.
("the custodian"), a friend of the mother's
family, subject to "reasonable" supervised
visitation by the mother.
factual averments in and the attachments to the mother's
petition indicate the following pertinent
facts. In February 2016, the mother and the
custodian entered into an agreement, which was ratified by
the juvenile court, to the effect that the mother would be
entitled to supervised visitation with the children for a
minimum of two hours per week and that "the parties
shall remain calm and shall have no discord in the presence
of the ... child[ren]." After a hearing on September 1,
2016, the custodian and the mother entered into an agreement
to expand the mother's visitation up to four hours per
week in advance of the next hearing date scheduled in the
matter on October 27, 2016. However, in response to a motion
filed by the custodian on October 18, 2016, seeking a
continuance of that hearing and immediate suspension of the
mother's visitation,  the juvenile court, without having held
a hearing at which the mother's position could have been
heard, entered several interlocutory orders on October 21,
2016, that, taken together, added the Blount County
Department of Human Resources ("DHR") as a party,
required DHR or its designee to supervise all visitation
between the mother and the children, limited the mother's
supervised visitation to two hours per week, and set a new
review date for February 23, 2017. The mother filed in each
case a "motion to set aside" the October 21 orders,
asserting, among other things, that the juvenile court's
orders had been entered in violation of her due-process
rights to notice and a hearing. The juvenile court did not
act on the two "motion[s] to set aside,
" and the mother filed her mandamus petition
in this court on November 23, 2016, 33 days after the entry
of the juvenile-court orders she challenges.
"Rule 21(a)(3), Ala. R. App. P., provides that a
petition for an extraordinary writ directed to an appellate
court, such as this court, 'shall be filed within a
reasonable time' and that the presumptively reasonable
time for filing a petition seeking review of a trial
court's order 'shall be the same as the time for
taking an appeal.' In juvenile actions, an appeal must be
taken within 14 days of the entry of the judgment or order
appealed from. Rule 4(a)(1)(E), Ala. R. App. P.; Rule 28(C),
Ala. R. Juv. P. [A party's] motion to set aside the
juvenile court's order does not affect the timeliness
analysis because, 'unlike a postjudgment motion following
a final judgment, a motion to reconsider an interlocutory
order does not toll the presumptively reasonable time period
that a party has to petition an appellate court for a writ of
mandamus.' Ex parte Onyx Waste Servs. of
Florida, 979 So.2d 833, 834 (Ala. Civ. App. 2007)
(citing Ex parte Troutman Sanders, LLP, 866 So.2d
547, 549-50 (Ala. 2003))."
Ex parte C.J.A., 12 So.3d 1214, 1215-16 (Ala. Civ.
App. 2009). In this case, the mother has not submitted a
statement of good cause for this court's consideration of
her mandamus petition, notwithstanding its having been filed
after the expiration of the presumptively reasonable time.
See Rule 21(a)(3), Ala. R. App. P.
said, however, this court has interpreted a recent decision,
Ex parte K.R., [Ms. 1141274, March 25, 2016] ___
So.3d ___ (Ala. 2016), in which our supreme court addressed
on mandamus review the merits of a challenge to the
lawfulness of a particular probate-court judge's
temporary appointment by a clerk of that court, as having
held that "in situations in which a petition for the
writ of mandamus challenges the subject-matter jurisdiction
of the court in which the challenged interlocutory order was
rendered, the petition need not timely invoke the
jurisdiction of the appellate court." Ex parte
J.B., [Ms. 2151005, Nov. 18, 2016] ___ So. 3d, ___ (Ala.
Civ. App. 2016). Application of Ex parte J.B. to the
circumstances of this case, in which the mother's
contentions regarding lack of notice and a hearing in
connection with a court's ex parte limitation of her
visitation rights implicate due-process guarantees, see
Ex parte C.T., 154 So.3d 149, 152-53 (Ala. Civ. App.
2014), and do in fact go to the power of the juvenile court
to enter the October 21, 2016, orders, warrants consideration
of the merits, notwithstanding the mother's noncompliance
with Rule 21(a)(3), Ala. R. App. P. See M.G.D. v.
L.B., 164 So.2d 606, 608, 611-12 (Ala. Civ. App. 2014)
(holding void, as violative of procedural due-process
principles, juvenile court's order restricting removal of
minor children from Alabama without permission because order
was issued without notice and opportunity to be heard).
merits of the mother's contentions, we conclude that the
writ is due to be issued to compel the vacation of the
October 21, 2016, orders. Our decision in Ex parte
C.T. stands for the proposition that a party having
visitation rights as to a particular child or particular
children has an accompanying procedural due-process right to
notice of a proceeding to deprive that party of visitation
rights and either a right to a predeprivation hearing or to a
postdeprivation hearing "'as expeditiously as
possible.'" 154 So.3d at 153 (quoting Ex parte
Couey, 110 So.3d 378, 381 (Ala. Civ. App. 2012))
(emphasis omitted). Here, for all that appears in the
mother's petition and the attachments thereto, the mother
has received neither notice nor a timely hearing as to the
curtailment of her visitation rights as sought by the
custodian and as ordered by the juvenile court. Thus, we
grant the mother's petition and direct the juvenile court
to vacate its orders of October 21, 2016, without prejudice
to the authority of the juvenile court to entertain
subsequent motions by the custodian seeking limitation or
suspension of the mother's visitation rights as to the
children and, after notice and a hearing have been afforded,
to determine the merits of such motions based upon the
evidence adduced at a hearing thereon.
GRANTED; WRIT ISSUED.
Thompson, P.J., and Moore, J., concur.
Pittman, J., concurs specially, which Thomas and Donaldson,
PITTMAN, Judge, concurring specially.
concur in the main opinion. However, I write specially to
note that it will ultimately be a matter for our supreme
court finally to determine whether this court's
interpretation in Ex parte J.B., [Ms. 2151005, Nov.
18, 2016] ___ So. 3d, ___ (Ala. Civ. App. 2016), of the
breadth of that court's holding in Ex parte
K.R., [Ms. 1141274, March 25, 2016] ___ So.3d ___ (Ala.
2016), is or is not correct. In my view, there is, at the
least, some room for doubt that our supreme court, which has
the power to adopt amendments to Rule 21, Ala. R. App. P.,
pertaining to the timeliness of extraordinary-writ petitions,
intended a broad holding that Alabama's appellate courts
must consider all jurisdictional arguments made in
untimely petitions filed under Rule 21. See K.R.,
___ So.3d at ___ ("[W]e may ...