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Ex parte B.J.C.

Alabama Court of Civil Appeals

September 8, 2017

Ex parte B.J.C. and E.T.A.
v.
B.J.C. and E.T.A. In re: Blount County Department of Human Resources

         Blount Juvenile Court, JU-16-78.01

          PETITION FOR WRIT OF MANDAMUS

          THOMAS, JUDGE.

         B.J.C., the mother, and E.T.A., the father, once lived in Alabama, where they claim to have entered into a common-law marriage relationship.[1] They are the parents of A.S.A-C. ("the child"), who was born in Tennessee on June 27, 2015. The child first lived with the parents in Tennessee, in a residence provided by D.C. and B.C., the child's maternal grandparents (D.C. and B.C. are referred to collectively as "the maternal grandparents"), who reside in Tennessee. From January 25, 2016, through March 23, 2016, the family lived in Alabama in a residence provided in by A.A., the child's paternal grandmother ("the paternal grandmother"), who resides in Alabama. On March 23, 2016, the family returned to Tennessee after a Blount County Department of Human Resources ("DHR") employee contacted the parents regarding a report that DHR had received alleging that the parents were selling marijuana in Alabama. Thus, the child had lived in Tennessee for seven months following his birth and had lived in Alabama for two months before returning to Tennessee.

         Although the child had returned to Tennessee, DHR filed a dependency petition in the Blount Juvenile Court on March 31, 2016, and, that same day, the juvenile court entered an order awarding DHR temporary custody of the child based on allegations of "immediate or threatened danger of physical and/or emotional harm."[2] DHR transported the child to Alabama. The child is currently being cared for in Alabama by J.J., the child's paternal grandfather, and his wife, K.J. (J.J. and K.J. are referred to collectively as "the paternal grandparents").

         The maternal grandparents, the paternal grandparents, and the paternal grandmother each filed motions to intervene in the dependency action. The materials submitted for our review demonstrate that the juvenile court held what it referred to as a permanency hearing on April 25, 2017 ("the April 25, 2017, hearing"), at which it received ore tenus testimony[3]; however, it heard no testimony regarding the parents' sexual-abuse allegations against the paternal grandmother.

         Approximately one month later, on May 31, 2017, the paternal grandmother, who was then exercising supervised visitation with the child, filed a motion in the juvenile court seeking an award of unsupervised visitation.[4] According to her motion, in September 2016 she had been awarded unsupervised visitation; however, the award had been modified to an award of supervised visitation based upon the parents' allegations, among others, that the paternal grandmother had molested the father when he was a child and had spoken inappropriately about the child. The parents filed an objection to the paternal grandmother's May 31, 2017, motion.

         Without conducting a hearing, the juvenile court entered an order on June 28, 2017 ("the June 28, 2017, order"), modifying the paternal grandmother's visitation award from supervised visitation for 1 hour per week to unsupervised visitation for a 24-hour period once per week. The June 28, 2017, order reads, in pertinent part: "At the ... April 25, 2017[, hearing], [DHR] confirmed that after investigation, the sexual abuse allegations against the paternal grandmother were not a concern."

         The parents filed a motion and an amended motion, and DHR filed a motion, each requesting that the juvenile court set aside the June 28, 2017, order. DHR correctly pointed out that "[t]here was no specific statement by [DHR's witness] that the sexual abuse allegations made by the parents were not a concern" and that, therefore, the juvenile court had misremembered testimony from the April 25, 2017, hearing upon which it expressly relied. DHR's assertion is fully supported by the transcript of the April 25, 2017, hearing. The juvenile court set a hearing for September 27, 2017. The parents filed in this court a petition for the writ of mandamus and a motion seeking a stay of the September 27, 2017, hearing.

         The Temporal Requirements of Rule 21(a)(3), Ala. R. App. P.

         A generous reading of the parents' request warrants consideration of the merits, notwithstanding the parents' noncompliance with the temporal requirements of Rule 21(a)(3). The child's guardian ad litem filed a motion requesting that we dismiss the parents' petition, in which he correctly asserted that the parents had filed their mandamus petition in this court 29 days after the entry of the June 28, 2017, order and that they had not submitted a statement of good cause for this court's consideration of their mandamus petition, notwithstanding its having been filed after the expiration of the presumptively reasonable time. See Rule 21(a)(3).

         However, in Ex parte M.F.B., [Ms. 2160136, Jan. 13, 2017] So. 3d, (Ala. Civ. App. 2017), we explained:

"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 ...

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