Ex parte B.J.C. and E.T.A.
B.J.C. and E.T.A. In re: Blount County Department of Human Resources
Juvenile Court, JU-16-78.01
PETITION FOR WRIT OF MANDAMUS
the mother, and E.T.A., the father, once lived in Alabama,
where they claim to have entered into a common-law marriage
relationship. 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.
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." 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
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; however, it heard no testimony regarding
the parents' sexual-abuse allegations against the
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. 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.
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."
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.
Temporal Requirements of Rule 21(a)(3), Ala. R. App. P.
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).
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 ...