Ex Parte Marshall County Department of Human Resources In re: J.V.
Marshall County Department of Human Resources
Juvenile Court, JU-09-300067.05
PETITION FOR WRIT OF MANDAMUS
Marshall County Department of Human Resources
("DHR") has petitioned this court for a writ of
mandamus directed to the Marshall Juvenile Court ("the
juvenile court") requiring that court to cancel an
evidentiary hearing set for October 16, 2017, and to order
preparation of the transcripts of two hearings, which were
held on May 1, 2017, and June 21, 2017. This matter has been
before this court on six other occasions: Marshall County
Department of Human Resources v. J.V., 152 So.3d 370
(Ala. Civ. App. 2014); Marshall County Department of
Human Resources v. J.V., 203 So.3d 1243 (Ala. Civ. App.
2016) ("J.V. I"); Ex parte Marshall
County Department of Human Resources, [Ms. 2150709, July
1, 2016] __So. 3d __(Ala. Civ. App. 2016) ("J.V.
II"); Ex parte Marshall County Department of
Human Resources (No. 2150795, July 1, 2016), __So.
3d__(Ala. Civ. App. 2016) (mandamus petition denied by order)
(table); Ex parte Marshall County Department of Human
Resources (No. 2160757, July 10, 2017), __So. 3d __
(Ala. Civ. App. 2017) (mandamus petition granted by order)
(table); and Marshall County Department of Human
Resources v. J.V. (No. 2160761, July 14, 2017), __So. 3d
__(Ala. Civ. App. 2017) (appeal dismissed by order) (table).
matter began in 2009, when DHR removed J.V.V. ("the
child") from the custody of M.M.T. ("the
mother") and placed the child in foster care. J.V.
I, 203 So.3d at 1244. J.V. ("the father")
resided in Florida when the child was removed from the
mother's custody. Id. The father was awarded
supervised visitation with the child in 2010 and unsupervised
visitation with the child in December 2010 and January 2011.
Id. The foster parents with whom the child was
living accused the father of sexually abusing the child.
Id. The father was criminally charged; however, the
charges were later dropped. Id. at 1245. While the
criminal charges were pending, the father spent 17 months in
jail between October 2011 and February 2013. After the
criminal charges were dropped, the father was transferred to
a detention facility in Louisiana on an immigration hold,
where he remained until September 2014, when he was released;
he then moved to Georgia. Id. Although DHR had
sought the termination of the father's parental rights
during that period, the juvenile court had denied DHR's
November 2014, the father filed a petition in the juvenile
court seeking custody of the child. Id. The juvenile
court, after a trial, entered an order in December 2014
requiring DHR to prepare a plan to transition custody of the
child to the father and to have a home study performed on the
father's home in Georgia. Id. However, that
order was not a final custody judgment because it did not
transfer custody of the child to the father but, rather, set
the matter "'for further review on
disposition.'" Id. at 1246. Further review
hearings were held on March 23, 2015, and May 12, 2015, to
develop the transition plan. A May 2015 order indicated that
physical custody of the child would be placed with the father
on July 27, 2015, if Georgia approved the father's home
for placement after a home study. Id.
23, 2015, DHR moved for an evidentiary hearing. Id.
at 1247. In its motion, DHR explained that Georgia had not
approved the father's home for placement and that the
child was not prepared to transition to the father's
home. Id. After the requested hearing, the juvenile
court entered a judgment on July 2, 2015, which ordered that
legal and physical custody of the child be transferred to the
father and that the transfer of physical custody occur no
later than July 27, 2015, as required by the May 2015 order.
Id. DHR appealed from that judgment. Id. We
affirmed the judgment insofar as it awarded custody of the
child to the father. Id. at 1253. However, we
reversed the judgment insofar as it ordered the transition of
custody to take place in July 2015, explaining that, based on
the evidence before the juvenile court, "the father and
the child do not have a relationship strong enough to
accomplish the transition of custody" and concluding
that "the child's best interest would [not] be
served by immediately awarding custody to the father."
Id. at 1254.
remand, the juvenile court entered an order on April 3, 2016,
in which it outlined a transition plan to which the parties
had agreed. J.V. II, __So. 3d at__. The plan
provided that the father would have unsupervised visitation
with the child on the weekend of May 27, 2016, to May 30,
2016. Id. at___. On May 26, 2016, DHR filed a motion
seeking to prevent that visitation from occurring based on
allegations that the child had attempted to harm herself and
that visitation with the father would not be safe for the
child; the juvenile court denied that motion. Id.
at__. DHR also filed a motion seeking to stay the visitation,
which the juvenile court also denied. Id. at __.
then filed an emergency petition for the writ of mandamus in
this court, in which it sought an order "compelling the
juvenile court to 'terminate visitation between the child
and the father.'" Id. at__ __. We construed
the request to terminate visitation as being a request to
modify the award of custody to the father. Id. at
__. Based on that characterization, we determined that DHR
was not entitled to the relief it sought in the petition.
Id. at __. In our opinion, we explained that the
award of custody to the father had become the law of the case
and that DHR's allegations were, in fact, new allegations
supported by new evidence that had come into existence after
the entry of the April 3, 2016, order and could be presented
to the juvenile court only by way of a petition for
modification. Id. at __.
the issuance of our opinion in J.V. II, DHR filed a
petition for the writ of mandamus in our supreme court.
See Ex parte Marshall Cty. Dep't of Human Res.,
[Ms. 1151039, March 31, 2017] __So. 3d __(Ala. 2017)
("J.V. III"). That court issued an opinion
on March 31, 2017, in which it determined that the April 3,
2016, custody order was not a final custody judgment
incapable of alteration because, the court reasoned, in
dependency cases there are typically a series of appealable
dispositional custody orders and, the court noted, the April
3, 2016, order indicated that further review of the
transition would occur on October 3, 2016. J.V. III,
__So. 3d at__. Our supreme court also explained that, because
the April 3, 2016, order was not a final custody judgment,
"the juvenile court was free to take into account
evidence regarding matters occurring after the entry of its
April 2016 order and before any order that it might issue on
October 3, 2016, in determining whether a modification of the
terms of transition was warranted." Id. at __.
The supreme court observed that the juvenile court had not
held a hearing on the allegations regarding the child's
mental health and safety that DHR had made in its May 2016
filings in the juvenile court. Id. at __.
Specifically, our supreme court stated that "the
juvenile court should have scheduled a hearing so that it
could properly evaluate any evidence DHR might present ... as
to the alleged change in the child's circumstances after
the entry of the April 2016 order." Id. at __.
the issuance of our supreme court's certificate of
judgment in J.V. III, upon request of the father,
the juvenile court set the hearing referenced in the supreme
court's opinion for July 13, 2017. DHR objected to the
July 13, 2017, hearing and also filed a motion for a summary
judgment in which it argued that the supreme court's
decision in J.V. III had resolved the issue
regarding custody finally and conclusively in favor of DHR.
The juvenile court, after a hearing, denied DHR's motion
for a summary judgment on June 21, 2017, and DHR filed both a
notice of appeal to our supreme court and a petition for the
writ of mandamus in our supreme court. Both the appeal and
the petition were transferred to this court because, as they
both arose from a dependency and custody matter, they fell
within our subject-matter jurisdiction, see Ala.
Code 1975, § 12-3-10; the appeal was assigned case no.
2160761 and the petition was assigned case no. 2160757.
dismissed DHR's appeal of the denial of its motion for a
summary judgment by order (case no. 2160761), citing
Continental Casualty Co. v. South Trust Bank, N.A.,
933 So.2d 337, 340 (Ala. 2006), because the order denying
DHR's motion for a summary judgment was not capable of
supporting an appeal. We further noted in our order that
DHR's alternative request that this court allow DHR to
pursue a Rule 5, Ala. R. App. P., permissive appeal was
precluded by Rule 5. See Committee Comments, Rule 5
(stating that the rule does not "apply to cases
appealable to the Court of Civil
Appeals").We granted DHR's petition for the writ
of mandamus (case no. 2160757), which sought the cancellation
of the July 13, 2017, hearing, by order because the filing of
the notice of appeal in case no. 2160761 had removed
jurisdiction over the action from the juvenile court, and it
therefore lacked the authority to conduct the July 13, 2017,
hearing or to otherwise act on the matter until this court
concluded its review and entered a certificate of judgment.
See M.G. v. J.T., 105 So.3d 1232, 1233 (Ala. Civ.
App. 2012) (explaining that until this court issues its
certificate of judgment on a matter, a lower court does not
have jurisdiction to act on that matter).
the resolution of DHR's most recent petition and appeal,
the father again filed in the juvenile court a motion to set
the matter for an evidentiary hearing. DHR again objected to
the father's request. Although the juvenile court at
first declined to set a hearing because it was unaware that
the appeal (case no. 2160761) had been dismissed, it later
placed the father's request on an August 16, 2017, motion
docket. On August 17, 2017, the juvenile court entered an
order setting an evidentiary hearing for October 16, 2017.
addition, while the parties were litigating the father's
right to a hearing, DHR requested, on June 28, 2017, that the
juvenile court order transcription of the hearings held on
May 1, 2017, and June 21, 2017. The juvenile court did not
rule on that motion. DHR renewed its motion on July 17, 2017;
again, the juvenile court did not act on the motion. On
August 16, 2017, DHR made a third request for the
transcription of the May 1, 2017, and June 21, 2017,
hearings. The juvenile court still did not rule on the
August 25, 2017, DHR timely filed its petition for the writ
of mandamus seeking review of the August 17, 2017, order
setting an evidentiary hearing in the father's custody
action. In its petition, DHR also requests that we order the
juvenile court to authorize preparation of the May 1, 2017,
and June 21, 2017, hearing transcripts. We called for an
answer to the petition, which has ...