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D.H. v. B.M.

Alabama Court of Civil Appeals

October 20, 2017

D.H.
v.
B.M. and T.S. C.H.
v.
B.M. and T.S.

         Appeals from Autauga Juvenile Court (JU-15-59.02)

         On Application for Rehearing in Case No. 2160790

          THOMPSON, PRESIDING JUDGE.

         This court's opinion of July 21, 2017, is withdrawn, and the following is substituted therefor.

         On April 23, 2015, B.M. and T.S. ("the maternal grandparents") filed in the Autauga Juvenile Court ("the juvenile court") petitions alleging that D.L.H. ("the child") and W.H. ("the half sibling"), the minor children of C.H. ("the mother"), were dependent and seeking awards of custody of the children. We note that the record contains little evidence regarding the action pertaining to the half sibling. That child was quickly returned to the parents' custody and is not at issue in these appeals. Accordingly, we address only the action pertaining to the child. We further note that parallel dependency actions pertaining to the children were initiated by the Autauga Department of Human Resources ("DHR") before the maternal grandparents filed their petition regarding the child in the underlying action. DHR's dependency actions are discussed in greater detail later in this opinion.

         In their dependency petition, the maternal grandparents alleged that D.H. ("the father")[1] had sexually abused the child and that the mother was not taking action to properly protect and care for the child. On June 4, 2015, the juvenile court entered a pendente lite order in which it, among other things, left legal custody of the child with the parents, awarded pendente lite physical custody to B.M. ("the maternal grandmother"), and ordered that the father not have contact with the child. In that order, the juvenile court also left legal and physical custody of the half sibling with the parents but ordered that the half sibling and the child have visitation with each other.

         On April 19, 2016, the juvenile court entered an order after receiving ore tenus evidence. In that order, the juvenile court found the child to be dependent and awarded custody to the maternal grandparents, denied the father visitation with the child, but awarded the mother visitation. The juvenile court conducted a final hearing on the merits on May 16, 2016.

         On June 14, 2016, the juvenile court entered a judgment in which it again found the child to be dependent and awarded custody of the child to the maternal grandparents. In entering that judgment, the juvenile court found the child's allegations of abuse and "other problems in the home" to be credible, and it noted that the mother and the father had not believed the child and had claimed that the child could not distinguish dreams from reality.

         On June 16, 2016, two days after the entry of the custody judgment, the father filed a notice of appeal from the juvenile court's judgment to the Autauga Circuit Court ("the circuit court"). In his June 16, 2016, notice of appeal, the father alleged that there was an inadequate record for appellate review, and he sought a trial de novo. On June 21, 2016, the father filed a "brief on notice of appeal filing, " in which he asserted that he had filed a notice of appeal on June 16, 2016, but that that notice of appeal did not appear in "Alacourt records, " i.e., in the electronic court-system database. In that brief, the father argued that the record of the juvenile court's proceedings was inadequate for appellate review in this court and, therefore, that the appeal should be to the circuit court. Attached to that "brief on notice of appeal filing" was a copy of the June 16, 2016, notice of appeal.

         The juvenile court entered an order on June 22, 2016, noting that the father had filed the notice of appeal to the circuit court, which it noted was the incorrect forum, and finding that the father's assertion that there was an inadequate record was premature.[2] Apparently in response to the June 22, 2016, order, the father amended his notice of appeal on June 23, 2016, on a form designating that the appeal be to this court.

         On July 7, 2016, the mother filed a notice of appeal. The parties have incorrectly referred to the mother's notice of appeal as a "cross-appeal." See Black's Law Dictionary 117 (10th ed. 2014) (defining "cross-appeal" as "[a]n appeal by the appellee").

         As an initial matter, we must determine whether this court has jurisdiction over the mother's appeal.[3] In the absence of a timely postjudgment motion, the parties had 14 days, or until June 28, 2016, to file a timely appeal of the juvenile court's June 14, 2016, judgment. See Rule 4(a)(1)(E), Ala. R. App. P. The father timely appealed on June 16, 2016. Rule 4(a)(2), Ala. R. App. P., provides that if a party files a timely notice of appeal, "any other party may file a notice of appeal within 14 days (2 weeks) of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this rule, whichever period last expires." Thus, after the father filed his timely notice of appeal, Rule 4(a)(2) operated to afford the mother additional time to file a timely notice of appeal of the June 14, 2016, judgment. W.F. v. State Dep't of Human Res., 704 So.2d 483, 485 n. 1 (Ala. Civ. App. 1997). Instead of being required to appeal by June 28, 2016, which was 14 days following the entry of the June 14, 2016, judgment, the mother had until June 30, 2016, which was 14 days after the father filed his timely, June 16, 2016, notice of appeal, to timely appeal the judgment.

         Under the facts of this case, June 30, 2016, constituted the last date, under Rule 4(a)(2), on which the mother could timely appeal. The mother's July 7, 2016, notice of appeal was filed in excess of 14 days after the filing of the father's June 16, 2016, notice of appeal. In her response to this court's request for argument on the issue of the timeliness of her appeal, (see note 3, supra), the mother addressed only the father's June 23, 2016, notice of appeal, which amended his original notice of appeal to reflect that the appeal was to this court. The father's June 16, 2016, notice of appeal indicated that the appeal was to the circuit court because, he argued, the record on appeal was not adequate for review by this court under Rule 28, Ala. R. Juv. P. The juvenile court (see note 2, supra) and this court (see note 3, supra) disagreed that the record on appeal was inadequate; therefore, the father's notice of appeal should have indicated that the appeal was to this court. Rule 28, Ala. R. Juv. P. If an appeal is in the wrong court, the court will transfer the appeal to the correct court, even ex mero motu. See Rule 3(c), Ala. R. App. P. ("If the notice of appeal names the wrong appellate court to which the appeal is taken, such designation shall be treated as a clerical mistake and corrected accordingly. The necessary clerical steps shall be taken to docket the appeal and to file the record and briefs in the appropriate appellate court."); Rule 28(D), Ala. R. Juv. P. ("An appellate court or circuit court may transfer an appeal to another court if it determines that the appeal should be transferred to or should have been brought in that court."); Jenkins v. Covington, 939 So.2d 31, 33 (Ala. Civ. App. 2006); W.E.C. v. Madison Cty. Dep't of Human Res., 909 So.2d 849, 850 (Ala. Civ. App. 2005); and D.K.G. v. J.H., 627 So.2d 935, 936 (Ala. Civ. App. 1992); see also R.H. v. J.H., 778 So.2d 839, 841 (Ala. Civ. App. 2000) (the notice of appeal divested the juvenile court of jurisdiction). Thus, regardless of the fact that the father initially appealed to the circuit court instead of to this court, because the record has been deemed adequate, this court has jurisdiction over the appeal and the appeal is appropriately before this court; conversely, if the record on appeal had been deemed inadequate, the appeal would have been transferred to the circuit court. Rule 28(D), Ala. R. Juv. P.; D.K.G. v. J.H., supra; Jenkins v. Covington, supra. The father's June 23, 2016, amended notice of appeal was not necessary and was not effective to toll any period for allowing the mother to timely appeal.

         On application for rehearing in case no. 2160790, the mother argues that her notice of appeal was timely filed because, she argues, the father's June 16, 2016, notice of appeal was not accepted by the juvenile court clerk. The mother argues that the June 16, 2016, notice of appeal is not set forth in the record except as an exhibit to the father's June 21, 2016, "brief on notice of appeal filing." That notice of appeal, however, is date-stamped as having been filed in the clerk's office. The mother does not explain her contention that, despite that date stamp indicating that the notice of appeal was filed in the juvenile court, that court did not accept the filing. The mother contends in her brief on application for rehearing that "counsel for [the father] walked out of the courthouse with his attempted notice of appeal after the juvenile intake officer refused to accept it." There is nothing in the record to support that contention, neither party made such an allegation in response to this court's order requesting briefing on the timeliness of the mother's appeal, and the mother has not submitted any affidavits or statements from the clerk in support of her application for rehearing that might lend support to her allegation that the juvenile court did not accept the father's June 16, 2016, notice of appeal.

         The mother points out that the case-action summary for the action does not list the father's June 16, 2016, notice of appeal. The case-action summary does contain an entry indicating that the father's "brief on appeal" was filed, as well as an entry for the juvenile court's June 22, 2016, order on "brief on appeal, " as it is identified on the case-action summary. In that June 22, 2016, order, the juvenile court stated, among other things, that "the father ... has filed an appeal."[4] Thus, the record clearly indicates that, regardless of any purported mistakes by the clerk's office in failing to make a notation on the case-action summary of the June 16, 2016, notice of appeal, that notice of appeal was filed in the juvenile court. The mother cites Rule 3(d), Ala. R. App. P., which requires the juvenile court to serve a copy of the notice of appeal on the appellate court and the parties, and she asserts that no such service was accomplished in this case. Although we agree that the clerk's office should be diligent in properly maintaining the case-action summary and in properly serving the parties, the mother has not identified any law indicating that the clerk's omission of an entry of a filing on the case-action summary affects the jurisdictional significance of the actual filing a notice of appeal, especially given the father's brief discussing the June 16, 2016, notice of appeal and the juvenile court's June 22, 2016, order. In fact, the Committee Comments to Rule 3, Ala. R. App. P., provide that the "[t]imely filing of the notice of appeal is a jurisdictional act. It is the only step in the appellate process which is jurisdictional."

"The only jurisdictional prerequisite for an appeal is the timely filing of a notice of appeal. Edmondson v. Blakey, 341 So.2d 481, 484 (Ala. 1976); see also Committee Comments to Rule 3, Ala. R. App. P. ('Timely filing of the notice of appeal is a jurisdictional act. It is the only step in the appellate process which is jurisdictional.'). The Alabama Rules of Appellate Procedure were not 'designed to catch the unwary on technicalities.' Edmondson, 341 So.2d at 484. Accordingly, absent a showing that the alleged defect in a notice of appeal prejudiced the adverse party, an appeal will not be dismissed on the basis of that defect. See Wemett v. State, 536 So.2d 349, 350 (Fla. Dist. Ct. App. 1988) ('a defect in a notice of appeal that does not prejudice the adverse party will not serve as grounds for dismissal')."

Dunning v. New England Life Ins. Co., 890 So.2d 92, 96 (Ala. 2003). The mother has made no allegation that she was unaware of the June 16, 2016, notice of appeal and no showing that she was prejudiced (i.e., that she was unaware of the June 16, 2016, notice of appeal) by any failures on the part of the juvenile-court clerk to comply with rules governing the handling of a notice of appeal.

         As noted earlier, the record indicates that the father filed a timely notice of appeal on June 16, 2016. The mother had until June 30, 2016, due to an extension pursuant to Rule 4(a)(2), to timely appeal. The mother's July 7, 2016, notice of appeal was not timely filed. Therefore, this court lacks jurisdiction over her appeal, and we dismiss the mother's appeal. M.M. v. L.L., 989 So.2d 528, 530 (Ala. Civ. App. 2007).

         The record indicates that before the maternal grandparents initiated this dependency action, DHR had filed, on March 17, 2015, dependency petitions pertaining to the child and the half sibling. In those petitions, DHR alleged that the father had sexually abused the child, who was 11 at that time. We note that the dependency actions initiated by DHR pertaining to the children were consolidated in the juvenile court; we hereinafter refer to the action initiated by DHR pertaining to the child as "the .01 action." There is no indication in the record that any party sought to consolidate those actions with the dependency action regarding the child that was initiated by the maternal grandparents, and the record contains no order consolidating the .01 action with the dependency action underlying this appeal.

         On April 10, 2015, the juvenile court entered an order in the .01 action (as well as in the dependency action pertaining to the half sibling initiated by DHR) in which it awarded pendente lite legal and physical custody of the half sibling to the parents, awarded pendente lite legal custody of the child to the parents, but awarded pendente lite physical custody of the child to the maternal grandmother. That order specified that, although the child and her half sibling would be allowed to visit each other, the father was to have no contact with the child.

         The maternal grandparents initiated their dependency action pertaining to the child (hereinafter sometimes referred to as "the .02 action") on April 23, 2015.

         On June 4, 2015, the juvenile court entered in the .01 action another pendente lite order that was substantively the same as its earlier, April 10, 2015, order. The record indicates that that order was entered on the State Judicial Information System in the .02 action, although the style of the order indicates that it was applicable to the .01 action.

         On August 18, 2015, the maternal grandmother filed an "amended petition" to have the child declared dependent; that petition was styled as being applicable to the .01 action, but it was filed in the .02 action. The maternal grandparents later moved for a continuance of a scheduled hearing in the .01 action. It is clear that the parties and the juvenile court occasionally intermingled the case numbers in the two pending dependency actions pertaining to the child. It appears that the parties did not continue to allege that the half sibling, who remained in the custody of his parents, was dependent.

         On December 14, 2015, the juvenile court entered an order in the .01 action in which it found the child to be dependent based on an "agreement of the parties" and awarded custody of the child to the maternal grandparents. In that order, the juvenile court specifically referred to the action in which that order was entered as being the dependency action initiated by DHR and stated that it had been entered following a "final hearing, " although the juvenile court specified that the custody award was effective ...


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