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Ex parte A.A.

Alabama Court of Civil Appeals

November 17, 2017

Ex parte A.A.
v.
A.A. In re: K.F.W. and J.A.W.

         (Autauga Juvenile Court, JU-16-141.03)

          PETITION FOR WRIT OF MANDAMUS

          THOMAS, Judge.

         K.F.W. and J.A.W. ("the paternal great-grandparents") brought an action in the Autauga Juvenile Court ("the juvenile court") seeking to have A.W. ("the child") declared dependent and seeking an award of custody of the child; that action was assigned case number JU-16-141.01. J.W. ("the paternal grandmother") also filed in the juvenile court a dependency petition and a request for an award of custody of the child; that action was assigned case number JU-16-141.02. A.A. ("the mother") sought and was granted in forma pauperis status in both case number JU-16-141.01 and case number JU-16-141.02. In both of those actions, she was represented by appointed counsel. The paternal grandmother withdrew her petition for custody in case number JU-16-141.02, and the juvenile court awarded custody of the child to the paternal great-grandparents in March 2017 in case number JU-16-141.01.

         The paternal great-grandparents then instituted an action seeking to terminate the parental rights of the mother to the child, which action was assigned case number JU-16-141.03 ("the termination-of-parental-rights action"). The mother did not file an affidavit of substantial hardship to seek in forma pauperis status in the termination-of-parental-rights action. Despite this fact, the juvenile court appointed counsel for her at the request of the paternal great-grandparents. The mother was later provided private counsel at the expense of a third party, who also arranged for a court reporter to be present to record the trial held in the termination-of-parental-rights action. After the juvenile court entered a judgment terminating her parental rights, the mother filed a notice of appeal to this court; her appeal was assigned appeal number 2160989.

         On August 31, 2017, the mother moved the juvenile court to designate a court reporter to transcribe the trial held in the termination-of-parental-rights action. The mother requested that the court reporter who had been present at the trial, April Sargent, be permitted to transcribe the proceedings. The juvenile court granted the mother's motion on September 5, 2017, and entered an order designating Sargent as the person responsible for transcribing the trial held in the termination-of-parental-rights action.

         On September 8, 2017, this court sent the mother a deficiency notice in appeal number 2160989 because the docket fee for the mother's appeal had not been paid. Counsel for the mother informed this court by letter that, although the mother had been provided counsel by a third party, she had been proceeding in forma pauperis in the juvenile court. Because we were not provided any proof that the mother had been granted in forma pauperis status by the juvenile court, we ordered the mother to file in the juvenile court a request to proceed in forma pauperis on appeal as required by Rule 24(a), Ala. R. App. P. The mother filed that request in the juvenile court on September 27, 2017. The juvenile court granted the mother's request to proceed in forma pauperis on appeal on October 5, 2017.

         On October 6, 2017, the mother filed in the juvenile court a motion seeking a free transcript based on her indigency. In her motion, the mother specifically relied on In re Ward, 351 So.2d 571, 574 (Ala. Civ. App. 1977), which explains that an indigent parent appealing from a juvenile-court judgment is entitled to a free transcript insofar as the transcript is necessary for effective appellate review. On October 9, 2017, the juvenile court set the mother's motion for a free transcript for a hearing to be held on October 11, 2017. That same day, counsel for the mother sought a continuance of the October 11, 2017, hearing, alleging that she had to be present in court in another county on the morning of October 11, 2017, and that two days' notice was not sufficient for counsel to reach the mother and to arrange transportation to the hearing because the mother, who was indigent, did not have a working telephone or transportation readily available.

         The juvenile court denied the motion to continue on October 10, 2017, stating:

"MOTION TO CONTINUE is DENIED as this is a Juvenile court matter. Based upon testimony previously provided, the Mother is fully provided for by the Paternal Grandmother therefore she should have the means to travel several miles to the Courthouse to attend a hearing wherein she is requesting this Court find her indigent. If the Mother is now employed or in drug rehabilitation, Mother's counsel may make this Court aware of this new development for consideration.
"All Orders entered since the Notice of Appeal are set aside pending further hearing including designation of Court Reporter and waiver of fees."

(Capitalization and emphasis in original.)

         The mother filed this petition for the writ of mandamus on October 10, 2017. She filed with the petition a motion to stay the October 11, 2017, hearing, which this court granted pending resolution of this petition based on the fact that the juvenile court had set a hearing with less than two days' notice to the parties. See Rule 6(d), Ala. R. Civ. P. (indicating generally that a party should be given five days notice of a hearing on a written motion). In her petition, the mother challenges the juvenile court's October 9, 2017, order setting the hearing on the motion for a free transcript with only two days' notice to the mother and the October 10, 2017, order insofar as it set aside the September 5, 2017, order appointing a court reporter and the October 5, 2017, order granting the mother's request to proceed in forma pauperis on appeal. Finally, the mother contends that the juvenile court is required to allow her a free transcript of the termination-of-parental-rights trial.

We begin our review by noting that
"an appellate court will grant a petition for a writ of mandamus only when '(1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) ...

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