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Ex parte Sims

Alabama Court of Civil Appeals

March 23, 2018

Ex parte Cherry Grace Sims and Sharon K. Doviet, as guardian ad litem for D.S. and L.S., minor children
v.
Douglas Lawrence Sims In re: Cherry Grace Sims

          PETITION FOR WRIT OF MANDAMUS Madison Circuit Court, DR-12-846.02

          PER CURIAM

         Cherry Grace Sims ("the mother") and Sharon K. Doviet, the guardian ad litem appointed to represent the children of the mother and Douglas Lawrence Sims ("the father"), filed a petition for a writ of mandamus seeking relief from a November 14, 2017, order of the Madison Circuit Court ("the trial court"). This is the second time these petitioners have been before this court.

         In Ex parte Sims, [Ms. 2160753, Aug. 25, 2017] ___ So.3d ___, ___ (Ala. Civ. App. 2017), this court set forth the relevant history as follows:

"The mother was divorced in 2012 from [the father]. Two children were born of the parties' marriage, and, as a result of the 2012 divorce judgment, the mother and the father shared joint legal and joint physical custody of the children. At the time of the entry of the order that is the subject of this mandamus petition, the two children, who are twins, were 10 years old.
"On August 29, 2016, the mother filed a petition to modify custody of the parties' children in which she sought an award of sole physical custody of the children. In September 2016, the father answered and counterclaimed, also seeking an award of sole physical custody of the parties' children.
"On January 12, 2017, the mother filed a motion for the appointment of a guardian ad litem to represent the children. In that motion, the mother alleged that the children were being treated by a psychologist. She argued that the children's records of treatment with the psychologist are privileged and that the children lack the authority to waive that privilege because they are minors.
The mother sought the appointment of a guardian ad litem for the purpose of determining whether the children could or should waive that privilege. On that same day, January 12, 2017, the trial court entered an order in which it granted the mother's motion and appointed Doviet to serve as the children's guardian ad litem. ...
"On May 18, 2017, the mother filed a motion to continue the hearing on the merits, which was scheduled for four days later, on May 22, 2017. In that motion to continue, the mother alleged that, two days earlier, she had spoken with Doviet and had learned that Doviet 'had not made any attempt' to obtain or review the psychologist's records pertaining to the children and that, therefore, Doviet was 'unable to make any informed decision whether to waive the psychologist-patient privilege' for the children so that the mother could present evidence to the trial court regarding 'the treatment of the children, the children's diagnoses, and the parents' interaction with the psychologist.' The mother argued that the May 22, 2017, hearing on the merits should be postponed so that Doviet could have time to make a determination regarding whether to waive the privilege; the mother maintained that she was 'unable to properly prepare for trial' unless Doviet, as the children's guardian ad litem, made the determination that the privilege should be waived.
"On May 19, 2017, the trial court entered an order denying the mother's motion to continue the May 22, 2017, hearing. ...
"....
"On June 30, 2017, the mother and Doviet ... timely filed in this court a joint petition for a writ of mandamus."

         In denying the petition for a writ of mandamus in Ex parte Sims, supra, this court concluded that the mother and Doviet had failed to demonstrate that any party had asserted the psychotherapist-patient privilege on behalf of the children or that Doviet had requested or been denied the opportunity to review the psychological/counseling records for the children. Ex parte Sims, ___ So.3d at ___ . This court also determined that the order from which that petition for a writ of mandamus had arisen merely advised the parties as to the trial court's probable ruling if Doviet had sought in the trial court the relief addressed in the petition for a writ of mandamus filed in this court. Id.

         This court entered its certificate of judgment in Ex parte Sims, ...


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