Ex parte M.M.S.

          Calhoun Probate Court, Probate Nos. 2017-181, 2017-182

         On Application for Rehearing

          PETITION FOR WRIT OF MANDAMUS

          THOMPSON, PRESIDING JUDGE.

         This court's opinion of February 2, 2018, is withdrawn, and the following is substituted therefor.

         M.M.S. ("the mother") petitions this court for writs of mandamus directing the Calhoun Probate Court ("the probate court") to vacate its interlocutory decrees of May 9, 2017, regarding custody of her two minor children ("the children") and to vacate its interlocutory orders of May 15, 2017, barring removal of the children from the probate court's jurisdiction or from Lee County, where the children live with their foster parents, E.S.H. and S.M.H. ("the foster parents"). The mother also challenges the probate court's jurisdiction to enter the May 9, 2017, decrees and May 15, 2017, orders.

         The materials before this court indicate the following. On June 12, 2015, the Calhoun Juvenile Court ("the juvenile court") entered orders finding the children dependent and placing the children in shelter care pursuant to the allegations of the Calhoun County Department of Human Resources ("DHR") that the children were dependent. The reason for the dependency finding is not included in the materials before us. According to the mother's mandamus petitions, DHR then placed the children with the foster parents. The children have been residing with the foster parents since June 2015. DHR has retained legal custody of the children since the shelter-care orders were entered.

         On October 26, 2016, the children's guardian ad litem filed in the juvenile court a petition for the termination of the mother's parental rights to the children ("the termination petition").^[1] Subsequently, DHR sought to remove the children from foster care and place them with a relative in Texas, effective in May 2017. On May 8, 2017, the foster parents filed in the probate court a petition for adoption for each of the children. The adoption petitions indicated that "dependency/custody/termination of parental rights proceedings" were pending in the juvenile court and that, pursuant to orders of the juvenile court, DHR had legal custody of the children. The adoption petitions also indicated that there was no "placing agency" in these cases.^[2]

         On May 9, 2017, the probate court entered an interlocutory decree for each child, awarding custody of each child to the foster parents. On May 15, 2017, the probate court entered an interlocutory order for each child directing that each child "shall not be removed from the jurisdiction of [the probate] court except as to their current residence in Lee County, Alabama."

         Also on May 15, 2017, the mother filed in the probate court motions to aside the interlocutory decrees and to dismiss the adoption actions. The mother argued that the juvenile court had jurisdiction over the children and that DHR retained legal custody of the children. Accordingly, the mother stated, the probate court did not have jurisdiction over the children. On May 17, 2017, the mother moved to set aside the May 15, 2017, interlocutory orders preventing the removal of the children from the probate court's jurisdiction. On May 19, 2017, the probate court ordered the parties to file briefs in the adoption actions. On June 6, 2017, the mother filed in the probate court motions contesting the adoption proceedings and supporting briefs. Nothing in the materials before us shows that the probate court ruled on any of the mother's various motions. On July 12, 2017, after a dispositional hearing, the juvenile court entered an order stating that the most appropriate permanent plan for the children was relative custody and/or adoption and that custody was to remain with DHR.

         On September 13, 2017, the mother filed a motion for an immediate ruling in the probate court. On November 13, 2017, the probate court entered orders determining that it had original jurisdiction over the adoption actions, but it transferred the cases to the juvenile court for the limited purpose of determining whether to terminate the mother's parental rights. The probate court explicitly stated that it retained original jurisdiction of the adoption actions. Upon the completion of the termination proceedings, the probate court directed, the cases "shall be remanded" to the probate court for further proceedings. On November 27, 2017, the mother filed a petition for a writ of mandamus in this court addressing the May 9, 2017, interlocutory decree and the May 15, 2017, interlocutory order entered in each adoption action. The next day, November 28, 2017, this court consolidated the petitions ex mero motu.

"Mandamus is an extraordinary remedy. 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) this Court's jurisdiction is properly invoked.' Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala. 2000) (citing Ex parte Mercury Fin. Corp., 715 So.2d 196, 198 (Ala. 1997)). Review by mandamus is not appropriate where the petitioner has another adequate remedy, such as an appeal. Ex parte Jackson, 780 So.2d 681 (Ala. 2000); Ex parte Inverness Constr. Co., 775 So.2d 153 (Ala. 2000); Ex parte Walters, 646 So.2d 154 (Ala. Civ. App. 1994)."

Ex parte Amerigas, 855 So.2d 544, 546-47 (Ala. Civ. App. 2003).

         The mother contends that the probate court erred in entering the interlocutory decrees of May 9, 2017, and the interlocutory orders of May 15, 2017, because, she says, the children were not placed with the foster family by a "placing agency" for the purpose of adoption. Therefore, she maintains, the statutory requirements set forth in § 26-10A- 18, Ala. Code 1975, for the entry of the interlocutory decrees and orders at issue had not been met.^[3]

         Although within a few weeks of the entry of the May 2017 interlocutory decrees and orders the mother filed motions seeking to set them aside, i.e., to have the probate court reconsider those decrees and orders, she did not file her petitions for a writ of mandamus seeking to vacate those decrees and orders until ...