Ex parte M.M.S. In re: In the matter of the adoption petition of E.S.H. and S.M.H. Ex parte M.M.S. In re: In the matter of the adoption petition of E.S.H. and S.M.H.
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court's opinion of February 2, 2018, is withdrawn, and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
...