from Baldwin Juvenile Court (JU-17-164.01)
("the mother") appeals from a judgment of the
Baldwin Juvenile Court ("the juvenile court")
terminating her parental rights to the child she had with
C.E.C. III ("the father").
record indicates that the juvenile court entered its judgment
terminating the mother's parental rights on August 16,
2017. Because the judgment from which she appealed was issued
by a juvenile court and no postjudgment motion was filed, the
mother had 14 days, or until August 30, 2017, to timely file
her notice of appeal. See Rule 4(a)(1)(E), Ala. R.
App. P. The paperwork that the mother filed in connection
with her notice of appeal was initially dated August 31,
2017. The date-stamps on the filed copies indicate that the
notice of appeal was filed on August 31, 2017. However, most
of those dates were altered to reflect a filing date of
August 30, 2017.
September 6, 2017, the attorney for the father wrote to Tina
Hadley, the court specialist in the Baldwin Circuit Court
clerk's office whose initials appeared next to the date
changes. In the letter, the father's attorney requested
an explanation as to why the dates had been altered. That
same day, Hadley responded by e-mail, writing that the mother
had attempted to file her notice of appeal on August 30,
2017. Hadley continued:
"The girls in Juvenile sent her upstairs to me and
security had locked the door as it was then 4:30 and the door
is actually on an automatic lock. I verified with Juvenile
that she had been here and been turned away. I corrected the
dates so that she met her time frame since it was not her
fault. The reason I did my thing on 9/1 [the date the notice
of appeal was entered on the State Judicial Information
System] is because I was unable to get to it on 8/31. I am
allowed 7 days to docket it after it is filed."
the mother filed her notice of appeal, she did not file a
security for costs or a bond, and she did not file an
affidavit of substantial hardship or seek a waiver of costs.
September 15, 2017, the father filed in the juvenile court a
motion to dismiss the mother's appeal on the ground that
it was untimely. The juvenile court held an evidentiary
hearing on the motion on October 31, 2017. The evidence
adduced at the hearing, at which Hadley and the mother
testified, reflected events as Hadley had explained in her
September 6, 2017, e-mail to the father's attorney.
Hadley testified that, before August 30, 2017, she had spoken
with the mother by telephone and had sent her the proper
forms to complete the notice appeal but that she did not see
the mother until August 31, 2017. Evidence indicated that
when the mother brought the notice of appeal to the
courthouse on August 30, 2017, she was not permitted to leave
it with the clerk's office. During her testimony, which
corroborated Hadley's explanation, the mother
acknowledged that she had returned with her notice of appeal
to the circuit clerk's office on August 31, 2017, and
that the notice was filed that day.
October 31, 2017, the same day the hearing was held, the
juvenile court purported to enter an order dismissing the
mother's appeal. However, because the time the mother had
in which to file a notice of appeal had already expired, and
because she had already filed a notice of appeal, the
juvenile court no longer had jurisdiction to consider the
father's motion to dismiss, and the order dismissing the
appeal was void. See Ex parte Madison Cty. Dep't of
Human Res., [Ms. 2160883, Nov. 17, 2017] ___ So.3d ___,
___ (Ala. Civ. App. 2017); and D.V.P. v. T.W.P., 905
So.2d 853, 856 (Ala. Civ. App. 2005). Nonetheless, as the
father points out in his appellate brief, the timeliness of
the mother's notice of appeal affects this court's
jurisdiction to consider the matter. Thus, on April 4, 2018,
this court entered an order reinvesting the juvenile court
with jurisdiction for 14 days for the limited purpose of
making a factual determination as to the date the notice of
appeal was filed. The juvenile court complied with this
court's order, and on April 12, 2018, it entered an order
stating that, "[a]fter reviewing the facts, pleadings,
and transcripts available to this court, " it determined
that the mother had filed her notice of appeal on August 31,
2017--15 days after the judgment terminating the mother's
parental rights was entered. The juvenile court ordered that
the State Judicial Information System ("SJIS") be
corrected to reflect that August 31, 2017, was the date of
filing of the mother's notice of appeal.
responding to the mother's brief on appeal, the father
maintains that this court does not have jurisdiction over
this matter because, he argues, the mother's notice of
appeal was untimely filed. In her reply brief, the mother
asserts that because she appeared at the clerk's office
on August 30, 2017--the 14th day after the juvenile court
entered the judgment terminating her parental rights--and
presented her notice of appeal to the clerk's office, her
appeal was timely. In support of her argument, the mother
cites Rubin v. Department of Industrial Relations,
469 So.2d 657 (Ala. Civ. App. 1985).
issue in Rubin was whether a notice of appeal was
untimely when the appellant failed to pay the appropriate
filing fees or obtain a waiver of the initial filing fee by
the date the notice of appeal was due.
"It has long been held that in Alabama '[a] pleading
or other paper may be said to have been duly filed when it is
delivered to the proper filing officer.' Covington
Bros. Motor Co. v. Robinson, 239 Ala. 226, 194 So. 663
(1940). See also Henson v. Henson, 261 Ala. 63, 73
So.2d 100 (1954). Timely delivery is sufficient even when the
clerk fails to mark the pleading or other paper
'filed.' Home Insurance Co. v. Shriner, 235
Ala. 65, 177 So. 897 (1937).
"Thus, when [appellant] timely presented the notice of
appeal and affidavit of substantial hardship to the clerk,
the case is deemed to have been filed, notwithstanding that
the clerk failed to enter the case on the docket until the
judge signed the affidavit."
Rubin, 469 So.2d at 658. Relying on Rubin,
the mother contends that she "presented" her notice
of appeal to the circuit clerk on August 30, 2017. Therefore,
she says, her appeal was timely. We disagree.
Holmes v. Powell, 363 So.2d 760, 761-62 (Ala. 1978),
our supreme court held that
"Rule 3(a), [Ala. R. App. P., ] states that '[I]n
civil cases an appeal ... shall be taken ... by filing a
notice of appeal with the clerk of the trial court, within
the time allowed by Rule 4.'
The language of Rule 4 is equally mandatory. The language of
neither permits the earlier postmark appearing upon an
envelope to be a substitute for filing with the clerk. As
Judge Holmes recently observed in Moutry v. State,
359 So.2d 388, 390 (Ala. Civ. App. 1978), a case dealing with
a similar issue:
"[']A document has not been filed until it has
actually been received by the court; mere mailing is not
enough. See Blades v. U.S., 407 F.2d 1397 (9th Cir.
"See also Townsend v. Board of Building
Appeals, 49 Ohio App.2d 402, 361 N.E.2d 271 (1976);
Walsh v. Tucker, 454 Pa. 175, 312 A.2d 11
context of an appeal from a judgment entered by a juvenile
court, this court has noted that Rule 28(C), Ala. R. Juv. P.,
provides: "'Written notice of appeal shall be
filed within 14 days of the date the judgment,
order, or decree appealed from is filed in the clerk's
office, whether the appeal is to an appellate court or to the
circuit court for trial de novo.' (Emphasis added.)"
D.T. v. State, 1 So.3d 74, 76 (Ala. Civ. App. 2008).
D.T., D.T. had had until February 22, 2008, to file
his notice of appeal. On February 21, 2008, he sent his
notice of appeal to the Dale Circuit Court clerk via an
overnight-delivery service. Nonetheless, the clerk's
office did not receive the notice of appeal until February
26, 2008. Id. This court held that the notice of
appeal was untimely, explaining:
"D.T. states in his brief to this court that he sent the
notice to the clerk's office on February 21, 2008, via an
overnight delivery service. D.T. states that his 'counsel
has not received a satisfactory explanation from [the
delivery service] for the delay.' However, the placing of
a notice of appeal with an overnight delivery service for
transmittal is not sufficient to constitute a
'filing' under Rule 28(C).
"As this court has explained:
"'Whereas, service of papers is complete upon
mailing, filing is not complete until the notice is
delivered to the proper filing officer. See
Henson v. Henson, 261 Ala. 63, 73 So.2d 100 (1954);
Covington Bros. Motor Co. v. Robinson, 239 Ala. 226,
194 So. 663 (1940); Rule 5(e), [Ala. R. Civ. P.].
"'.... A document has not been filed until it
has actually been received by the court; mere mailing is
not enough. See Blades v. U.S., 407 F.2d 1397 (9th
Cir. 1969); see also 16A Words and Phrases,
"Moutry v. State, 359 So.2d 388, 389-90 (Ala.
Civ. App. 1978). See also Alabama Medicaid Agency v.
Peoples, 557 So.2d 1281 (Ala. Civ. App. 1990) (holding
that sending of notice of appeal via certified mail was
insufficient to constitute filing under Rule 4, Ala. R. App.
P.). Because D.T.'s notice of appeal was not received by
the clerk of the Dale Circuit Court until after the time
provided by Rule 28(C), Ala. R. Juv. P., had lapsed,
D.T.'s notice of appeal was not filed within the time
allowed by the Alabama Rules of Juvenile Procedure.
Accordingly, D.T.'s appeal must be dismissed. Rule
2(a)(1), Ala. R. App. P."
D.T., 1 So.3d at 76-77 (second emphasis added).
dissenting opinion attempts to draw an analogy between this
case and a case decided by the Oregon Court of Appeals,
State v. Faust, 244 Or.App. 138, 261 P.3d 24 (2011).
We believe that the cases are distinguishable, however.
Faust involved the question of whether a notice of
appeal had been "given" to the clerk's office
for filing. The appeal in Faust, which was from a
municipal court to a circuit court, was governed by Oregon
statutes providing that a notice of appeal was
"filed" "if it [was] given to a municipal
court clerk with the intention that it be filed." 244
Or.App. at 141, 261 P.3d at 25. The Faust court
explained that "the term 'filing' has a
well-defined legal meaning, which the court has applied in
various statutory contexts, to mean that the filing of a
document occurs when the document is given to the clerk with
the intention that it be filed." Id. (citing
Stull v. Hoke, 326 Or. 72, 78-79, 948 P.2d
722, 725 (1997)). Faust timely gave his notice of appeal to
the municipal-court clerk, who refused to "take"
the appeal because, the clerk said, incorrectly, that the
appeal was to "'be taken to the Court of
Appeals.'" 244 Or.App. at 142, 261 P.3d at 26.
Nonetheless, the clerk stamped the papers, indicating that
the notice of appeal had been given to the clerk within the
time allowed for a timely filing. Id.
concluding that Faust had timely filed his notice of appeal,