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L.J. v. Calhoun County Department of Human Resources and W.B.

Alabama Court of Civil Appeals

May 3, 2019

L.J.
v.
Calhoun County Department of Human Resources and W.B. v.

          Appeal from Calhoun Juvenile Court (JU-18-422.01)

          MOORE, JUDGE.

         L.J. ("the mother") appeals from a judgment of the Calhoun Juvenile Court ("the juvenile court") upholding the terms of a settlement agreement entered into between the mother and W.B. ("the father"), pursuant to which, among other things, the mother's and the father's child, G.J. ("the child"), was declared dependent and the father was awarded sole physical custody of the child. We affirm the juvenile court's judgment.

         Procedural History

         On September 13, 2018, the Calhoun County Department of Human Resources ("DHR") filed in the juvenile court a petition alleging that the child was dependent. On that same date, the juvenile court entered an order appointing an attorney to represent the mother; an order appointing an attorney to represent the father; an order appointing a guardian ad litem to represent the interests of the child; and a shelter-care order that, among other things, transferred pendente lite custody of the child to DHR and set the case for a docket call on October 9, 2018. The juvenile court entered a request for a Court-Appointed Special Advocate ("CASA") volunteer to be assigned to the child's case on September 14, 2018, and, on that same date, the juvenile court entered an order that, among other things, directed the CASA worker appointed to the case to investigate all circumstances surrounding the welfare of the child and to report the same to the juvenile court.

         On September 19, 2018, the guardian ad litem filed a motion for an immediate hearing, citing as the basis of the request DHR's purported intent to return the child to the mother and the guardian ad litem's resulting concerns. The juvenile court entered an order on that same date setting the guardian ad litem's motion for a hearing and directing DHR not to change the placement of the child before the date of the hearing without the guardian ad litem's consent. The guardian ad litem filed a motion to continue the hearing, and the juvenile court granted that motion, noting that its directive to DHR not to change placement of the child remained in full force and effect and directing the parties to notify the court if a hearing on placement of the child was needed.

         On September 25, 2018, the father filed a motion to alter, amend, or vacate the juvenile court's shelter-care order, alleging that he should have been awarded temporary custody of the child. On that same date, the father filed a "renewed motion for temporary custody," in which he sought temporary custody of the child. The juvenile court entered an order on September 28, 2018, setting the father's motion seeking temporary custody for a hearing on October 18, 2018. On October 2, 2018, the mother filed an answer to the dependency petition. At the docket call on October 9, 2018, the mother and her appointed attorney, the father and an attorney standing in for his appointed attorney, an attorney standing in for the guardian ad litem, DHR's attorney, and the CASA worker appeared before the juvenile court. The mother and the father presented the terms of a settlement agreement to the court, and, following that hearing, the juvenile court entered a judgment on that same date based on that agreement. Specifically, among other things, the juvenile court adjudicated the child dependent; awarded the mother and the father joint legal custody of the child; awarded sole physical custody of the child to the father, subject to the mother's supervised visitation; and relieved DHR of custody and supervision of the child.

         The mother filed a handwritten letter to the juvenile court on October 16, 2018, requesting that the child be returned to her care. On October 17, 2018, the juvenile court entered an order indicating that it had considered the mother's letter to be a motion to alter or amend the juvenile court's judgment and setting the same for a hearing on October 23, 2018. On October 18, 2018, the guardian ad litem sought a continuance of the hearing, and, on October 22, 2018, the attorneys representing the mother, the father, and DHR joined the guardian ad litem in a motion agreeing to extend the juvenile court's time for ruling on the mother's postjudgment motion "beyond the 14 days allowed by law." See Rule 1(B)(2), Ala. R. Juv. P. (allowing an extension of the 14-day period to rule on a postjudgment motion filed in the juvenile court "[u]pon the express written consent of all the parties, which consent shall appear of record"). The juvenile court entered an order granting the guardian ad litem's motion to continue on October 22, 2018, and extended the time to rule upon the mother's postjudgment motion until December 1, 2018.

         On October 23, 2018, the mother filed a handwritten letter to the court, requesting that a different attorney be appointed to represent her based on her appointed attorney's agreement to continue the hearing on her postjudgment motion. On that same date, the mother, through her originally appointed counsel, filed an amended motion to alter, amend, or vacate, asserting that the mother had misunderstood the terms of the agreement she had entered into at the October 9, 2018, hearing that had resulted in the juvenile court's judgment on that same date. The juvenile court entered an order on October 24, 2018, setting the mother's postjudgment motion for a hearing on November 5, 2018. On October 26, 2018, the juvenile court entered an order appointing a different attorney to represent the mother. Following the November 5, 2018, hearing, the juvenile court entered an order on November 30, 2018, denying the mother's postjudgment motion. The mother filed her notice of appeal to this court on December 13, 2018.

         Jurisdiction

         On March 4, 2019, DHR filed a motion to dismiss the mother's appeal, arguing that this court lacks jurisdiction to consider the mother's appeal because the mother's notice of appeal was untimely filed.

"'The timely filing of [a] notice of appeal is a jurisdictional act.' Rudd v. Rudd, 467 So.2d 964, 965 (Ala. Civ. App. 1985); see also Parker v. Parker, 946 So.2d 480, 485 (Ala. Civ. App. 2006) ('an untimely filed notice of appeal results in a lack of appellate jurisdiction, which cannot be waived')."

Kennedy v. Merriman, 963 So.2d 86, 88 (Ala. Civ. App. 2007).

         DHR asserts in its motion that, with regard to the October 22, 2018, motion in which counsel for all the parties agreed to extend the juvenile court's authority to rule on the mother's postjudgment motion, "the time in which the juvenile court must rule on the motion could only be extended an additional 14 days" and that the juvenile court's extension of the time to rule on the motion until December 1, 2018, was not permitted. Accordingly, DHR argues, the juvenile court's failure to rule on the mother's postjudgment motion by November 13, 2018, resulted in the denial of that motion by operation of law on that date pursuant to Rule 59.1(dc), Ala. R. Civ. P., and in the untimely filing of the mother's notice of appeal from that denial according to Rule 28(C), Ala. R. Juv. P. (directing that a written notice of appeal from a juvenile-court judgment shall be filed within 14 days of the date of the entry of order or judgment appealed from). We disagree.

         Rule 59.1, Ala. R. Civ. P., provides:

"No postjudgment motion filed pursuant to Rules 50, 52, 55, or 59[, Ala. R. Civ. P., ] shall remain pending in the trial court for more than ninety (90) days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown. A failure by the trial court to render an order disposing of any pending postjudgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.
"(dc) District Court Rule. Rule 59.1 applies in the district courts, except that the time period of ninety (90) days is reduced to fourteen (14) days unless within that time an order extends the period, for good cause shown, for not more than an additional fourteen (14) days."

         The Committee Comments to Amendment to Rule 59.1 Effective October 24, 2008, provide, in pertinent part, that the amendment to Rule 59.1(dc) allowing a district court to extend the 14-day period for ruling on a postjudgment motion for good cause shown "does not affect extensions of pendency by agreement of the parties as provided in the rule, nor is it intended to supersede any provision of the Alabama Rules of Juvenile Procedure." Rule 1(B), Ala. R. Juv. P., provides, in pertinent part, that

"[a]ll postjudgment motions, whether provided for by the Alabama Rules of Civil Procedure or the Alabama Rules of Criminal Procedure, must be filed within 14 days after entry of order or judgment and shall not remain pending for more than 14 days, unless, within that time, the period during which a postjudgment motion may remain pending is extended:
"(1) By written order of the juvenile court on its own motion, or upon motion of a party for good cause shown, for not more than 14 additional days; or
"(2) Upon the express written consent of all the parties, which consent shall appear of record; or
"(3) By the appellate court to which an appeal of the judgment would lie.
"A failure by the juvenile court to render an order disposing of any pending postjudgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period."

         In Greener v. Killough, 1 So.3d 93, 101-02 (Ala. Civ. App. 2008), this court stated, in pertinent part:

         "In Blue Cross & Blue Shield of Alabama, Inc. v. Nielsen, 714 So.2d 293 (Ala. 1998), the Alabama Supreme Court ...


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