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Ex parte T.J.

Alabama Court of Civil Appeals

May 3, 2019

Ex parte T.J. In re: In the Matter of P.J.

          PETITIONS FOR WRIT OF MANDAMUS (Montgomery Juvenile Court, JU-14-401.01 and JU-14-401.02)

          DONALDSON, JUDGE.

         T.J. ("the mother") petitions this court for writs of mandamus, challenging whether the Montgomery Juvenile Court ("the juvenile court") had jurisdiction over dependency actions involving the mother's child, P.J. ("the child"), and jurisdiction to determine a custody arrangement for the child. We grant the petitions in part and deny the petitions in part.

         The materials submitted by the parties indicate the following. On May 20, 2014, D.H., Sr. ("the grandfather"), filed a complaint in the juvenile court alleging that the child was dependent and seeking custody of the child. In the complaint, the grandfather alleged that the child's parents were unable to discharge their responsibilities for the child. That complaint was assigned case number JU-14-401.01. On April 21, 2016, the grandfather obtained custody of the child through an order.[1] On February 22, 2017, the mother filed a complaint in which she alleged that the child was dependent and sought custody of the child. That complaint was assigned case number JU-14-401.02. The cases initiated by the complaints were assigned to Judge Anita Kelly.

         On November 8, 2017, over three years after the grandfather filed the initial complaint, a hearing was held to determine the dependency of the child. Judge Aubrey Ford, Jr., presided over the hearing held on that date.[2] On December 5, 2017, Judge Ford entered an order, stating:

"These cases came to be heard on the 8th day of November 2017 pursuant to the Grandfather's petition for custody of [the child] and the Mother and Father's joint petition for the custody of this child.[3] The Mother and Father also petitioned the Court to modify the custody of [the child's sibling].
"....
"According to the testimony of the parties, [the child and the sibling] have been in the custody of their Grandfather for most of their lives. [The sibling] was placed with her Grandfather by a [Department of Human Resources] safety plan when she was seven weeks old, and [the child] was placed with him shortly after his birth. [The grandfather] has custody of [the sibling] pursuant to an order of this Court, and the Court has not addressed the petition filed by the Grandfather for the custody of [the child] until this proceeding.
"The Grandfather has provided a safe and stable home for the children. They're currently enrolled in preschool ... and they are doing well there. [The sibling] is also participating in a dance class at her school. The parents have been visiting with the children on a regular basis for several months now, and the visitation is going well, however the parents did keep the children out of school for two days during one of the weekly visits. Further, the Mother and the Grandfather do not communicate well or often for the benefit of the children.
"The Court has never held an adjudicatory hearing to determine the dependency [of the child] until the date of this proceeding. The Grandfather received custody of [the sibling] pursuant to an emergency order on April 21, 2016, and the order stated that he was to have custody of this child until the dependency hearing was held.
"Although dependency is determined by the facts at a time of the hearing, this is the first proceeding held for [the child]. The Court finds that under the circumstances that led to the placement of this child with his Grandfather, the child's best interest was served but the Court should have held a hearing to consider the Grandfather's petition for custody in a more timely manner. As of the date of this proceeding [the child] is not a dependent child because of the care of his Grandfather, and not his parents, during the three years this matter has been pending for trial.
"....
"The Parents have made great strides in the improvement of their lifestyle and their ability to care for their children since their birth. [The mother] is now employed at [a restaurant], and she has been there for almost three years. The Father ... is also employed part-time at [a hotel]. [The mother] is the only driver in the household and her work hours vary weekly and could present a problem to get the children to and from school on time. The Parents live together in a mobile home in Montgomery, are trying to develop a better relationship that will not be peppered with arguments and incidents of domestic violence.
"Therefore, it is hereby ORDERED, ADJUDGED AND DECREED that [the child] is no longer a dependent child because of the care and stability he has received since he has been in the custody of his Grandfather for the last three years. However, the evidence presented clearly shows that this child was dependent when he was placed with his Grandfather.
"Be it further ORDERED that the Petition for Custody [of the child] and the Petition for Modification filed by [the father and the mother] are granted in part and they are given the joint physical and legal custody of [the child] and [the sibling] with the Grandfather ..., and the Grandfather will be the primary physical custodian.
"Be it further ORDERED that [the father and the mother] will have expanded visitation or parenting time with the children for the next 90 days to help them develop a routine for their daily care. [The mother] will continue to pay child support to [the grandfather] during this period as previously ordered.
"....
"Be it further ORDERED that this Court will review these cases in March 2018 to determine if the children are adjusting well and the custody arrangement is working for their benefit."

(Capitalization in original.)

         On June 20, 2018, the juvenile court conducted another hearing with Judge Kelly presiding. During that hearing, the mother made an "oral motion"[4] to dismiss the proceedings, because, she asserted, the December 5, 2017, order found that the child was not dependent. On June 21, 2018, Judge Kelly entered an order that stated, in part: "Counsel to file brief on jurisdiction of court to determine best interest ... of [the child] base[d] on non-dependency finding of Judge Ford. Lawyers given 25 days to submit briefs." On July 18, 2018, the mother filed a "Brief in Support of Oral Motion to Dismiss." The mother's brief stated, in part:

"5. [The December 5, 2017, ] order specifically states 'As of the date of this proceeding [the child] is not a ...

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