EX PARTE T.J. In re in the Matter of P.J.
FOR WRIT OF MANDAMUS (Montgomery Juvenile Court, JU-14-401.01
Jacquelyn D. Tomlinson of Deck & Tomlinson Attorneys at Law,
Montgomery, for petitioner.
Anita L. Kelley, as respondent.
("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.
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. 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.
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. 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.[ ] The Mother and Father
also petitioned the Court to modify the custody of [the
"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]
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
"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
"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