C.S. v. Pike County Department of Human Resources

         Rehearing Denied July 12, 2019.

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         Appeal from Pike Juvenile Court (JU-17-50.02).

         Casimir Christian Lukjan of Asharp Law Firm, LLC, Troy, for appellant.

          Steve Marshall, atty. gen., and Felicia M. Brooks, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for appellee.

         THOMPSON, Presiding Judge.

         The Pike County Department of Human Resources ("DHR") filed a petition in the Pike Juvenile Court ("the juvenile court") seeking to terminate the parental rights of J.A.R. ("the mother") and C.S. ("the father"), to their minor child, J.T.B.S. The juvenile court conducted an ore tenus hearing and received evidence.

         On October 24, 2018, the juvenile court entered a single-spaced, three-and-a-half page judgment containing detailed findings of fact and ordering that the parental rights of the mother and the father be terminated. In that judgment, the juvenile court determined, among other things, that the mother had abandoned the child; that use of illegal drugs prevented the parents from properly caring for the child; that the father tested positive for alcohol on the only drug screens to which he submitted and that on 20 occasions he refused to submit to screening; that aspects of the father's testimony called his credibility into question; that the father had contributed only minimally toward the support of the child when the child was in DHR's custody; that DHR had made reasonable efforts toward reunification; and that the parents had failed to adjust their circumstances to meet the needs of the child.

         On October 29, 2018, the juvenile court entered a "corrected judgment" in which it amended the style of the action to include the child's full name. The substance of the October 29, 2018, corrected judgment is virtually identical to that of the October 24, 2018, judgment. The differences between the two judgments involve an alteration

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to parts of four different factual findings contained in the original, October 24, 2018, judgment.

         On November 11, 2018, the father filed a "motion to reconsider." The juvenile court denied that motion on November 14, 2018. The father filed a notice of appeal on November 21, 2018.

         While the father's appeal was pending, DHR filed a motion to dismiss, arguing that the father's appeal was untimely. DHR argued that the father had not timely appealed the October 24, 2018, judgment. DHR maintained that the October 29, 2018, judgment was a corrected judgment entered pursuant to Rule 60(a), Ala. R. Civ. P., and that, as such, it did not constitute a new judgment that would restart the period in which a timely notice of appeal or postjudgment motion could be filed. The father opposed the motion to dismiss filed in this court. On March 26, 2019, this court entered an order denying the motion to dismiss.

         However, the timely filing of a notice of appeal is a jurisdictional issue. Lauterbach v. Gordon, Dana, Still, Knight & Gilmore, LLC, 56 So.3d 613, 615 (Ala. 2010). Therefore, upon submission, this court reconsidered the jurisdictional issue of the timeliness of the father's appeal. As is explained, infra, we conclude that the appeal was not timely filed.

         A notice of appeal or a postjudgment motion was required to be filed by November 7, 2018, which was 14 days after the entry of the October 24, 2018, judgment. Rule 1(B), Ala. R. Juv. P.; Rule 4(a)(1), Ala. R. App. P.; A.T. v. D.M.,265 So.3d 294 (Ala.Civ.App. 2018). The father's November 11, 2018, "motion to reconsider" is not a timely postjudgment motion taken from the October 24, 2018, judgment, and, therefore, it did not operate to extend ...