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Ex Parte Montgomery County Department of Human Resources

Alabama Court of Civil Appeals

June 14, 2019

Ex parte Montgomery County Department of Human Resources In re: The Matter of J.D.N.

          (Montgomery Juvenile Court, JU-11-549.01)

          PETITION FOR WRIT OF MANDAMUS

          EDWARDS, Judge.

         In May 2018, the Montgomery County Department of Human Resources ("DHR") filed a motion in the Montgomery Juvenile Court ("the juvenile court") requesting that the juvenile court set a permanency hearing[1] in case number JU-11-549.01, relating to J.D.N. ("the child"), who had been in the permanent custody of DHR since May 2016, after the rights of his parents were terminated by the juvenile court.[2] The juvenile court granted the motion and, after the conclusion of the requested permanency hearing, entered an order on September 14, 2018 ("the permanency order"), determining, among other things, that DHR had made reasonable efforts to finalize the child's permanency plan and ordering that DHR "make every effort possible to allow the child to maintain contact with his siblings" and "continue to seek out viable relative resources as possible adoptive resources"; the permanency order also required that DHR apprise the juvenile court of its efforts in regular reports to the juvenile court.[3] On September 28, 2018, DHR filed a motion seeking reconsideration of the permanency order, which motion the juvenile court set for a hearing to be held on October 10, 2018.[4] The juvenile court did not rule on DHR's motion, and, on October 24, 2018, DHR filed a notice of appeal to this court.

"'Even though this issue has not been addressed by either party, this court must first determine whether it has jurisdiction over this appeal. "'Jurisdictional matters are of such importance that a court may take notice of them ex mero motu.'" Naylor v. Naylor, 981 So. 2d 440, 441 (Ala. Civ. App. 2007) (quoting McMurphy v. East Bay Clothiers, 892 So. 2d 395, 397 (Ala. Civ. App. 2004)). "The question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case." Hubbard v. Hubbard, 935 So. 2d 1191, 1192 (Ala. Civ. App. 2006) (citing Jim Walter Homes, Inc. v. Holman, 373 So. 2d 869, 871 (Ala. Civ. App. 1979)). "[A] final judgment is a 'terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.'" Dees v. State, 563 So. 2d 1059, 1061 (Ala. Civ. App. 1990) (quoting Tidwell v. Tidwell, 496 So. 2d 91, 92 (Ala. Civ. App. 1986)).'"

O.Y.P. v. Lauderdale Cty. Dep't of Human Res., 148 So. 3d 1081');">148 So. 3d 1081, 1082–83 (Ala. Civ. App. 2014) (quoting Butler v. Phillips, 3 So. 3d 922, 925 (Ala. Civ. App. 2008)).

         In Ex parte Limestone County Department of Human Resources, 255 So. 3d 210');">255 So. 3d 210 (Ala. Civ. App. 2017), this court considered a petition for the writ of mandamus seeking review of an order entered after a permanency review conducted pursuant to Ala. Code 1975, § 12-15-321. 255 So. 3d at 216. Although we did not specifically discuss in Ex parte Limestone County Department of Human Resources whether the order under review was, in fact, interlocutory, we did consider the petition and stated that a petition for the writ of mandamus was the proper vehicle for seeking review of an interlocutory order. Id. at 215 & 216. We have explained that an order entered after a permanency hearing held during the continuation of a dependency action pursuant to Ala. Code 1975, § 12-15-315(a), is not a final judgment, characterizing it instead as "'in the nature of an administrative matter'" because it does not finally adjudicate the rights or obligations of any litigant. O.Y.P., 148 So. 3d at 1083 (quoting Ex parte F.V.O., 145 So. 3d 27, 30 (Ala. 2013)). The permanency order in the present case, which assessed DHR's attempts to finalize the child's permanency plan and which directed that certain efforts be made to further the best interests of the child and to secure an adoptive parent for the child, is not a final judgment. Like the order in O.Y.P., it is merely administrative in nature, serving solely as a memorialization of the review of the "efforts ... made to achieve permanency for the child" as required by § 12-15-321. DHR therefore appealed from an interlocutory order.

         This court has jurisdiction over appeals from final judgments of the juvenile court. See Ex parte T.C., 96 So. 3d 123 (Ala. 2012). However, this court may, at its discretion, elect to treat an appeal as a petition for the writ of mandamus. See Ex parte K.S., 71 So. 3d 712, 715 (Ala. Civ. App. 2011). In this case, because DHR filed a motion seeking reconsideration of the permanency order, its notice of appeal was filed outside the presumptively reasonable time to file a petition for the writ of mandamus, which, in juvenile cases, is 14 days from the entry of the order under review. See Rule 21(a)(3), Ala. R. App. P.; S.W. v. Jefferson Cty. Dep't of Human Res., 113 So. 3d 657, 659 n.1 (Ala. Civ. App. 2012) (explaining that a motion seeking reconsideration of an interlocutory order does "not toll the presumptively reasonable time to file a petition for a writ of mandamus"). That being said, however, this court may still consider the merits of a petition for the writ of mandamus "that challenges the jurisdiction of the trial court to enter the order sought to be vacated [despite the fact that the petition was] not ... filed within the presumptively reasonable period prescribed by Rule 21[, Ala. R. App. P.]." Ex parte Madison Cty. Dep't of Human Res., 261 So. 3d 381');">261 So. 3d 381, 385 (Ala. Civ. App. 2017) (citing Ex parte K.R., 10 So. 3d');">210 So. 3d 1106, 1112 (Ala. 2016)). In its brief to this court, DHR argued that the juvenile court exceeded its statutory authority by ordering DHR to make efforts to maintain contact between the child and his siblings and to seek out relatives of the child to serve as adoptive resources. Because we construed DHR's arguments as challenging the jurisdiction of the juvenile court to make those orders, we notified the parties that we were electing to treat DHR's appeal as a petition for a writ of mandamus, ordered DHR to serve a copy of its brief on the respondent judge, and allowed the respondent judge and the child's guardian ad litem to file answers to the petition.

"'"Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court."'"

Ex parte A.M.P., 997 So. 2d 1008, 1014 (Ala. 2008) (quoting Ex parte Perfection Siding, Inc., 882 So. 2d 307, 309-10 (Ala. 2003), quoting in turn Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala. 1995)).

         Information shared at the permanency hearing indicated that the child suffers from behavioral problems and mental-health issues, including reactive attachment disorder, attention-deficit/hyperactivity disorder, "childhood abandonment," and depression. The child is currently in a therapeutic foster home in Mobile; he had recently been moved from one such home to another because the most recent former foster parent had had difficulty responding to near-daily telephone calls from the child's school to address the child's inappropriate conduct. The child had previously been in a foster-care placement in Selma, which he disrupted, according to the child's guardian ad litem, because "[h]e was acting out, destroying property, defiant, just really hard to maintain."

         The child has assaulted one of his teachers with a broom and has been suspended from school on at least two occasions. At some point, the child was institutionalized in a facility operated by Baypointe Children's Residential Services ("Baypointe"), during which time his behavior became more regulated through medication; however, he physically attacked a Baypointe staff member. The child currently takes several medications, and, according to the guardian ad litem, "his medication balance is delicate." The juvenile court commented that the child was on seven medications and that some were "serious psychotropic medications." DHR indicated that it planned to order a "medication review" in the immediate future to assess whether the child was on the appropriate medications and receiving the right dosages.

         The child testified at the permanency hearing. He asked if he could live with his sister in the home of a former foster parent. He admitted that he had been kicked out of after-school care for bad behavior, which he admitted was his fault for making "bad decisions." He testified that he "needs to learn how to act right, to be obedient."

         DHR contends that the juvenile court exceeded the authority granted to it by § 12-15-321 by ordering DHR to make efforts to maintain contact between the child and his siblings and to search out suitable relatives as potential adoptive resources for the child. DHR relies on this court's discussion of the limits of a juvenile court's power under § 12-15-321 in Ex parte Alabama Department of Human Resources, 154 So. 3d 1060');">154 So. 3d 1060, 1065 (Ala. Civ. App. 2014), overruled on other grounds by S.H. v. Macon County Department of Human Resources, 195 So. 3d 311, 314 (Ala. Civ. App. 2015). We have explained that

"[n]othing in § 12–15–321 ... bestows upon a juvenile court the power to determine the permanency plan for the child, which power it does have under § 12–15–315, Ala. Code 1975, before parental rights are terminated.5 To the contrary, § 12–15–321 specifically provides that a juvenile court may only 'review the circumstances of the child to determine what efforts have been made to achieve permanency for the child.' In other words, the purpose of a permanency hearing under § 12–15–321 is not to determine the appropriate permanent placement of the child, but to ensure that 'the Department of Human Resources' is using reasonable efforts to achieve the permanency plan it has formulated for the child under the authority granted to it by § 12–15–320(b)[, Ala. Code 1975].
"5 Section 12–15–315(a), Ala. Code 1975, provides that a juvenile court must hold periodic permanency hearings in certain cases and that the 'purpose of the permanency hearing shall be to determine the permanency plan for the child....' (Emphasis added.)."

Ex parte Alabama Dep't of Human Res., 154 So. 3d at 1065.

         Indeed, Ala. Code 1975, § 12-15-320(b)(1), provides that, once permanent legal custody of a child is awarded to a department of human resources, the department "shall have authority to make permanent plans for the child, including the authority to place for adoption and consent to adoption." Section 12-15-321 authorizes a juvenile court to "review the circumstances of the child to determine what efforts have been made to achieve permanency for the child" but does not otherwise grant the juvenile court the power to revise or amend the permanency plan. Thus, DHR contends, it alone is vested with the power to determine the child's associations and to determine the appropriate actions to take on behalf of the child in order to secure permanency and, therefore, the juvenile court has no authority to order DHR to institute or maintain visitation between the child and his siblings or to require it to seek out relative-placement alternatives after a termination of parental rights.

         In Ex parte Limestone County Department of Human Resources, we considered, among other things, whether the Limestone Juvenile Court's post-termination permanency order requiring particular placements for children in the legal custody of the Limestone County Department of Human Resources ("the Limestone County DHR") exceeded that court's statutory authority under § 12-15-321. 255 So. 3d at 216. In its permanency order, the court had determined that the Limestone County DHR had not exerted reasonable efforts to achieve permanency for the children and had instructed it to place one of the children in a therapeutic foster home and to place the other child in a preadoptive foster home with a particular individual. 255 So. 3d at 214-15. The Limestone County DHR sought review of the order, and we determined that "the ... juvenile court exceeded its statutory authority and invaded [the Limestone County] DHR's authority insofar as it purported to override [the Limestone County] DHR's permanency plan by directing particular placements for the children in its permanency review orders." Id. at 217. We further noted that,

"[a]lthough it is unclear what recourse a juvenile court has once it determines, pursuant to § 12–15–321, that a department of human resources has not exerted appropriate efforts aimed at achieving permanency for a child in its permanent legal custody, we are not called upon to answer that ...

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