EX PARTE MONTGOMERY COUNTY DEPARTMENT OF HUMAN RESOURCES In re: The Matter of J.D.N.
[Copyrighted Material Omitted]
(Montgomery Juvenile Court, JU-11-549.01)
PETITION FOR WRIT OF MANDAMUS
Marshall , atty. gen., and Karen P. Phillips , asst. atty.
gen., Department of Human Resources, for petitioner.
Fernando Morgan of Morgan Law Firm, Montgomery, guardian ad
litem, as respondent.
Anita L. Kelly , Montgomery, as respondent.
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 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. 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. 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. 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, 1082-83 (Ala. Civ. App. 2014) (quoting
Butler v. Phillips, 3 So.3d 922, 925 (Ala. Civ. App.
Ex parte Limestone County Department of Human
Resources, 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
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
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").
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, 385
(Ala. Civ. App. 2017) (citing Ex parte K.R., 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)).
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."
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