EX PARTE L.L.H. (In re: L.L.H.
M.L.L. and R.D.L.).
Juvenile Court, JU-16-29.02 and JU-16-30.02
D. (Bo) Keahey, Jr., and Robert D. (Bobby) Keahey of Williams
& Keahey LLC, Grove Hill; and Eric Tiebauer, Waynesboro,
Mississippi, for petitioner.
Stephen K. Winters of Thompson, Thompson & Winters, Butler,
for respondents M.L.L. and R.D.L.
Marshall, atty. gen., and Madeline H. Lewis, asst. atty.
gen., for respondent Judge James Harding Morgan, Jr.
PETITIONS FOR WRIT OF MANDAMUS
("the mother") has filed petitions for a writ of
mandamus from two orders of the Choctaw Juvenile Court
("the juvenile court"), which deny the mother's
motions seeking relief— under both Rule 13(a)(5), Ala.
R. Juv. P., and Rule 60(b), Ala. R. Civ. P.— from
prior judgments entered by the juvenile court. The materials
submitted to this court in support of and in opposition to
the petitions for a writ of mandamus indicate the following.
2016, M.L.L. and R.D.L. ("the paternal
grandparents") filed in the juvenile court petitions
alleging that the two minor children of the mother and M.L.
("the father") were dependent, in part because of
the mother's incarceration in Mississippi, and seeking an
award of custody of the children. Those actions were
designated as case numbers JU-16-29.01 and JU-16-30.01. On
March 3, 2017, the juvenile court entered judgments in the
dependency actions in which it found, in pertinent part, that
the mother had received notice of the dependency actions and
that the children were dependent; the juvenile court awarded
custody of the children to the paternal grandparents. The
March 3, 2017, dependency judgments were entered in case
number JU-16-29.01 and in case number JU-16-30.01.
19, 2018, the mother filed petitions seeking a modification
of custody of the children. The mother's June 2018
actions were designated as case numbers JU-16-29.02 and
JU-16-30.02 (hereinafter referred to collectively as
"the .02 actions"). In those June 2018 petitions,
the mother alleged that she was then willing and able to
properly care for the children and that a return of custody
to her would be in the children's best interests. The
mother also sought an award of pendente lite visitation. On
October 26, 2018, the juvenile court entered in the .02
actions pendente lite orders that incorporated an agreement
of the parties. Pursuant to those orders, among other things,
the children were to remain in the custody of the paternal
grandparents, and the actions were set for a further hearing.
April 12, 2019, the mother filed motions in the .02 actions
seeking to have the March 3, 2017, dependency judgments
declared void and to have those judgments set aside. In her
April 12, 2019, motions, the mother alleged for the first
time that her due-process rights had been violated because,
she said, she did not receive service of process in the
dependency actions. The mother later amended her April 12,
2019, motions to argue, among other things, that her
due-process rights had been violated by the juvenile
court's failure to appoint an attorney to represent her
in the dependency actions. For ease of reference, we
hereinafter refer to the mother's April 12, 2019, motions
and the several amendments to those motions as "the
April 12, 2019, motions." The juvenile court conducted a
May 2, 2019, ore tenus hearing on the mother's April 12,
June 4, 2019, the juvenile court entered orders denying the
mother's motions requesting that the March 3, 2017,
dependency judgments be set aside as void. In those orders,
the juvenile court found, in pertinent part, that the
evidence it had received at the ore tenus hearing
demonstrated that the mother had been properly served by
law-enforcement officials in Mississippi and that the mother
had not sought the appointment of an attorney to represent
her in the dependency actions. The juvenile court also
ordered that the children were to remain in the custody of
the paternal grandparents pending further orders of the
court. The mother timely filed her petitions for a writ of
mandamus in this court.
petitions for a writ of mandamus, the mother argues that the
March 3, 2017, dependency judgments are void for lack of
service and that the juvenile court erred in denying her
request to set aside those judgments and return custody of
the children to her. It is established that a parent must be
served with a petition that seeks a determination that his or
her child is dependent. § 12-15-122, Ala. Code 1975;
Rule 13(A)(1), Ala. R. Juv. P. The mother argued before the
juvenile court that she did not receive service of process of
the dependency petitions, and she presented evidence in
support of that claim at the May 2, 2019, ore tenus hearing.
that, in their filings in the juvenile court and in their
arguments before this court, the parties have referenced some
cases citing Rule 60(b), Ala. R. Civ. P. That rule governs
actions seeking relief from a judgment for reasons including
that the judgment is void. See Rule 60(b)(4), Ala. R. Civ. P.
However, the parties agree, and our caselaw establishes, that
one portion of the mother's motions was filed pursuant to
Rule 13(a)(5), Ala. R. Juv. P. That rule provides:
"(5) A party not served under this rule may, for good
cause shown, petition the juvenile court in writing for a
modification of any order or judgment of the juvenile court.
The juvenile court may dismiss this petition if, after a
preliminary investigation, the juvenile court finds that the
petition is without substance. If the juvenile court finds
that the petition should be reviewed, the juvenile court may
conduct a hearing upon the issues raised by ...