Ex parte L.L.H.

          Choctaw Juvenile Court, JU-16-29.02 and JU-16-30.02

          PETITIONS FOR WRIT OF MANDAMUS

          THOMPSON, PRESIDING JUDGE.

         L.L.H. ("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.

         In 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.^[1]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.

         On June 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.

         On 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.^[2] 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, 2019, motions.^[3]

         On 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.

         In her 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.

         We note 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 the petition and may make any orders authorized by law relative to the issues as it deems proper."

         Thus, the mother's April 12, 2019, motions, insofar as they sought to modify the dependency judgments on the basis that the mother allegedly had not been served with process, were filed pursuant to Rule 13(a)(5). T.L. v. W.C.L., 203 So.3d 66, 71 (Ala. Civ. App. 2016); M.R. v. C.A., 273 So.3d 846, 849 (Ala. Civ. App. 2018). In T.L. v. W.C.L., supra, a child's grandparents, who had custody of the child by virtue of a custody award made pursuant to a dependency judgment, sought to modify the visitation provisions of that dependency judgment. The child's mother and the child's father each filed separate motions seeking to set aside the dependency judgment by asserting arguments that the dependency judgment was void. The juvenile court in that case denied the parents' motions to set aside the dependency judgment, and each parent appealed. 203 So.3d at 69. This court determined that the father's motion, which sought to set aside the dependency judgment on the basis that he had not been served with process in the dependency action was one made pursuant to Rule 13(a)(5); we further held that the evidence in that case supported the juvenile court's judgments denying the parents' motions to set aside the dependency judgments. T.L. v. W.C.L., 203 So.3d at 72.

         In M.R. v. C.A., supra, a father sought to set aside an earlier judgment based on his argument that he did not receive service of process. The juvenile court in that case determined that the earlier judgment was final and that it lacked jurisdiction to consider modifying or setting aside that judgment; it therefore dismissed the motion. The father appealed to the circuit court, which dismissed the appeal. This court held that the father's motion had been one filed pursuant to Rule 13(a)(5), Ala. R. Juv. P., and it reversed the circuit court's dismissal of the father's appeal to that court and ordered the circuit court to consider the merits of the father's appeal from the juvenile court's dismissal of the Rule 13(a)(5) motion.

         The judgments at issue in T.L. v. W.C.L., supra, and M.R. v. C.A., supra, disposed of all of the claims at issue before the courts in those cases, and, therefore, those judgments supported the appeals taken in those cases. However, in these cases, although the June 4, 2019, orders addressed the mother's claims seeking to set aside the dependency judgments pursuant to Rule 13(a)(5), the mother's initial modification claims seeking the return of custody of the children remain pending. The juvenile court's June 4, 2019, orders determined, in part, only that the mother's due-process rights had not been violated by the alleged failure to serve her with process in the dependency actions and that the March 3, 2017, dependency judgments were not due to be set aside as void on that basis. The June 4, 2019, orders also specified that the children were to remain in the custody of the paternal grandparents pending further orders of the juvenile court. Thus, because the mother's custody-modification claims remain pending, the June 4, 2019, orders are nonfinal orders. Therefore, the mother could not immediately appeal the June 4, 2019, orders insofar as they denied the mother's motions to set aside the dependency judgments pursuant to Rule 13(a)(5). See A.A. v. v. Jefferson Cty. Dep't of Human Res., [Ms. 2180368, Aug. 30, 2019] ___So. 3d ___, ___(Ala. Civ. App. 2019) ("A nonfinal order cannot support an appeal."). However, we must still determine whether mandamus relief is appropriate with regard to this issue. See S.W. v. Jefferson Cty. Dep't of Human Res., 113 So.3d 657, 659 n.1 (Ala. Civ. App. 2012) (quoting Norman v. Norman, 984 So.2d 427, 429 (Ala. Civ. App. 2007)) ("'The proper means of seeking appellate review of an interlocutory order in this court is to petition for a writ of mandamus.'").

         "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 Integon Corp., 672 So.2d 497, 499 (Ala. 1995). In her brief submitted to this court, the mother argues only cursorily that she has no adequate remedy by way of an appeal. See Ex parte IntegonCorp., supra. She cites Ex parte Russell, 911 So.2d 719 (Ala. Civ. App. 2005), in which this court considered a mother's challenge by way of a petition for a writ of mandamus of an order removing pendente lite custody from her in a divorce action. However, the issue of pendente lite custody would be mooted by the entry of a final judgment. Hughes v.Hughes, 253 So.3d 423, 433 (Ala. Civ. App. 2017) ("Because the trial court's entry of a final judgment superseded the pendente lite order, which was interlocutory in nature, it rendered any issues [raised in an appeal of the final judgment] concerning the propriety of the pendente lite order moot."). Therefore, the mother ...