Ex parte L.L.H.
M.L.L. and R.D.L. In re: L.L.H.
Choctaw Juvenile Court, JU-16-29.02 and JU-16-30.02
PETITIONS FOR WRIT OF MANDAMUS
THOMPSON, PRESIDING JUDGE.
("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, 2019,
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
"(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."
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.
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)
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.'").
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 ...