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Ex Parte Montgomery County Department of Human Resources

Alabama Court of Civil Appeals

September 13, 2019

EX PARTE MONTGOMERY COUNTY DEPARTMENT OF HUMAN RESOURCES (In re: Av.M., a minor child). Ex parte Montgomery County Department of Human Resources (In re: Ai.M., a minor child). Ex parte Montgomery County Department of Human Resources (In re: Ad.M., a minor child).

          

          Montgomery Juvenile Court, JU-19-277.01, JU-19-278.01, JU-19-279.01

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[Copyrighted Material Omitted]

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          Steve Marshall, atty. gen., and Felicia M. Brooks, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for petitioner.

         Submitted on petitioner's brief only.

         PER CURIAM.

         In these three juvenile-court cases, the Montgomery County Department of Human Resources ("MCDHR") has sought mandamus review of orders entered by Circuit Judge Anita L. Kelly ("the judge") denying motions filed by MCDHR seeking the judge's recusal; each petition requests that this court direct the judge to recuse herself not only from hearing the particular case, but also from hearing all juvenile-court actions involving MCDHR in which the judge is sitting. For the reasons stated herein, we deny the petitions.

         Introduction: The Legal Background

         The judge in these cases is a circuit judge of the Fifteenth Judicial Circuit, which includes Montgomery County. The judge was elected to one of three designated judicial places in that circuit designated as "family relations" judgeships, exercising exclusive original jurisdiction over juvenile matters in that circuit pursuant to a general act of local application (Act No. 250, Ala. Acts 1959, as amended).[1] Such jurisdiction necessarily includes the authority to decide whether a particular minor child is dependent, whether an agency or a person other than a parent should exercise custody of a dependent child, and whether a parent's condition is such as to warrant termination of parental rights. See Ala. Code 1975, § § 12-15-114(a), 12-15-314(a), and 12-15-114(c)(2).

         Pursuant to Ala. Code 1975, § 38-2-6, the Alabama Department of Human Resources ("ADHR") is a state agency with the "duty and responsibility" to perform various public functions, including to "[e]xercise all the powers, duties, and responsibilities previously vested by law in the State Child Welfare Department," to "[d]esignate county departments as its agents under its rules and regulations to perform any of the [its] functions," to "[s]eek out ... the minor children in the state who are in need of its care and protection and ..., as far as may be possible, through existing agencies, public or private, or through such other resources, [to] aid such children to a fair opportunity in life," to "receive and care for dependent or neglected minor children committed to its care," to "make ... examination[s]... of every such child," to "investigate in detail the personal and family history of [such a] child and its environment," to "place such children in family homes or in approved suitable institutions

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operating in accordance with the provisions of this title and supervise such children however placed," and to "[a]dvise with the judges and probation officers of the juvenile courts of the several counties of the state, and aid in perfecting the organization and work of such courts." County departments of human resources, such as MCDHR, have "[t]he broad purpose... to meet the welfare needs of [their] respective county citizens through the exercise of the powers, duties and responsibilities designated by [ADHR] to [c]ounty [d]epartments acting as its agents." Ala. Admin. Code (ADHR), r. 660-1-2-.02(1). Among the duties identified by ADHR to be performed by county departments of human resources such as MCDHR is to "invoke legal authority of the court by petition and secure adequate protection, care, and treatment for children whenever necessary to meet their needs and rights" when it appears that parents of abused or neglected children are unable to benefit from supportive family services. Ala. Admin. Code (ADHR), r. 660-5-34-.02(1)(d).

         The Judge's Previous Judicial Discipline

         In August 2017, the Alabama Judicial Inquiry Commission ("the JIC") initiated a judicial-disciplinary action against the judge in the Alabama Court of the Judiciary ("the COJ"), Case No. 50.[2] In its complaint in Case No. 50, the JIC alleged that the judge had violated the Canons of Judicial Ethics ("the Canons") in, among other areas, failing to manage court business in a timely and efficient manner. Noting that, Alabama law requires that trials in actions in which termination of parental rights is sought must be completed within 90 days from service and that judgments in such actions be entered within 30 days of the conclusion of termination-of-parental-rights trials, the JIC averred, among other things, that the judge had failed or refused to comply with those time standards in 27 out of 74 termination-of-parental-rights actions assigned to her between January 2012 and July 2017. The JIC also quoted from a July 2016 decision of this court in which we had noted that

"the ... judge has, in the past, engaged in a pattern and practice of failing to comply with statutory requirements only to take steps to comply after DHR has filed a petition for the writ of mandamus with this court. In no less than five cases in the last year, DHR has sought this court's intervention to direct the ... judge to comply with the time requirements set out in Ala. Code 1975, ยง 12-15-320(a), and to either set a termination-of-parental-rights trial or to enter a termination-of-parental-rights judgment. All but one of those petitions had been mooted by the action of the ... judge upon her receipt of the petition; one petition was not mooted only because the ... judge thought that she required our permission or instruction to enter the requested termination-of-parental-rights judgment while the petition for the writ of mandamus was pending before this court. Deliberate or not, the... judge's continued neglect of her duty to ...


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