Calhoun Cnty. Dep't of Human Res. v. K.G. (In re B.G.)
| Decision Date | 09 July 2021 |
| Docket Number | 2200547, 2200548, 2200549, 2200550, 2200551, 2200552 and 2200553 |
| Citation | 344 So.3d 883 |
| Parties | EX PARTE K.G. and B.G. (In re: Calhoun County Department of Human Resources v. K.G. and B.G.) |
| Court | Alabama Court of Civil Appeals |
344 So.3d 883
EX PARTE K.G. and B.G.
(In re: Calhoun County Department of Human Resources
v.
K.G. and B.G.)
2200547, 2200548, 2200549, 2200550, 2200551, 2200552 and 2200553
Court of Civil Appeals of Alabama.
July 9, 2021
Elma Rose Walton, Anniston, for petitioner K.G.; and Jennifer Wilkinson, Anniston, for petitioner B.G.
Steve Marshall, att'y gen., and Felicia M. Brooks, chief legal counsel, and Elizabeth L. Hendrix, asst. att'y gen., Department of Human Resources, for respondent.
THOMPSON, Presiding Judge.
The Calhoun County Department of Human Resources ("DHR") filed in the Calhoun Juvenile Court ("the juvenile court") separate petitions in which it sought to have the seven minor children of K.G. ("the mother") and B.G. ("the father") declared dependent. The materials submitted to this court indicate that, in its dependency petitions, DHR alleged that, on January 13, 2020, the mother gave birth to her seventh child, H.G., at home and "inside the toilet," that H.G. suffered head injuries as a result of that home birth, and that H.G., the mother, and the father each tested positive for methamphetamine at a local hospital immediately following H.G.'s birth.
On January 17, 2020, the day following the filing of DHR's dependency petitions, the juvenile court entered shelter-care orders with regard to each of the parents’ seven minor children in which it, among other things, awarded DHR pendente lite custody of the children. On March 5, 2020, the juvenile court entered orders, based on the agreement of the parties, in which it found each of the parents’ seven children dependent and ordered that custody of each of the children remain with DHR.
On May 12, 2020, the mother was arrested on a charge of chemical endangerment of a child in connection with her pregnancy with H.G. and the birth of H.G.
On January 5, 2021, DHR separate petitions in which it sought to terminate the parents’ parental rights to each of the seven children. In those petitions, DHR alleged that the parents had failed to meet the needs of the children, that both parents had substance-abuse issues that rendered them incapable of properly parenting the children, and that the condition of the parents was unlikely to improve in the foreseeable future. In the termination-of-parental-rights petitions, DHR did not reference the events of January 13, 2020, that had resulted in the children being placed in DHR's custody or the criminal charges pending against the mother.
On January 28, 2021, the juvenile court entered orders in each of the dependency actions finding that DHR had made reasonable
efforts toward reuniting the mother and the father with the children, that such efforts toward reunification had failed, and that no further reunification efforts were required of DHR.
In March 2021, the mother filed in each of the seven termination-of-parental-rights actions a motion to stay those actions pending the resolution of the criminal case against her. In her motions to stay, the mother cited her concern that proceeding with the termination actions would violate her right against self-incrimination granted by the Fifth Amendment to the United States Constitution. The juvenile court conducted oral arguments on the motions to stay. On April 13, 2021, the juvenile court entered an order in each of the termination actions in which it denied the mother's motion to stay filed in the action.
The mother and the father filed in this court joint petitions for a writ of mandamus with regard to the April 13, 2021, orders denying the motions to stay. However, although during the hearing on the mother's motions to stay, the father orally expressed an intent to "join" the mother's motions to stay, the father did not file a motion to stay in any of the termination-of-parental-rights actions. The juvenile court's April 13, 2021, orders addressed the only pending motions to stay, i.e., those motions filed by the mother. Thus, there is no adverse ruling with regard to the father from which the father can properly seek relief by way of a petition for a writ of mandamus. See CSX Transp., Inc. v. Day, 613 So. 2d 883, 884 (Ala. 1993) ("[I]t is familiar law that an adverse ruling below is a prerequisite to appellate review.").
We turn to the arguments asserted by the mother. As an initial matter, we note that the mother asserts an argument that her right against self-incrimination is threatened by proceeding with the termination-of-parental-rights actions while the criminal case is still pending against her. She also asserts a separate argument that allowing her to be questioned pertaining to her alleged continued drug use after the children were placed in DHR's custody would expose her to potential additional criminal charges and that, therefore, the presentation of such evidence would also amount to a violation of her right against self-incrimination. We discuss those arguments separately. We first analyze the mother's argument concerning the possible threat to her Fifth Amendment right against self-incrimination posed by proceeding with the termination actions while the criminal case against her is still pending, and, later in this opinion, we address the mother's contention concerning a possible threat to her right against self-incrimination purportedly posed by allowing her to be questioned pertaining to alleged conduct for which the mother is not currently facing criminal charges.
"This Court has consistently held that the writ of mandamus is an extraordinary and drastic writ and that a party seeking such a writ must meet certain criteria. We will issue the writ of mandamus only when (1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court's jurisdiction is properly invoked. Ex parte Mercury Fin. Corp., 715 So. 2d 196, 198 (Ala. 1997)."
Ex parte Flint Constr. Co., 775 So. 2d 805, 808 (Ala. 2000). A petition for a writ of mandamus will be granted only upon the showing of an abuse of the trial court's discretion. Ex parte Rawls, 953 So. 2d 374, 377 (Ala. 2006).
Our supreme court has explained a person's right against self-incrimination as follows:
"Under the Fifth Amendment to the Constitution of the United States, ‘[n]o person ... shall be compelled in any criminal case to be a witness against himself.’ The privilege against self-incrimination must be liberally construed in favor of the accused or the witness, Hoffman v. United States, 341 U.S. 479, 71 S. Ct. 814, 95 L.Ed. 1118 (1951), and is applicable not only to federal proceedings but also to state proceedings, Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L.Ed. 2d 653 (1964). ‘The fact that the privilege is raised in a civil proceeding rather than a criminal prosecution does not deprive a party of its protection.’ Wehling v. Columbia Broadcasting System, 608 F.2d 1084, 1086 (5th Cir. 1979), citing with approval Lefkowitz v. Cunningham, 431 U.S. 801, 9[7] S. Ct. 2132, 53 L.Ed. 2d 1 (1977) ; McCarthy v. Arndstein, 266 U.S. 34, 45 S. Ct. 16, 69 [L. Ed.] 158 (1924). The test is whether the testimony might later subject the witness to criminal prosecution:
" ‘To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.’
" Hoffman v. United States, supra, 341 U.S. at 486, 71 S. Ct. at 818 ; accord, Malloy v. Hogan, supra."
Ex parte Baugh, 530 So. 2d 238, 241 (Ala.1988). See also Ex parte Butts, 183 So. 3d 931, 934 (Ala. 2015) (holding that "[t]he right against self-incrimination guaranteed by Art. I, § 6[, Ala. Const. 1901], is coextensive with that guaranteed by the Fifth Amendment" to the United States Constitution); and Ex parte Rawls, 953 So. 2d at 378 (citing Hill v. State, 366 So. 2d 318, 322 (Ala. 1979), and recognizing that Art. I, § 6, Ala. Const. 1901, although containing language different from that of the Fifth Amendment to the United States Constitution, also provides for a right against self-incrimination).
A civil action is not required to be stayed simply because a criminal case is pending against a party and that party asserts his or her right against self-incrimination. Ex parte Rawls, 953 So. 2d at 378. Rather, the determination regarding whether to grant a stay based upon an argument that a party's right against self-incrimination might be violated is a matter within the discretion of the trial court. Id. In exercising that discretion, the trial...
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