G. L.C. v. C.E.C. III

• Decision Date: 25 May 2018
• Docket Number: 2160980
• Parties: G.L.C. v. C.E.C. III
• Court: Alabama Court of Civil Appeals

281 So.3d 392

G.L.C.

v.C.E.C. III

2160980

Court of Civil Appeals of Alabama.

May 25, 2018

Certiorari Granted October 26, 2018

Alabama Supreme Court 1170813

James P. Coleman, III, Robertsdale, for appellant.

Floyd C. Enfinger, Jr., and Margaret Enfinger Pace of Law Ofiice of Floyd C. Enfinger, Jr., P.C., Montrose; and W. Donald Bolton, Jr., Foley, for appellee.

PER CURIAM.

G.L.C. ("the mother") appeals from a judgment of the Baldwin Juvenile Court ("the juvenile court") terminating her parental rights to the child she had with C.E.C. III ("the father").

The record indicates that the juvenile court entered its judgment terminating the mother's parental rights on August 16, 2017. Because the judgment from which she appealed was issued by a juvenile court and no postjudgment motion was filed, the mother had 14 days, or until August 30, 2017, to timely file her notice of appeal. See Rule 4(a)(1)(E), Ala. R. App. P. The paperwork that the mother filed in connection with her notice of appeal was initially dated August 31, 2017. The date-stamps on the filed copies indicate that the notice of appeal was filed on August 31, 2017. However, most of those dates were altered to reflect a filing date of August 30, 2017.

On September 6, 2017, the attorney for the father wrote to Tina Hadley, the court specialist in the Baldwin Circuit Court clerk's office whose initials appeared next to the date changes. In the letter, the father's attorney requested an explanation as to why the dates had been altered. That same day, Hadley responded by e-mail, writing that the mother had attempted to file her notice of appeal on August 30, 2017. Hadley continued:

"The girls in Juvenile sent her upstairs to me and security had locked the door as it was then 4:30 and the door is actually on an automatic lock. I verified with Juvenile that she had been here and been turned away. I corrected the dates so that she met her time frame since it was not her fault. The reason I did my thing on 9/1 [the date the notice of appeal was entered on the State Judicial Information System] is because I was unable to get to it on 8/31. I am allowed 7 days to docket it after it is filed."

When the mother filed her notice of appeal, she did not file a security for costs or a bond, and she did not file an affidavit of substantial hardship or seek a waiver of costs.

On September 15, 2017, the father filed in the juvenile court a motion to dismiss the mother's appeal on the ground that it was untimely. The juvenile court held an evidentiary hearing on the motion on October 31, 2017. The evidence adduced at the hearing, at which Hadley and the mother testified, reflected events as Hadley had explained in her September 6, 2017, e-mail to the father's attorney. Hadley testified that, before August 30, 2017, she had spoken with the mother by telephone and had sent her the proper forms to complete the notice appeal but that she did not see the mother until August 31, 2017. Evidence indicated that when the mother brought the notice of appeal to the courthouse on August 30, 2017, she was not permitted to leave it with the clerk's office. During her testimony, which corroborated Hadley's explanation, the mother acknowledged that she had returned with her notice of appeal to the circuit clerk's office on August 31, 2017, and that the notice was filed that day.

On October 31, 2017, the same day the hearing was held, the juvenile court purported to enter an order dismissing the mother's appeal. However, because the time the mother had in which to file a notice of appeal had already expired, and because she had already filed a notice of appeal, the juvenile court no longer had jurisdiction to consider the father's motion to dismiss, and the order dismissing the appeal was void. See Ex parte Madison Cty. Dep't of Human Res., 261 So. 3d 381, –––– (Ala. Civ. App. 2017) ; and D.V.P. v. T.W.P., 905 So.2d 853, 856 (Ala. Civ. App. 2005). Nonetheless, as the father points out in his appellate brief, the timeliness of the mother's notice of appeal affects this court's jurisdiction to consider the matter. Thus, on April 4, 2018, this court entered an order reinvesting the juvenile court with jurisdiction for 14 days for the limited purpose of making a factual determination as to the date the notice of appeal was filed. The juvenile court complied with this court's order, and on April 12, 2018, it entered an order stating that, "[a]fter reviewing the facts, pleadings, and transcripts available to this court," it determined that the mother had filed her notice of appeal on August 31, 2017—15 days after the judgment terminating the mother's parental rights was entered. The juvenile court ordered that the State Judicial Information System ("SJIS") be corrected to reflect that August 31, 2017, was the date of filing of the mother's notice of appeal.

In responding to the mother's brief on appeal, the father maintains that this court does not have jurisdiction over this matter because, he argues, the mother's notice of appeal was untimely filed. In her reply brief, the mother asserts that because she appeared at the clerk's office on August 30, 2017—the 14th day after the juvenile court entered the judgment terminating her parental rights—and presented her notice of appeal to the clerk's office, her appeal was timely. In support of her argument, the mother cites Rubin v. Department of Industrial Relations, 469 So.2d 657 (Ala. Civ. App. 1985).

The issue in Rubin was whether a notice of appeal was untimely when the appellant failed to pay the appropriate filing fees or obtain a waiver of the initial filing fee by the date the notice of appeal was due.

"It has long been held that in Alabama ‘[a] pleading or other paper may be said to have been duly filed when it is delivered to the proper filing officer.’ Covington Bros. Motor Co. v. Robinson, 239 Ala. 226, 194 So. 663 (1940). See alsoHenson v. Henson, 261 Ala. 63, 73 So.2d 100 (1954). Timely delivery is sufficient even when the clerk fails to mark the pleading or other paper ‘filed.’ Home Insurance Co. v. Shriner, 235 Ala. 65, 177 So. 897 (1937).

"Thus, when [appellant] timely presented the notice of appeal and affidavit of substantial hardship to the clerk, the case is deemed to have been filed, notwithstanding that the clerk failed to enter the case on the docket until the judge signed the affidavit."

Rubin, 469 So.2d at 658. Relying on Rubin, the mother contends that she "presented" her notice of appeal to the circuit clerk on August 30, 2017. Therefore, she says, her appeal was timely. We disagree.

In Holmes v. Powell, 363 So.2d 760, 761–62 (Ala. 1978), our supreme court held that

" Rule 3(a), [Ala. R. App. P.,] states that ‘[I]n civil cases an appeal ... shall be taken ... by filing a notice of appeal with the clerk of the trial court, within the time allowed by Rule 4.’ The language of Rule 4 is equally mandatory. The language of neither permits the earlier postmark appearing upon an envelope to be a substitute for filing with the clerk. As Judge Holmes recently observed in Moutry v. State, 359 So.2d 388, 390 (Ala. Civ. App. 1978), a case dealing with a similar issue:

" ‘A document has not been filed until it has actually been received by the court; mere mailing is not enough. See Blades v. U.S., 407 F.2d 1397 (9th Cir. 1969).’

"See also Townsend v. Board of Building Appeals, 49 Ohio App. 2d 402, 361 N.E.2d 271 (1976) ; Walsh v. Tucker, 454 Pa. 175, 312 A.2d 11 (1973)."

In the context of an appeal from a judgment entered by a juvenile court, this court has noted that Rule 28(C), Ala. R. Juv. P., provides: " ‘Written notice of appeal shall be filed within 14 days of the date the judgment, order, or decree appealed from is filed in the clerk's office, whether the appeal is to an appellate court or to the circuit court for trial de novo.’ (Emphasis added.)" D.T. v. State, 1 So.3d 74, 76 (Ala. Civ. App. 2008).

In D.T., D.T. had had until February 22, 2008, to file his notice of appeal. On February 21, 2008, he sent his notice of appeal to the Dale Circuit Court clerk via an overnight-delivery service. Nonetheless, the clerk's office did not receive the notice of appeal until February 26, 2008. Id. This court held that the notice of appeal was untimely, explaining:

"D.T. states in his brief to this court that he sent the notice to the clerk's office on February 21, 2008, via an overnight delivery service. D.T. states that his ‘counsel has not received a satisfactory explanation from [the delivery service] for the delay.’ However, the placing of a notice of appeal with an overnight delivery service for transmittal is not sufficient to constitute a ‘filing’ under Rule 28(C).

"As this court has explained:

" ‘Whereas, service of papers is complete upon mailing, filing is not complete until the notice is delivered to the proper filing officer. See Henson v. Henson, 261 Ala. 63, 73 So.2d 100 (1954) ; Covington Bros. Motor Co. v. Robinson, 239 Ala. 226, 194 So. 663 (1940) ; Rule 5(e), [Ala. R. Civ. P.].

" ‘.... A document has not been filed until it has actually been received by the court; mere mailing is not enough. See Blades v. U.S., 407 F.2d 1397 (9th Cir. 1969) ; see also 16A Words and Phrases, "Filing." ’

" Moutry v. State, 359 So.2d 388, 389–90 (Ala. Civ. App. 1978). See alsoAlabama Medicaid Agency v. Peoples, 557 So.2d 1281 (Ala. Civ. App. 1990) (holding that sending of notice of appeal via certified mail was insufficient to constitute filing under Rule 4, Ala. R. App. P.). Because D.T.'s notice of appeal was not received by the clerk of the Dale Circuit Court until after the time provided by Rule 28(C), Ala. R. Juv. P., had lapsed, D.T.'s notice of appeal was not filed within the time allowed by the Alabama Rules of Juvenile Procedure. Accordingly, D.T.'s appeal must be dismissed. Rule 2(a)(1), Ala. R. App. P."

D.T., 1 So.3d at 76–77 (second emphasis added).

The dissenting opinion attempts to draw an analogy between this case and a case decided by the...