S.F. v. H.A.S. (Ex parte H.A.S.)

• Decision Date: 08 May 2020
• Docket Number: 2190520,2190521
• Citation: 308 So.3d 533
• Parties: EX PARTE H.A.S. (In re: S.F. v. H.A.S.)
• Court: Alabama Court of Civil Appeals

308 So.3d 533

EX PARTE H.A.S.(In re: S.F.

v.H.A.S.)

2190520

2190521

Court of Civil Appeals of Alabama.

May 8, 2020

Jimmy Sandlin, Huntsville, for petitioner.

Marcus Helstowski of McDaniel & McDaniel, LLC, Huntsville; and Nick Heatherly, Huntsville, for respondent.

EDWARDS, Judge.

This is the third time that these parties have appeared before this court. See Ex parte H.A.S. (No. 2190437, March 2, 2020), ––– So. 3d –––– (Ala. Civ. App. 2020) (table) (petition denied as moot); H.A.S. v. S.F., 298 So. 3d 1092 (Ala. Civ. App. 2019). In H.A.S., we reversed the judgment of the Madison Juvenile Court ("the juvenile court") entered in case number JU-18-406.01 ("the dependency action"), in which the juvenile court had determined that M.G. ("the child") was dependent and had awarded custody of the child to S.F. ("the paternal grandmother"). Our instructions to the juvenile court were to dismiss the paternal grandmother's dependency petition and, thus, to return custody of the child to H.A.S. ("the mother"). After we overruled the paternal grandmother's application for a rehearing, she sought certiorari review in our supreme court, which was denied on January 10, 2020. We issued our certificate of judgment on January 10, 2020.

On February 24, 2020, the mother sought mandamus review in this court to compel the juvenile court to enter a judgment in compliance with this court's directive in H.A.S. On that same date, we called for answers to the mother's petition. Also on February 24, 2020, in response to the filing of the petition, the juvenile court entered a judgment in compliance with our mandate in H.A.S., dismissing the paternal grandmother's dependency petition and returning custody of the child to the mother. Upon being notified of the entry of the juvenile court's judgment, we dismissed the mother's mandamus petition as moot. Ex parte H.A.S., supra.

During the pendency of the appeal in H.A.S., the paternal grandmother filed a verified petition to terminate the mother's parental rights to the child; that action was assigned case number JU-18-406.03 ("the termination-of-parental-rights action"). In her verified petition, the paternal grandmother asserted that the child had been found dependent in the judgment entered in the dependency action. She also alleged, in general, that the child remained dependent. To further support her petition, the paternal grandmother averred that the mother had been evicted from her last residence, that the mother had moved without notifying the paternal grandmother, that the mother's husband, Y.S., had been arrested for unlawful possession of a firearm, that the child exhibited odd behavior (crying and banging her head) upon returning from visits with the mother, and that the mother was not requiring the child to wear her eyeglasses during visitations, resulting in a worsening of the child's eye condition. The mother answered the paternal grandmother's petition and filed a "counterclaim" in which she sought to have the termination-of-parental-rights action "denied" or "dismissed" because, she contended, it was precluded as a result of this court's opinion reversing the judgment entered in the dependency action. The mother did not specifically reference either the doctrine of res judicata or the doctrine of collateral estoppel in her "counterclaim."

After the issuance of our certificate of judgment in H.A.S., the paternal grandmother filed a petition on January 20, 2020, seeking an award of pendente lite custody in the termination-of-parental-rights action pending the trial. The paternal grandmother's motion was not verified, but it incorporated the allegations made in her termination-of-parental-rights petition, which was verified. The juvenile court apparently set the motion for pendente lite custody for a hearing to be held on February 26, 2020. However, on February 24, 2020, immediately after entering the order in the dependency action in compliance with our mandate in H.A.S., the juvenile court entered an order in the termination-of-parental-rights action granting pendente lite custody of the child to the paternal grandmother.

The mother filed this petition for the writ of mandamus in this court on March 26, 2020, seeking review of the juvenile court's action in both the dependency action and in the termination-of-parental-rights action. Our clerk's office assigned the petition two separate appellate case numbers and consolidated the cases. In case number 2190520, the mother seeks mandamus relief based on her assertion that the juvenile court has failed to comply with this court's mandate in the dependency action by failing to enter a judgment awarding the mother custody of the child. In case number 2190521, the mother seeks mandamus relief from the February 24, 2020, order of the juvenile court granting pendente lite custody of the child to the paternal grandmother in the termination-of-parental-rights action without having held an evidentiary hearing. In addition, the mother also requests that we direct the juvenile court to dismiss the termination-of-parental-rights action on the grounds of res judicata or collateral estoppel. We called for answers to the mother's petition, and both the juvenile-court judge and the paternal grandmother filed answers.

In her answer, the paternal grandmother has provided a copy of an amended petition in the termination-of-parental-rights action filed with the juvenile court on April 1, 2020, in which it appears that the paternal grandmother has amended her petition "in its entirety" to instead seek a dependency determination and custody. That pleading, of course, postdates the mother's petition. In addition, the paternal grandmother has supported her answer with attachments relating to the mother's divorce action and a protection-from-abuse action filed by the mother against Y.S. Those documents do not indicate that they were filed in the juvenile court as exhibits to any pleading or motion before the February 26, 2020, pendente lite custody hearing or that they were presented to the juvenile court at that hearing.

However, the juvenile-court judge mentions the protection-from-abuse petition and the mother's divorce action in her answer to the mother's petition for the writ of mandamus, indicating that those documents and/or testimony concerning them was presented to the juvenile court at the pendente lite hearing. In addition, the juvenile court indicates that it intends to hear further testimony on the pendente lite custody issue from the child's psychologist but that conflicts in the schedule of the attorney for the paternal grandmother and the issuance of the supreme court's administrative orders respecting the COVID-19 pandemic has prevented the setting of a hearing during which to take that testimony.

The Timeliness of the Petition

We first note that the mother's petition was not timely filed from the entry of the February 24, 2020, pendente lite order. The mother has included a statement of good cause for the tardy filing of her petition. See Rule 21(a)(3), Ala. R. App. P. (requiring a statement of good cause to be included with the petition if it is filed outside the presumptively reasonable time for filing). The mother's stated good cause is that her former counsel in the termination-of-parental-rights action had to request approval from a superior to file a petition for the writ of mandamus, that her former counsel did not communicate to the mother that a petition would not be filed until March 13, 2020 (which was 4 days after the 14-day period for filing the petition expired), and that the mother immediately located replacement counsel, who filed the petition within 14 days of the mother's being notified that her former counsel would not be filing the petition for the writ of mandamus on her behalf. She also points out that she had hoped that, after the hearing held on February 26, 2020, the juvenile court would issue an order rescinding or modifying the February 24, 2020, pendente lite custody order.

We have previously considered whether a statement of good cause for the tardy filing of a petition for the writ of mandamus under Rule 21 is sufficient. See Ex parte J.B., 223 So. 3d 251, 254 (Ala. Civ. App. 2016) ; Ex parte K.A.S., 197 So. 3d 503, 507 (Ala. Civ. App. 2015). We have explained that,

"[p]ursuant to Rule 21(a)(3), ‘[i]f a petition is filed outside th[e] presumptively reasonable time, it shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time.’ ... As we explained in Ex parte Fiber Transport, L.L.C., 902 So. 2d 98, 100–01 (Ala. Civ. App. 2004), a party seeking to convince this court to consider an untimely filed petition should discuss the factors set out in

" ‘[t]he "Committee Comments to Amendments to Rule 21(a) and 21(e)(4) [, Ala. R. App. P.,] Effective September 1, 2000," [which are as follows]:

" ‘ "[T]he prejudice to the petitioner of the court's not accepting the petition and the prejudice to the opposing party of the court's accepting it; the impact on the timely administration of justice in the trial court; and whether the appellate court has pending before it other proceedings relating to the same action, and as to which the jurisdiction of the appellate court is unchallenged." ’ "

Ex parte J.B., 223 So. 3d at 254.

In Ex parte J.B., in addition to discussing the facts relating to the trial court's conduct of the hearing at issue, the petitioner's statement of good cause relied upon

"the fact that the prejudice to him will be considerable, because, he says, he will be required to litigate the Alabama action, in violation of his due-process rights, while, he states, ‘the [respondent] will face little prejudice.’ Regarding the ‘impact on the timely administration of justice’ in the Alabama court, the [petitioner] contends that the timely administration of justice ‘will be served by prompt and

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