T.P. v. C.J. (Ex parte C.J.)

• Decision Date: 23 July 2021
• Docket Number: 2200617,2200623
• Citation: 347 So.3d 251
• Parties: EX PARTE C.J. (In re: T.P. et al. v. C.J. and T.J.) Ex parte C.J. (In re: T.P. et al. v. C.J. and T.J.)
• Court: Alabama Court of Civil Appeals

347 So.3d 251

EX PARTE C.J.

(In re: T.P. et al.

v.C.J. and T.J.)

Ex parte C.J.

(In re: T.P. et al.

v.C.J. and T.J.)

2200617

2200623

Court of Civil Appeals of Alabama.

July 23, 2021

Austin Burdick of Burdick Law Firm, Bessemer, for petitioner.

W.J.T., pro se.

Judge Janine E. Hunt-Hilliard, Birmingham, as respondent.

THOMPSON, Presiding Judge.

C.J. ("the mother") petitions this court for writs of mandamus directing the Jefferson Juvenile Court ("the juvenile court") to vacate all the orders it issued after February 18, 2021, in the underlying dependency actions regarding the mother's children, A.R.J. and N.M.J. ("the children"), and to enter orders dismissing the petitions filed by T.P., the mother's sister, alleging that the mother's children are dependent. ¹

We deny the mother's mandamus petitions.

Facts and Procedural History

On August 13, 2020, T.P. filed petitions with the juvenile court's intake officer, alleging that, pursuant to § 12-15-102(8)a.2., Ala. Code 1975, the children were dependent. Specifically, T.P. alleged that the children were without a parent, legal guardian, or custodian willing and able to provide for their care, support, and education and that they were in need of care or supervision, that the children resided with the mother and T.J. ("the father"), and that the mother and the father were not maintaining safe housing for the children and were exhibiting behaviors that were unsafe and inappropriate for the well-being of the children. T.P. further alleged that the parents drank to excess, left the children unsupervised, and failed to meet appropriate hygienic standards. T.P. attached to her petitions affidavits executed by herself and A.W., a friend of the mother, averring that the mother and the father had engaged in alcohol abuse and violent behaviors in front of the children, that the children were not being adequately fed and supervised, and that, because of ongoing renovations, the mother and father's house was unsafe for the children.

On August 14, 2020, the juvenile court conducted an emergency ex parte hearing at which T.P.; F.H., another sister of the mother; and the children's guardian ad litem were present. After considering ore tenus evidence, the juvenile court found, based on a preponderance of the evidence, that the entry of emergency orders of protection and restraint to prevent the abuse and/or neglect of the children was required. The juvenile court ordered that the children be placed in the custody of T.P. and that the mother and the father have no contact with the children until further orders were entered.

On August 17, 2020, the juvenile court conducted a shelter-care hearing at which the mother, the father, T.P., F.H., and the guardian ad litem were present. After considering ore tenus evidence, the juvenile court, among other things, placed the children in T.P.’s temporary custody, ordered specified and supervised visitation between the parents and the children, and ordered the guardian ad litem to investigate and explore various individuals as possible relative placements.

On February 18, 2021, T.P. filed in each action a motion entitled "verified notice of relinquishment of minor children and verified motion to dismiss private dependency petition." T.P. made the following allegations in the motion:

"1. This matter is set for hearing on April 1, 2021 for pre-trial.

"2. Throughout the pendency of this case, [T.P.] has been continually harassed and threatened by [the mother and the father].

"3. The mother has now undertaken to send threatening emails to [T.P.] regarding [T.P.’s] legal counsel and has attempted to bully her into relinquishing the children.

"4. [T.P.] has been caused to expend thousands of dollars on the minor children, legal counsel and the educational needs of the children to the detriment of her own family.

"....

"6. T.P. moved this court on November 9, 2020, to require the parents to undergo drug, alcohol, and psychological testing. Said motion has not been heard by this court, but [T.P.] has been ordered to submit to hair follicle testing when she is not on trial. [T.P.] did undergo testing but results have been pending since her test.

"7. [T.P.] has grave concerns over the relinquishment of these children; however, the mother and father have caused alarm, harassment and threats to befall [T.P.] and her family to the point that they are afraid on a daily basis.

"8. [T.P.] gives notice that she will be relinquishing the minor children to state custody, whether it be Colorado [where T.P. resides] or Alabama at the latest, Friday afternoon, the 19th of February, 2021.

"9. [T.P.] moves this court to dismiss her petition and order the mother and father to be restrained from discussing, posting, or communicating with [her] and her family."

In support of her motion, T.P. attached a copy of an email from the mother, in which the mother disparages T.P.’s attorney.

On February 18, 2021, the mother filed a document entitled "stipulation of dismissal and motion to strike as moot," stating:

"1. [Rule 41,] Alabama Rules of Civil Procedure[,] states in pertinent part:

" ‘(a) Voluntary dismissal: Effect thereof. (1) BY PLAINTIFF; BY STIPULATION. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of this state, an action may be dismissed by the plaintiff without order of court (i.) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii.) by filing a stipulation of dismissal signed by all parties who have appeared in the action.’

"2. [T.P.] has filed a motion to dismiss this action. As a result this matter is dismissed without further action from the court. Ex parte Foushee, 902 So. 2d 73 (Ala. Civ. App. 2004) (mother entitled to mandamus relief vacating orders entered after voluntary dismissal).

"3. Neither [the father nor the mother] have filed an answer or a motion for summary judgment.

"4. [The m]other provides this motion as an affirmative stipulation of dismissal of this action. See Greene v. Town of Cedar Bluff, 965 So. 2d 773 (Ala. 2007) (After the parties of a lawsuit filed a stipulation of dismissal under Rule 41, the trial court lacked authority to entertain the suit.)

"5. Additionally, the mother moves to strike all the spurious and unfounded claims set forth in the motion of [T.P.] ... pursuant to Rule 12(f)[, Ala. R. Civ. P.].

"6. Rule 12(f) states in pertinent part:

" ‘(f) Motion to strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within thirty (30) days after the service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.’

"7. The allegations of intimidation or pressure are contradicted by the email provided with the motion. It cannot be seriously argued that mother was somehow abusive when the message is peppered with statements of love and affection directed toward [T.P.].

"....

"9. The motion is moot as the matter has been dismissed pursuant to Rule 41.

"10. Further, the inclusion of DHR [the Department of Human Resources] is not warranted as DHR has already investigated the parents and found that there is no indication of abuse or neglect."

The mother attached to her stipulation and motion copies of documents generated by the Jefferson County Department of Human Resources ("DHR") regarding its investigation of reports of neglect of the children received on August 14, 2020, and its determination that there had been insufficient evidence to support findings that the mother or the father had neglected the children by providing inadequate supervision. The father also filed a response to T.P.’s notice of relinquishment and motion to dismiss. In his response, the father agreed that the dependency actions should be dismissed and acknowledged that DHR had investigated allegations that he and the mother had provided inadequate supervision of the children and had returned a "not indicated" finding.

On February 23, 2021, the guardian ad litem filed a motion for an immediate hearing, alleging, in pertinent part:

"2. [T.P.] has indicated that she wishes to relinquish custody of the children, due to the constant harassment and threats from the parents, as well as the disruption to her children's lives.

"3. However, absent an order from this court, [T.P.] will not relinquish custody of the children to their parents, as both [T.P.] and the undersigned believe that returning the children to their parents is not in the children's best interest.

"4. [The m]other has taken the position that [T.P.’s] motion is the functional equivalent of a Rule 41(a) dismissal ... and is demanding the children be returned. Upon information and belief, the parents even flew to Colorado on Friday, February 19, 2021, in the mistaken assumption that they would take custody of the children.

"5. It is the opinion of the undersigned that it is in the best interest of the children to remain with [T.P.] until such time as an alternative resource may be located and a home evaluation conducted. [T.P.] has agreed to retain custody of the minor children until such an order is entered.

"6. All parties in this matter would benefit from an immediate hearing to determine the placement of the children at the time [T.P.] does eventually relinquish, as well as whether or not this court will add the Department of Human Resources as a party to this action."

On February 24, 2021, the mother filed in each action a "motion for order of execution" in which she asked the juvenile court to order the return of her children and to enforce the dismissal of the actions. In her motion, the mother alleged:

"1. This case was dismissed pursuant to the notice/motion of [T.P.] on February 18, 2021.

"2. Since that time the remaining parties, mother and father, have

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