A v. Ai.M. (In re Montgomery Cnty. Dep't of Human Res. ()

• Decision Date: 13 September 2019
• Docket Number: 2180691,2180692,2180690
• Citation: 294 So.3d 811
• Parties: 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)
• Court: Alabama Court of Civil Appeals

294 So.3d 811

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)

2180690

2180691

2180692

Court of Civil Appeals of Alabama.

September 13, 2019

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 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, § 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 comply with the statutorily prescribed time requirements and to enter proper and compliant judgments unless and until threatened with the supervisory action of this court causes the members of this court great concern."

Ex parte Montgomery Cty. Dep't of Human Res., 215 So. 3d 582, 583–84 (Ala. Civ. App. 2016) (citations omitted). In the first two counts of its complaint, the JIC asserted that the judge's conduct with respect to delay in completing termination-of-parental-rights trials and entering judgments in termination-of-parental-rights cases amounted to violations of 10 discrete provisions of the Canons.

In September 2017, counsel for the judge filed an unsworn answer in Case No. 50 to the complaint filed by the JIC. In that answer, counsel for the judge sought to deflect blame for the judge's conduct by asserting that ADHR had been the "main complainant triggering the ‘pattern and practice’ investigation ... by JIC," that she had been "singled out ... for complaint," and that ADHR (rather than the JIC) had "made the complaint for improper purposes." Counsel for the judge further alleged that ADHR had presented the JIC a " ‘laundry list’ of grievances against" the judge, that ADHR was a " ‘frequent flyer’ in family court ... involved in all or nearly all dependency cases in Alabama," that ADHR had "rais[ed] a variety of gripes" as to the judge, that ADHR had conducted "a ‘full-court press’ review" of the judge's dependency caseload, that ADHR had later "recycled its complaints against [the judge] ... for impermissible reasons" (suggesting that ADHR had had "some ... improper motive"), and that the judge had been singled out among the three designated family-relations judges in Montgomery County with respect to seeking mandamus relief regarding matters of timeliness in dependency actions. Finally, in addition to responding directly to the allegations of the JIC complaint, counsel for the judge asserted a number of affirmative defenses and specifically pleaded "misrepresentation of fact by [A]DHR." In addition to making those statements in that answer, counsel for the judge reiterated some of those contentions during closing arguments in the May 2018 trial before the COJ, during which one of the judge's attorneys stated:

"Is it somebody that has it in for her? It's just the person who brought the first letter in and brought the other cases in. It's just the people that she ruled against nine times on the [termination of parental rights]. Because they wanted her to terminate some parental rights, and she only wanted to keep a family together."

Notwithstanding the efforts of the judge and her counsel to oppose the imposition of disciplinary sanctions, the members of the COJ entered a final judgment in Case No. 50 in May 2018 publicly reprimanding the judge and suspending her without pay for 180 days (subject to a reduction to 90 days if the judge elected to comply with certain conditions involving reporting of progress in termination-of-parental-rights cases). The COJ expressly found in favor of the JIC on all counts of its complaint, including the two counts alleging that the judge had violated the Canons as to her conduct with respect to delay in completing termination-of-parental-rights trials and entering judgments in termination-of-parental-rights cases, stating that the JIC had proved its allegations "by clear and convincing evidence."

Procedural History

The mandamus petitions filed by MCDHR indicate that three actions were commenced in 2019 in the Juvenile Division of the Montgomery Family Court involving three different minor children, Av.M., Ai.M., and Ad.M. The three actions were given consecutive case numbers, and each was assigned to the judge for disposition. On May 10, 2019, MCDHR, identifying itself as "the Alabama Department of Human Resources in Montgomery County," filed a motion in each action seeking the judge's recusal not only from each of those three actions, but also from hearing all juvenile cases in Montgomery County "in which DHR appears as a party." In each motion, MCDHR...