Ex parte H.A.S.
2190520 and 2180521
ALABAMA COURT OF CIVIL APPEALS
May 8, 2020
EDWARDS, Judge.
OCTOBER TERM, 2019-2020
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
PETITION FOR WRIT OF MANDAMUS
(In re: S.F. v. H.A.S.)
(Madison Juvenile Court, JU-18-406.01 and JU-18-406.03)
EDWARDS, Judge.
This is the third time that these parties have appeared before this court. See Ex parte H.A.S. (No. 2190447, March 2, 2020), ___ So. 3d ___ (Ala. Civ. App. 2020) (table) (petition denied as moot); H.A.S. v. S.F., [Ms. 2180278, September 6, 2019] ___ Sо. 3d ___ (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
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 generаl, 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
After the issuance of our certificate of judgment in H.A.S., the paternal grаndmother 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 actiоn in compliance with our mandate in H.A.S., the juvenile court entered an order in the termination-of-
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.
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
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
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] prеsumptively 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) and21(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 оf 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 final ruling on this petition.
Id. We were further convinced that we should consider the petition in its entirety by the fact that, because we could consider that portion of the petition asserting a lack of subject-matter jurisdiction in spite of the untimeliness of the petition, see Ex parte K.R., 210 So. 3d 1106, 1112 (Ala. Civ. App. 2016), we [had] pending before us other proceedings relating to the same action, and as to which the jurisdiction of the appellate court [may not be] []challenged. Committee Comments to Amendments to
In Ex parte K.A.S., the petitioner explained in her statement of good cause that, despite working diligently after returning from a holiday, the attorney had been unable to complete the petition and file it until 1 day after the presumptively reasonable 14-day deadline. 197 So. 3d at 507. [T]his court concluded that the one-day delay would not prejudice [the respondent] or impact the timely administration of justice but that not allowing the petition could prejudice the [petitioner] and the parties’ child. Therefore, this court accepted the petition outside the presumptively reasonable time. Id.
The mother‘s statement of good causе does not address prejudice or the impact of her tardy petition on the timely administration of justice. She indicates her awareness of the need for the filing of the petition, but she relies on the fact that her former attorney in the termination-of-parental-
Standard of Review
A writ of mandamus is an extraordinary remedy ... that should be granted only if the trial court clearly abused its discretion by acting in an arbitrary or capricious manner. Ex parte Edwards, 727 So. 2d 792, 794 (Ala. 1998). The petitioner must demonstrate:
(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.
Ex parte Edwards, 727 So. 2d at 794 (quoting Ex parte Adams, 514 So. 2d 845, 850 (Ala. 1987)).
Ex parte D.J.B., 859 So. 2d 445, 448 (Ala. Civ. App. 2003).
The Merits of the Mother‘s Petition in Case Number 2190520
Insofar as the mother challenges what she describes as the juvenile court‘s failure to follow this court‘s mandate in the dependency action, her petition in case number 2190520 lacks mеrit. The juvenile court entered the appropriate order dismissing the paternal grandmother‘s dependency petition and awarding the mother custody of the child, albeit after the mother filed the previous mandamus petition, on February 24, 2020. That concluded the dependency action in full compliance with our mandate. Thus, the petition in case number 2190520 is denied.
The Merits of the Mother‘s Petition in Case Number 2190521
The mother‘s arguments relating to the termination-of-parental-rights action also fail. She first contends that the pendente lite custody order was entered without taking evidence, thus violating her due-process rights. See Ex parte Russell, 911 So. 2d 719, 724-25 (Ala. Civ. App. 2005). However, the paternal grandmother‘s motion seeking pendente lite custody, although unverified, incorporated the verified
Furthermore, although it is quite clear that the juvenile court had not yet held a hearing on the pendente lite custody issue at the time it entered the February 24, 2020, order, it did hold a hearing two days later, on February 26, 2020, at which the mother was, presumably, able to present evidence refuting the paternal grandmother‘s verified allegations. The mother does not contend that, like the court in Ex parte Russell, the juvenile court took no evidence at that hearing. In fact, according to her mandamus petition, the mother herself had hoped that the February 26, 2020, hearing would result in the juvenile court‘s either rescinding or amending the February 24, 2020, pendente lite custody order. Moreover, the answers of the paternal grandmother and of the juvenile-court judge make clear that testimony was taken on that date, some of which supported the allegations of the paternal grandmother. Thus, although the juvenile court should perhaps have waited to enter the pendente lite custody order until after the February 26, 2020, hearing, or perhaps should have entered a new order reaffirming the February 24, 2020, order
The mother also requests a writ directing the juvenile court to dismiss the paternal grandmother‘s termination-of-parental-rights action, which, as noted above, appears to have been amended to seek only a dependency finding and not the termination of the mother‘s parental rights. Although the mother did not file a motion to dismiss the paternal grandmother‘s termination-of-parental-rights action on the basis of either the doctrine of res judicata or the doctrine of collateral estoppel, she did file a “counterclaim” in which
Res judicata and collateral estoppel are two closely related, judicially created doctrines that preclude the relitigation of matters that have been previously adjudicated or, in the case of res judicata, that could have been adjudicated in a prior action.
The doctrine of res judicata, while actually embodying two basic concepts, usually refers to what commentators label claim рreclusion, while collateral estoppel ... refers to issue preclusion, which is a subset of the broader res judicata doctrine.
Little v. Pizza Wagon, Inc., 432 So. 2d 1269, 1272 (Ala. 1983) (Jones, J., concurring specially). See also McNeely v. Spry Funeral Home of Athens, Inc., 724 So. 2d 534, 537 n.1 (Ala. Civ. App. 1998). In Hughes v. Martin, 533 So. 2d 188 (Ala. 1988), this Court explained the rationale behind the doctrine of res judicata:
Res judicata is a broad, judicially developed doctrine, which rests upon the ground that public policy, and the interest of the litigants alike, mandate that there be an end to litigation; that those who have contested an issue shall be bound by the ruling of the court; and that issues once tried shall be considered forever settled between those same parties and their privies.
533 So. 2d at 190. The elements of res judicata are
(1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both actions.
Equity Res. Mgmt., Inc. v. Vinson, 723 So. 2d 634, 636 (Ala. 1998). If those four elements are present, then any claim that was, or that could have been, adjudicated in the prior action is barred from further litigation. 723 So. 2d at 636. Res judicаta, therefore, bars a party from asserting in a subsequent action a claim that it has already had an opportunity to litigate in a previous action.
The corollary to the above-stated rationale is that the doctrine of res judicata will not be applied to bar a claim that could not have been brought in a prior action. Old Republic, ... 790 So. 2d at 928. See also United States v. Maxwell, 189 F. Supp. 2d 395, 406 (E.D. Va. 2002);
Restatement (Second) of Judgments, § 26(1)(c) (1982) ,Restatement (Second) of Judgments, § 51(1)(a) . In order for a judgment between the same parties to be res judicata, it must, among other things, ... involve a question that could have been litigаted in the former cause or proceeding. Stephenson v. Bird, 168 Ala. 363, 366, 53 So. 92, 93 (1910).
Insofar as the mother sought to have the paternal grandmother‘s termination-of-parental-rights action dismissed, we note that a dependency action and a termination-of-parental-rights action are not identical causes of action. Thus, the doctrine of res judicata would not have been applicable to the mother‘s argument before the paternal grandmother amended the termination-of-parental-rights petition. Now that the paternal grandmother‘s petition has been amended and appears to be a new dependency action, we will address the mother‘s argument that the doctrine of res judicata bars the paternal grandmother‘s petition.
Based on our caselaw, the application of a preclusive doctrine like the doctrine of res judicata is not appropriate in the present case. First, our supreme court has explained that two causеs of action are the same for res judicata purposes when the same evidence is applicable in both actions. Chapman Nursing Home, Inc. v. McDonald, 985 So. 2d 914, 921 (Ala. 2007) (quoting Old Republic Ins. Co. V. Lanier, 790 So. 2d 922, 928 (Ala. 2000), quoting in turn
Secondly, as we have explained in the context of successive petitions seeking the termination of parental rights, the doctrine of res judicata does not prevent a juvenile court from terminating parental rights on a successive petition based upon both previous evidence and new evidence relating to a child‘s dependency and a parent‘s ability and willingness to parent the child. L.M. v. Shelby Cty. Dep‘t of Human Res., 86 So. 3d 377, 384 (Ala. Civ. App. 2011). We explained in L.M. that
[the Department of Human Resources] presented new evidence at the second termination trial that could not have bеen presented at the first termination trial, and, thus, the second termination actions were not based on evidence that was the same as the evidence presented at the first trial. Accordingly, we conclude that the doctrine of res judicata did not prevent presentation of evidence of matters that occurred before the first termination trial in the second termination trial and that the juvenile court properly weighed all the existing evidence to determine whether there was clear аnd convincing evidence sufficient to support the termination of the parental rights of the mother and the father.4
Furthermore, our supreme court has pointed out that, by its very nature, custody is always temporary and never permanent. Ex parte J.P., 641 So. 2d 276, 278 (Ala. 1994). As a result, matters of child custody are never res judicata, and the circuit court retains jurisdiction over the matter for modification upon a showing of changed circumstances. Ex parte Lipscomb, 660 So. 2d 986, 989 (Ala. 1994). In the context of juvenile-court matters, our caselaw provides that a juvenile court is nоt required to ignore the past history of the family, see Ex parte State Dep‘t of Human Res., 624 So. 2d 589, 593 (Ala. 1993) (A court may consider the past history
Based on the holding in L.M. and the principles governing custody, dependency, and termination-of-parental-rights actions, we see no reason not to conclude, similarly as we did in L.M., that, despite the fact that the paternal grandmother‘s action might involve reliance, in part, on facts underlying the previous determination of dependency, which this court reversed, the doctrine of res judicata does not bar the paternal grandmother‘s action. The paternal grandmother also alleged new facts in her original petition in the
2180520 –- PETITION DENIED.
2180521 –- PETITION DENIED.
Thompson, P.J., and Donaldson and Hanson, JJ., concur.
Moore, J., concurs in the result, without writing.