C.M.P. v. D.S.

154 So. 3d 1039, 2014 WL 1508679, 2014 Ala. Civ. App. LEXIS 70
CourtCourt of Civil Appeals of Alabama
DecidedApril 18, 2014
Docket2130089
StatusPublished

This text of 154 So. 3d 1039 (C.M.P. v. D.S.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
C.M.P. v. D.S., 154 So. 3d 1039, 2014 WL 1508679, 2014 Ala. Civ. App. LEXIS 70 (Ala. Ct. App. 2014).

Opinion

THOMAS, Judge.

C.M.P. (“the mother”) and D.S. (“the father”) are the parents of D.N.L.S. (“the child”). The parties have never been married to one another. On September 23, 2010, the Jefferson Juvenile Court entered •an order awarding joint legal custody of the child to the parents and primary physical custody of the child to the mother. The juvenile court awarded visitation to the father. On June 14, 2012, the father filed a motion that he styled as a “verified petition for rule nisi” in the juvenile court, alleging that the mother should be held in contempt because she had refused, to allow the father to exercise his visitation with the child, who was then four years old. The action initiated by the father’s petition was assigned case no. JU-10-67.01. The juvenile court scheduled a hearing on the petition for February 19, 2013.

On July 3, 2012, the mother filed a standardized complaint/affidavit in case no. JU-10-67.01 alleging that the father had abused the child. According to the mother, on May 7, 2012, the child had reported to her that “[djaddy was mad at him for pooping in his bedroom. He said that ‘daddy put his finger up his bottom,’ and that daddy hurt him.” On July 16, 2012, the mother filed, in case no JU-10-67.01, a petition to modify the father’s visitation with the child in which she argued that the father’s alleged abuse of the child amounted to a material change of circumstances warranting suspension of the father’s visitation rights.

A copy of a letter from the Jefferson County Department of Human Resources (“DHR”) to the father dated July 30, 2012, indicates that DHR had completed a child abuse/neglect assessment and had found that the allegations of abuse against the father were “not indicated.” On July 23, 2012, the father filed a motion for an expedited hearing, asserting that he had been denied visitation with the child since May 2012 and again seeking a finding of contempt against the mother. That same day the mother filed a request for an emergen-, cy hearing in which she admitted that the father had tried to exercise visitation but that she had not allowed visitation because she had “called for a suspension.” The juvenile court appointed a guardian ad li-tem for the child and scheduled a hearing.

On September 12, 2012, the father filed a motion to dismiss the mother’s modification petition, contending that, because the DHR investigation had yielded a “not indicated” finding, there was no material change of circumstances for the juvenile [1041]*1041court to consider. There is nothing in the materials presented to this court indicating that the juvenile court entered an order on the father’s motion. Instead, a hearing was held on October 15, 2012, and the juvenile court rendered an order requiring that the father’s visitation be “supervised by the mother or other adult individual deemed appropriate by the mother,” that the father submit to a “sexual/psychological evaluation by a psychologist agreed upon by all attorneys to this cause,” and that the attorneys report to the court whether the Catholic Diocese had conducted an independent investigation into the allegations of abuse, including a psychological evaluation of the father.1 A review hearing was set for December 7, 2012; that hearing was continued at the father’s request. However, on December 7, 2012, the father filed a motion to set an immediate hearing, alleging that his visitation was “very limited.” The father provided a copy of the results of his court-ordered psychological evaluation to the juvenile court on March 25, 2018. The mother filed a motion to continue, which was granted, and, on June 5, 2013, the father filed a motion for an immediate hearing, alleging that the mother had continued to deny him visitation with the child. The mother filed a motion requesting an immediate hearing and requesting that the juvenile court “set aside” the father’s motion for an immediate hearing, contending that neither she nor any other person was “willing' or able” to supervise the father’s visits and asserting that law-enforcement officials had “reopened” the case and that the child was scheduled to be interviewed regarding the father’s “inappropriate acts.” The mother complained that the type of psychological examination to which the father had submitted was “antiquated.”2

The father filed a motion requesting that the juvenile court require the mother to submit to a psychological evaluation, alleging that the mother had intentionally changed attorneys three times to “prolong this case” and complaining that the mother planned to “expose the [child] to further investigation a whole year after [the mother’s] first allegation,” which the father characterized as the mother’s attempt to further alienate the father from the child with “unnecessary acts of investigation.” According to the father, the mother’s behavior regarding the child had become increasingly “erratic” and “questionable.” He claimed that the mother’s behavior was detrimental to the child’s best interests and that he was not aware whether the mother had sought approval of her decision to deny him visitation from the child’s guardian ad litem. The father also filed an emergency motion to stay “the activities ... regarding [the mother’s] intention to expose the child to further investigation” and a motion alleging that the mother had relocated with the child -without his knowledge. The mother filed a response in which she admitted that she planned to pursue further investigation of the alleged abuse because the child had matured and was better able to communicate than he had been at four years of age. Thereafter, the mother filed a petition seeking the appointment of a different guardian ad litem for the child because, she claimed, the child’s guardian ad litem was “unusually friendly” to the father.

A hearing was held on October 10, 2013, at which the juvenile court heard ore tenus [1042]*1042testimony. At the beginning of the hearing, the juvenile court attempted to clarify the issues before it. The parties appear to agree that the purpose of the hearing was to adjudicate the requested modification of the father’s visitation. They pointed out that the father had filed a contempt motion against the mother and a motion seeking a psychological evaluation of the mother and that the mother had filed a motion seeking the appointment of a different guardian ad litem for the child.

At the close of the brief hearing, the juvenile court orally stated: “Here is what I think probably is going to happen. We will probably set another date for hearing on the outstanding motions. And then from there, perhaps have a better grip on the trial setting.” Thus, there was no resolution of the issue of visitation or of the parties’ various motions; however, the juvenile court entered an order on October 11, 2013, in which it ordered the mother to submit to a psychological evaluation.

Without filing a postjudgment motion, the mother filed a notice of appeal in this court on October 28, 2013, seeking this court’s review of whether the juvenile court erred by ordering her to undergo a psychological evaluation. We have elected to treat the appeal as a petition for a writ of mandamus. Ex parte Coble, 72 So.3d 656, 658 (Ala.Civ.App.2011).

“‘A writ of mandamus is an extraordinary remedy, and it will be “issued only when there is: 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 United Serv.

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Bluebook (online)
154 So. 3d 1039, 2014 WL 1508679, 2014 Ala. Civ. App. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cmp-v-ds-alacivapp-2014.