Ex parte B.M.F. PETITION FOR WRIT OF MANDAMUS:

• Court: Court of Civil Appeals of Alabama
• Decided: March 31, 2023
• Docket: CL-2023-0090
• Status: Published

Opinion

Rel: March 31, 2023

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) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2022-2023 _________________________

CL-2023-0090 _________________________

Ex parte B.M.F.

PETITION FOR WRIT OF MANDAMUS

(In re: Calhoun County Department of Human Resources

v.

B.M.F. and M.H.)

(Calhoun Circuit Court, JU-22-823.01)

FRIDY, Judge.

B.M.F. ("the mother") filed a petition for a writ of mandamus asking

this court to direct the Calhoun Circuit Court ("the juvenile court") to

vacate its order of January 25, 2023, that, among other things, CL-2023-0090

determined that the Calhoun County District Attorney's office ("the DA's

office") had a right to take part in this matter and to vacate its order of

February 1, 2023, that, among other things, relieved the mother's

appointed attorney, Jennifer Wilkinson, from representing her. We

dismiss the petition insofar as it seeks to vacate the order granting the

DA's office the right to participate in this case. We deny the petition

insofar as it seeks to set aside the order relieving Wilkinson of her duty

to represent the mother.

Background

The materials submitted in support of and in opposition to the

mother's petition indicate that the Calhoun County Department of

Human Resources ("DHR") initiated a dependency action on September

16, 2022, after receiving a report that the mother's child ("the child") had

been admitted to Children's Hospital with a skull fracture and swollen

eyes. The juvenile court entered an order appointing Wilkinson as the

mother's attorney "for shelter care purposes only." At the shelter-care

hearing, the juvenile court awarded DHR custody of the child.

The mother was later arrested and charged with aggravated child

abuse in connection with the child's injuries. On December 12, 2022, the

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juvenile court adjudicated the child dependent and placed the child in

DHR's custody. On December 21, 2022, the mother was released from jail

and contacted DHR about visiting the child. A DHR supervisor responded

to the mother, telling her that the DA's office had "invoked DA Protocol"

and, therefore, the mother was not permitted to visit the child.

On January 3, 2023, the mother filed a motion for a hearing on the

"DA Protocol." On January 25, 2023, after a hearing on that motion, the

juvenile court entered an order stating that the DA had a right to be a

part of any individualized-service-plan ("ISP") team and to offer input

about whether the mother could receive visitation.

On February 1, 2023, as part of an order relieving DHR of its duty

to make reasonable efforts toward reunification between the mother and

the child, the juvenile court relieved Wilkinson from serving as the

mother's attorney, except for appellate purposes. On February 14, 2023,

the mother filed her petition for a writ of mandamus in this court. That

same day, the juvenile court entered an order setting aside the initial

order allowing the DA's office to participate in ISP meetings. Three days

later, on February 17, 2023, the juvenile court entered a notice of right to

counsel, advising the mother that she had a right to an attorney in a

3 CL-2023-0090

dependency action "if indigent" and "if requested." The juvenile court

observed that the mother had never filed an application for indigent

status and had not requested the appointment of an attorney to represent

her in the dependency action.

Analysis

The mother contends that the juvenile court abused its discretion

in determining that the DA's office had a right to take part in ISP

meetings and to have input into whether the mother could visit the child.

The juvenile court subsequently set aside the order making that

determination, rendering this issue moot. Ex parte Dumas, 259 So. 3d

669, 672 (Ala. Civ. App. 2018).

The mother also contends that the juvenile court erred in relieving

Wilkinson of her representation of her in the dependency action, except

for appellate purposes. To obtain a writ of mandamus, the mother must

demonstrate (1) that she has a clear legal right to the order sought; (2)

an imperative duty upon the trial court to perform, accompanied by a

refusal to do so; (3) the lack of another adequate remedy; and (4) the

properly invoked jurisdiction of the court. Ex parte Integon Corp., 672 So.

2d 497, 499 (Ala. 1995).

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As the juvenile court points out in its answer to the mother's

petition, in a dependency action, the parent must be notified of his or her

right to be represented by an attorney, and, if a juvenile court determines

that the parent is indigent, it must appoint an attorney if the parent "is

unable for financial reasons to retain his or her own counsel." § 12-15-

305(b), Ala. Code 1975. The order appointing Wilkinson to represent the

mother made clear that the appointment was for the shelter-care hearing

only. Nothing in the materials submitted to us indicates that the mother

presented the juvenile court with evidence of indigency entitling her to

continued representation by appointed counsel.

Under Rule 21(a)(1)(F), Ala. R. App. P., the mother was required to

submit "all parts of the record that are essential to understanding the

matters set forth in the petition," which, in this case, would include any

documents demonstrating that she had applied for indigent status or

otherwise showing that she was indigent. Because the materials before

us do not show that the mother made such a showing to the juvenile

court, we hold that she failed to demonstrate that she had a clear legal

right to the relief she requests.

5 CL-2023-0090

Moreover, the mother has an adequate remedy to obtain appointed

counsel. Rather than seek a writ of mandamus directing the juvenile

court to vacate the order relieving Wilkinson of her appointment to

represent the mother, the mother may make the required showing of

indigency upon which the juvenile court can act.

For these reasons, insofar as the mother seeks to have the juvenile

court's order of January 25, 2023, allowing the DA's office to take part in

the ISP meetings, the petition is moot. Insofar as the mother seeks to

have the juvenile court set aside its order relieving Wilkinson of her

appointment to represent the mother in the dependency action, the

petition is denied.

PETITION DISMISSED AS MOOT IN PART; DENIED IN PART.

Thompson, P.J., and Moore, Edwards, and Hanson, JJ., concur.