In re: Matter of J.A.J.R.

• Court: Court of Civil Appeals of Alabama
• Decided: April 24, 2026
• Docket: CL-2026-0223
• Status: Published

Opinion

Rel: April 24, 2026

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, 2025-2026 _________________________

CL-2026-0223 _________________________

Ex parte P.R.P.

PETITION FOR WRIT OF MANDAMUS

(In re: Matter of J.A.J.R.)

(Marshall Juvenile Court: JU-19-739.03)

MOORE, Presiding Judge.

P.R.P. ("the mother") petitions this court to issue a writ of

mandamus directing the Marshall Juvenile Court ("the juvenile court")

to allow her to appear and testify remotely through audiovisual

technology at an upcoming dispositional hearing in a dependency CL-2026-0223

proceeding involving J.A.J.R. ("the child").1 We grant the petition in part

and deny the petition in part.

Facts and Procedural History

The mother is a resident of Aldea Tzujan, a rural area of

Guatemala. She gave birth to the child in 2014. In early 2019, the

mother consented to the child's father, F.M. ("the father"), illegally

immigrating to the United States with the child. The father and the child

eventually settled in Marshall County. On July 18, 2019, the Marshall

County Department of Human Resources ("DHR") assumed custody of

the child based on allegations that the father had sexually abused the

child. Without contacting the mother, DHR filed a dependency petition.

1In her mandamus petition, the mother refers to the ongoing proceedings in the juvenile court as dependency proceedings and characterizes a hearing scheduled to take place on April 29, 2026, as a dispositional hearing. See Ala. Code 1975, § 12-15-311. Although the Marshall County Department of Human Resources has filed a motion in the juvenile court contesting the nature of the underlying proceedings, in its answer to the mandamus petition it does not dispute the mother's characterization of the proceedings and the upcoming hearing, so we accept the mother's characterization as true. See Ex parte Guaranty Pest Control, Inc., 21 So. 3d 1222, 1227 (Ala. 2009) (quoting King v. Smith, 288 Ala. 215, 219, 259 So. 2d 244, 248 (1972), quoting in turn Ex parte Adams, 216 Ala. 353, 355, 113 So. 513, 515 (1927)) (" ' "In passing upon the petition for mandamus, the return or answer of respondent, unless controverted, is to be taken as true." ' "). 2 CL-2026-0223

In a dependency proceeding in which the mother was not served, the

juvenile court adjudicated the child to be a dependent child and placed

the child into foster care. The child has lived in various foster homes ever

since.

On June 22, 2020, DHR, having had no contact with the mother,

filed a petition to terminate the mother's parental rights. The juvenile

court ordered that the mother be served by publication. After the mother

did not appear in the termination proceedings, the juvenile court

proceeded to trial and terminated the mother's parental rights in her

absence. The mother subsequently appeared and filed a Rule 60(b), Ala.

R. Civ. P., motion to vacate the termination judgment. The juvenile court

granted the motion, and the case against the mother was rescheduled for

trial in 2023. On December 4, 2023, the juvenile court entered a

judgment, again terminating the mother's parental rights based on its

determination that the mother had abandoned the child and that DHR's

reasonable efforts to reunite the child with the mother had failed.

On appeal, this court reversed the judgment and remanded the case

for further proceedings. See P.R.P. v. Marshall Cnty. Dep't of Hum. Res.,

419 So. 3d 1018 (Ala. Civ. App. 2024). We determined that the evidence

3 CL-2026-0223

did not support the juvenile court's findings that the mother had

abandoned the child and that DHR had used reasonable efforts to reunite

the mother with the child. On remand, the mother moved to dismiss the

juvenile-court proceedings based on lack of subject-matter jurisdiction.

The juvenile court denied the motion, and this court denied the mother 's

petition for the writ of mandamus to compel the dismissal of the case.

See Ex parte P.R.P. (No. CL-2025-0293, June 6, 2025).

The juvenile court held a series of hearings between 2023 and 2025

at which the mother was allowed, without objection, to attend remotely

through Zoom, a videoconferencing application. However, on January 13,

2026, the juvenile court informed the mother's counsel that the mother

would have to file a motion to allow her to remotely attend a motion

hearing scheduled for the next day. The mother filed the motion, but the

juvenile court did not rule on the motion before the hearing. During the

hearing, DHR agreed that the mother could attend the hearing through

Zoom, if it was permissible, but the juvenile court stated that it needed

clarification on whether that procedure was allowed. On January 15,

2026, the juvenile court entered an order retroactively denying the

mother's motion to attend the hearing, citing Rule 33(B), Ala. R. Juv. P.,

4 CL-2026-0223

and this court's opinion in T.S. v. Cullman County Department of Human

Resources, 406 So. 3d 103 (Ala. Civ. App. 2024).

Also on January 15, 2026, the juvenile court scheduled the final

dispositional hearing for March 11, 2026. Through her counsel, the

mother investigated whether she could travel to Marshall County to

personally attend the dispositional hearing through a visitor visa or

through humanitarian parole, see 8 U.S.C. § 1182(d)(5)(A).2 On March

6, 2026, the mother's attorney secured an affidavit from Robyn Barnard,

a New York immigration attorney, who attested that,

"[i]n the specific context of Guatemalan nationals seeking reunification with children in state court custody, there is

2Section 1182(d)(5)(A) provides:

"The Secretary of Homeland Security may, except as provided in subparagraph (B) or in section 1184(f) of this title, in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Secretary of Homeland Security, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States." 5 CL-2026-0223

currently no functional pathway for processing into the United States via this immigration pathway.

"... As of March 2026, standard processing times for non- programmatic parole are generally exceeding 36 months, and with a denial rate exceeding 90%.

"... Based on my professional review of the current backlogs and U.S. Citizenship and Immigration Service Field Manuals, there is no reasonable expectation that Guatemalan nationals can obtain Humanitarian Parole to enter the United States for the purpose of a ... trial within the timeline required by the Alabama Juvenile Justice Act."

On March 7, 2026, the mother filed a motion based on Rule 43(a),

Ala. R. Civ. P., to allow her to attend the dispositional hearing remotely

through Zoom. Rule 43(a) provides, in pertinent part: "In all trials the

testimony of witnesses shall be taken orally in open court, unless

otherwise provided in these rules. For good cause in compelling

circumstances and with appropriate safeguards, the court may permit

testimony in open court by contemporaneous transmission from a

different location." In support of her motion, the mother filed Barnard's

affidavit and cited statements of federal authorities showing that it was

unlikely that the mother could promptly obtain permission to travel to

the United States through the humanitarian-parole process or through a

visitor visa. The mother argued that it was physically and legally

6 CL-2026-0223

impossible for her to attend the dispositional hearing in person and that,

based on the successful history of using Zoom to allow the mother to

appear remotely in other juvenile hearings, appropriate safeguards were

in place to permit her to appear and testify at the dispositional hearing.

On March 9, 2026, the juvenile court entered an order denying the

motion. In that order, the juvenile court determined that T.S., supra,

appeared to be dispositive of the motion and that it did not want to risk

reversible error by allowing the mother to attend the dispositional

hearing and testify remotely. However, the juvenile court continued the

dispositional hearing and encouraged the parties to seek further

guidance through appellate review. Alternatively, the juvenile court

invited the parties to depose the mother and to submit her video

deposition at the dispositional hearing. The juvenile court subsequently

rescheduled the dispositional hearing to April 29, 2026.

On March 23, 2026, DHR informed the mother's counsel that it

objected to the mother's attending the dispositional hearing remotely.

Thereafter, the mother filed a petition for the writ of mandamus with this

7 CL-2026-0223

court. In her petition, the mother primarily argues that the juvenile

court erred in relying on T.S. to deny her Rule 43(a) motion.3

Analysis

In T.S., D.W., the maternal grandmother of two dependent children,

filed a petition in the Cullman Juvenile Court to obtain the children's

custody. On the day of the dispositional hearing, the Cullman Juvenile

Court allowed the maternal grandmother to testify over FaceTime, a

videoconferencing application, over the objection of T.S., the mother of

the children. On appeal, T.S. argued that the judgment awarding the

maternal grandmother custody of the children should be reversed based

on the Cullman Juvenile Court's error in allowing the maternal

grandmother to testify remotely. The maternal grandmother and the

Cullman County Department of Human Resources argued that the

Cullman Juvenile Court had discretion to permit the maternal

grandmother to appear and testify using FaceTime.

In deciding the issue, this court first examined Rule 33(B), Ala. R.

Juv. P., which provides, in pertinent part:

3The mother also argues that the March 9 order violates her right

to due process, but, based on our disposition, we do not consider that argument. 8 CL-2026-0223

"A juvenile court may direct the parties in a juvenile- delinquency, child-in-need-of-supervision, or dependency case to appear in a detention or shelter-care hearing pursuant to § 12-15-207, Ala. Code 1975, or a shelter-care hearing pursuant to § 12-15-308, Ala. Code 1975, by using audiovisual technology without obtaining the written consent of the parties and attorneys, including the consent of the child and the child's attorney or guardian ad litem. Upon the written consent of the child and the child's attorney in a juvenile- delinquency or child-in-need-of-supervision case, a plea and disposition also may be entered by using audiovisual technology."

This court held that, although Rule 33(B) allows a party to attend a

shelter-care hearing by using audiovisual technology, "[n]othing in the

language of the rule authorizes a juvenile court to use audiovisual

technology to take the testimony of a party during an adjudicatory

hearing in a ... dependency case or in a dispositional hearing in a

dependency case." 406 So.3d at 106.

This court next refused to consider whether the Cullman Juvenile

Court properly could have relied on Rule 43(a), Ala. R. Civ. P., to allow

the mother to testify remotely. We declined to definitively rule on the

applicability of Rule 43(a) because we determined that, "[e]ven if we were

to apply Rule 43(a) to the facts of these particular cases, the result would

not be different." 406 So. 3d at 107. This court noted that the maternal

grandmother had not filed a motion to testify remotely or presented facts

9 CL-2026-0223

establishing a compelling circumstance that would support such a

motion. The record indicated that the maternal grandmother simply

decided not to travel to Alabama because it was inconvenient and that

her counsel elected to call her as a remote witness without first obtaining

permission to do so through a properly supported Rule 43(a) motion. This

court therefore held that the Cullman Juvenile Court had erred in

allowing the remote testimony, which was inadmissible, and we reversed

the judgment and remanded the case for a new trial.

In T.S., this court indicated that Rule 33 specifically regulated the

use of audiovisual technology in certain specified juvenile proceedings,

406 So. 3d at 107, but we expressly declined to make any definitive

decision as to whether Rule 43(a) could also be applied in unspecified

juvenile proceedings, including dispositional hearings. We now decide

that issue in this case.

Rule 1(A), Ala. R. Juv. P., provides that, "[i]f no procedure is

specifically provided in these Rules or by statute, the Alabama Rules of

Civil Procedure shall be applicable to those matters that are considered

civil in nature [such as dependency proceedings] …." As we recognized

in T.S., Rule 33(B) governs the use of audiovisual technology in shelter-

10 CL-2026-0223

care hearings in dependency proceedings. However, Rule 33(B) does not

address the use of audiovisual technology in other types of hearings in

dependency proceedings, as to which the rule is silent. Rule 33(B) does

not expressly provide that audiovisual technology cannot be used in

dispositional hearings, and the rule also does not contain any

exclusionary language implying that it was intended to govern the use of

audiovisual technology in dispositional hearings. Accordingly, we do not

read Rule 33(B) as foreclosing the use of audiovisual technology in a

dispositional hearing in a juvenile proceeding. See 3 Sutherland

Statutory Construction § 57:8 (8th ed. 2008) (discussing the use of

exclusive language as indicia that a rule is intended to apply

comprehensively). Because Rule 33(B) does not govern this situation,

and because no other rule of juvenile procedure applies, under Rule 1(A),

Rule 43(a) would apply.

Rule 43(a) broadly requires that oral testimony be presented in

open court, but the rule authorizes a juvenile court to deviate from that

procedure and to allow a party or witness to testify "in open court by

contemporaneous transmission from a different location" given "good

cause in compelling circumstances and ... appropriate safeguards." From

11 CL-2026-0223

our review of the materials before this court, it is evident that the juvenile

court did not consider granting the Rule 43(a) motion because it believed

that this court had determined in T.S. that Rule 43(a) does not apply in

juvenile proceedings. The juvenile court requested clarification and

guidance from this court as to whether its understanding was correct.

We now clearly hold that Rule 43(a) does apply when a party requests to

testify contemporaneously from another location in a dispositional

hearing before a juvenile court. The mother properly filed a Rule 43(a)

motion, and the juvenile court erred in denying that motion on the ground

that Rule 43(a) does not apply.

Based on that error, this court grants the petition for the writ of

mandamus. To obtain mandamus relief, the mother has the burden of

showing that she had a clear legal right to the order sought, that the

juvenile court had an imperative duty to perform, accompanied by a

refusal to do so, the lack of another adequate remedy, and the properly

invoked jurisdiction of this court. See Ex parte Hodge, 153 So. 3d 734,

738 (Ala. 2014). The mother has shown that she had a clear legal right

to move the juvenile court for relief under Rule 43(a) and that the juvenile

court denied that motion based on the misunderstanding that Rule 43(a)

12 CL-2026-0223

did not apply. We believe that an appeal would not be an adequate

remedy in this case because it would unduly delay the final disposition of

the child. See Ex parte T.J., 289 So. 3d 1255, 1258 n.5 (Ala. Civ. App.

2019) (noting that the urgent nature of dependency cases requires

immediate mandamus review of interlocutory orders in some

circumstances). This court has jurisdiction over the mother's mandamus

petition. See Ala. Code 1975, § 12-3-10 and -11. Therefore, we order the

juvenile court to reconsider the Rule 43(a) motion.

However, we do not issue an order compelling the juvenile court to

grant the motion. Unlike in T.S., in the underlying case, the mother

properly filed a Rule 43(a) motion presenting a prima facie case showing

compelling circumstances warranting Rule 43(a) relief. See, e.g., United

States v. Approximately $299,873.70 Seized From a Bank of Am. Acct.,

15 F.4th 1332, 1339 (11th Cir. 2021)4 (noting that courts have uniformly

found that an inability to attend trial in person due to immigration status

4The supreme court amended Rule 43(a), Ala. R. Civ. P., effective

November 23, 2020, to copy Rule 43(a), Fed. R. Civ. P., insofar as it allows remote testimony by audiovisual technology. The appellate courts of this state have released little relevant caselaw relating to this amendment. Federal cases may be relied upon as persuasive authority as to how this amendment may be construed and implemented. See Ex parte Novus Utils., Inc., 85 So. 3d 988, 996 (Ala. 2011). 13 CL-2026-0223

presents good cause for allowing a party to testify remotely). The mother

also presented a prima facie case that "appropriate safeguards" have

been identified and implemented that would allow her to securely appear

and testify in the dispositional hearing through Zoom. However, the

decision as to whether to grant the Rule 43(a) motion lies within the

discretion of the juvenile court, see Air Turbine Tech., Inc. v. Atlas Copco

AB, 410 F.3d 701, 714 (Fed. Cir. 2005), which it has thus far not exercised

due to its mistaken belief that it had no authority to consider the motion.

"In cases involving the exercise of discretion by a lower court, a writ of

mandamus may issue to compel the exercise of that discretion; however,

it may not issue to control the exercise of discretion except in a case of

abuse." Ex parte Ben-Acadia, Ltd., 566 So. 2d 486, 488 (Ala. 1990). We

cannot say that the juvenile court will necessarily act outside of its

discretion in ruling on the motion. Thus, we deny the petition insofar as

it requests that we direct the juvenile court as to how it should rule on

the Rule 43(a) motion.

Conclusion Based on the foregoing, we grant the petition in part and deny the

petition in part.

14 CL-2026-0223

PETITION GRANTED IN PART AND DENIED IN PART; WRIT

ISSUED.

Edwards, Hanson, Fridy, and Bowden, JJ., concur.