Ex parte D.B. and A.B. PETITION FOR WRIT OF MANDAMUS (In re: In the matter of I.B.) (Blount Juvenile Court: JU-23-56.01).

Rel: August 2, 2024

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
SPECIAL TERM, 2024
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Ex parte D.B. and A.B.

PETITION FOR WRIT OF MANDAMUS

(In re: In the matter of I.B.)

(Blount Juvenile Court: JU-23-56.01)

EDWARDS, Judge.

D.B. and A.B. ("the custodians") seek a writ of mandamus directing

the Blount Juvenile Court ("the juvenile court") to set aside its May 21,

2024, order. That order determined that an August 9, 2023, order of the

juvenile court awarding the custodians legal custody of I.B. ("the child")
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was not a final judgment and was therefore an award of pendente lite

legal custody that was subject to reconsideration by the juvenile court at

an adjudicatory hearing regarding the dependency petition that had been

filed by the Blount County Department of Human Resources ("DHR") in

February 2023. The materials provided in support of both the petition

for the writ of mandamus filed by the custodians and the answers to the

petition filed by DHR and the child's guardian ad litem provide the

following procedural history of the dependency action involving the child.

On February 2, 2023, DHR filed in the juvenile court a petition

seeking to have the child, who is the child of C.F. ("the father") and S.B.

("the mother"), declared dependent. On February 17, 2023, the juvenile

court awarded DHR custody of the child pending an adjudicatory trial,

which the juvenile court set for May 11, 2023. The juvenile court

continued the trial to August 3, 2023. On August 3, 2023, the custodians,

DHR, the child's guardian ad litem, and the father entered into an

agreement, pursuant to which the father admitted the dependency of the

child and was awarded supervised visitation. The written agreement

reflected that the mother was not present at the August 3, 2023, trial,

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and was also apparently not represented by counsel. The agreement also

contained the following provision: "Review hearing to be set in 60 days.

If all requirements for reunification are not completed, case will be

closed." Attached to the agreement is a document bearing the title

"Reunification Plan," which contains a list of various tasks. The juvenile

court entered what it entitled "Order for Dependency and Custody" on

August 4, 2023; however, it amended that order on August 9, 2023, to

include a specific finding of dependency, which had inadvertently been

omitted from the August 4, 2023, order. The August 9, 2023, "Order for

Dependency and Custody" incorporated the provisions set out in the

August 3, 2023, agreement and contained the following provisions from

the "Reunification Plan" appended to the August 3, 2023, agreement:

"To reunite with the minor child, the parents shall
comply with the following:

"1. Maintain a close, loving relationship with the
minor child by consistent and frequent telephone
contact and visitation;

"2. Establish and maintain a safe, stable home and
lifestyle without domestic violence, drug or alcohol
abuse for reasonable length of time;

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"3. Submit to random drug testing on color code at
his/her own expense and provide test results to the
Court and DHR;

"4. Successfully complete parenting classes
through a court approved provider;

"5. Submit to a psychological evaluation and follow
all recommendations of said evaluation;

"6. Attend individual and/or family counseling
through a court approved provider;

"7. Comply with Individual Service Plan ('ISP')
implemented by DHR;

"8. Maintain stable employment and show an
ability to provide for said child financially;

"9. Obey all state, federal and local laws;

"10. Resolve any outstanding criminal matters;

"11. Keep the Court and custodians advised of
his/her current address and telephone number;

"12. Obtain a favorable home study (if residing
outside Blount County);

"13. Petition for Return of Custody."

In addition, the August 9, 2023, amended "Order for Dependency and

Custody" stated: "Review hearing remains set October 30, 2023, at 9:00

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a.m. in Blount County Juvenile Court …. Case shall be closed at said

hearing if all requirements for reunification plan are not completed."

In September 2023, the juvenile court entered an order

incorporating an agreement of the custodians, DHR, the child's guardian

ad litem, and the father respecting the father's visitation. The September

2023 order specifically stated that all other provisions of the August 9,

2023, "Order for Dependency and Custody" remained in full force and

effect. In addition, the juvenile court reiterated that the case was set for

a review hearing on October 23, 2023. The case-action-summary sheet

contained in the materials does not reflect whether the October 23, 2023,

review hearing was held or continued, but the parties indicate that it was

not held.

On October 31, 2023, the father filed a motion to hold the custodians

in contempt, which the juvenile court set for a hearing to be held on

January 8, 2024. The juvenile court reset the contempt hearing for

March 4, 2024, April 22, 2024, and April 29, 2024. At the April 29, 2024,

contempt hearing, the father apparently made an oral motion to set aside

the August 9, 2023, "Order for Dependency and Custody." On May 6,

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2024, the child's guardian ad litem filed a brief in support of the father's

oral motion. The guardian ad litem contended in her brief in support of

the father's motion that the father was entitled to relief from the August

9, 2023, "Order for Dependency and Custody" pursuant to Rule 60(b)(6),

Ala. R. Civ. P., because, she said, the order had inadvertently been titled

"Final Order for Dependency," which, she said, was a mistake entitling

the father to relief from the August 9, 2023, "Order for Dependency and

Custody" based on "aggravating circumstances." She concluded her brief

in support of the father's oral motion with the following statement:

"While it may have taken [eight] months for counsel for the biological

father, the Guardian ad Litem, and counsel for [DHR] to realize they had

been operating under a Final Order inadvertently, this is the exact

reason Rule 60(b) was created."

The custodians responded to the father's oral motion and the child's

guardian ad litem's brief in support of the father's oral motion. They

argued that Rule 60(b) could not be applied to relieve the father of the

operation of the August 9, 2023, "Order for Dependency and Custody"

based on his allegation that he had not understood that order to have

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been a final judgment because the Rule 60(b) motion had been filed more

than four months after the entry of that order. See Rule 60(b) (stating

that "[t]he motion shall be made within a reasonable time, and for

reasons (1), (2), and (3) not more than four (4) months after the judgment,

order, or proceeding was entered or taken). The custodians also relied on

Gray v. Bain, 164 So. 3d 553 (Ala. 2014) (plurality opinion), to argue that,

because the father had entered into an agreement that resulted in the

entry of the August 9, 2023, "Order for Dependency and Custody," Rule

60(b) could not provide him relief for mere mistake or inadvertence.1

1The opinion in Gray provides:

" 'Rule 60(b)(1)[, Fed. R. Civ. P.,] authorizes the court to give
relief from a judgment, order, or proceeding for "mistake,
inadvertence, surprise, or excusable neglect," ' but 'judgments
entered as a result of settlements may be reopened [only]
when fraud or mutual mistake is shown.' 11 Charles Alan
Wright, Arthur K. Miller & Mary Kay Kane, Federal Practice
& Procedure § 2858 (2012). The reason for this is that,
although a mutual mistake of fact will permit a court to
reform or rescind a binding settlement agreement, a
unilateral mistake does not justify such relief. 'Unilateral
mistakes do not support reformation (absent some fraud or
misrepresentation). Moreover, one party is not customarily
charged to know what is on the other party's mind, so as to
concoct some constructive mutual mistake where there is but
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On May 21, 2024, the juvenile court entered an order purporting to

grant the father relief from the August 9, 2023, "Order for Dependency

and Custody" pursuant to Rule 60(b)(1) and Rule 60(b)(6). In that order,

the juvenile court explained that " the intention of the parties, as reflected

by the agreement on August 3, 2023, which was the basis for this Court's

August 9, 2023, order was for the April 29, 2024, hearing to be an

adjudication hearing for the purposes of determining a final disposition

of custody." The juvenile court also stated that "[t]he fact that the August

9, 2023, order was styled in a way that would normally indicate, in this

jurisdiction, a final determination of custody, was unintentional and in

error." The custodians then filed this timely petition for the writ of

mandamus, seeking review of the May 21, 2024, order.

" ' "Mandamus is a drastic and extraordinary writ, to be
issued only where 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." ' "

a unilateral mistake.' 27 Richard A. Lord, Williston on
Contracts § 70:109 (4th ed. 2003)."

164 So. 3d at 564 (plurality opinion) (footnote omitted).

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Ex parte A.M.P., 997 So. 2d 1008, 1014 (Ala. 2008) (quoting Ex parte

Perfection Siding, Inc., 882 So. 2d 307, 309-10 (Ala. 2003), quoting in turn

Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala. 1995)).

In their mandamus petition, the custodians argue that the father's

Rule 60(b) motion sought relief on the basis of inadvertence or mistake

and, therefore, they say, the father's motion was not timely filed within

four months of the entry of the August 9, 2023, "Order for Dependency

and Custody." The custodians also argue that the father provided no

proof that aggravating circumstances existed such that he would be

entitled to relief under Rule 60(b)(6). Finally, they again invoke the

holding of Gray to argue that the father would not have been entitled to

relief pursuant to Rule 60(b)(1) based solely on mistake because he had

voluntarily entered into the August 3, 2023, agreement that was

incorporated into the August 9, 2023, "Order for Dependency and

Custody."

The custodians have presented a compelling argument against the

ability of the juvenile court to have utilized Rule 60(b) nine months after

the entry of the August 9, 2023, "Order for Dependency and Custody,"
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but we are not able to grant their petition. Although the juvenile court

purported to grant relief pursuant to Rule 60(b), what it actually did was

to interpret and clarify the August 9, 2023, "Order for Dependency and

Custody." "A trial court possesses an inherent power over its own

judgments that authorizes it to interpret, clarify, implement, or enforce

those judgments." Gild v. Holmes, 680 So. 2d 326, 329 (Ala. Civ. App.

1996). The question that the father's oral motion to set aside the August

9, 2023, "Order for Dependency and Custody" raised was whether that

order was, in fact, a final disposition of the child's custody or whether

further proceedings were envisioned before a final disposition of custody

would be made. In its May 21, 2024, order, the juvenile court determined

that the August 3, 2023, agreement incorporated into the August 9, 2023,

"Order for Dependency and Custody" reflected the intent of the parties

that the final disposition of custody was to be made at or after the review

hearing, which was originally set for October 2023 but was finally held

in April 2024. In addition, the juvenile court clarified that any language

that might have indicated that the August 9, 2023, "Order for

Dependency and Custody" was intended to be a final dispositional order

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had been mistakenly used and that the order was not intended to

accomplish a final disposition of the child's custody.

As both this court and our supreme court have recognized, "unlike

other civil cases, dependency and termination-of-parental-rights

proceedings may involve multiple 'final' appealable orders before the

juvenile case is closed." Ex parte T.C., 96 So. 3d 123, 130 (Ala. 2012). As

we explained in S.P. v. E.T., 957 So. 2d 1127, 1131 (Ala. Civ. App. 2005):

"Unlike many other types of cases, dependency
proceedings often involve a series of appealable dispositional
custody orders. Eventually the trial court enters an order in a
dependency proceeding that is intended to be its 'final'
dispositional order as to the pending case, i.e., a custodial
placement that is intended to be permanent, to the extent
custody awards can be permanent. See Ex parte J.P., 641 So.
2d [276,] 278 [(Ala. 1994)] ('by its very nature, custody is
always temporary and never permanent' because it is always
subject to change based upon an appropriate petition and
evidence). Under ideal circumstances, such final dispositional
orders coincide with the end of the child's dependency, i.e., the
child has a proper custodian 'and' is no longer 'in need of care
or supervision' by persons other than the custodian. ... In
other words, under ideal circumstances, the final
dispositional order results in a custody award wherein the
parent or custodian is able and willing to have the care,
custody, and control of the child, free from any intervention or
supervision by the state under the dependency statutes."

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In one sense, the custodians are correct that the August 9, 2023,

"Order for Dependency and Custody" was a "final" judgment; that is, the

August 9, 2023, "Order for Dependency and Custody" was final for

purposes of appeal. "Under our caselaw, a formal determination by a

juvenile court of a child's dependency coupled with an award of custody

incident to that determination will give rise to an appealable final

judgment even if the custody award is denominated as a 'temporary'

award and further review of the case is envisioned." J.J. v. J.H.W., 27

So. 3d 519, 522 (Ala. Civ. App. 2008). However, the language in the

August 9, 2023, "Order for Dependency and Custody" setting out certain

tasks for the father to complete before the scheduled October 2023 review

hearing, coupled with the statement that the father's failure to complete

the reunification plan by the date of the review hearing would result in

the closing of the case, compels the conclusion that further review of the

reunification efforts of DHR and the progress of the father was clearly

contemplated. That language therefore supports the juvenile court's

conclusion that the disposition of custody in the August 9, 2023, "Order

for Dependency and Custody," was not intended, at that time, to be the

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final, or "permanent," disposition of the child's custody. Accordingly, we

deny the custodians' petition for the writ of mandamus.

PETITION DENIED.

Moore, P.J., and Hanson, Fridy, and Lewis, JJ., concur.

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