G. L.C. v. C.E.C. (Ex parte G.L.C.)

281 So.3d 401

EX PARTE G.L.C.

(In re G.L.C.

v.C.E.C. III )

1170813

Supreme Court of Alabama.

October 26, 2018

James P. Coleman III, Robertsdale, for petitioner.

Floyd C. Enfinger, Jr., and Margaret Enfinger Pace of Law Office of Floyd C. Enfinger, Jr., P.C., Montrose; and W. Donald Bolton, Jr., Foley, for respondent.

BRYAN, Justice.

G.L.C. ("the mother") petitioned this Court for a writ of certiorari seeking review of the judgment of the Court of Civil Appeals dismissing her appeal as untimely. See G.L.C. v. C.E.C. III, 281 So.3d 392 (Ala. Civ. App. 2018). We granted the petition, and we reverse the judgment of the Court of Civil Appeals and remand the cause.

Facts and Procedural History

On March 6, 2017, C.E.C. III ("the father") filed a petition in the Baldwin Juvenile Court ("the juvenile court") seeking to terminate the parental rights of the mother, alleging that the mother had abandoned their son, A.B.C. ("the child"). The juvenile court appointed an attorney to represent the mother, and the juvenile court subsequently conducted a hearing on the father's petition. On August 16, 2017, the juvenile court entered a final judgment terminating the mother's parental rights to the child. The mother did not file a postjudgment motion challenging the juvenile court's judgment; therefore, pursuant to Rule 4(a)(1)(E), Ala. R. App. P., and Rule 28(C), Ala. R. Juv. P., the mother had 14 days, or until August 30, 2017, to file her notice of appeal. The notice of appeal and docketing statement that appear in the record were stamped filed on August 31, 2017, but that date had been changed by hand to August 30, 2017. The notice of appeal and the docketing statement are signed by the mother, not the court-appointed attorney who represented her during the termination-of-parental-rights proceeding.

The date next to the mother's signature on the notice of appeal is August 31, 2017, but it had been changed to August 30, 2017; the date next to the mother's signature on the docketing statement is August 31, 2017.¹

On September 6, 2017, the Court of Civil Appeals docketed the mother's appeal. The same day, the father's attorney sent an e-mail to Tina Hadley, a docket specialist in the Baldwin County circuit clerk's office ("the circuit clerk's office"), inquiring about the altered dates on the mother's notice of appeal. Hadley responded immediately and stated:

"[The mother] attempted to file Aug[ust] 30[th] which was her 14th day. The girls in juvenile sent her upstairs to me and security had locked the door as it was then 4:30 and the door is actually on an automatic lock. I verified with Juvenile that she had been here and been turned away. I corrected the dates so that she met her time frame since it was not her fault."

On September 15, 2017, the father filed in the juvenile court a motion to dismiss the mother's appeal as untimely filed. After the mother filed a response, the juvenile court conducted a hearing on the motion to dismiss on October 31, 2017. The mother testified that she came to the Baldwin County courthouse on August 30, 2017, and a security officer "sent [her] upstairs ... to file the appeal." The mother said that she went upstairs to the circuit clerk's office and waited for someone to help her. The mother stated that "it was about time for them to go" but she eventually told someone that she was there "to file [a] juvenile appeal." The individual whom she spoke to sent her "downstairs" –- apparently to the juvenile division of the circuit clerk's office –- but by the time she got there the doors were locked. The mother stated that she asked if she could leave the notice of appeal in an envelope but that "they said ... [she] would have to come the next day."

The mother testified that she returned to the "downstairs" clerk's office the following day –- August 31 –- to file her notice of appeal because that was where she had been told to go the previous day. But, when she appeared at the clerk's office downstairs, "they" sent her back to the circuit clerk's office upstairs to file her notice of appeal. When the mother returned to the circuit clerk's office upstairs, someone finally accepted her notice of appeal, and it was stamped filed on August 31.

Hadley testified that the mother came to the circuit clerk's office on August 31, 2017, with her notice of appeal already filled out and filed her notice of appeal from the judgment terminating her parental rights. Hadley agreed that all the date stamps on the mother's notice of appeal had been changed from August 31 to August 30 even though the mother had not actually filed her notice of appeal on August 30. Hadley indicated that she changed all the dates on the mother's notice of appeal from August 31 to August 30 because the mother had been to the circuit clerk's office on August 30 to file her notice of appeal but had been unable to do so.

At the conclusion of the hearing, the juvenile court stated:

"I think that I have to find that it was not timely filed. Do I think the clerk's office needs a better ... standard operating procedure for dealing with folks that walk up to this courthouse at 4:28 and 52 seconds? Yes. Yes, I do. But I don't –- I don't know what their procedure is for that. There probably is some procedure and somebody probably did not follow it. But I don't know what it is. Because I know that things can be filed when the physical building is locked. So I know you can do it, that it's possible. But I'm not sure what that procedure is, and I do think the clerk's office could have handled it better. But it wasn't filed in time, ultimately, and the remedy for that is not to change the date on the paperwork. So I'll have to grant the motion to dismiss."

On October 31, 2017, the juvenile court entered an order dismissing the mother's appeal. On April 4, 2018, the Court of Civil Appeals, citing Ex parte Madison County Department of Human Resources, 261 So.3d 381 (Ala. Civ. App. 2017), and D.V.P. v. T.W.P., 905 So.2d 853, 856 (Ala. Civ. App. 2005), issued an order stating that the juvenile court did not have jurisdiction to enter an order dismissing the mother's appeal and that, therefore, that order was void. However, the Court of Civil Appeals reinvested the juvenile court with jurisdiction for 14 days "for the limited purpose of making a factual determination as to the date the notice of appeal was filed." On April 12, 2018, the juvenile court entered an order stating that, "[a]fter reviewing the facts, pleadings, and transcripts available, it is hereby determined that [the mother] filed her notice of appeal on August 31, 2017. This was 15 days after this Court's final order."

The Court of Civil Appeals subsequently issued an opinion dismissing the mother's appeal as untimely filed. See G.L.C., supra. The mother filed a timely petition for a writ of certiorari in this Court seeking review of the Court of Civil Appeals' decision.

Standard of Review

" ‘ "On certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate appellate court. Therefore, we must apply de novo the standard of review that was applicable in the Court of Civil Appeals." ’ " Ex parte S.L.M., 171 So.3d 673, 677 (Ala. 2014) (quoting Ex parte Helms, 873 So.2d 1139, 1143 (Ala. 2003), quoting in turn Ex parte Toyota Motor Corp., 684 So.2d 132, 135 (Ala. 1996) ).

Analysis

The mother asks this Court to consider, as a matter of first impression, whether a notice of appeal may be deemed timely filed when the filer "physically appears at the clerk's office and presents a notice of appeal to the clerk before the expiration of the filing deadline, with [the] intention that it be received and filed, only to have the clerk's office decline to receive and file that notice at the time of presentment." With the question framed in that manner, we must first consider the father's argument that, pursuant to the ore tenus standard of review, this Court must accept the juvenile court's factual finding that the mother's notice of appeal was filed on August 31, 2017. We agree, but we also note that there is no dispute that the mother's notice of appeal was not actually filed in the circuit clerk's office until August 31, 2017; no witness testified otherwise. The mother is asking this Court to hold that her notice of appeal is deemed filed one day earlier based on the evidence that she appeared in the circuit clerk's office on August 30 and presented her notice of appeal for filing, but it was not accepted.

Thus, the pertinent factual question in this case is whether the mother appeared in the circuit clerk's office on August 30, 2017, and presented her notice of appeal for filing before the circuit clerk's office closed. Although the father suggests that the juvenile court heard disputed testimony on this issue, the record does not support such a conclusion. The record does indicate that parts of the mother's testimony could be construed as inconsistent,² but all the evidence in the record indicates that the mother had appeared at the circuit clerk's office on August 30 to file her notice of appeal but someone in the circuit clerk's office erroneously sent her to another part of the courthouse instead of accepting the notice of appeal. Regardless, even if there was disputed evidence presented as to this issue, the record indicates the juvenile court accepted the mother's testimony that she had appeared at the circuit clerk's office on August 30 and attempted to file her notice of appeal shortly before the office closed. At the conclusion of the hearing on the father's motion to dismiss, the juvenile court stated on the record that the circuit clerk's office needed a "better ... standard operating procedure for dealing with folks that walk up to this courthouse at 4:28 and 52 seconds"; that "[t]here probably is some procedure and somebody probably did not follow it"; and that "the clerk's office could have handled it better; but that, "ultimately," the mother's...