When Can I Appeal my DHR Child Custody Case…?
One of the many reasons parents and caring relatives get confused in DHR cases is because they don’t know when Juvenile Court judgments are “final” for the purposes of “post-judgment relief” in the Juvenile Court and or appeal. Folks, you are not alone. The Juvenile Courts and even the Court of Civil Appeals is right there with you. There’s even disagreement among the Justices of the Supreme Court of Alabama.
(Guys, Gals, I always say this and I’m always serious, but I’m serious this time, too. This is NOT legal advice for your case. This is a look at general, publicly available information discussing the “finality” of juvenile orders for the purposes of appeal. Appeals are hard, appeals are expensive, (either to the client or the taxpayer), and, statistically, they are long shots in the best of circumstances – BUT don’t think for a second you don’t have an absolute right to appeal to a higher court within a certain time frame from certain orders).
At Foxtrot, when we’re dealing with complex issues, we like to start as simply as possible. Here, we start with the Rules from the Court of Appeals, themselves. “In appeals from the following orders or judgments, the notice of appeal shall be filed within 14 days (2 weeks) of the date of the entry of the order or judgment appealed from: . . . and (E) any FINAL order or judgment issued by a juvenile court.” Rule 4, Ala. R. App. Pro. (emphasis via all caps added).
So we’ve got shelter care -> TLC / adjudication -> disposition -> further disposition. We’ve got judicial reviews and permanency hearings, too. Which of these orders is “final”? Which isn’t? ????I guess the first thing I should do is warn everyone not to get hung up on the lay meaning of the word “final.” When the Courts talk about final orders you’ve got to know that final is a “term of art,” which means that it has a specific meaning in a specific context and does not mean “last” or “ultimate.” It just means readily appealable pursuant to Rule 4, mentioned above.
❓❓❓Can you appeal emergency custody to DHR or another individual after a Shelter Care hearing? Probably not (hold that thought). “Because of the interlocutory nature of awards of emergency custody, this court has consistently reviewed awards of emergency custody by way of a petition for a writ of mandamus.” Strickland v. McClendon, 193 So. 3d 740, 742 (Ala. Civ. App. 2015) (internal citations omitted)
—(a Writ of Mandamus is something similar and yet very different than an appeal).
❓❓❓Can you appeal an adjudication of dependency alone? Maybe. On the one hand a case called Ex Parte T.C. says “[h]ad the legislature intended to provide for appeals from an order finding a child dependent, it could have easily done so without the unintended consequences of allowing all nonfinal orders in juvenile cases to be appealable.” Ex parte T.C., 96 So. 3d 123, 129 (Ala. 2012) On the other hand, “this court has always treated formal dependency adjudications as final and appealable judgments despite the fact that they are scheduled for further review by the juvenile court.” D.P. v. Limestone Cty. Dep’t of Human Res., 28 So. 3d 759, 762 (Ala. Civ. App. 2009). *** Honestly, the circumstances in which a Juvenile Court “adjudicates dependency without entering some kind of appealable disposition is very rare, in our experience.
❓❓❓Can you appeal an adjudication of dependency + an award of custody? Yes! “[u]nlike other civil cases, dependency and termination-of-parental-rights proceedings may involve multiple ‘final’ appealable orders before the juvenile case is closed. For example, temporary custody orders are treated as final, appealable orders. See, e.g., C.L. v. D.H., 916 So.2d 622 (Ala.Civ.App.2005) (holding that order awarding maternal grandmother primary physical custody of a child in a dependency case was a final appealable order as opposed to a pendente lite order).” Ex parte F.V.O., 145 So. 3d 27, 31 (Ala. 2013)
❓❓❓Can you appeal a change of custody subsequent to an adjudication of dependency? We sure think so! The Supreme Court of Alabama has stated, for example, that a mere change of the permanency plan by DHR (I know, right, but it’s outside the scope of this article), did not “adjudicate any rights of the mother from which an appeal would lie.” Ex parte F.V.O., 145 So. 3d 27, 30 (Ala. 2013). But, we think the previous paragraph addresses this situation and an appeal might be appropriate.
Please keep in mind, there are things that have to happen at the trial court level to “preserve” an issue on appeal. You and your lawyer can’t just start thinking about this stuff after the Judge bangs the gavel. Please speak with your lawyer about appellate issues as part of your broad litigation strategy from the very beginning, especially in DHR cases.
This article contains general information and should not be construed as legal advice for you and or your unique situation. If you would like to speak more about how you, as a Committed Parent or Caring Relative, can be more effective in your Child Custody case, please visit www.ThinkFoxtrot.com/public_calendars/ to schedule your initial consultation at one of our offices. ~SW, Foxtrot