C.S. v. Pike Cnty. Dep't of Human Res.

Full title: C.S. v. Pike County Department of Human Resources

Court: ALABAMA COURT OF CIVIL APPEALS

Date published: May 24, 2019

293 So. 3d 398 (Ala. Civ. App. 2019)

Opinion

2180261

05-24-2019

C.S. v. PIKE COUNTY DEPARTMENT OF HUMAN RESOURCES

Casimir Christian Lukjan of Asharp Law Firm, LLC, Troy, for appellant. Steve Marshall, atty. gen., and Felicia M. Brooks, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for appellee.

THOMPSON, Presiding Judge.

Casimir Christian Lukjan of Asharp Law Firm, LLC, Troy, for appellant.

Steve Marshall, atty. gen., and Felicia M. Brooks, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for appellee.

THOMPSON, Presiding Judge.

The Pike County Department of Human Resources ("DHR") filed a petition in the Pike Juvenile Court ("the juvenile court") seeking to terminate the parental rights of J.A.R. ("the mother") and C.S. ("the father") to their minor child, J.T.B.S. The juvenile court conducted an ore tenus hearing and received evidence.

On October 24, 2018, the juvenile court entered a single-spaced, three-and-a-half page judgment containing detailed findings of fact and ordering that the parental rights of the mother and the father be terminated. In that judgment, the juvenile court determined, among other things, that the mother had abandoned the child; that use of illegal drugs prevented the parents from properly caring for the child; that the father tested positive for alcohol on the only drug screens to which he submitted and that on 20 occasions he refused to submit to screening; that aspects of the father's testimony called his credibility into question; that the father had contributed only minimally toward the support of the child when the child was in DHR's custody; that DHR had made reasonable efforts toward reunification; and that the parents had failed to adjust their circumstances to meet the needs of the child.

On October 29, 2018, the juvenile court entered a "corrected judgment" in which it amended the style of the action to include the child's full name. The substance of the October 29, 2018, corrected judgment is virtually identical to that of the October 24, 2018, judgment. The differences between the two judgments involve an alteration to parts of four different factual findings contained in the original, October 24, 2018, judgment.

On November 11, 2018, the father filed a "motion to reconsider." The juvenile court denied that motion on November 14, 2018. The father filed a notice of appeal on November 21, 2018.

While the father's appeal was pending, DHR filed a motion to dismiss, arguing that the father's appeal was untimely. DHR argued that the father had not timely appealed the October 24, 2018, judgment. DHR maintained that the October 29, 2018, judgment was a corrected judgment entered pursuant to Rule 60(a), Ala. R. Civ. P., and that, as such, it did not constitute a new judgment that would restart the period in which a timely notice of appeal or postjudgment motion could be filed. The father opposed the motion to dismiss filed in this court. On March 26, 2019, this court entered an order denying the motion to dismiss.

However, the timely filing of a notice of appeal is a jurisdictional issue. Lauterbach v. Gordon, Dana, Still, Knight & Gilmore, LLC, 56 So.3d 613, 615 (Ala. 2010). Therefore, upon submission, this court reconsidered the jurisdictional issue of the timeliness of the father's appeal. As is explained, infra, we conclude that the appeal was not timely filed.

A notice of appeal or a postjudgment motion was required to be filed by November 7, 2018, which was 14 days after the entry of the October 24, 2018, judgment. Rule 1(B), Ala. R. Juv. P.; Rule 4(a)(1), Ala. R. App. P.; A.T. v. D.M., 265 So.3d 294 (Ala. Civ. App. 2018). The father's November 11, 2018, "motion to reconsider" is not a timely postjudgment motion taken from the October 24, 2018, judgment, and, therefore, it did not operate to extend the time for appealing that judgment. F.G. v. State Dep't of Human Res., 988 So.2d 555, 557 (Ala. Civ. App. 2007).

However, the father argues that the October 29, 2018, judgment constituted a new judgment. If the father is correct, the November 11, 2018, motion would have been timely filed, as would the notice of appeal from the denial of that motion. DHR argues, however, that, in entering the October 29, 2018, judgment, the juvenile court merely made clerical corrections to the original, October 24, 2018, judgment.

Rule 60(a), Ala. R. Civ. P., provides, in part, that "[c]lerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders." "The object of a Rule 60(a) motion or a judgment nunc pro tunc is to make the judgment or the record speak the truth." McGiboney v. McGiboney, 679 So.2d 1066, 1068 (Ala. Civ. App. 1995).

" ‘ " ‘ "The object of a judgment nunc pro tunc is not the rendering of a new judgment and the ascertainment and determination of new rights, but is one placing in proper form on the record, the judgment that had been previously rendered, to make it speak the truth, so as to make it show what the judicial action really was, not to correct judicial errors, such as to render a judgment which the court ought to have rendered, in the place of the one it did erroneously render, nor to supply non-action by the court, however erroneous the judgment may have been." ’ " ’ "

S.S. v. Calhoun Cty. Dep't of Human Res., 212 So.3d 940, 947 (Ala. Civ. App. 2016) (quoting Ex parte Brown, 963 So.2d 604, 608 (Ala. 2007), quoting in turn Higgins v. Higgins, 952 So.2d 1144, 1147–48 (Ala. Civ. App. 2006), quoting in turn Ex parte Continental Oil Co., 370 So.2d 953, 955–56 (Ala. 1979) (Torbert, C.J., concurring specially), quoting in turn Wilmerding v. The Corbin Banking Co., 126 Ala. 268, 273, 28 So. 640, 641 (1900) ). A correction to a judgment pursuant to Rule 60(a) relates back to the date of the original judgment and does not extend the time for taking an appeal. P.H. v. Butler Cty. Dep't of Human Res., 264 So.3d 883 (Ala. Civ. App. 2018).

In this case, the juvenile court, in entering the October 29, 2018, judgment, changed the style of the case, as it was listed in that court, from "In the Matter of [J.S.]" to "In the Matter of [J.T.B.S.]." The father concedes in his appellate brief that that alteration to the original judgment is one made pursuant to Rule 60(a).

A comparison of the remainder of the October 29, 2018, corrected judgment to the original, October 24, 2018, judgment demonstrates that the remaining alterations to the judgment occurred in one paragraph in which the juvenile court discussed the child's progress in his foster home. The following is a comparison of those changes in the October 29, 2018, corrected judgment to the original, October 24, 2018, judgment; the strikeouts indicate the words removed from the original judgment, and the underlined portions are the new text set forth in the October 29, 2018, judgment:

"In sharp contrast, [S.K.], the child's foster mother, had provided the consistently safe, stable, and nurturing home that the child needs for more than two years almost sixteen months. [S.K.] testified to the child's strong bond with her and with her two daughters and her parents who live beside her. She also testified to the developmental delays of the child when he first came into her care, including speech delays and social and general developmental delays. These delays were apparently the result of neglect by the parents. In her care the child has overcome many of those delays. The child has experienced some health problems which are not remarkable, and she has ensured that he has received appropriate care for those issues. The Court noted that the father and the child had a bond. However, the child could not possibly remember living with the father because he was removed and placed in [S.K.'s] home when he was only five seventeen months old. [S.K.'s] family is the only real family that this child has ever known can remember. The Court concluded that the child's bond with the father was a bond that rested solely on hour-long visits each week. The child's bond with [S.K.] and her family were the bonds of a loving and nurturing family. [S.K.] provided daily care for the child for twenty-eight sixteen months of the thirty-three months of his life ...."

All other parts of the October 29, 2018, corrected judgment remain the same as the original, October 24, 2018, judgment.

DHR argues that the October 29, 2018, judgment was not a new judgment but, rather, that it was a correction pursuant to Rule 60(a) that "made the judgment speak the truth." See K.P. v. Madison Cty. Dep't of Human Res., 243 So.3d 835, 838 (Ala. Civ. App. 2017). The father, in opposing the motion to dismiss, contended that the difference in the time periods addressed in the two judgments was material to the issues whether the father and the child shared an emotional bond and whether the father had sufficient time to work toward reunification goals. The father does not contend, however, that the corrected judgment rendered a new judgment, i.e., that it altered any of his rights under the original, October 24, 2018, judgment.

We conclude, after reviewing the record and comparing the two judgments, that the October 29, 2018, corrected judgment did not alter the substance of the original, October 24, 2018, judgment. "In order to be a clerical mistake subject to Rule 60(a), ‘ " ‘ "it is essential that there be something in the record from which the mistake or error to be corrected may be gleaned." ’ " ’ " A.T. v. D.M., 265 So.3d 294, 299 (Ala. Civ. App. 2018) (quoting Pierce v. American Gen. Fin., Inc., 991 So.2d 212, 217 (Ala. 2008), quoting in turn Ex parte Brown, 963 So.2d at 608, quoting in turn Higgins v. Higgins, 952 So.2d at 1148, quoting in turn Ex parte Continental Oil Co., 370 So.2d at 956 (Torbert, C.J., concurring specially)). The corrections set forth in the October 29, 2018, judgment corrected the original, October 24, 2018, judgment with regard to the length of time the child had been in foster care, a fact that is clear from the record on appeal. However, the ruling on the merits remained the same, and there was no impact to the rights of the parties. Thus, the corrected judgment made "the judgment ... speak the truth," and it did not "say something other than what was originally pronounced." Committee Comments on 1973 Adoption of Rule 60(a), Ala. R. Civ. P. "A Rule 60(a) correction has no bearing on the timeliness of an appeal from the original uncorrected judgment." J.S. v. S.W., 702 So.2d 169, 171 (Ala. Civ. App. 1997) ; see also K.P. v. Madison Cty. Dep't of Human Res., 243 So.3d at 838 (" ‘[A]n order entered pursuant to Rule 60(a) relates back to the date of the order or judgment it amends and does not bear on the timeliness of the appeal from the order or judgment.’ Hargrove v. Hargrove, 65 So.3d 950, 952 (Ala. Civ. App. 2010).").

The father's November 11, 2018, "motion to reconsider" was not timely and did not extend the time for bringing this appeal. For that reason, the father's November 21, 2018, notice of appeal was not timely filed within 14 days of the entry of the October 24, 2018, judgment. Rule 4(a)(1), Ala. R. App. P. "An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court." Rule 2(a)(1), Ala. R. App. P. Therefore, we dismiss the appeal.

APPEAL DISMISSED.

Moore, Donaldson, Edwards, and Hanson, JJ., concur.