Ex parte Celia Lapidus Nadler. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: T.H. and C.H. v. Jefferson County Department of Human Resources) (Jefferson Juvenile Court: JU-08-50009; Civil Appeals : 2090264). Writ Denied. No Opinion.
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2010-2011
Ex parte Celia Lapidus Nadler
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: T.H. and C.H.
Jefferson County Department of Human Resources)
(Jefferson Juvenile Court, JU-08-50009;
Court of Civil Appeals, 2090264)
Woodall, Stuart, Parker, Main, and Shaw, JJ., concur.
Cobb, C.J., and Bolin, J., dissent.
COBB, Chief Justice (dissenting).
I believe that this petition for a writ of certiorari is
being denied because it was sought by the guardian ad litem
for the child in the dependency determination reviewed by the
petitioner was not a party to the appeal to the Court of Civil
Appeals of the juvenile court's determination that the minor
child was dependent.
Pursuant to Rule 40(a), Ala. R. App. P.,
titled "Who May File," only "[a] party who has not prevailed
application of our rules, there is a rationale for denying
this petition, i.e., if only a party can file for rehearing,
only a party can petition for certiorari review. I dissent
because I believe that the guardian ad litem, appointed by the
court to represent the interests of the minor child, stands
"in loco parentis" (as the parent), protecting the interests
of the child under the circumstances of this case, and should
have the implicit authority under our rules to pursue any
appellate remedies that might be available to the child. See,
e.g., Smith v. Smith, 922 So. 2d 94 (Ala. 2005).
I note further that the 70-page one-judge opinion 1 issued
by the Alabama Court of Civil Appeals in this case shows a
profound disagreement over the legal concepts and processes
emotionally and psychologically disturbed child is dependent.
Moreover, the opinion and dissent of the Alabama Court of
Civil Appeals also evince a profound disagreement over the
proper view of the evidence in this case.
It is long-settled
law in this State that, "[u]nder the ore tenus standard of
review, we defer to the juvenile court's resolution of the
disputed facts and to the juvenile court's determination of
the children's best interests."
R.T.B. v. Calhoun County
Dep't of Human Res., 19 So. 3d 198, 207 (Ala. Civ. App. 2009).
See also T.H. v. Jefferson County Dep't of Human Res., [Ms.
2090264, Sept. 24, 2010] ___ So. 3d ___ (Ala. Civ. App. 2010);
J.B. v. Cleburne County Dep't of Human Res., 992 So. 2d 34
(Ala. Civ. App. 2008).
here the juvenile
This deference to the trial court,
court, is based on that court's unique
opportunity to observe the witnesses and their demeanor, among
The opinion was authored by Judge Moore. Presiding Judge
Thompson and Judge Bryan concurred in the result; Judge Thomas
and Judge Pittman dissented.
Ex parte Pielach, 681 So. 2d 154 (Ala. 1996);
T.O.B. v. C.J.B., 986 So. 2d 433 (Ala. Civ. App.
short, the resolution of this legally and factually complex
case involves the well being of a child.
The well being of
children is of critical concern to the courts of this State as
evidenced by a separate body of rules -- the Alabama Rules of
Juvenile Procedure -- implemented to promote the prompt and
effective disposition of cases involving children.
The legal and factual complexities of this case, coupled
with the fact that the one-judge opinion by the Court of Civil
Appeals reverses the determination of the juvenile court, make
this exactly the sort of case that this Court should consider
respectfully dissent from denying the petition, and I call
upon the respective rules committees of this State to suggest
such changes to the Alabama Rules of Appellate Procedure as
might be necessary to prevent a similar outcome in the future.
Bolin, J., concurs.