Untimely Mandamus Petition – Good Cause for Delayed Filing Not Shown

Ex parte T.E.B. and D.K.G., [Ms. CL-2023-0261, July 7, 2023] __ So. 3d __ (Ala. Civ. App. 2023). The court (Edwards, J.; Thompson, P.J., and Fridy, JJ., concur; Moore, J., concurs in the result; Hanson, J., recuses) dismisses as untimely the prospective adoptive parents’ mandamus petition seeking an order directing the Montgomery Probate Court (“the probate court”) to enter an interlocutory order of adoption. The petitioners included a statement of good cause for consideration of the mandamus petition despite its untimeliness. The court notes “when considering whether to entertain a petition that is untimely, for whatever reason, we are to ‘weigh factors such as the prejudice to the petitioner of the court’s not accepting the petition and the prejudice to the opposing party of the court’s accepting it; the impact on the timely administration of justice in the trial court; and whether the appellate court has pending before it other proceedings relating to the same action, and as to which the jurisdiction of the appellate court is unchallenged.’” Ms. *19, quoting Committee Comments to Amendments to Rule 21(a) and 21(e)(4), Ala. R. App. P., Effective September 1, 2000.

While the court agrees with the petitioners “that the probate court’s failure to enter the interlocutory order of adoption in August 2022 prejudiced their pre-adoptive relationship with the child, we cannot agree that the child would not be prejudiced by this court’s consideration of their petition for the writ of mandamus.” Ms. *20.

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