author: THOMAS, Judge. MOORE, Judge,

text:
    K.J. v. TUSCALOOSA COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2070598 and 2070610.
    Court of Civil Appeals of Alabama.
    Oct. 3, 2008.
    Rehearing Denied Jan. 23, 2009.
    Terry E. Collins, Tuscaloosa, for appellant.
    Sharen E. Ficquette, chief legal counsel, and Elizabeth L. Hendrix, staff atty., Department of Human Resources, for appel-lee.
    Gary L. Blume of Blume & Blume Attorneys at Law, P.C., Tuscaloosa, guardian ad litem.
   THOMAS, Judge.

K.J. (“the mother”) appeals from separate judgments terminating her parental rights to her two sons, three-year-old K.G. and six-year-old J.J. We affirm.

The mother has four children. In addition to the sons who are the subject of this appeal, she also has two daughters — L.J., who is 14 years old, and Q.J., who is 16 years old. The mother’s husband, from whom she is separated, is the father of all four children. The family had been the subject of child-abuse-and-neglect complaints for 10 years before the Department of Human Resources (“DHR”) received a report in 2005 alleging that the father had abused Q.J. with an extension cord. Upon investigating that report, police officers found the family’s house to be filthy and infested with roaches. DHR provided the family with protective services, including assistance from an entity referred to in the record as “Family Options” and in-home aides. The mother refused DHR’s offer of aides to help her clean the house, stating that she could do the cleaning herself.

In August 2005, when the youngest child, K.G., was a month old, he was hospitalized as a failure-to-thrive infant. DHR determined that the mother had not understood how to mix KG.’s powdered formula and had been feeding the child mainly water. Upon his release from the hospital on August 29, 2005, K.G. was placed in foster care. The three older children were placed in foster care several days later after DHR caseworkers visited the family’s house and found it to be filthy, roach-infested, and reeking of urine. The caseworkers learned that the father had left the house because it was so dirty and had gone to live with his mother. After the children were placed in foster care, DHR provided the mother with a psychological evaluation, counseling, supervised therapeutic visitation, and parenting-skills training that included instruction on disciplinary techniques, appropriate family interaction, communication, and budgeting.

Dr. April Lane, who has a Ph.D. in counseling, performed a psychological evaluation of the mother. Dr. Lane testified that the mother is in the mild range of mental retardation, with a full-scale I.Q. of 62. She stated that the mother “very clearly loves her children and [is] concerned about them, but she lack[s] understanding of the[ir] special needs.” All four children are special-needs children. Sixteen-year-old Q.J. is mentally handicapped and suffers from oppositional-defiant disorder (“ODD”) and attention deficit/hyperactivity disorder (“ADHD”). Fourteen-year-old L.J. has a learning disability, suffers from depression, and has an adjustment disorder. Six-year-old J.J. is mentally handicapped and has a speech disorder. Three-year-old K.G. is clumsy, falls often, cannot run in a straight line, speaks few words and no sentences, and is not toilet trained.

Dr. Lane gave her opinion that, because of her cognitive deficits, the mother is unable to parent the children independently. Dr. Lane said that with a very good, direct support system, such as someone’s living in her house or nearby to provide constant guidance, the mother would be an able parent. Dr. Lane testified that the mother did not have a reliable support system. The mother had reported to Dr. Lane that her pastor, Daisy Bryant, was her support system, but Dr. Lane expressed doubts about Pastor Bryant’s judgment when she learned that Bryant had advised the mother to use corporal punishment to discipline Q.J., who was 14 years old at the time, and to have Q.J. put in a detention facility if the discipline did not work. The mother admitted at trial that she had kicked Q.J. in the eye when she refused to get up and get ready for school.

Jessie Berkley, a social worker and therapist, observed and supervised the mother’s bimonthly visitations with J.J. and K.G. Berkley testified that the visits were chaotic because the mother did not have the capacity to interact effectively with the children. Berkley coached the mother and suggested effective disciplinary techniques. According to Berkley, the mother was cooperative and highly motivated, but she was simply unable to implement what Berkley had tried to teach her. Berkley stated that the boys reacted well when she herself used the disciplinary techniques, but, she said, they paid no attention to their mother’s efforts to discipline them. Berkley concluded that the mother could not safely care for the children without supervision.

DHR referred the mother to three organizations that provide assistance to mentally handicapped individuals: the Betty Woods therapeutic agency, the Helping Hands agency, and Ability Alliance, an “umbrella” agency providing a range of services for the mentally handicapped. The record does not indicate whether the mother took advantage of the services of the Betty Woods or Helping Hands agencies. The mother failed to schedule an appointment with Ability Alliance, even after DHR caseworkers had repeatedly reminded her to do so.

During the two years before the trial of this case, the mother had been employed at several fast-food restaurants, but none of her jobs had lasted very long. The record indicates that she had usually lost jobs because of her failure to understand or follow directions. The mother receives $646 per month in Supplemental Security Income (“SSI”) and Social Security benefits. Each of her four children receives $579 per month in SSI benefits. When the children were removed from her home, the mother lost the income from the children’s SSI payments. Consequently, she had been unable pay her rent or to find an affordable housing based on her income alone. At the time of trial, she was living with her mother, her mother’s boyfriend, and her great-aunt in a two-bedroom apartment. DHR offered the mother housing assistance, but, the mother said, when she inquired as to public housing, she was told that she did not earn enough to pay the rent on any of the apartments she had visited. The mother relocated twice during the time that the children were in foster care, but both times the housing was in a dangerous neighborhood that was unsafe for children.

DHR foster-care worker Jennifer Payne testified that, before DHR moved to terminate the mother’s parental rights, she had learned of a group home in Birmingham that might accept the mother and children as residents and assist the mother in parenting the children. In January 2007, Payne discussed with the mother the fact that the group home might be the mother’s last opportunity to regain custody of her sons, but the mother declined to consider the group home because, she said, she did not know anyone in Birmingham and did not want to leave Tuscaloosa, where her family members were.

Following three days of testimony, the juvenile court entered separate judgments on March 7, 2008, terminating the mother’s parental rights to J.J. and K.G. The mother timely appealed to this court.

I.

The mother contends that DHR failed to prove by clear and convincing evidence that there was no viable alternative to the termination of her parental rights. Specifically, she claims that, because she testified at the termination hearing that she was willing to reconsider the Birmingham group home that she had previously rejected in January 2007, all viable alternatives to termination had not been exhausted. The mother cites R.P. v. State Department of Human Resources, 937 So.2d 77 (Ala.Civ.App.2006), to support her argument that the group home was a viable alternative.

Putting aside for the moment the fact that this court’s plurality decision in R.P. has no precedential value, that case is distinguishable on its facts. In R.P., the mother’s lack of housekeeping skills had resulted in an unsanitary and unhealthy living environment for the children. The DHR caseworkers had noticed, however, that whenever the maternal grandmother was present, the house and the children were clean. Nevertheless, DHR had failed to conduct a home study of the grandmother and had discounted her offer, at the termination hearing, to “assist the mother on a regular basis.” 937 So.2d at 81. Clearly, R.P. involved DHR’s alleged failure to investigate the grandmother as a viable alternative. In the present case, DHR was not guilty of any failure to investigate the group home as a viable alternative. Instead, DHR suggested the group-home alternative to the mother. The mother not only flatly rejected that alternative a year before trial, but she also failed to mention it again, despite the fact that the termination of her parental rights was looming as a possibility, until the trial. In answer to a question by the father’s attorney regarding whether the mother understood, at the time DHR suggested the group home in January 2007, that if she refused that option she “might not get [her] children back,” the mother testified, “I understand it then.... I just wanted to stay in Tuscaloosa.” Additionally, when questioned about her change of heart with respect to the group home, the mother testified:

“Q. [By counsel for DHR]: The group home that’s been referenced in Birmingham, do you understand that even if they had an opening, that DHR would ask that you stay there permanently until the children were grown. [I]t’s not like a program where you would go get rehabilitated and come home in six months. Do you understand that?
“A. Uh-huh, I understand.
“Q. And you would be willing to move there forever?
“A. See, with me, I feel that Pm able to get my own place, you know. I’ve been out about seven, eight years on my own and I stayed in several places in Tuscaloosa.
“Q. But, ... you still live with your mother, right?
“A. Yes, uh-huh.”

(Emphasis added.) The mother’s testimony does not indicate a commitment to accept the group-home arrangement that, she argues, is a viable alternative. It indicates, instead, an insistence on her ability to “get her own place.” Given DHR’s evidence indicating that there is no assurance that the mother and children would even be accepted in the group home if she were to apply at this late date, and the mother’s less than steadfast desire to live in the group home, we conclude that the juvenile court did not err in concluding that there was no viable alternative to the termination of the mother’s rights.

II.

The mother argues that the Alabama Child Protection Act, § 26-18-1 et seq., Ala.Code 1975, specifically § 26-18-7(a)(2), which allows the termination of parental rights based on a parent’s “mental deficiency,” and § 26-18-7(a)(8), which allows the termination of parental rights based on the fact that “parental rights to a sibling of the child have been involuntarily terminated,” violates the Americans With Disabilities Act, § 42 U.S.C. § 12101 et seq. (“the ADA”). The mother presented this argument to the juvenile court, and that court rejected it on the merits. Although the mother cites no authority other than the text of the ADA itself in support of her contentions, we will address the argument because the juvenile court did so and because DHR has responded to the mother’s argument in its appellate brief.

The ADA, specifically 42 U.S.C. § 12132, provides:

“Subject to the provisions of this sub-chapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

The mother contends that DHR is a public entity that discriminated against her by terminating her parental rights on the basis of her mental deficiency. Pursuant to the ADA, a “mental impairment that substantially limits one or more of the major life activities of [an] individual” is a disability. 42 U.S.C. § 12102(2). The ADA requires a public entity to make “reasonable accommodation” to allow the disabled person to receive the services or to participate in the programs provided by the public entity. 28 C.F.R. § 35.130(b)(7)(1994).

Most of the ADA challenges to parental-rights-termination proceedings have been based on the premises either (1) that the ADA preempts a state’s termination-of-parental-rights statutes by virtue of the Supremacy Clause of Art. VI of the United States Constitution and, accordingly, that the party seeking termination must show that the requirements of the ADA have been met or (2) that the ADA constitutes a defense to a parental-rights-termination proceeding. Both types of challenges have been rejected by the vast majority of the courts that have considered them. See generally Sherry S. Zimmerman, Annot., Parents’ Mental Illness or Mental Deficiency as Ground for Termination of Parental Rights — Applicability of Americans with Disabilities Act, 119 A.L.R. 5th 351 (2004). The Hawaii Supreme Court presented an accurate summary of the law with respect to this issue in In re Doe, 100 Haw. 335, 60 P.3d 285 (2002):

“Many of the cases examining the issue of parental rights and the ADA hold that a termination proceeding is not a ‘service, program, or activity’ within the definition of the ADA and, consequently, the ADA does not apply to such proceedings. See In re Anthony P., 84 Cal.App.4th 1112, 101 Cal.Rptr.2d 423, 425 (2000) (‘a proceeding to terminate parental rights is not a governmental service, program, or activity’); In re Antony B., 54 Conn.App. 463, 735 A.2d 893, 899 (1999) (the ADA ‘neither provides a defense to nor creates special obligations in a parental rights termination proceeding’); M.C. v. Dept. of Children and Families, 750 So.2d 705, 706 (Fla.Dist.Ct.App.2000) (‘[Dependency proceedings are held for the benefit of the child, not the parent.’); In re Terry, 240 Mich.App. 14, 610 N.W.2d 563, 569 (2000) (‘Termination of parental rights proceedings are not “services, programs or activities” ... [and] therefore a parent may not raise violations of the ADA as a defense to termination of parental rights proceedings.’); In re Adoption of Gregory, 434 Mass. 117, 747 N.E.2d 120, 125 (2001) (‘Proceedings to terminate parental rights are not “services, programs, or activities,” under provision of [the ADA] ... and therefore, the ADA is not a defense to such proceedings.’).
“There is a smaller number of courts that avoid the ADA question by ‘finding on the facts presented that the State agency, through the provision of services designed to meet the parent’s special needs, had met any obligations that might be imposed by the ADA.’ Gregory, 747 N.E.2d at 125 (citing In re Angel B., 659 A.2d 277 (Me.1995) and In re C.M., 526 N.W.2d 562 (Iowa Ct.App.1994)); see also In re A.J.R., 78 Wash.App. 222, 896 P.2d 1298, 1302 (1995).
“A few courts hold that the ADA may be a defense to parental rights termination cases. See In re C.M., 996 S.W.2d 269, 270 (Tex.Ct.App.1999) (suggesting that the ADA may be defense to a termination proceeding, but rejecting the defense on procedural grounds); Stone v. Daviess County Div. of Children & Family Servs., 656 N.E.2d 824, 830 (Ind.Ct.App.1995) (if there were a statutory requirement to exert reasonable efforts to reunite parent and child, then that statute would be preempted by the ADA, but because there was none, the ADA did not apply).”

100 Haw. at 340-41, 60 P.3d at 290-91. In the present case, the juvenile court indicated, during in-court discussions with the parties and their attorneys at the close of the evidence, its belief that, if the ADA was applicable, then its reasonable-accommodation requirement was met because DHR used reasonable efforts to provide the mother with services tailored to her cognitive limitations in an attempt to reunite her with the children. See In re C.M., 526 N.W.2d 562 (Iowa Ct.App.1994); In re Angel B., 659 A.2d 277 (Me.1995); and In re Terry, 240 Mich.App. 14, 610 N.W.2d 563 (2000).

The judgment of the Tuscaloosa Juvenile Court is affirmed.

2070598 — AFFIRMED.

2070610 — AFFIRMED.

THOMPSON, P.J., and PITTMAN and BRYAN, JJ., concur.

MOORE, J., concurs in part and concurs in the result, with writing.

MOORE, Judge,

concurring in part and concurring in the result.

I agree that the Tuscaloosa Juvenile Court (“the juvenile court”) did not commit reversible error in finding that there was no viable alternative to a termination of the parental rights of K.J. (“the mother”). I point out that, generally speaking, the time and place for assessing viable alternatives to the termination of parental rights is at a permanency hearing conducted no later than one year after the date the child is first placed into foster care. See § 12-15 — 62(c), Ala.Code 1975; see also A.D.B.H. v. Houston County Dep’t of Human Res., 1 So.3d 53, 68 (Ala.Civ.App.2008) (Moore, J., concurring in part and concurring in the result). The evidence shows that the Tuscaloosa County Department of Human Resources (“DHR”) identified a possible viable alternative placement for the family in a group home in Birmingham at some point before it filed the petitions to terminate parental rights and that DHR discussed that option with the mother in January 2007. That conversation would have taken place about four months after the one-year permanency-hearing deadline. The evidence is vague as to whether DHR should have known of that option earlier. At any rate, in such circumstances, when a potential viable alternative arises after the date of the permanency hearing, the juvenile court should hold a separate permanency hearing as soon as possible to determine if the suggested alternative is indeed viable — i.e., that it is feasible and serves the best interests of the child at issue to avoid the termination of parental rights— so that the permanency plan can be appropriately amended. See A.D.B.H., supra; see also T.V. v. B.S., 7 So.3d 346, 35-52 (Ala.Civ.App.2008). Following that procedure would have prevented the mother from bringing up the issue at the last minute in the termination-of-parental-rights hearing.

I concur in the result regarding that part of the opinion addressing the mother’s argument that § 26 — 18—7(a) (2), Ala. Code 1975, violates 42 U.S.C. § 12132, a part of the Americans With Disabilities Act (“the ADA”). As I understand her argument, which is sparse at best, the mother initially claims that § 12132 prohibits a state from terminating parental rights on the basis of a mental disability alone. Assuming, without deciding, the validity of that contention, it does not avail the mother because § 26 — 18—7(a)(2) does not allow a juvenile court to terminate parental rights based solely on the presence of a mental disability.

By statute, a juvenile court may only terminate parental rights for two reasons:

“If the court finds from clear and convincing evidence, competent, material, and relevant in nature, [ (1) ] that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or [ (2) ] that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future .... ”

§ 26 — 18—7(a), Ala.Code 1975. In determining whether the first statutory ground exists, the juvenile court must consider:

“Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for needs of the child.”

§ 26-18-7(a)(2), Ala.Code 1975. Just reading the language of the statute reveals that a juvenile court may terminate the parental rights of a parent on the basis of a mental deficiency only if that mental deficiency is so long-standing or severe as to render the parent unable or unwilling to discharge his or her parental duty to meet the child’s various needs. A juvenile court does not discriminate against a parent on the basis of his or her mental disability by terminating parental rights when that mental disability prevents the parent from discharging his or her parental responsibilities as proven by clear and convincing evidence. To the contrary, such a judgment would treat the mentally disabled parent exactly like any other parent who is unable to meet his or her parental obligations for reasons other than a mental disability.

The mother next contends that § 26-18-7 violates the ADA by failing to require that efforts at reunification “be tailored to the handicapped person’s needs.” Except in cases of aggravating circumstances that are not pertinent to this case, the state has a duty to use “reasonable efforts” to reunite a child with his or her parent after the child is removed from the parent’s home. See Ala.Code 1975, § 12-15-65(g)(3) & (m). In H.H. v. Baldwin County Department of Human Resources, 989 So.2d 1094, 1098 (Ala.Civ.App.2008) (lead opinion authored by Moore, J., with Thompson, P.J., and Bryan, J., concurring in the result and Pittman and Thomas, JJ., dissenting), the lead opinion held that “reasonable efforts” requires the state, among other things, “to develop a reasonable plan with the parent that is tailored toward the particular problem(s) preventing the parent from assuming a proper parental role.” 989 So.2d at 1105. In the case of a mentally disabled parent, when considering whether “reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed,” § 26-18-7(a)(6), a juvenile court naturally must consider, among other things, whether the Department of Human Resources has developed a reasonable reunification plan tailored towards the parent’s mental disability. By judicial construction, § 26-18-7 already contains the requirement the mother claims has been omitted.

Based on the foregoing, I agree that § 26-18-7 does not violate the ADA and that the juvenile court did not commit reversible error by rejecting that argument.

      . The judgments also terminated the parental rights of the children’s father, M.G., who has not appealed.

      . We have consolidated the appeals for the purpose of issuing one opinion.

      . The mother also argues that § 26-18-7(a)(8), Ala.Code 1975, which requires juvenile courts to consider “[tjhat parental rights to a sibling of the child have been involuntarily terminated,” violates the ADA by allowing a juvenile court to terminate a mentally disabled parent’s parental rights on the basis of a prior termination alone. The mother misconstrues the law on that point in the same manner in which she misconstrues § 26-18-7(a)(2); however, I do not believe that we can consider that argument because the mother has failed to show how § 26-18-7(a)(8) applies to her case.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    BISHOP STATE COMMUNITY COLLEGE v. David L. THOMAS.
    2070660.
    Court of Civil Appeals of Alabama.
    Nov. 21, 2008.
    As Modified on Denial of Rehearing Jan. 30, 2009.

      David M. O’Brien and Jeffrey G. Miller of Sirote & Permutt, P.C., Mobile, for appellant.
    J. Cecil Gardner and Allison Kahalley of The Gardner Firm, P.C., Mobile; and Sam Heldman of The Gardner Firm, P.C., Washington, D.C., for appellee.
    Lynne R. Thrower, Alabama Department of Postsecondary Education, for ami-cus curiae Bradley R. Byrne, chancellor of the Alabama Department of Postsecondary Education and the Alabama Community College System, in support of the appellant.
   MOORE, Judge.

Bishop State Community College appeals from the decision rendered by hearing officer Thomas G. Humphries on March 28, 2008, overturning the dismissal of its employee, David L. Thomas, pursuant to Ala.Code 1975, § 36-26-104(a), a part of the Fair Dismissal Act (“the FDA”), Ala.Code 1975, § 36-26-101 et seq. We reverse and remand.

Facts

David Thomas has been employed by Bishop State Community College (“the college”) since 1993. Originally, Thomas worked full-time as a history instructor. In 1995, Thomas became both a part-time history instructor and a part-time director of the college’s Black History Museum and Research Library. On September 1, 2000, the college promoted Thomas to the position of director of the Southwest Campus, giving him supervisory responsibility over the college’s campus facilities. In July 2003, Thomas added the duties of director of the Division of Adult Education and Economic Development to his job of director of the Southwest Campus. Written job-performance evaluations showed that Thomas performed his various jobs at or near the highest levels according to his various supervisors. Yvonne Kennedy, the president of the college from 1981 to July 31, 2007, and now President Emeritus, testified that Thomas was an outstanding employee who performed his job very well at every stage between 1993 and 2005, justifying his promotions and the expansion of his administrative responsibilities.

In early 2005, Thomas was arrested for leaving the scene of an accident and driving while under the influence of alcohol. One year later, while those criminal charges remained pending, Thomas, who was also a commissioner of the Mobile County School Board (“the Board”), was indicted and impeached for allegedly using his official position to obtain public funds and services for his personal use.

After a trial on the impeachment charges, on May 4, 2006, a Mobile County jury found that Thomas should be removed from his office as a commissioner for willful neglect of duty, corruption in office, incompetency, and an offense involving moral turpitude. The jury specifically found that Thomas had entered into a contract to purchase candy and trinkets to throw in a Mardi Gras parade without receiving prior approval from the Board or any of its employees; that Thomas had ordered Board employees to assist in the unloading and delivering of the candy and trinkets and to follow him on the parade route and resupply him with those items; that no other personnel of the Board, other than one of Thomas’s fellow commissioners, had been invited to ride in the parade; and that Thomas had not informed the Board of the price and other details of the contract for the purchase until March 2, 2006, days after the parade, when the Board received the invoice and paid for the candy and trinkets. The jury found that Thomas’s actions violated the criminal laws of Alabama and constituted acts of moral turpitude; however, the jury did not specify which criminal laws had been violated.

Eleven days later, Thomas pleaded guilty to leaving the scene of an accident, a Class C felony, based on the 2005 arrest. On June 14, 2006, Thomas pleaded guilty to using his official position for personal gain, a Class A misdemeanor, based on his 2006 indictment. The Mobile County district attorney dropped all the other criminal charges that had been brought against Thomas, including the theft charges and the driving-under-the-influence charge.

During 2005 and 2006, Thomas continued working at the college in his role as the director of the Division of Adult Education and Economic Development. Before he assumed that role in 2003, the state agency responsible for overseeing the program had issued a report card giving the program a grade of “F” because only 18% of the students enrolled in its program had passed the General Equivalency Diploma (“GED”) test, far below the 38% goal. By 2004, under Thomas’s leadership, the college had received a grade of “A” because 54% of its students had passed the GED test. The college maintained its “A” rating in 2005 and 2006 while Thomas remained the director of the adult-education department. In Thomas’s 2005 written job-performance evaluation, which covered the period from August 2004 to July 2005, Kennedy indicated that Thomas needed improvement in his relationships with other people, explaining:

‘Although the employee continued to treat others with respect and courtesy throughout the year, he failed to continue to inspire their respect and confidence in him as a result of an accident he had [for which he] was arrested and charged with leaving the scene of an accident.”

However, Kennedy found that Thomas’s overall job performance was “satisfactory,” i.e., that it “[frequently exceeds the standard requirements of the position; performance is often better than acceptable.”

On July 27, 2006, Kennedy issued Thomas’s annual job-performance evaluation. In that evaluation, Kennedy again noted that Thomas needed improvement in his relationships with people. Kennedy wrote:

‘Although employee continues to treat others with respect and courtesy, he still has not regained the full respect and confidence he previously received from others.”

Nevertheless, Kennedy rated Thomas’s overall job performance as “satisfactory.” Kennedy explained at the hearing that, although Thomas had encountered problems instilling confidence in other college employees after his legal problems, Thomas was performing his job satisfactorily.

Despite her positive evaluations of Thomas, Kennedy agreed that Thomas’s off-duty actions had, in fact, damaged the reputation of the college. Kennedy contacted Roy Johnson, then chancellor of the Department of Postsecondary Education (“the Department”), inquiring whether she should terminate Thomas’s employment based on his “external problems.” Kennedy testified that Joan Davis, the legal counsel for the Department, had advised Johnson and Kennedy that the Department had no specific policy that would cover terminating an employee’s employment for off-duty conduct. Kennedy stated that Johnson had informed her on more than one occasion that, so long as Thomas was performing his job satisfactorily, she did not have to terminate his employment. Kennedy testified that, in June 2006, Davis had informed her that Johnson had changed his mind and that he wanted Thomas’s employment terminated. After Kennedy asked Davis to inform Johnson to directly convey his desire to Kennedy or to state in writing that he wanted Thomas’s employment terminated, Davis subsequently telephoned Kennedy and told her that Johnson wanted her to “sit tight.” Johnson did not give Kennedy any further guidance on the issue before the Alabama Board of Education terminated Johnson’s employment in July 2006. Kennedy testified that, after Johnson left his post as chancellor, she had discussed the matter with his successors, Thomas Corts and Renee Culverhouse, both of whom had concurred that Thomas could remain employed by the college.

On January 22, 2007, Kennedy removed Thomas from his position as director of the Southwest Campus and as a member of the college’s executive committee. Kennedy testified that the title of “Director of Southwest Campus” gave people the impression that Thomas had greater administrative responsibilities than he actually held and that she had thought the move would be in the best interests of the college and Thomas. Thomas maintained his job as the director of the Division of Adult Education and Economic Development, and he was further assigned to work in the college’s Office of Alumni Affairs. On February 28, 2007, Kennedy authored another job-performance evaluation on Thomas. In that evaluation, Kennedy noted that Thomas had made some progress toward restoring the confidence of other college employees but that he still needed “to re-establish relationships with people that will again inspire their respect and confidence in him.” Kennedy again rated Thomas as a satisfactory employee.

On May 24, 2007, the Alabama Board of Education appointed Bradley Byrne as chancellor of the Department. Byrne testified that, in an effort to restore the integrity of the Department, which was then undergoing two major criminal investigations, he had immediately instituted an unwritten policy that all convicted felons should not be employed in the two-year college system. Byrne testified that, prior to his tenure, the Alabama Board of Education did not have a formal policy regarding the employment of convicted felons in the two-year college system but that he had interpreted the terms of the FDA, which allows for the dismissal of two-year college employees for “good and just causes,” to authorize the dismissal of any covered employee convicted of a felony, even one committed while off-duty. As a convicted felon, Thomas fell within the ambit of that policy, so Byrne believed that his employment should be terminated.

Byrne testified that, before deciding that Thomas’s employment should be terminated, he had not discussed Thomas with Johnson or Corts but that he had talked to Culverhouse, who, according to Byrne, considered the Thomas situation serious but had stated that she had not had time to do anything about it. Byrne also testified that he did not recall speaking with Corts or Culverhouse about any conversations they had had with Kennedy regarding Thomas. Byrne further admitted that he had not inquired of Kennedy or Thomas’s other superiors about Thomas’s job performance at the college, that he had not reviewed Thomas’s job-performance evaluations or reports from the state agency that had evaluated Thomas’s department, that he had not discovered the details of Thomas’s crimes or Thomas’s prosecution, that he had not weighed any mitigating factors, that he had not contemplated any penalty less than termination of his employment for Thomas, and that he had not considered rehabilitating Thomas.

In June 2007, Byrne held a meeting with Kennedy at which Davis was also present. At that meeting, Byrne and Kennedy discussed the various problems facing the college. Near the end of that meeting, Byrne asked Kennedy why Thomas was still employed. Though Byrne and Kennedy gave varying descriptions of the subsequent conversation, they both agreed that Byrne had authorized Kennedy to terminate Thomas’s employment. Byrne testified that he expected Kennedy to initiate the termination process before she retired.

Kennedy retired from the presidency of the college later that week without terminating Thomas’s employment. Byrne then appointed James Lowe as interim president of the college. Although his official start date was August 1, 2007, Lowe testified that he had actually reported to the college three weeks early. Byrne and Lowe testified that Byrne had instructed Lowe to carry out the termination of Thomas’s employment. Byrne also testified that he had asked Lowe to review the Thomas situation, to make sure that he concurred with Byrne’s analysis, and, if so, to initiate termination proceedings. Lowe testified that Byrne had said he wanted to terminate Thomas’s employment to promote the integrity of the college.

On July 16, 2007, Thomas was placed on administrative leave. Lowe testified that, over the next weeks, to assure that Byrne had not overlooked anything and out of fairness to Thomas, he had reviewed Thomas’s personnel evaluations; had talked to Kennedy; had interviewed a few of Thomas’s recent subordinates, who had indicated that Thomas had been a poor manager during his legal troubles; had examined Thomas’s criminal and impeachment records; and had talked with people in the community, all of whom had given him negative opinions about Thomas. Lowe stated that he met Thomas but that he had not discussed with Thomas his past job performance. Lowe also testified that he had not interviewed Thomas’s past superiors or the employees of the state agencies who had evaluated Thomas in the past. Based on his investigation, Lowe agreed with Byrne that Thomas’s employment should be terminated. Lowe testified that he had not considered transferring or demoting Thomas and that, when he made his decision, he did not realize that the theft charges had been dropped or that Thomas’s impeachment actually was not a criminal proceeding. When apprised of that information at the administrative hearing, Lowe testified that those facts would not have changed his mind.

On August 1, 2007, Lowe wrote a letter to Thomas, notifying him of the college’s intent to terminate his pay and his employment based on the following facts:

“(1) You were convicted of the felony of leaving the scene of an accident after you ran over a child’s foot with your vehicle during Mardi Gras in 2005.
“(2) You were impeached in 2006 from your position as a member of the Mobile County School Board for your improperly handling and use of public money.
“(3) Overall ineffectiveness due to the lack of confidence and respect of others, failure to communicate with others and failure to demonstrate adequate leadership in managing the responsibilities assigned to you.”

Although the college offered to hold a pre-termination hearing, Thomas declined. On September 10, 2007, Lowe sent Thomas a letter notifying him that his employment and pay had been terminated. Thomas immediately notified the college that he was exercising his right under the FDA to a de novo hearing.

On December 19, 2007, the hearing officer conducted a hearing regarding Thomas’s termination. On March 28, 2008, the hearing officer rendered his decision. The hearing officer found that Thomas’s employment had been terminated without good or just cause; that his termination resulted from “the arbitrary application of a nonexistent policy, devoid of reasonable standards and a fair and proper investigation”; that Thomas, despite his legal problems, had properly performed his job duties; and that the college would not suffer further damage to its reputation by maintaining Thomas’s employment. Based on those conclusions, the hearing officer overturned the termination of Thomas’s employment and ordered the college to reinstate Thomas in an instructor position with backpay, including the reimbursement of any medical expenses that would have been covered by Thomas’s group health insurance. The college timely appealed that decision.

Analysis

The FDA provides that a covered nonprobationary employee, like Thomas, shall not be “terminated”

“except for failure to perform his or her duties in a satisfactory manner, incompetency, neglect of duty, insubordination, immorality, justifiable decrease in jobs in the system, or other good and just causes; provided, however, such termination of employment shall not be made for political or personal reasons on the part of any party recommending or voting to approve said termination.”

§ 36-26-102, Ala.Code 1975. If an employee properly contests the termination of his or her employment, see § 36-26-103(b), Ala.Code 1975 (setting out the procedure for contesting a termination under the FDA), the employee is entitled to a de novo hearing. § 36-26-104(a), Ala.Code 1975. Pursuant to the statutory charge, the hearing officer should first decide whether the employer has “stated and proved proper grounds for terminating an employee’s employment.” Bishop State Cmty. Coll. v. Williams, 4 So.3d 1152, 1157 (Ala.Civ.App.2008). If the hearing officer concludes that the employer has met its initial burden, the hearing officer shall then decide whether the employer dismissed the employee to further an improper motive, i.e., for personal or political reasons. See Ex parte Wilson, 984 So.2d 1161, 1171 (Ala.2007) (construing the Teacher Tenure Act, § 16-24-1 et seq., Ala.Code 1975). Finally, the hearing officer “shall determine which of the following actions should be taken relative to the employee: Termination of the employee, a suspension of the employee, with, or without pay, a reprimand, other disciplinary action, or no action against the employee.” § 36-26-104(a), Ala.Code 1975.

In making those determinations, the hearing officer conducts a de novo hearing, meaning the issue is tried “anew, afresh, or over again.” Alabama Pub. Serv. Comm’n v. B & B Transp. & Limousine Serv., Inc., 397 So.2d 120, 122 (Ala. 1981) (citing Slaughter v. Martin, 9 Ala. App. 285, 63 So. 689 (1913), and Black’s Law Dictionary 483 (rev. 4th ed. 1968)). “A de novo hearing is not one at which the evidence taken at a prior hearing is continued or incorporated, but is one at which the entire evidence to be presented is heard anew or afresh.” Id. In conducting the hearing, the hearing officer considers “the evidence and/or information submitted to the hearing officer,” § 36-26-104(a), not only without any presumption in favor of the decision reached by the employer, but as if no prior determination had even been made. See Allen v. Bessemer State Tech. Coll., 703 So.2d 383, 386 (Ala.Civ. App.1997). Because the hearing is de novo, the hearing officer is not constrained by the evidence the employer considered, the employer’s analysis of that evidence, or the employer’s conclusions derived therefrom. See id.

Once the hearing officer makes his or her decision and reduces that decision to a writing containing findings of facts and conclusions of law, see § 36-26-104(a), Ala. Code 1975, the party aggrieved by that decision may petition this court to review the decision, which petition may be granted only if this court “determines there are special and important reasons for granting the appeal.” § 36-26-104(b), Ala.Code 1975. “ ‘[T]he decision of the hearing officer shall be affirmed on appeal unless the Court of Civil Appeals finds the decision arbitrary and capricious ....’” Williams, 4 So.3d at 1157 (quoting § 36-26-104(b), Ala.Code 1975).

In employing the arbitrary-and-capricious standard of review, the legislature intended this court to be “extremely deferential” to the hearing officer’s decision in an FDA case. See Ex parte Dunn, 962 So.2d 814, 816 (Ala.2007) (construing arbitrary-and-capricious standard of review mandated by Teacher Tenure Act). As our supreme court has stated:

“[T]he reviewing court may not substitute its judgment for that of the hearing officer.... [W]here ‘reasonable people could differ as to the wisdom of a hearing officer’s decision[,] ... the decision is not arbitrary.’ ...
“ ‘If the decision-maker has “ ‘examined the relevant data and articulated a satisfactory explanation for its action, including a “rational connection between the facts found and the choice made,” ’ ” its decision is not arbitrary. See Alabama Dep’t of Human Res. v. Dye, 921 So.2d [421, 426 (Ala.Civ.App.2005) ] (quoting Prometheus Radio Project v. FCC, 373 F.3d [372, 389 (3d Cir.2004) ] (quoting in turn Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962))).’ ”

Ex parte Dunn, 962 So.2d at 816-17 (quoting with approval, but reversing on other grounds, Board of Sch. Comm’rs of Mobile County v. Dunn, 962 So.2d 805, 809, 810 (Ala.Civ.App.2006)). Pursuant to the arbitrary-and-eapricious standard of review, this court may “disagree with the wisdom of the decision, [but] we may not substitute our judgment for that of the hearing officer.” Ex parte Dunn, 962 So.2d at 823-24.

In this case, the hearing officer found that the college had satisfactorily proven that Thomas had been convicted of a felony for leaving the scene of an accident and that he had been impeached and removed from his position as a commissioner of the Board. However, the hearing officer concluded that the college did not prove that Thomas had been “overall ineffective” in performing his job duties. Reciting the evaluations of Thomas’s work before his employment had been terminated, the hearing officer concluded that Thomas, “irrespective of his off-duty actions, was able to perform his duties in a proper manner.” Based on the substantial evidence presented to the hearing officer supporting that determination, and our deferential standard of review, we conclude that the hearing officer did not act arbitrarily and capriciously in reaching the foregoing factual determinations.

However, that does not end the inquiry. As the hearing officer acknowledged, the college argued below that each of the three factual bases cited in its notice-of-termination letter to Thomas independently support the termination of Thomas’s employment. Thus, even if convinced that Thomas was able to effectively perform his job, the hearing officer still needed to determine whether Thomas should be terminated on account of his felony conviction and/or his impeachment.

At first blush, it would seem that, if an employee is effectively performing his or her job, an employer would have no good or just cause for terminating that employee’s employment. However, Alabama law has long held that, in some cases, other circumstances may justify the termination of a capable school employee’s employment. As Thomas has acknowledged throughout these proceedings, this court has recognized that the 'term “other good and just cause”

“ ‘in a statute of this kind [Tenure Act] is by no means limited to some form of inefficiency or misconduct on the part of the teacher dismissed, but includes any ground put forward by a school committee in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the committee’s task of building up and maintaining an efficient school system.’ ”

Ellenburg v. Hartselle City Bd. of Educ., 349 So.2d 605, 609-10 (Ala.Civ.App.1977) (quoting 68 Am.Jur.2d Schools § 183). The term “other good and just cause” refers to “ ‘any cause which bears a reasonable relation to the teacher’s fitness or capacity to discharge the duties of his position.’ ” Alford v. Ingram, 931 F.Supp. 768, 772 (M.D.Ala.1996) (noting that, in Faircloth v. Folmar, 252 Ala. 223, 40 So.2d 697 (1949), the Alabama Supreme Court had “adopted th[is] interpretation” and citing Cooper v. Perry County Bd. of Educ., 264 Ala. 251, 254, 86 So.2d 832, 835 (1956)) (emphasis added). By carrying that term forward into the FDA, the legislature is presumed to have adopted the settled meaning of the term “other good and just cause.” Madison County Bd. of Educ. v. Wilson, 984 So.2d 1153, 1159 (Ala.Civ.App. 2006) (construing Teacher Tenure Act), affirmed, Ex parte Wilson, 984 So.2d 1161. Accordingly, under the FDA, an employee who is performing his or her job duties effectively may, nevertheless, properly be terminated from his or employment if that employee has become unfit for continued employment or his or her retention would interfere with the building up or maintaining of an efficient school system.

In this case, the evidence shows that, due to his criminal convictions and his impeachment, Thomas’s retention had damaged the reputation of the college. Lowe testified that when he had interviewed members of the community, no one had spoke positively of Thomas. According to Byrne, the student enrollment of the college had dwindled considerably during Thomas’s legal troubles. Byrne testified that his first priority was to restore the integrity of the college so that the students would come back. As the hearing officer determined, “it was into this milieu that a policy was proposed to allow educational institutions such as the College to bar convicted felons from employment.” However, the hearing officer specifically declined to decide whether that policy was “legally permissible, morally defensible, or necessary to the orderly operation of the Colleges,” i.e., whether that policy related to the building up and maintaining of an efficient school system so that its violation would be good and just cause for the termination of Thomas’s employment.

Instead, the hearing officer found that the felony-conviction policy was “nonexistent” at the time Thomas’s employment was terminated. That finding is incorrect. Based on Policy 619.01, adopted by the Alabama Board of Education and in place at the time Byrne became chancellor, all employees of the two-year college system covered by the FDA could be dismissed for “good and just causes.” Before Byrne took office, that phrase had not been interpreted to allow termination on the basis of a felony conviction for off-duty actions; however, as chancellor of the two-year college system, Byrne is specifically empowered to “[ijnterpret the rules and regulations of the board concerning the junior colleges and trade schools.” § 16-60-111.5(2), Ala.Code 1975. Acting pursuant to his statutory authority, Byrne decided, as he testified, that the phrase “other good and just causes” included any felony conviction. Thus, the decision to terminate Thomas’s employment due to his felony conviction was based on the existing policy of the Alabama Board of Education to dismiss employees for “other good and just causes.”

In addition to incorrectly determining that the felony-conviction policy did not exist and failing to decide whether the felony-conviction policy justified the termination of Thomas’s employment, the hearing officer also failed to make any determination regarding whether Thomas’s impeachment and the factual findings of the jury underlying that impeachment, including the finding that Thomas had committed an offense involving moral turpitude in violation of Alabama’s criminal laws, adversely affected Thomas’s fitness to remain employed by the college and warranted the termination of his employment, an issue litigated at the hearing. The FDA specifically requires the hearing officer to make findings of fact on the issues litigated by the parties. § 36-26-104(a), Ala.Code 1975. Without those findings, we cannot determine whether the hearing officer adequately considered the facts surrounding Thomas’s impeachment in reaching its decision to reinstate Thomas.

In Williams, supra, this court reversed a hearing officer’s determination for, among other reasons, failing to address the preliminary question of whether the employer had proved proper grounds for terminating an employee’s employment. Consistent with Williams, we reverse the decision of the hearing officer in this case and remand the cause for the hearing officer to make a determination whether, in spite of his documented job performance, Thomas’s felony conviction and impeachment constituted “other good and just causes” for the termination of his employment under Alabama law. Because we are reversing on those grounds, we pretermit any discussion of the other issues asserted by the college.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ., concur.

      . The college could not locate some written job-performance evaluations. Thomas testified without contradiction that those evaluations were similar to the ones place into evidence.

      . The jury marked a line next to the following paragraph:
      "THOMAS' ACTIONS VIOLATED THE CRIMINAL LAWS OF THE STATE OF ALABAMA — -For the acts described above, the March 2006 session of the Mobile County Grand Jury has preferred a six count indictment charging that David Thomas committed the offenses of theft in the first degree by deception, theft in the first degree, using his official position for personal gain in violation of the ethics laws, solicitation of board employees to commit ethics violations, violating of the bid laws of the State of Alabama, which also constitutes a separate ethics violation when committed by a public official or public employee. A copy of this indictment is attached hereto and incorporated by reference as if fully set forth herein.”

      . Section 32-10-2, Ala.Code 1975, provides:
      "The driver of any motor vehicle involved in an accident resulting in injury to or the death of any person or damage to any vehicle which is driven or attended by any person shall give his name, address and the registration number of the vehicle he is driving, shall upon request exhibit his driver’s license to the person struck or the driver or occupant of or person attending any motor or other vehicle collided with or damaged and shall render to any person injured in such accident reasonable assistance, including the transportation of, or the making of arrangements for the transportation of such person to a physician or hospital for medical or surgical treatment, if it is apparent that such treatment is necessary or if such transportation is requested by the injured person.”
      Section 32-10-6, Ala.Code 1975, provides that a violation of § 32-10-2 is a Class C felony "when such violation involved ... personal injury.”

      .Section 36-25-5(a), Ala.Code 1975, provides:
      "No public official or public employee shall use or cause to be used his or her official position or office to obtain personal gain for himself or herself, or family member of the public employee or family member of the public official, or any business with which the person is associated unless the use and gain are otherwise specifically authorized by law. Personal gain is achieved when the public official, public employee, or a family member thereof receives, obtains, exerts control over, or otherwise converts to personal use the object constituting such personal gain.”
      Section 36-25-27(a)(2) makes an unintentional violation of § 36-25-5(a) a Class A misdemeanor.

      . In both 2003 and 2004, Kennedy had found Thomas's job performance to be "more than satisfactory,” i.e., that it "[m]eets the standard requirements of the position; seldom if ever, is the performance less than acceptable.”

      . See § 36-26-102, Ala.Code 1975.

      . Byrne testified that he had not talked to Johnson because Johnson was the subject of a major criminal investigation.

      . The hearing officer rendered his decision on March 28, 2008. The college filed its notice of appeal with the clerk of this court on April 16, 2008, 19 days later. Section 36-26-104(b) provides, in pertinent part: "An appeal by either parly shall be perfected by filing a written notice of appeal with the Clerk of the Court of Civil Appeals within 21 days after the receipt of the final written decision of the hearing officer.” Hence, we reject Thomas’s contention that the college did not timely appeal.


text:
    Elinor Glynn LaCONSAY and Joseph Wetzel v. Michael LANGLEY.
    2070999.
    Court of Civil Appeals of Alabama.
    Jan. 23, 2009.
    James G. Curenton, Jr., Fairhope, for appellants.
    D. Robert Stankoski, Jr., and Joshua P. Myrick of Stankoski, L.L.P., Fairhope, for appellee.
   MOORE, Judge.

On October 15, 2007, after a convoluted procedural history, the Baldwin Probate Court (“the probate court”) awarded Elinor Glynn LaConsay and Joseph Wetzel litigation expenses, including attorney fees, pursuant to § 18-lA-232(a), Ala.Code 1975, against Michael Langley. Langley appealed that award to the Baldwin Circuit Court (“the circuit court”). On June 18, 2008, the circuit court entered a summary judgment in favor of Langley, concluding that the litigation expenses had been improperly awarded by the probate court. LaConsay and Wetzel appealed. We reverse and remand.

Background

In early 2006, Langley filed a complaint in the probate court against LaConsay and Wetzel, seeking an easement by necessity or a private right-of-way across real property belonging to LaConsay and Wetzel or an easement by implication across their property. Langley also alleged trespass to his property, and he sought a preliminary and a permanent injunction. In support of his complaint, Langley attached various exhibits. Both LaConsay and Wetzel filed motions to dismiss, asserting that the property at issue was not properly the subject of a condemnation action and that the probate court lacked jurisdiction to address any of the other causes of action asserted in Langley’s complaint. LaCon-say submitted additional exhibits in support of her motion to dismiss, but Wetzel relied solely on the exhibits submitted in support of Langley’s complaint. Additionally, certain discovery was conducted and the probate court ordered that Langley be allowed to inspect the property belonging to LaConsay and Wetzel. LaConsay also filed a “Motion to Assess Attorneys Fees and Court Costs,” pursuant to § 18-1A-232, Ala.Code 1975. The probate court granted LaConsay’s and Wetzel’s motions to dismiss without prejudice on August 16, 2006. In its dismissal order, the probate court did not address LaConsay’s pending motion to assess fees and costs.

On September 14, 2006, LaConsay filed with the probate court an “Amended Motion to Assess Fees and Costs” against Langley. On September 20, 2006, Wetzel filed in the probate court a motion to assess litigation expenses against Langley. Both motions were filed pursuant to § 18-1A-232. On October 17, 2006, the probate court entered an order concluding that the postjudgment motions filed by LaConsay and Wetzel seeking litigation expenses pertaining to the dismissed action were “moot.”

On October 25, 2006, LaConsay appealed the probate court’s October 17, 2006, order to the circuit court; Wetzel appealed on October 26, 2006. (Those appeals are hereinafter sometimes referred to as either the “October 2006 appeals” or “the first appeals.”) Langley subsequently moved to dismiss the October 2006 appeals. On November 6, 2006, the circuit court entered an order denying LaCon-say’s and Wetzel’s motions for litigation expenses. In its order, the circuit court stated that “the motion to assess fees and court cost[s] is denied as it is a probate court matter.” On February 13, 2007, the circuit court entered another order dismissing LaConsay’s and Wetzel’s October 2006 appeals.

On May 4, 2007, LaConsay and Wetzel filed in the probate court a joint “Renewed Motion to Assess Attorney Fees and Court Costs” against Langley. In that motion, LaConsay and Wetzel asserted that they had appealed to the circuit court the probate court’s October 17, 2006, order denying their motions as moot but that, on February 13, 2007, the circuit court had dismissed their appeals for lack of jurisdiction. LaConsay and Wetzel again asserted that they were entitled to recover litigation expenses and that an award of such expenses was mandatory pursuant to § 18-1A-232. On May 7, 2007, Langley objected to the renewed motion.

On May 31, 2007, the probate court entered an order declaring that LaConsay and Wetzel were entitled to recover their litigation expenses. After a hearing on the issue of the amount of fees and costs to be awarded, the probate court, on October 15, 2007, entered a judgment awarding La-Consay $2,283.75 and Wetzel $3,209.20. On October 25, 2007, Langley appealed to the circuit court; on November 13, 2007, LaConsay and Wetzel cross-appealed. (Those appeals are hereinafter referred to as either the “October 2007 appeals” or “the second appeals.”)

All parties filed motions for a summary judgment in the circuit court. On June 18, 2008, the circuit court entered an order granting Langley’s summary-judgment motion. In its order, the circuit court stated:

“[Langley’s] Motion for Summary Judgment is granted because at the time of the original dismissal of the condemnation proceedings in probate court [La-Consay and Wetzel] did not appeal within the time allowed by law from the probate court’s denial of award of attorneys’ fees nor did [LaConsay and Wet-zel] institute any mandamus proceeding in the Circuit Court of Baldwin County to enforce their rights with respect to attorneys’ fees and expenses. [LaCon-say and Wetzel’s] Motion for Summary Judgment is denied.”

On July 28, 2008, LaConsay and Wetzel appealed to the Alabama Supreme Court from the summary judgment entered in favor of Langley in the second appeals; that court transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

Analysis

In this appeal, we must determine whether the circuit court erred in entering the summary judgment for Langley in the second appeals; more specifically, we must determine whether LaConsay and Wetzel failed to timely appeal or seek mandamus relief from the probate court’s October 17, 2006, order dismissing their motions for litigation expenses as “moot.”

Whether LaConsay’s and Wetzel’s First Appeals Were Untimely

As a result of its conclusion that LaConsay’s and Wetzel’s motions for litigation expenses were “moot,” the probate court initially failed to address those motions. A ruling that an issue is moot is not an adjudication on the merits and is not a final judgment on the pending issue. See Ferguson v. Commercial Bank, 578 So.2d 1234, 1236-37 (Ala.1991) (“A dismissal based on mootness is not an adjudication on the merits. See 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4436, at 344 (1981). ‘[T]he holding of mootness is not a judgment on the merits and, as a nonmerits judgment, it does not bar further action on any matters not actually adjudged. Moore’s Federal Practice Para. 0.405[5].’ De Volld v. Bailar, 568 F.2d 1162, 1166 (5th Cir. 1978).”). Additionally, although LaConsay and Wetzel sought review of the probate court’s October 17, 2006, order by timely filing an “appeal,” a trial court’s finding of mootness as to a pending issue will not support an appeal as to that issue. See Thompson v. Halliwell, 668 So.2d 43, 45 (Ala.Civ.App.1995) (“ ‘Unless otherwise specified by law, a proper appeal will lie only from a final order or judgment,’ ” that is, “ ‘one in which there has been a complete adjudication of all matters in controversy between the parties.’ ”).

Thus, LaConsay and Wetzel were not entitled to appeal the probate court’s October 17, 2006, order because that order was not a final adjudication as to the issue of litigation expenses. Once the circuit court, in the October 2006 appeals, determined that the issue of litigation expenses had not been adjudicated and that the issue remained pending in the probate court, the circuit court properly dismissed the October 2006 appeals.

Whether LaConsay’s and Wetzel’s Second Appeals Were Barred by Their Failure to Petition for a Writ of Mandamus

In addition to concluding that LaConsay and Wetzel had failed to timely appeal from the probate court’s October 17, 2006, order dismissing their motions for litigation expenses as moot, the circuit court alternatively concluded that LaCon-say and Wetzel had failed to pursue mandamus relief from that order. Because LaConsay and Wetzel had not sought mandamus relief from the probate court’s October 17, 2006, order, the circuit court apparently concluded that LaConsay and Wetzel were barred from returning to the probate court to continue seeking recovery of those litigation expenses. We disagree.

“Mandamus is an extraordinary remedy. One petitioning for the writ of mandamus must show ‘(1) a clear legal right ... to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ”

Ex parte City of Irondale, 686 So.2d 1127, 1128 (Ala.1996) (quoting Ex parte Johnson, 638 So.2d 772, 773 (Ala.1994)). See also Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991); and Ex parte Edgar, 543 So.2d 682, 684 (Ala.1989).

As discussed above, LaConsay and Wet-zel did attempt to appeal from the probate court’s October 17, 2006, order, but the circuit court dismissed those appeals because the probate court had not resolved, on the merits, whether LaConsay and Wetzel were entitled to recover litigation expenses in the condemnation action.

Upon dismissal of their October 2006 appeals, LaConsay and Wetzel properly returned to the probate court for a ruling on their still pending motions for litigation expenses. The probate court subsequently ruled upon those pending motions, awarding litigation expenses to LaConsay and Wetzel. Langley appealed that award to the circuit court, and LaConsay and Wet-zel cross-appealed; those second appeals were timely and properly filed. See § 18-1A-283, AIa.Code 1975 (allowing parties to a condemnation action in the probate court 30 days in which to appeal to the circuit court for a de novo trial). See also Holman v. Bane, 698 So.2d 117, 120 (Ala.1997) (recognizing that an appeal filed within 30 days of the entry of an order awarding attorney fees was timely filed as to the issue of attorney fees); and Paulk v. McCarty, 855 So.2d 1123 (Ala.Civ.App. 2003) (recognizing a defendant’s right to appeal when a court fails to award litigation expenses in a condemnation action). In the second appeals, the circuit court erroneously concluded that the award of litigation expenses was improper because LaConsay and Wetzel had failed to timely appeal from the probate court’s October 17, 2006, order or, alternatively, because LaConsay and Wetzel had failed to seek mandamus relief from the probate court’s October 17, 2006, order.

We have already concluded that the first appeals were not untimely filed. Additionally, the probate court continued to have jurisdiction over the issue whether litigation expenses should be awarded. As a result of the probate court’s continuing jurisdiction over the issue, LaConsay and Wetzel continued to have an adequate remedy in the probate court. Thus, the filing of a petition for a writ of mandamus was unnecessary and, in fact, unwarranted.

Conclusion

LaConsay’s and Wetzel’s October 2006 appeals were not untimely filed, as the circuit court erroneously concluded in its June 2008 judgment. As recognized above, those first appeals were improper only because they were taken from a nonfi-nal judgment. Additionally, LaConsay and Wetzel had an adequate remedy available to them in the probate court because that court had continuing jurisdiction over the issue whether to award litigation expenses; therefore, LaConsay and Wetzel had no need to seek mandamus relief, and the second appeals were not barred as a result of LaConsay’s and Wetzel’s failure to file a petition for a writ of mandamus. Because the record reveals no other basis for affirming the summary judgment entered in favor of Langley, we reverse the circuit court’s summary judgment entered in favor of Langley and remand this cause to the circuit court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

PITTMAN, BRYAN, and THOMAS, JJ., concur.

THOMPSON, P.J., concurs in the result, without writing.

      . LaConsay’s name is shown in the record both as "Laconsay” and as "LaConsay.” We adopt the spelling used in her appellant's brief.

      . Section 18-1A-232, Ala.Code 1975, provides, in pertinent part:
      "(a) The court shall award the defendant his litigation expenses, in addition to any other amounts authorized by law, if the action is wholly or partly dismissed for any reason.
      "(c) Costs and litigation expenses authorized by this section may be claimed, taxed, and awarded under the same procedures that apply to costs in other civil actions.”

      .Although the parties refer to inconsistent dates as to when LaConsay and Wetzel appealed the probate court’s order and although the record itself contains some discrepancy as to the correct dates, LaConsay's and Wetzel's notices of appeal to the circuit court were stamped with the dates indicated above.

      . The second appeals to the circuit court were assigned to a different circuit court judge than the judge who had presided over the first appeals.


author: THOMAS, Judge.

text:
    Ex parte JEFFERSON COUNTY SHERIFF’S DEPARTMENT. (In re Jefferson County Sheriffs Department v. Felicia Y. Daniels).
    2070634.
    Court of Civil Appeals of Alabama.
    Jan. 23, 2009.

      Brent G. Grainger of Waldrep Stewart & Kendrick, LLC, Birmingham, for appellant.
    Kevin W. Jent of Wiggins, Childs, Quinn & Pantazis, LLC, Birmingham, for appel-lee.
   THOMAS, Judge.

The Jefferson County Sheriffs Department (“the Department”) petitioned this court for a common-law writ of certiorari to review whether the Jefferson Circuit Court erred by affirming an order of the Jefferson County Personnel Board (“the Board”) that rejected a hearing officer’s recommendation to uphold the termination of Felicia Y. Daniels’s employment.

Daniels, who had served as a Public Safety Dispatcher II for the Department, was notified in January 2005 that her employment would be terminated. Daniels appealed the termination to the Board, after which a hearing officer conducted a full hearing. On July 26, 2006, the hearing officer submitted a report containing findings of fact and a recommendation that the Board uphold the termination of Daniels’s employment.

After it received the hearing officer’s report, the Board heard closing arguments by Daniels and the Department on August 18, 2006. At the end of the hearing, Dr. Lita A. Clark, the chairperson of the Board, requested that the Board be given “up to 30 days to review all of the factual information and the exhibits.” The parties agreed to that request. On September 20, 2006, the Board rendered a decision rejecting the hearing officer’s report and the hearing officer’s recommendation to uphold the termination of Daniels’s employment.

On October 2, 2006, the Department appealed the Board’s order to the circuit court. On December 6, 2007, a three-judge panel of the circuit court affirmed the Board’s order. On December 11, 2007, the Department filed a post-judgment motion, which was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P., on March 10, 2008. On April 10, 2008, the Department petitioned this court for a common-law writ of certio-rari.

“ ‘[T]he proper method of reviewing circuit court decisions involving appeals from the Jefferson County Personnel Board is by common-law petition for writ of certiorari.’ Ex parte Personnel Bd. of Jefferson County, 513 So.2d 1029, 1031 (Ala.Civ.App.1987). ‘Review of the writ of certiorari in this court is limited to a consideration of the proper application of the law by the circuit court and whether that court’s decision is supported by the legal evidence.’ Copeland v. Personnel Bd. of Jefferson County, 498 So.2d 854, 855 (Ala.Civ.App.1986).”

Ex parte City of Birmingham, 992 So.2d 30, 32 (Ala.Civ.App.2008).

Citing Rule 12.6 of the Rules and Regulations of the Board and Ex parte City of Birmingham, supra, the Department argues that the Board’s September 20, 2006, decision rejécting the hearing officer’s report and the hearing officer’s recommendation was untimely. Rule 12.6 provides, in pertinent part:

“The Board, at the first regular or special meeting following the hearing, shall consider the Hearing Officer’s Report and Recommendation, and modify, alter, set aside or affirm said report and certify its findings to the Appointing Authority who shall forthwith put the same into effect. If the Board fails to act within 30 days after the receipt of the Hearing Officer’s Report and Recommendation, the Report and Recommendation shall become the order of the Board.”

In Ex parte City of Birmingham, supra, the hearing officer issued a report recommending that a firefighter who had been dismissed by the City be reinstated to his employment. The Board heard closing arguments on July 7, 2006, after which “the parties agreed to give the [Personnel] Board 30 additional days to make its decision.” 992 So.2d at 31. Four months later, on November 7, 2006, the Board issued an order rejecting the hearing officer’s report.

The firefighter sought judicial review. A three-judge circuit court panel entered a judgment vacating the Board’s order as untimely and ordering the City to reinstate the firefighter’s employment. On certiorari review, this court affirmed, holding that Rule 12.6 requires a personnel board to “decide a dismissed employee’s appeal,” 992 So.2d at 33 (emphasis added), by “ ‘modifying], altering], se[ting] aside or affirming]’ the hearing officer’s report” within the 30-day period provided for in the rule, or within an extension of that period agreed upon by the parties, Id. (quoting Ala. Acts 1945, Act No. 248, § 22, as amended by Ala. Acts 1977, Act No. 684).

Accordingly, in the present case, the Board was required to act upon the hearing officer’s report by Monday, September 18, 2006, because the 30th day following August 18, 2006, was September 17, 2006, a Sunday, see § 1-1-4, Ala.Code 1975, or to have “Rule 12.6 operate[ ] to make the hearing officer’s report the order of the Board,” see Ex parte City of Birmingham, 992 So.2d at 34.

Daniels argues that this case is distinguishable from Ex parte City of Birmingham because, she asserts, in this case the parties allowed the Board 30 additional days to review the evidence, whereas in Ex parte City of Birmingham the parties allowed the Board 30 additional days to render a decision. Daniels thus contends that September 18, 2006, marked the end of the agreed-upon 30-day period to review the evidence, but not the end of the time within which the Board was required to render a decision.

That the Board was given 30 extra days to “make its decision” in Ex parte City of Birmingham and the Board was given 30 extra days to “review the evidence” in this case is a distinction without a difference. Rule 12.6 requires the Board to “modify, alter, set aside, or affirm” the hearing officer’s report and recommendation. It further provides that if the Board “fails to act within 30 days after the receipt of the Hearing Officer’s Report and Recommendation, the Report and Recommendation shall become the order of the Board.” (Emphasis added.) As this court implicitly determined in Ex parte City of Birmingham, the word “act” in Rule 12.6 refers to the requirement that the Board “modify, alter, set aside, or affirm” the hearing officer’s report and recommendation. The “act” that is contemplated by Rule 12.6 is necessarily, therefore, the rendering of a decision.

Accordingly, the hearing officer’s report and recommendation that the termination of Daniels’s employment be upheld became “the order of the Board” by virtue of Rule 12.6. That order was not adverse to the Department. A party may appeal only an adverse ruling contained in a final judgment. Home Indem. Co. v. Anders, 459 So.2d 836, 842 (Ala.1984). “[W]here a judgment is wholly in a party’s favor and there is nothing prejudicial in the judgment no appeal lies to the prevailing party.” Personnel Bd. of Jefferson County v. Bailey, 475 So.2d 863, 865-66 (Ala.Civ.App.1985). “An appeal may be taken from a final judgment by either party ...; but, if there is nothing in the record prejudicial to the appellant, and the judgment is in his favor to the full extent claimed, there is nothing on which to predicate an appeal, and it is usual to dismiss it.” Hamrick v. Town of Albertville, 223 Ala. 216, 217, 135 So. 326, 326 (1931).

The circuit court erred by failing to dismiss the Department’s appeal. We therefore reverse the circuit court’s judgment and remand the cause with instructions that the circuit court vacate its order addressing the merits of Daniels’s employment termination and dismiss the Department’s appeal.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur.

      . Section 1-1-4 provides, in pertinent part:
      "Time within which any act is provided by law to be done must be computed by excluding the first day and including the last. However, if the last day is Sunday, or a legal holiday ..., or a day on which the office in which the act must be done shall close as permitted by any law of this state, the last day also must be excluded, and the next succeeding secular or working day shall be counted as the last day within which the act may be done.”