D.M.T.J.W.D. v. Lee County Department of Human Resources

109 So. 3d 1133, 2012 WL 5278478, 2012 Ala. Civ. App. LEXIS 296
CourtCourt of Civil Appeals of Alabama
DecidedOctober 26, 2012
Docket2110795
StatusPublished
Cited by7 cases

This text of 109 So. 3d 1133 (D.M.T.J.W.D. v. Lee County Department of Human Resources) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D.M.T.J.W.D. v. Lee County Department of Human Resources, 109 So. 3d 1133, 2012 WL 5278478, 2012 Ala. Civ. App. LEXIS 296 (Ala. Ct. App. 2012).

Opinion

BRYAN, Judge.

D.M.TJ.W.D. (“the mother”) appeals from a judgment of the Lee Juvenile Court (“the juvenile court”) that terminated her parental rights to two of her children. On appeal, the mother argues that the judgment terminating her parental rights is void because the juvenile court lacked personal jurisdiction over her. She also argues that the judgment is erroneous because it is based on inadmissible hearsay.

The record on appeal reveals the following pertinent facts and procedural history. On October 25, 2010, the Lee County Department of Human Resources (“DHR”) filed a petition to terminate the mother’s parental rights to three children:1 G.B.D.J. (“G.J”), born in March 1997; K.M.K.J. (“K.J.”), born in February 1998; and M.P.R.J. (“M.J.”), born in December 2000.2 In the petition, the mother’s address was listed as being in Phenix City, and DHR requested that the mother be served by personal service pursuant to Rule 4.1, Ala. R. Civ. P.

On November 10, 2010, the mother, through an attorney appointed on her behalf, filed an answer to DHR’s petition to terminate her parental rights and her first request for discovery from DHR.

On January 18, 2011, DHR filed an amended petition to terminate the mother’s parental rights. In the amended petition, DHR alleged that the mother’s parental rights to G.J. no longer needed to be terminated because he had been placed in a home with a relative. Thus, the only amendment to the October 2010 petition was to request a judgment terminating the mother’s parental rights to only K.J. and M.J.

On April 19, 2011, DHR filed a second amended petition to terminate the mother’s parental rights. In the April 2011 second amended petition, DHR requested that the mother’s parental rights to only M.J. be terminated because K.J. had been placed in a home with a relative.

On April 20, 2011, the mother filed a motion requesting leave to file an amended answer to DHR’s amended petition to terminate her parental rights. In the motion, the mother’s attorney alleged that he had not had contact with the mother since before DHR filed a petition to terminate the mother’s parental rights, that the mother’s whereabouts were unknown to him, and that he had become aware of certain defenses that the mother could raise. The juvenile court granted the mother’s motion for leave to file an amended answer. In her amended answer, the mother raised, for the first time, the defenses of lack of personal jurisdiction, improper venue, insufficiency of process, insufficiency of service of process, failure to state a claim upon which relief can be granted, and/or failure to join a necessary party. See Rule 12(b), Ala. R. Civ. P.

On April 22, 2011, DHR filed a motion to continue the termination hearing that had been scheduled for April 26, 2011, because the mother had not been served with the petition to terminate her parental rights. [1136]*1136The juvenile court granted DHR’s motion and rescheduled the final hearing for July 21, 2011.

On April 28, 2011, DHR filed a motion for service of process by publication on the mother and the alleged father of M.J. Attached to DHR’s motion was an affidavit alleging that the mother’s last known address was in Phenix City, that the mother’s present location was unknown, that a process server had been unable to personally serve the mother, that service of process had not been completed within 90 days of the filing of the petition to terminate the mother’s parental rights, that the child subject to the proceeding had been abandoned in Alabama, and that the mother’s whereabouts could not be ascertained by due diligence. On May 3, 2011, the juvenile court granted DHR’s motion to serve the mother by publication in the Auburn Villager and in the Citizen of East Alabama, two local newspapers in Auburn and Phenix City, respectively.

On July 12, 2011, the mother filed a second amended answer in response to DHR’s second amended petition to terminate the mother’s parental rights to M.J., raising the same Rule 12(b) defenses that had been raised in her first amended answer.

On July 21, 2011, the juvenile court conducted a hearing on DHR’s petition to terminate the mother’s parental rights to M.J., and the mother and her attorney were present at that hearing. At the hearing, the attorney for DHR stated on the record that the mother had been served by publication and that she had been personally served with process by a sheriffs deputy on the day of the hearing. The mother’s attorney stated that the mother was not waiving her service-of-process arguments by her presence at the hearing because, he alleged, she had been involuntarily brought to the hearing from the Lee County Jail.3 The mother’s attorney also argued that service of process by publication was improper because DHR had not shown “the diligence the state did in order to serve by publication.” The mother’s attorney asked that the action be dismissed, but, in light of the fact that the mother had been personally served on the morning of the hearing, he also requested a continuance of the hearing. The mother’s attorney alleged that the mother had been arrested two or three weeks earlier on a failure-to-pay-child-support charge, that he had made contact with her at the jail two weeks earlier, and that the mother had not been aware of the termination petition at that time.

DHR and MJ.’s guardian ad litem objected to the mother’s motion to continue. The juvenile court heard arguments from M.J.’s guardian ad litem and testimony from Beth Smith, a caseworker in the foster-care unit with DHR, about the mother’s failure to maintain contact with DHR and Smith’s inability to locate the mother using the last known address and telephone numbers that the mother had given DHR. Based on that evidence, the juvenile court denied the mother’s request for a continuance. After the juvenile court denied the motion to continue, the mother, under oath, stated that she waived her right to be present during the remainder of the proceedings and that she under[1137]*1137stood that she would not able to assist her attorney in her defense.

DHR began presenting its case through the testimony of Smith, who had been assigned the mother’s case in October or November 2010. Smith testified that M.J. had been placed in foster care on April 7, 2009. The mother’s attorney objected to Smith’s testifying regarding any event that occurred before she was assigned the case because she could not testify from personal knowledge. M.J.’s guardian ad litem attempted to submit DHR’s allegedly 600-page case file into evidence as a business record because the DHR caseworkers who had been assigned the case in 2009 and most of 2010 no longer worked for DHR. The juvenile court did not admit the entire case file, but it asked the parties to file briefs regarding its admissibility and continued the hearing to a later date.

On September 2, 2011, the mother filed an objection to a scheduled court date of September 22, 2011, and requested a later court date because she was, at that time, incarcerated in the Lee County Jail and wanted additional time to improve her circumstances. The court apparently granted that motion.

On September 9, 2011, DHR filed a third amended petition to terminate the mother’s parental rights. DHR alleged that a relative resource for KJ. was no longer available, that K.J. was in foster care, and that the mother’s parental rights to K.J. should be terminated.

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Cite This Page — Counsel Stack

Bluebook (online)
109 So. 3d 1133, 2012 WL 5278478, 2012 Ala. Civ. App. LEXIS 296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dmtjwd-v-lee-county-department-of-human-resources-alacivapp-2012.