J.-M.S., as guardian ad Litem, for K.C.J., a minor child v. K.B.J. and R.G.J., Jr. (Appeal from Madison Juvenile Court: CS-12-900014.03).

• Court: Court of Civil Appeals of Alabama
• Decided: April 19, 2024
• Docket: CL-2022-1261
• Status: Published

Opinion

Rel: April 19, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2023-2024 _________________________

CL-2022-1261 _________________________

J.-M.S., as guardian ad litem, for K.C.J., a minor child

v.

K.B.J. and R.G.J., Jr.

Appeal from Madison Juvenile Court (CS-12-900014.03)

PER CURIAM.

J.-M.S., as the guardian ad litem for K.C.J. ("the child"), a minor

child, appeals from a judgment entered by the Madison Juvenile Court

("the juvenile court"). We dismiss the appeal. CL-2022-1261

In 2020, R.G.J., Jr., ("the father") filed a petition to modify custody

of the child, naming K.B.J. ("the mother") as the defendant. The father,

subsequently, notified the mother of his intent to call John Ruffin, the

child's licensed professional counselor, as an expert witness, at the final

hearing. The mother moved to exclude Ruffin's testimony pursuant to

Rule 503A(b), Ala. R. Evid. 1 On August 11, 2022, the juvenile court

appointed J.-M.S. to serve as a guardian ad litem in the action for the

limited purpose of representing the interests of the child regarding the

mother's request to exclude Ruffin's testimony.

On August 12, 2022, the juvenile court conducted a hearing on the

mother's motion to exclude Ruffin's testimony. In response to the

mother's objection to Ruffin's testimony, the guardian ad litem stated:

"Your Honor, with regard to the privilege, I have spoken with [the child]. [H]e is not uncomfortable with Mr. Ruffin's testimony. And, moreover, I think it would be in [the child's] best interest for this court to hear Mr. Ruffin's testimony. So I would, on behalf of [the child], waive the privilege as [the child's] guardian ad litem."

1Rule 503A(b), Ala. R. Evid., provides: "A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, a confidential communication made for the purpose of facilitating the rendition of counseling services to the client." 2 CL-2022-1261

The juvenile court granted the mother's request to exclude Ruffin's

testimony.

The case proceeded to trial, and, on December 12, 2022, the juvenile

court entered a final judgment that provided, in pertinent part, that it

had excluded Ruffin's testimony based on Ex parte Johnson, 219 So. 3d

655 (Ala. Civ. App. 2016). On December 20, 2022, J.-M.S., on behalf of

the child, filed a notice of appeal, naming the mother and the father as

the appellees.

In her brief to this court, J.-M.S. contends that this court should

address a question of first impression: whether a guardian ad litem may

waive the counselor-client privilege found in Rule 503A(b) on behalf of a

child whose best interests the guardian ad litem is appointed to protect.

Cf. Ex parte Cortez, 360 So. 3d 702 (Ala. Civ. App. 2022); Ex parte Sims,

261 So. 3d 1207 (Ala. Civ. App. 2018); and Ex parte Sims, 246 So. 3d 155

(Ala. Civ. App. 2017)(cases refusing to consider whether a guardian ad

litem can waive an evidentiary privilege based on justiciability or

procedural grounds). J.-M.S. cites numerous cases from other

jurisdictions that have held that a guardian ad litem should be allowed

to waive an evidentiary privilege in these circumstances. See Garcia v.

3 CL-2022-1261

Guiles, 254 So. 3d 637 (Fla. Dist. Ct. App. 2018); L.A.N. v. L.M.B., 292

P.3d 942 (Colo. 2013); Bond v. Bond, 887 S.W.2d 558 (Ky. Ct. App. 1994);

Nagle v. Hooks, 296 Md. 123, 460 A.2d 49 (1983); and In re Zappa, 6 Kan.

App. 2d 633, 631 P.2d 1245 (1981). However, before we can consider the

issue presented, we must first address whether a guardian ad litem may

validly appeal an order denying the guardian ad litem's purported waiver

of a privilege on behalf of a child.

Section 12-15-601, Ala. Code 1975, of the Alabama Juvenile Justice

Act, § 12-15-101 et seq., Ala. Code 1975, provides, in pertinent part: "A

party ... has the right to appeal a judgment or order from any juvenile

court proceeding pursuant to this chapter." Unequivocally, § 12-15-601,

establishes that only a party may appeal from a judgment or order

entered in juvenile proceedings. See J.T. v. Chambers Cnty. Dep't of

Hum. Res., [Ms. CL-2022-0687, Apr. 14, 2023] ___ So. 3d ___, ___ (Ala.

Civ. App. 2023).

When a juvenile court appoints a guardian ad litem for a child in a

dependency or termination-of-parental-rights case, the guardian ad litem

becomes a party to the case. See § 12-15-304(a), Ala. Code 1975)("In all

dependency and termination of parental rights proceedings, the juvenile

4 CL-2022-1261

court shall appoint a guardian ad litem for a child who is a party to the

proceedings and whose primary responsibility shall be to protect the best

interests of the child."). The legislature, however, has not enacted a

similar statute providing that a guardian ad litem becomes a party in a

child-custody-modification action that is commenced in the juvenile

court. Consequently, because the juvenile court, in this case, was

exercising its jurisdiction in a custody-modification action, and not in a

dependency or termination-of-parental-rights action, its appointment of

a guardian ad litem did not make the guardian ad litem a party in this

action.

Significantly, J.-M.S. recognized that she was not a party in the

action and did not file her notice of appeal as a party to the judgment. In

her notice of appeal, she specifically stated that she was appealing "on

behalf of [the child]." We acknowledge that some of our caselaw indicates

that a representative of a party may appeal on behalf of a party. See,

e.g., Strong v. Slate, 260 So. 3d 41, 44 (Ala. Civ. App. 2018). However, in

this case the child was not a party to the underlying action. As this court

explained in Leigh v. Aiken, 54 Ala. App. 620, 311 So. 2d 444 (1975),

although a child may be the subject of a child-custody action with an

5 CL-2022-1261

interest in its outcome, the child does not thereby become a party to the

action. See Jones v. McCoy, 150 So. 3d 1074, 1081 (Ala. Civ. App.

2013)(noting that a child ordinarily is not characterized as a party in a

custody action.) Additionally, the legislature has not enacted a statute

that makes a child a party in a juvenile-court proceeding to modify a

child's custody. In Aiken, supra, this court held that it could not consider

any amicus briefs filed on behalf of a child in the appeal from a judgment

entered in a child-custody proceeding because the child was not a party

to the underlying child-custody case. Likewise, this court cannot consider

an appeal from a guardian ad litem purporting to advance the interests

of a child who was not a party to the underlying custody-modification

action. Thus, even if § 12-15-601 impliedly allowed a "representative of

a party" to appeal a juvenile court's judgment, that statute does not

authorize a guardian ad litem to appeal the judgment on behalf of a child

who is not a party to the case.

Our determination is in accord with other states that have

recognized that a child is not a party to a custody proceeding and have

held that, in the absence of a special statutory provision, a guardian ad

litem cannot appeal a child-custody judgment as a representative of the

6 CL-2022-1261

child, see Rowe v. Rowe, 218 P.3d 887 (Okla. 2009), or even participate

in the appellate proceedings on behalf of the child. See Perez v. Perez,

769 So. 2d 389, 394 (Fla. Dist. Ct. App. 1999).

"The right to appeal is purely statutory, and an appeal taken

without statutory authority must be dismissed for want of jurisdiction."

Hallman v. City of Northport, 386 So. 2d 756, 757 (Ala. Civ. App. 1980).

Section 12-15-601 does not authorize a guardian ad litem, who is neither

a party nor a representative of a party, to appeal an order or judgment

entered in a juvenile-court proceeding involving a custody-modification

action. Because J.-M.S. was not a party or a representative of a party in

the underlying action, she is not authorized to appeal the juvenile court's

judgment. Consequently, this court's jurisdiction has not been invoked,

and we must dismiss this appeal.

APPEAL DISMISSED.

Moore, P.J., and Edwards, Hanson, and Fridy, JJ., concur.

Lewis, J., concurs in the result, without opinion.