J.B. v. Cullman County Department of Human Resources

225 So. 3d 66, 2016 WL 7321562, 2016 Ala. Civ. App. LEXIS 301
CourtCourt of Civil Appeals of Alabama
DecidedDecember 16, 2016
Docket2150853
StatusPublished

This text of 225 So. 3d 66 (J.B. v. Cullman 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
J.B. v. Cullman County Department of Human Resources, 225 So. 3d 66, 2016 WL 7321562, 2016 Ala. Civ. App. LEXIS 301 (Ala. Ct. App. 2016).

Opinion

DONALDSON, Judge.

J.B. (“the father”) appeals from a judgment of the Cullman Juvenile Court (“the juvenile court”) terminating his parental rights to A.B. (“the child”). We affirm the juvenile court’s judgment.

[68]*68T.B. (“the mother”) and the father are the unmarried parents of the child, who was born in August 2013. The mother is also the mother of K.B., the child’s half sister (“the sibling”). The Cullman County Department of Human Resources (“DHR”) became involved with the family, after receiving reports that they were living in an automobile and that the parents were abusing drugs. In December 2014, the juvenile court awarded custody of. the child and the sibling to DHR. The child and the sibling were ultimately placed with AR., the sibling’s paternal aunt. Because A.R. is not related, to the child, she and her spouse, T.R., became licensed foster parents so that the child and the sibling would not be separated.

On November 25, 2015, DHR filed in the juvenile court a petition seeking the'termination of the parental rights of the father and the mother.1 Two attempts to serve the summons and complaint on the father were unsuccessful. Thereafter, DHR filed a motion in which it sought leave to perfect service on the father by publication. In its motion and in an attached affidavit, DHR asserted that the whereabouts of the father were unknown. The juvenile court granted DHR’s request for service by publication, and notice of the proceedings was published in the Cullman Tribune for four consecutive weeks in March and April 2016.

On June 14, 2016, the father filed his first responsive pleading—a motion to dismiss—in which he argued that the service on him was not in compliance with § 12-15-318, Ala. Code 1975, because, he asserted, the affidavit submitted by DHR had been insufficient to prove the necessity of service by publication.2 The father asked for a hearing on the motion and for the “tejntry of an order dismissing DHR’s petition against [him] for lack of personal jurisdiction and insufficient service of process.”

A termination-of-parental-rights trial was held the next day on June 15, 2016. The judgment, entered on June 22, 2016, terminated the father’s parental rights and reads, in pertinent part:

“3. [T]he father ... was duly served with notice of [DHR’s] Petition to Terminate Parental Rights, pursuant to Alabama Code § 12—15—318, by order of this Court dated March 17, 2016.
“The Court expressly finds that [DHR] has used due diligence to explore other resources for placement of the [child] including relatives. The Court finds that placement of the [child] with relatives or some other resource is not a viable alternative to termination of parental rights since no appropriate resources exist for either temporary or permanent custody that would be in the best interest of the [child]. The parents mentioned possible relatives but no relatives appeared or testified.
“10. Testimony exhibited that relatives were contacted by DHR who declined an interview or declined to become involved.”

On June 28, 2016, the father filed a timely postjudgment motion pursuant to Rule 59, Ala. R. Civ. P. Although the juvenile court purported to deny the father’s postjudgment motion on July 14, 2016, it did not have jurisdiction to enter that order. See Rule 2(B), Ala. R. Juv. P. (providing that, absent certain exceptions not [69]*69relevant in this case, the failure of the juvenile court to render an order disposing of any pending postjudgment motion within 14 days constitutes a denial of such motion as of the date of the expiration of the period). The father’s postjudgment motion was denied by operation of law on July 12, 2016. The father had 14 days from July 12, 2016, to file his notice of appeal; thus, the father’s July 14, 2016, notice of appeal is timely. The father seeks this court’s review of whether the juvenile court erred by concluding that no alternative to termination of the father’s parental rights existed and by “granting DHR’s motion for service by publication.”

We first address whether the juvenile court lacked personal jurisdiction over the father because of the alleged insufficiency of service of process.

“‘Our supreme court has recognized that
“ ‘ “[o]ne of the requisites of personal jurisdiction over a defendant is ‘perfected service of process giving notice ‘to the defendant of the suit being brought.’ ‘When the service of process on the defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally.’ A judgment . rendered against a defendant in. the absence of personal jurisdiction over that defendant is void.”
“‘Horizons 2000, Inc. v. Smith, 620 So.2d 606, 607 (Ala. 1993) (citations omitted).’
“R.M. v. Elmore Cnty. Dep’t of Human Res., 75 So.3d 1195, 1199 (Ala. Civ. App. 2011).”

D.M.T.J.W.D. v. Lee Cty. Dep’t of Human Res., 109 So.3d 1133, 1140 (Ala. Civ. App. 2012).

Section 12-15-318, rather than Rule 4.3, Ala. R. Civ. P., governs the procedure for service by publication in a termination-of-parental-rights case. See L.K. v. Lee Cty. Dep’t of Human Res., 64 So.3d 1112, 1114 (Ala. Civ. App. 2010). Section 12-15-318 provides, in part:

“(c) Service of process by publication may not be ordered by the juvenile court unless at least one of the following conditions is met:
“(1) The child who is the subject of the proceedings was abandoned in the state, or ■
“(2) The state or private department or agency having custody of the child has established, by evidence presented to the juvenile court, .that the absent parent or parents are avoiding service of process or their whereabouts are unknown and cannot be ascertained with reasonable diligence.
“(d) Service shall be made by publication in a newspaper of general circulation in the .county of the juvenile court having jurisdiction and in the county of the last known address of the parent or parents of the abandoned child, at least once a week for four consecutive weeks.”3

In this case, DHR had asserted in its motion and supporting affidavit that the father’s whereabouts were unknown and that, with reasonable diligence, it had been [70]*70unable to ascertain his whereabouts. See § 12-15-318(c)(2). At the beginning of the termination-of-parental-rights trial, the juvenile court allowed the presentation of arguments regarding the father’s motion to dismiss. The father argued, as he had in his motion to dismiss, that service had been unsuccessfully attempted twice—the first summons and complaint had been returned “not served” because it was delivered to the home of his father, An.B. (“the paternal grandfather”), at which the father no longer resided, and the second summons and complaint had been returned with the notation “not in jail” after service had been attempted at the county detention center. The father argued that the affidavit of Christy Webb, a DHR employee, had contained “barebones allegations.” The father admitted that he had been “maybe difficult to locate,” but, he argued, he had not been attempting to avoid service.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Santosky v. Kramer
455 U.S. 745 (Supreme Court, 1982)
Columbus v. Dept. of Human Resources
523 So. 2d 419 (Court of Civil Appeals of Alabama, 1987)
Na v. Jh
571 So. 2d 1130 (Court of Civil Appeals of Alabama, 1990)
R.L.B. v. Morgan Cty. Dept. of H. R.
805 So. 2d 721 (Court of Civil Appeals of Alabama, 2001)
Matter of Moore
470 So. 2d 1269 (Court of Civil Appeals of Alabama, 1985)
DMP v. State Dept. of Human Resources
871 So. 2d 77 (Court of Civil Appeals of Alabama, 2003)
Horizons 2000, Inc. v. Smith
620 So. 2d 606 (Supreme Court of Alabama, 1993)
Jb v. Cleburne County Dept. of Human Res.
991 So. 2d 273 (Court of Civil Appeals of Alabama, 2008)
JC v. State Department of Human Resources
986 So. 2d 1172 (Court of Civil Appeals of Alabama, 2007)
Ex Parte Volkswagenwerk Aktiengesellschaft
443 So. 2d 880 (Supreme Court of Alabama, 1983)
D.M.T.J.W.D. v. Lee County Department of Human Resources
109 So. 3d 1133 (Court of Civil Appeals of Alabama, 2012)
C.M. v. Madison County Department of Human Resources
133 So. 3d 890 (Court of Civil Appeals of Alabama, 2013)
B.M. v. Jefferson County Department of Human Resources
183 So. 3d 157 (Court of Civil Appeals of Alabama, 2015)
Jefferson County Department of Human Resources v. L.S.
60 So. 3d 308 (Court of Civil Appeals of Alabama, 2010)
L.K. v. Lee County Department of Human Resources
64 So. 3d 1112 (Court of Civil Appeals of Alabama, 2010)
A.S. v. I.M.S.
73 So. 3d 1223 (Supreme Court of Alabama, 2011)
R.M. v. Elmore Cty. Dept. of Resources, 2091106 (ala.civ.app. 7-15-2011)
75 So. 3d 1195 (Court of Civil Appeals of Alabama, 2011)
C.M. v. Tuscaloosa County Department of Human Resources
81 So. 3d 391 (Court of Civil Appeals of Alabama, 2011)
L.M. v. D.D.F.
840 So. 2d 171 (Court of Civil Appeals of Alabama, 2002)
J.R. v. State Department of Human Resources
896 So. 2d 416 (Supreme Court of Alabama, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
225 So. 3d 66, 2016 WL 7321562, 2016 Ala. Civ. App. LEXIS 301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jb-v-cullman-county-department-of-human-resources-alacivapp-2016.