J.Q. v. Calhoun County Department of Human Resources

• Court: Court of Civil Appeals of Alabama
• Decided: June 27, 2025
• Docket: CL-2025-0067
• Status: Published

Opinion

Rel: June 27, 2025

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, 2024-2025 _________________________

CL-2025-0067 _________________________

J.Q.

v.

Calhoun County Department of Human Resources __________________________

CL-2025-0068 ___________________________

T.A.

Calhoun County Department of Human Resources

Appeals from Calhoun Juvenile Court (JU-19-771.03) CL-2025-0067 and CL-2025-0068

MOORE, Presiding Judge.

J.Q. ("the father") and T.A. ("the mother") separately appeal from a

judgment entered by the Calhoun Juvenile Court ("the juvenile court")

terminating their parental rights to A.Q. ("the child"). We reverse the

juvenile court's judgment and remand the case for a new trial and for

further proceedings consistent with this opinion.

The child was born on May 29, 2019. In 2022, the Calhoun County

Department of Human Resources ("DHR") commenced dependency

proceedings relating to the child. On August 30, 2022, the juvenile court

adjudicated the child to be a dependent child. The juvenile court

appointed counsel for each parent in the dependency proceedings. At

some point in October or November 2024, the father discharged his court-

appointed counsel, and the juvenile court did not appoint replacement

counsel for him. The mother's court-appointed counsel represented her

in the dependency proceedings until being relieved by a court order

entered on November 20, 2024.

On October 2, 2024, DHR filed a petition to terminate the parental

rights of the parents to the child. The petition was assigned to the same

juvenile-court judge who had presided over the dependency proceedings

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relating to the child. The record reflects that the parents were served

with the termination-of-parental-rights petition on October 8, 2024,

while the dependency proceedings remained pending. Along with the

petition, the parents were served with a document entitled "Notice of

Right to Counsel," which provided, in pertinent part:

"A parent has the right to representation of an attorney in a dependency or termination of parental rights trial. If the parent is indigent the parent can apply for a Court appointed attorney by completing an Affidavit of Substantial Hardship. Application must be completed promptly and no later than 30 days prior to the trial date. The Affidavit of Substantial Hardship can be obtained at the Calhoun County Courthouse, 24 West 11th Street, Anniston, Alabama at (1) the Clerk's Office on the 5th Floor ... or (2) at Suite 210 on the 2nd floor in the Judicial Assistant's Office ...."

On November 13, 2024, the juvenile court scheduled the trial of the case

for January 27, 2025.

The father and the mother appeared on January 27, 2025, the

scheduled trial date. The following colloquy occurred at the

commencement of the trial proceedings:

"[The Juvenile Court]: The Court will note that the mother was served with notice of this proceeding on October the 8th, 2024, and that the father ... was served with notice of this proceeding on 10/8/2024.

"The Court will also note that notice of the proceeding provided both parents that they had the right to apply for a

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court-appointed attorney, and that if they wish[ed] to do so, they needed to do so immediately. The Court will note that neither parent has made an application for a court-appointed attorney. I assume y'all are waiving that right here today?

"[The mother]: No, ma'am I filled mine out I just I don't know if I got anything back in the mail or not.

"[The Juvenile Court]: You didn't turn it in. You left with it.

"[The mother]: I came back and turned it in the next day.

"[The Juvenile Court]: Well, it never got filed in, ma'am. I don't know who you left it with, but we never saw it. So you do wish to have a court-appointed attorney?

"[The mother]: Yes, ma'am.

"[The Juvenile Court]: All right [father], same question to you. You've been served with notice since October the 8th. Are you waiving your right here today, or do you wish for a court-appointed attorney?

"[The father]: Court-appointed lawyer.

"[The Juvenile Court]: Court-appointed lawyer. We will take a short adjournment then until we can get lawyers down here. Makes no sense to wait until the day of trial to ask for an attorney to be appointed. We'll get somebody down here though."

The record shows that the juvenile court recessed the trial and that

the father and the mother each filed an affidavit of substantial hardship

establishing their indigency. The juvenile court appointed separate

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counsel for the father and the mother. Once the trial proceedings

resumed, the appointed counsel for the father and the mother requested

a continuance, which the juvenile court denied. The record shows as

follows:

"[The father's counsel]: Your Honor, I would like to make a motion to continue these proceedings if I could, please. I was appointed this morning. I understand that the Court just noted that [the father] didn't fill out a hardship affidavit until today. He's had some transportation issues and things of that nature, and since it is a termination of parental rights case, just to protect his rights, I would request that the Court grant a brief continuance of the trial of this matter.

"[The Juvenile Court]: Response from the State?

"[DHR's counsel]: [The father] was properly served with notice to apply for counsel as soon as possible. In fact, I think that had a time limit on it. That time limit had run. I don't even think he's entitled to counsel today. However, he has been appointed, but I would say, given he has counsel with him today, let's move on.

"[The Juvenile Court]: Okay. And that's my inclination as well, [father's counsel]. I understand it might put you at a little bit of a disadvantage, but it's a disadvantage created by your client.

"[Father's counsel]: Yes, ma'am.

"[The Juvenile Court]: Motion to continue would be denied. Any other motions or stipulations?

"[Mother's counsel]: Judge, the [mother] would have a similar motion.

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"[The Juvenile Court]: And the same answer for the mother."

After denying the motions for a continuance, the juvenile court

conducted a bench trial at which DHR called 10 witnesses and submitted

7 exhibits. The appointed counsel for the father and the mother cross-

examined the witnesses and agreed to the introduction of the exhibits

without objection. At the conclusion of the trial, the juvenile court

indicated that it would grant the petition to terminate the parental rights

of the father and of the mother to the child. Later that afternoon, the

juvenile court entered a final judgment terminating the parents' parental

rights, noting again that the father and the mother did not apply for

court-appointed counsel until the trial date. On January 29, 2025, the

father filed a postjudgment motion to alter, amend, or vacate the

judgment, which the juvenile court denied on January 30, 2025. The

father and the mother timely appealed.

On appeal, the father and the mother argue, among other things,

that their appointed counsel, having been appointed on the morning of

the trial, did not have sufficient time to adequately prepare their defense

and that the juvenile court should have continued the trial to assure that

they received effective assistance of counsel. The father and the mother

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recognize that the juvenile court is vested with sound discretion to deny

a motion for a continuance, but they argue that the juvenile court's

judgment should be reversed based on the juvenile court's abusing its

discretion in this case. See Ex parte H.P.W., 628 So. 2d 514, 517 (Ala.

1993) (holding "that the disposition of a motion for a continuance is

vested in the sound discretion of the trial court and that its ruling will

not be disturbed on appeal, except upon a clear showing of abuse of

discretion"). "A court abuses its discretion when ' "it has committed a

clear or palpable error, without the correction of which manifest injustice

will be done." ' Clayton v. State, 244 Ala. 10, 12, 13 So. 2d 420, 422 (1942)

(quoting 16 C.J. [Criminal Law, p.] 453 [(1918)])." V.G.J. v. Tuscaloosa

Cnty. Dep't of Hum. Res., 368 So. 3d 886, 892 (Ala. Civ. App. 2022).

"The termination of parental rights is a solemn matter that

deserves the law's utmost protection." Ex parte E.D., 777 So. 2d 113, 116

(Ala. 2000). In a termination-of-parental-rights proceeding, the

fundamental rights of the parents to maintain a relationship with their

natural child is at stake. See Santosky v. Kramer, 455 U.S. 745 (1982).

In Ex parte Shuttleworth, 410 So. 2d 896, 899 (Ala. 1981), our supreme

court recognized that the portentous nature of termination-of-parental-

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rights proceedings should require the state to provide appointed counsel

to an indigent parent. That right is now codified at Ala. Code 1975, § 12-

15-305(b), which provides:

"In dependency and termination of parental rights cases, the respondent parent, legal guardian, or legal custodian shall be informed of his or her right to be represented by counsel and, if the juvenile court determines that he or she is indigent, counsel shall be appointed where the respondent parent, legal guardian, or legal custodian is unable for financial reasons to retain his or her own counsel."

The obvious purpose of § 12-15-305(b) is to ensure that indigent parents

facing termination of their parental rights receive meaningful legal

representation. See D.A. v. Calhoun Cnty. Dep't of Hum. Res., 976 So.

2d 502, 505 (Ala. Civ. App. 2007) ("Inherent in that right to legal

representation is the right to effective assistance of counsel.").

In this case, the juvenile court appointed counsel for the father and

the mother only minutes before the commencement of the trial on the

petition to terminate their parental rights. The juvenile court did not

appoint the same counsel who had represented the father and the mother

in the dependency proceedings; instead, it appointed two new lawyers

unfamiliar with the case. The juvenile court did not grant appointed

counsel a meaningful opportunity to familiarize themselves with the

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facts of the case and the legal issues involved. The appointed counsel

certainly did not receive a reasonable amount of time to adequately

prepare for the trial. See Payne v. State Dep't of Hum. Res., 532 So. 2d

1263 (Ala. Civ. App. 1988) (holding that a juvenile court abused its

discretion in denying a motion to continue a hearing in a child-in-need-

of-supervision case in which the child's guardian ad litem was appointed

only 3 days before the hearing and had only 45 minutes to review

documents the state introduced at the hearing). Our legislature has

indicated that termination-of-parental-rights proceedings should be

resolved expeditiously so that dependent children can receive

permanency. See Ala. Code 1975, § 12-15-320. However, "a myopic

insistence upon expeditiousness in the face of a justifiable request for

delay can render the right to defend with counsel an empty formality,"

Ungar v. Sarafite, 376 U.S. 575, 589 (1964), and "permanency for a

dependent child cannot be achieved through the sacrifice of a parent's

right to effective assistance of counsel in a termination-of-parental-rights

proceeding." V.G.J., 368 So. 3d at 892.

The juvenile court justified its decision to immediately proceed with

the trial by pointing out repeatedly that the father and the mother had

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not timely applied for appointed counsel. However, § 12-15-305(b) does

not specify the procedure a parent must follow to apply for court-

appointed counsel in a termination-of-parental-rights proceeding. In J.S.

v. J.C., 181 So. 3d 1067 (Ala. Civ. App. 2015), an attorney retained to

represent a respondent parent in a termination-of-parental-rights

proceeding filed a motion to withdraw, indicating that the parent could

not afford to pay him because of his indigency and requesting that the

Walker Juvenile Court appoint replacement counsel. The parent did not

file an affidavit of substantial hardship or any other formal request to

proceed in forma pauperis. This court held that, despite the

informalities, the juvenile court was effectively put on notice that the

parent was claiming that he was indigent and that it had a duty under §

12-15-305(b) to determine his indigency and appoint counsel.

In this case, the juvenile court had already determined that the

father and the mother were indigent and had appointed each of them

counsel in the dependency proceedings. At the time of the filing of the

termination-of-parental-rights petition on October 2, 2024, both the

father and the mother were still represented by appointed counsel in the

dependency proceedings because of their ongoing indigency.

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Nevertheless, along with the termination-of-parental-rights petition, the

parents were served with the "Notice of Right to Counsel," which directed

the father and the mother to file an affidavit of substantial hardship to

again prove their indigency. See J.A.H. v. Calhoun Cnty. Dep't of Hum.

Res., 846 So. 2d 1093, 1095 (Ala. Civ. App. 2002) ("[W]e find it unduly

burdensome and overly technical to require a parent to repeatedly

request the appointment of counsel when he or she has previously

requested counsel and has already proven his or her entitlement to such

counsel."). Under these particular circumstances, we cannot hold that

the failure of the father and the mother to comply with the requirement

of the notice to submit new affidavits of substantial hardship should have

been fatal to their right to receive effective assistance of counsel.

We find nothing in the record to show that the father and the

mother deliberately delayed their requests for appointed counsel for the

purpose of hindering the termination-of-parental-rights proceedings or

that the motions for a continuance were not made by their appointed

counsel in good faith. Given the gravity of the proceedings, the juvenile

court should have exercised its discretion to continue the trial to allow

the appointed counsel adequate time to prepare.

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The juvenile court abused its discretion by requiring the father and

the mother to proceed to trial with newly appointed counsel on such short

notice. We, therefore, reverse the judgment and remand the case for the

juvenile court to conduct a new trial, giving the father and the mother,

and their appointed counsel, adequate notice of the new trial date. See

Rule 13(A)(2), Ala. R. Juv. P. On remand, the juvenile court may also

conduct any other proceedings consistent with this opinion.

CL-2025-0067 -- REVERSED AND REMANDED WITH

INSTRUCTIONS.

CL-2025-0068 -- REVERSED AND REMANDED WITH

Edwards, Hanson, Fridy, and Bowden, JJ., concur.