J.S. v. J.C.

181 So. 3d 1067, 2015 Ala. Civ. App. LEXIS 103, 2015 WL 2161156
CourtCourt of Civil Appeals of Alabama
DecidedMay 8, 2015
Docket2140065
StatusPublished
Cited by11 cases

This text of 181 So. 3d 1067 (J.S. v. J.C.) 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.S. v. J.C., 181 So. 3d 1067, 2015 Ala. Civ. App. LEXIS 103, 2015 WL 2161156 (Ala. Ct. App. 2015).

Opinion

MOORE, Judge.

• J.S. (“the father”) appeals from a judgment of the Walker Juvenile Court (“the juvenile court”) terminating his parental rights to K.T.S. (“the child”), asserting that the juvenile court erred in failing to provide him with appointed counsel both before the juvenile court and on appeal. We remand the case to the juvenile court;

On August 8, 2014, J.C. and C.C., the child’s maternal uncle and aunt,. respectively, filed a petition to terminate the father’s parental rights to the child. The fathér, through counsel, filed an answer to the petition on August 19, 2014. .On September 22, 2014, the father’s attorney filed a motion to withdraw, in which he indicated, among other things, that the' father wished for him to withdraw as his attorney, that the father was incarcerated in the Limestone Correctional Facility, that the father was indigent and could not pay the attorney for representation, and that the father requested that the juvenile court appoint him another attorney to represent him in the present case. The juvenile court .granted the motion in part, allowing the father’s attorney to withdraw, by a notation on the motion dated September 29, 2014.

On October 16, 2014, the juvenile court entered a final judgment, terminating the parental rights of the father. In that judgment, the juvenile court noted, among other things, that the father’s attorney had withdrawn as the father’s counsel, that the father’s attorney had requested that the father , receive a court-appointed attorney, and that the father had not been appointed an attorney.

The father filed his notice of appeal to this court on October 22, 2014. The father argues on appeal that the juvenile court erred in failing to appoint him an attorney, both at the hearing on the termination of his parental rights and on appeal, and that his due-process rights were violated as a result. J.C. and C.C. argue, citing D.A. v. Calhoun County Department of Human Resources, 976 So.2d 502 (Ala.Civ.App.2007), that the father failed to preserve this issue for review on appeal. In D.A., this court affirmed a judgment terminating the pai-ental rights of the father in that case, in which the juvenile court had dismissed the father’s appointed attorney before conducting the termination-of-parental-rights hearing. This court stated, in pertinent part:

“The oft-quoted and long-standing rule is that an appellate court may not consider an issue raised for the first time on appeal. See Ex parte Weaver, 871 So.2d 820, 823 (Ala.2003); W.C. v. State Dep’t of Human Res., 887 So.2d 251 (Ala.Civ.App.2003); and Centers v. Jackson County Dep’t of Pensions & Sec., 472 So.2d 1069, 1070 (Ala.Civ.App.1985). ‘ “[A juvenile] court should not be placed in error [by an appellate court] on matters which the record reveals it neither ruled upon nor was presented the oppor[1069]*1069tunity to rule upon’” at trial or in a postjudgment motion. J.K v. Lee County Dep’t of Human Res., 668 So.2d 813, 817 (Ala.Civ.App.1995) (quoting Wilson v. State Dep’t of Human Res., 527 So.2d 1322, 1324 (Ala.Civ.App.1988)); see also Norman v. Bozeman, 605 So.2d 1210, 1214 (Ala.1992).”

976 So.2d at 504.

The father cites J.A.H. v. Calhoun County Department of Human Resources, 846 So.2d 1093 (Ala.Civ.App.2002), in which this court concluded that, because the defendant in that case had previously completed an affidavit of substantial hardship and had requested that an attorney.be appointed to represent him, the defendant was not required to repeatedly request assistance of counsel upon the dismissal of the attorney who was initially appointed by the court. 846 So.2d at 1095. In the present case, the father’s attorney filed a motion to withdraw and requested that the father be appointed an attorney because the father was indigent. The juvenile court granted that motion in part, allowing the attorney to withdraw, and later noted in its judgment that the father had requested that an attorney be appointed to represent him but that he had not been appointed an attorney.

“ ‘ “To preserve an issue for appellate review, the issue must be timely raised and specifically presented to the trial court and an adverse ruling obtained.” Mitchell v. State, 913 So.2d 501, 505 (Ala.Crim.App.2005). The purpose of requiring an issue to be preserved for review is to allow the trial court the first opportunity to correct any. error. See, e.g., Ex parte Coulliette, 857 So.2d 793 (Ala.2003).’ ”

Ex parte Malone, 12 So.3d 60, 66 (Ala.2008). In the present case, the father, via his attorney, presented his request to the juvenile court for the appointment of counsel, and, by the juvenile ■ court’s granting the motion, in.part and..allowing the father’s attorney to withdraw.and noting in its judgment that the father had requested an attorney but that. one had not been appointed, an adverse ruling was obtained such that the father’s argument on appeal was properly preserved.

J.C. and C.C. argue that the father never personally requested the appointment of substitute counsel nor attempted to demonstrate indigency. Section 12-15-305, Ala.Code 1975, provides:

“(a)-Upon request and a finding of indigency, the juvenile court may appoint an attorney to represent the petitioner and may order recoupment of the fees of the attorney to be paid to the State of Alabama.
“(b) In dependency and termination of parental rights' cáses, 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.”

According to that statute, the father, as the respondent parent, was not required to request the appointment of counsel; rather, the juvenile court was required to inform the father of his right to be represented by counsel, and, upon a determination of indigency, the juvenile court was required to appoint the father counsel if he was unable to retain his own counsel for financial reasons. In the present case, the father’s attorney sought appointment of counsel for the father; the father was not required by § 12-15-305(b) to personally make that request, as asserted by J.C. and C.C. See, e.g., T.G. v. Houston Cnty. Dep’t of Human Res., 6 So.3d 1182, 1184 [1070]*1070n. 2 (Ala.Civ.App.2008) (in which the Department of Human Resources requested, pursuant to former § 12-15-63, Ala.Code 1975, that the juvenile court appoint counsel to represent the respondent parent).

Although J.C. and C.C. are correct that, other than the assertions made by the father’s attorney in his motion to withdraw, the father failed to make a further showing of indigency, the juvenile court had before it information indicating that the father had been unable to pay his retained counsel. The father’s attorney indicated that the father was without income both before and during his incarceration and that he had not paid the attorney for representation; those facts indicate that the father was unable to retain his own counsel for financial reasons. See R.H. v. D.N.,

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Cite This Page — Counsel Stack

Bluebook (online)
181 So. 3d 1067, 2015 Ala. Civ. App. LEXIS 103, 2015 WL 2161156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/js-v-jc-alacivapp-2015.