Rel: January 10, 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-2024-0638 _________________________
L.S.H.
v.
T.J. and L.J.
Appeal from Cullman Juvenile Court (JU-24-81.01)
LEWIS, Judge.
L.S.H. ("the mother") appeals from a judgment entered by the
Cullman Juvenile Court ("the juvenile court") finding L.M. ("the child"),
who was born in April 2022, dependent and awarding custody of the child CL-2024-0638
to T.J. and L.J. (collectively "the paternal grandparents"). We reverse
the juvenile court's judgment and remand this cause with instructions.
Procedural History
On February 5, 2024, the paternal grandparents filed in the
juvenile court a petition seeking to have the child declared dependent and
an award of custody of the child. On February 26, 2024, Nicholas Shabel
filed a notice of appearance as counsel of record for the mother. On April
15, 2024, Shabel filed a motion to withdraw as counsel of record for the
mother because he had secured new employment in Rochester,
Minnesota. On April 16, 2024, Shelbie Hankey filed a notice of
appearance as counsel of record for the mother. On May 16, 2024,
Hankey moved to withdraw as counsel of record for the mother on the
ground that the mother was "not able to afford an attorney." In her
motion to withdraw, Hankey indicated that the mother would file an
affidavit of hardship to have an attorney appointed to her.
On June 13, 2024, the mother filed in the juvenile court an affidavit
of substantial hardship, asserting that she was financially unable to hire
an attorney and requesting that the juvenile court appoint an attorney to
represent her. On June 17, 2024, the juvenile court entered an order
2 CL-2024-0638
denying the mother's affidavit of hardship. In its order denying the
mother's affidavit, the juvenile court stated, "AFFIDAVIT OF
SUBSTANTIAL HARDSHIP filed by [the mother] is hereby DENIED as
this case is a private petition." (Capitalization in original.) A trial was
conducted by the juvenile court later that day, and the mother appeared
without the assistance of counsel.
On July 10, 2024, the juvenile court entered a final judgment that,
among other things, found the child dependent and awarded the paternal
grandparents custody of the child. On July 23, 2024, Hankey again filed
a notice of appearance as counsel of record for the mother. 1 On July 24,
2024, the mother, through counsel, filed a motion to alter, amend or
vacate or, in the alternative, for a new trial, pursuant to Rule 59, Ala. R.
Civ. P. In her postjudgment motion, the mother argued, among other
things, that
"7. The [juvenile c]ourt failed to uphold its statutory duty as mandated by the Code of Alabama [1975], specifically § 12-15-305, by not informing the mother of her right to counsel during trial proceedings. § 12-15-305 applies to all dependency actions, even private petitions.
1Hankey's notice of appearance did not include an explanation concerning whether the mother was now paying her for her services. 3 CL-2024-0638
"8. Upon denial of the motion to have court appointed representation and without the [juvenile c]ourt informing the mother of her right to counsel, the mother was unaware of her right to legal representation and therefore was unable to adequately represent her interests and those of her minor child during the trial.
"9. As a result of the [juvenile c]ourt's failure to inform the mother of her right to counsel, the mother was prejudiced and unable to present her case effectively.
"10. The lack of legal representation significantly impaired the mother's ability to navigate the legal complexities of the dependency proceedings, resulting in an unjust outcome."
The mother's postjudgment motion was denied by operation of law on
August 7, 2024. See Rule 1(B), Ala. R. Juv. P. The mother timely filed
her notice of appeal to this court on August 14, 2024.
Discussion
On appeal, the mother first argues that the juvenile court violated
her statutory rights under Ala. Code 1975, § 12-15-305, by failing to
inform her of her right to legal counsel in the dependency proceeding and
by not appointing her counsel despite her indigency. Section 12-15-
305(b), Ala. Code 1975, 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,
4 CL-2024-0638
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."
Further, " '[t]he right of [a] parent[] of [a] child in a dependency case to
be represented by counsel at every stage of the proceeding is a
fundamental one protected by statute and court decision.' " R.H. v. D.N.,
5 So. 3d 1253, 1254-55 (Ala. Civ. App. 2008) (quoting Smoke v. State,
Dep't of Pensions & Sec., 378 So. 2d 1149, 1150 (Ala. Civ. App. 1979)).
Here, it is clear from the record that the juvenile court had before
it information indicating that the mother was unable to pay her retained
counsel for services rendered. Although the mother's first retained
counsel withdrew due to new employment in a different state, the
mother's second retained counsel withdrew on the ground that the
mother was "not able to afford an attorney." Thereafter, the mother filed
an affidavit of substantial hardship, asserting that she was financially
unable to hire an attorney and requesting that the juvenile court appoint
an attorney to represent her.
The juvenile court did not make a determination of the mother's
indigency but, instead, denied the mother's request to appoint her
counsel on the basis that "this case is a private petition." However, the
5 CL-2024-0638
plain language of § 12-15-305(b), which requires the appointment of
counsel for an indigent parent, legal guardian, or legal custodian in
dependency and termination-of-parental rights proceedings, makes no
distinction between a private petition brought on behalf of a private party
and a petition brought on behalf of the State. If the juvenile court
determined that the mother was indigent, it was required to appoint an
attorney to represent her regardless of whether the petition was filed by
the State or a private party. Therefore, we conclude that the juvenile
court's ruling denying the mother's request for an appointed attorney was
inconsistent with § 12-15-305. See R.H., 5 So. 3d at 1255, 1258 (holding
that the juvenile court erred by not appointing an attorney to represent
a parent in a dependency proceeding where that parent "submitted two
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Rel: January 10, 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-2024-0638 _________________________
L.S.H.
v.
T.J. and L.J.
Appeal from Cullman Juvenile Court (JU-24-81.01)
LEWIS, Judge.
L.S.H. ("the mother") appeals from a judgment entered by the
Cullman Juvenile Court ("the juvenile court") finding L.M. ("the child"),
who was born in April 2022, dependent and awarding custody of the child CL-2024-0638
to T.J. and L.J. (collectively "the paternal grandparents"). We reverse
the juvenile court's judgment and remand this cause with instructions.
Procedural History
On February 5, 2024, the paternal grandparents filed in the
juvenile court a petition seeking to have the child declared dependent and
an award of custody of the child. On February 26, 2024, Nicholas Shabel
filed a notice of appearance as counsel of record for the mother. On April
15, 2024, Shabel filed a motion to withdraw as counsel of record for the
mother because he had secured new employment in Rochester,
Minnesota. On April 16, 2024, Shelbie Hankey filed a notice of
appearance as counsel of record for the mother. On May 16, 2024,
Hankey moved to withdraw as counsel of record for the mother on the
ground that the mother was "not able to afford an attorney." In her
motion to withdraw, Hankey indicated that the mother would file an
affidavit of hardship to have an attorney appointed to her.
On June 13, 2024, the mother filed in the juvenile court an affidavit
of substantial hardship, asserting that she was financially unable to hire
an attorney and requesting that the juvenile court appoint an attorney to
represent her. On June 17, 2024, the juvenile court entered an order
2 CL-2024-0638
denying the mother's affidavit of hardship. In its order denying the
mother's affidavit, the juvenile court stated, "AFFIDAVIT OF
SUBSTANTIAL HARDSHIP filed by [the mother] is hereby DENIED as
this case is a private petition." (Capitalization in original.) A trial was
conducted by the juvenile court later that day, and the mother appeared
without the assistance of counsel.
On July 10, 2024, the juvenile court entered a final judgment that,
among other things, found the child dependent and awarded the paternal
grandparents custody of the child. On July 23, 2024, Hankey again filed
a notice of appearance as counsel of record for the mother. 1 On July 24,
2024, the mother, through counsel, filed a motion to alter, amend or
vacate or, in the alternative, for a new trial, pursuant to Rule 59, Ala. R.
Civ. P. In her postjudgment motion, the mother argued, among other
things, that
"7. The [juvenile c]ourt failed to uphold its statutory duty as mandated by the Code of Alabama [1975], specifically § 12-15-305, by not informing the mother of her right to counsel during trial proceedings. § 12-15-305 applies to all dependency actions, even private petitions.
1Hankey's notice of appearance did not include an explanation concerning whether the mother was now paying her for her services. 3 CL-2024-0638
"8. Upon denial of the motion to have court appointed representation and without the [juvenile c]ourt informing the mother of her right to counsel, the mother was unaware of her right to legal representation and therefore was unable to adequately represent her interests and those of her minor child during the trial.
"9. As a result of the [juvenile c]ourt's failure to inform the mother of her right to counsel, the mother was prejudiced and unable to present her case effectively.
"10. The lack of legal representation significantly impaired the mother's ability to navigate the legal complexities of the dependency proceedings, resulting in an unjust outcome."
The mother's postjudgment motion was denied by operation of law on
August 7, 2024. See Rule 1(B), Ala. R. Juv. P. The mother timely filed
her notice of appeal to this court on August 14, 2024.
Discussion
On appeal, the mother first argues that the juvenile court violated
her statutory rights under Ala. Code 1975, § 12-15-305, by failing to
inform her of her right to legal counsel in the dependency proceeding and
by not appointing her counsel despite her indigency. Section 12-15-
305(b), Ala. Code 1975, 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,
4 CL-2024-0638
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."
Further, " '[t]he right of [a] parent[] of [a] child in a dependency case to
be represented by counsel at every stage of the proceeding is a
fundamental one protected by statute and court decision.' " R.H. v. D.N.,
5 So. 3d 1253, 1254-55 (Ala. Civ. App. 2008) (quoting Smoke v. State,
Dep't of Pensions & Sec., 378 So. 2d 1149, 1150 (Ala. Civ. App. 1979)).
Here, it is clear from the record that the juvenile court had before
it information indicating that the mother was unable to pay her retained
counsel for services rendered. Although the mother's first retained
counsel withdrew due to new employment in a different state, the
mother's second retained counsel withdrew on the ground that the
mother was "not able to afford an attorney." Thereafter, the mother filed
an affidavit of substantial hardship, asserting that she was financially
unable to hire an attorney and requesting that the juvenile court appoint
an attorney to represent her.
The juvenile court did not make a determination of the mother's
indigency but, instead, denied the mother's request to appoint her
counsel on the basis that "this case is a private petition." However, the
5 CL-2024-0638
plain language of § 12-15-305(b), which requires the appointment of
counsel for an indigent parent, legal guardian, or legal custodian in
dependency and termination-of-parental rights proceedings, makes no
distinction between a private petition brought on behalf of a private party
and a petition brought on behalf of the State. If the juvenile court
determined that the mother was indigent, it was required to appoint an
attorney to represent her regardless of whether the petition was filed by
the State or a private party. Therefore, we conclude that the juvenile
court's ruling denying the mother's request for an appointed attorney was
inconsistent with § 12-15-305. See R.H., 5 So. 3d at 1255, 1258 (holding
that the juvenile court erred by not appointing an attorney to represent
a parent in a dependency proceeding where that parent "submitted two
affidavits of substantial hardship requesting that she be permitted to
proceed in forma pauperis and seeking the appointment of an attorney"
and "did not pay for services rendered when she retained her own
counsel").
The fact that the mother was not able to afford her retained counsel
coupled with her filing an affidavit of substantial hardship raises the
issue whether the mother was unable to retain counsel for financial
6 CL-2024-0638
reasons. See J.S. v. J.C., 181 So. 3d 1067, 1070 (Ala. Civ. App. 2015)
(holding that "the juvenile court should have reviewed the father's status
to determine whether he was entitled to appointed counsel"). However,
the juvenile court did not make a finding with respect to the mother's
indigency and "[i]t is not the responsibility of [an appellate] Court to
determine whether [a parent in a dependency or termination-of-parental-
rights proceeding] is in fact indigent and therefore entitled to appointed
counsel." Ex parte D.B.R., 757 So. 2d 1193, 1195 (Ala. 1998).
Because the juvenile court’s ruling was inconsistent with § 12-15-
305, we reverse the juvenile court's judgment. We remand the cause to
the juvenile court to make a finding with respect to the mother's
indigency. See, e.g., J.S., 181 So. 3d at 1070 (remanding the termination
proceeding with instructions that the juvenile court in that case
determine whether the father was indigent). The juvenile court is
authorized to obtain any "information or documentation needed to make
a determination whether the [mother] was, at the time of the
7 CL-2024-0638
[dependency] trial, indigent and, if so, to appoint [her] an attorney and to
grant [her] a new trial." Id.2
REVERSED AND REMANDED WITH INSTRUCTIONS.
Moore, P.J., and Edwards, Hanson, and Fridy, JJ., concur.
2Because we find the mother's first issue on appeal to be dispositive,
we pretermit discussion of the mother's remaining issues presented on appeal. 8