R.D. v. Baldwin County Department of Human Resources

608 So. 2d 406, 1992 Ala. Civ. App. LEXIS 447, 1992 WL 227845
CourtCourt of Civil Appeals of Alabama
DecidedSeptember 18, 1992
Docket2900638
StatusPublished
Cited by2 cases

This text of 608 So. 2d 406 (R.D. v. Baldwin 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
R.D. v. Baldwin County Department of Human Resources, 608 So. 2d 406, 1992 Ala. Civ. App. LEXIS 447, 1992 WL 227845 (Ala. Ct. App. 1992).

Opinion

EX MERO MOTU

THIGPEN, Judge.

This court’s original opinion, dated August 21,1992, is withdrawn, and the following is substituted therefor:

This case involves allegations of sexual abuse which resulted in the father’s removal from the home, and the daughter (C.E.D.) being alleged dependent by the State Department of Human Resources (DHR).

DHR filed a petition for custody of C.E.D. on June 18, 1991, after C.E.D. and her three adult sisters reported sexual abuse by their father. C.E.D. requested that she be removed from the home due to emotional pressure from her parents and other family members. A hearing was set for July 8, 1991. The parents filed a mo[407]*407tion for a continuance on July 1, which was granted, and the case was set for July 12. On July 11, the parents moved for a second continuance, which was denied. The trial court, in denying the motion, stated, “This is a custody matter alleging dependency and serious sexual abuse and should therefore be dealt with expeditiously.” On July 12, the trial court declared C.E.D. to be a dependent child and removed the father from the home except for times when C.E.D. was away from the home.

The parents appeal, claiming that the denial of the second continuance resulted in a denial of their right to due process as they did not have adequate time they say, to gather and depose witnesses in order to prepare an adequate defense; that the trial court erred in admitting evidence of the father’s prior psychological treatment; and that the evidence was insufficient to support a finding that C.E.D. was dependent.

The first issue raised by C.E.D.’s parents is whether the trial court erred to reversal in refusing to allow them a second continuance. The record reveals that the parents received notice of the dependency hearing on June 27, and that it was held on July 12, allowing the parents fifteen calendar days, but only nine working days for preparation.

We find Ala.Code 1975, § 12-15-68, to be controlling. This section reads:

“Continuances shall be granted by the court only upon a showing of good cause and only for so long as it is necessary, taking into account not only the request or consent of the prosecutor or of the child, but also the interest of the public in the prompt disposition of cases and whether the child is being detained.”

The parents cite Payne v. State Department of Human Resources, 532 So.2d 1263 (Ala.Civ.App.1988), to support their argument that the trial court abused its discretion in refusing to grant a second continuance. We find Payne to be distinguishable from the case at hand.

In Payne, the DHR presented school records of a child who was the subject of a Child in Need of Supervision petition because the child was allegedly uncontrollable at school. The child’s guardian ad li-tem was allowed only 45 minutes to review the school records; the guardian requested a continuance, which was denied. During the hearing, the guardian objected to the introduction of evidence on the grounds of lack of notice or opportunity to examine the evidence, and he continued to renew his motion for continuance.

The instant case is distinguishable from Payne in that the record reflects that the parents did not object to the denial of the continuance:

“THE COURT: Anything else?
“MR. SHIELDS: This other motion that I have is a motion for continuance ...
“THE COURT: ... I have read it. And the motion is denied at this time, because a juvenile proceeding, and in particular a custody proceeding, in expedited time periods apply in these cases, so that motion to continue is denied.
“MR. SIMON: Your Honor, I would like to put one thing on the record concerning that motion. The basis for it, as asserted by Mr. Shields, ... was that this hearing was scheduled for Monday, it’s now been rescheduled for a Friday, and that it did not give him ample time to get certain experts to come in and testify. Now, it’s my understanding, and Mr. Shields can correct me if I’m wrong; the three psychiatrists, therapists or psychologists who are relevant in this case are Dr. Becker, Ms. Jan Neverdahl and Dr. Fuller. And Ms. Neverdahl is here and present. Dr. Becker and Dr. Fuller, we have informed and had a conference Monday, a telephone conference, in which Your Honor was on the phone and Mr. Shields was on the phone, if I remember—
“MR. SHIELDS: That’s correct. I believe it was the two of us and Ms. Penry.
“MR. SIMON: That’s right. I’m sorry, it wasn’t Your Honor, it was Ms. Brownie Penry, who is your secretary. And in [408]*408that conference it was stated that we would be happy if Mr. Shields — would take testimony by telephone — tell these experts to be present and around their telephone and they could be sworn and the testimony could be taken telephoni-cally and we still could allow that to be done.
“MR. SHIELDS: Judge, if I could— when I talked with David [an attorney representing DHR], who was very accommodating with me in this matter because of the quickness of the setting. And I had asked him if he would issue the subpoenas to the individuals, which he did, and it’s my understanding that they have been served. My understanding is, also, that both Dr. Becker and Dr. Fuller indicated that they would not comply with us because of such short notice and would not come to Court. Our position is that fourteen days from the service is what we’re talking about and is clearly insufficient time for me to get them prepared_ Our local rule in Mobile requires ten days notice — I had five days from the (first) continuance and, therefore, feel like I am not completely prepared, but will abide by Your Honor's ruling.
“THE COURT: Well, I’m not going to grant the motion for continuance. I will, however, at your request, if you would like for me to do so today, to treat this as I would a 72-hour hearing issue on the pick up order and, that is, not make a final adjudication on the case until some later date. And I’ll be happy to do that.
“MR. SHIELDS: Well, since the child is not in a detained status, we would ask that it be [treated] as a merit hearing for evidentiary purposes.
“THE COURT: All right. That’s fine, then.”

From the record and particularly the above colloquy, it appears that the parents’ counsel acquiesced in the denial of the motion for continuance, and requested that the proceeding be treated “as a merit hearing for evidentiary purposes.” Accordingly, this issue is not proper for appellate review. See Copeland v. Williamson, 402 So.2d 932 (Ala.1981).

Furthermore, the trial judge in his discretion was aware that this case involved allegations of sexual abuse. The record revealed that the trial court granted the first continuance, but denied the second one due to the nature of the case and the apparent urgency in its disposition. Although the parents argued that C.E.D.’s case was not an emergency, in light of the facts alleged in the dependency petition it was well within the trial court’s discretion to decide that this case should be dealt with in an expeditious manner and to deny the second continuance. Landers v. Association for Guidance, Aid, Placement & Empathy of North Alabama, Inc., 472 So.2d 1055 (Ala.Civ.App.1985).

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Cite This Page — Counsel Stack

Bluebook (online)
608 So. 2d 406, 1992 Ala. Civ. App. LEXIS 447, 1992 WL 227845, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rd-v-baldwin-county-department-of-human-resources-alacivapp-1992.