R.M. v. Elmore Cty. Dept. of Resources, 2091106 (ala.civ.app. 7-15-2011)

75 So. 3d 1195, 2011 Ala. Civ. App. LEXIS 178, 2011 WL 2739660
CourtCourt of Civil Appeals of Alabama
DecidedJuly 15, 2011
Docket2091106, 2091130, and 2100496
StatusPublished
Cited by27 cases

This text of 75 So. 3d 1195 (R.M. v. Elmore Cty. Dept. of Resources, 2091106 (ala.civ.app. 7-15-2011)) 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.M. v. Elmore Cty. Dept. of Resources, 2091106 (ala.civ.app. 7-15-2011), 75 So. 3d 1195, 2011 Ala. Civ. App. LEXIS 178, 2011 WL 2739660 (Ala. Ct. App. 2011).

Opinion

MOORE, Judge.

In case no. 2091106, R.M. (“the mother”) appeals from a judgment entered by the Elmore Juvenile Court (“the juvenile court”) terminating her parental rights to her children, D.H.M. (a daughter born October 23, 2003), D.J.M. III (a son born May 13, 2005), and D.M.M. (a daughter born April 27, 2009) (hereinafter sometimes referred to collectively as “the children”). In case no. 2091130, D.J.M., Jr. (“the father”), appeals from the same judgment, which also terminated his parental rights to the children. In case no. 2100496, the father appeals from the denial of his motions, filed pursuant to Rule 60(b)(2) and Rule 60(b)(6), Ala. R. Civ. P„ seeking relief from the above-referenced judgment.1 This court consolidated the appeals ex mero moto.

Background,

In November 2008, the Elmore County Department of Human Resources (“DHR”) became involved with the family following reports that D.H.M. was being physically abused. After multiple visits to the family’s home in November and December 2008, DHR began providing in-home rehabilitative services to the family.

On February 11, 2009, after investigating another report that D.H.M. had been abused, DHR also became concerned that the mother and the father were neglecting D.H.M. At that point, D.H.M. and D.J.M. III were removed from the mother’s and the father’s custody. The juvenile court awarded DHR temporary custody of D.H.M. and D.J.M. III, and they were placed in foster care.

On April 27, 2009, shortly after D.H.M. and D.J.M. III were removed from the custody of the mother and the father, the mother gave birth to D.M.M. D.M.M. was born prematurely, and the hospital reported to DHR that D.M.M. had tested positive for benzodiazepines at birth. Asserting that the mother could not produce a valid prescription for benzodiazepines or explain the presence of benzodiazepines in D.M.M.⅛ blood, DHR obtained custody of D.M.M. in June 2009.

On June 24, 2009, all three children were placed with their paternal aunt, J.L.C., and her husband, W.D.C., both of whom had been approved as foster parents in the State of Florida. On June 16, 2010, DHR [1198]*1198filed petitions to terminate the parental rights of the mother and the father to the children, asserting, in pertinent part:

“9. The parents failed to provide for the material needs of the child[ren] or to pay a reasonable portion of [their] support;
“10. The parents have tortured, abused, cruelly beaten, or otherwise maltreated the child [ren];
“11. The child[ren] ha[ve] experienced unexplained serious injury under circumstances that would indicate that the injuries resulted from the intentional conduct or wilful neglect of the parent;
“12. [The mother] suffers from an emotional illness, mental illness, or mental deficiency of a duration or nature as to render her unable to care for the needs of her child[ren].”

A hearing on DHR’s petitions was scheduled for August 5, 2010.

On some unidentified date, the Elmore County District Attorney filed criminal charges against the mother and the father for felony child abuse based on their alleged physical abuse and willful neglect of D.H.M. On July 16, 2010, the father moved the juvenile court to stay the termination hearing, asserting that the pending criminal trial would materially alter his defense and trial strategy and that, unless the termination hearing was stayed until after the resolution of his criminal charges, his rights would be materially and unfairly prejudiced. The mother filed a similar motion. On July 20, 2010, the father requested that the juvenile court grant him leave to conduct discovery; DHR objected to that request. The juvenile court denied the mother’s and the father’s motions to stay the proceedings and the father’s motion for leave to conduct discovery.

On July 24, 2010, an Elmore County grand jury returned an indictment against the father, charging that the father “did torture, willfully abuse, cruelly beat or otherwise willfully maltreat [D.H.M.], a child under the age of eighteen (18) years by hitting the said child on the buttocks and legs, hitting the child in the head, and failing to provide for the basic needs of the child, in violation of Section 26-15-3, Code of Alabama, 1975.” The mother was also indicted on felony child-abuse charges; however, no copy of the indictment returned against the mother is in the record.

At the beginning of the August 5, 2010, termination hearing, counsel for the mother and the father again moved for a stay of the termination hearing, asserting that the mother’s and the father’s Fifth Amendment rights against self-incrimination warranted a stay. After hearing arguments in favor of and opposing those motions, the juvenile court denied the motion, stating that the children had been “in care” for 18 months and needed permanency; the termination hearing proceeded.

At the conclusion of the termination hearing, the juvenile court noted that it had previously found the children to be dependent and indicated that it intended to grant DHR’s petitions to terminate the parental rights of the mother and the father. On August 12, 2010, the juvenile court entered its judgment terminating the mother’s and the father’s parental rights to the children. In its judgment, the juvenile court found, among other things, that the mother had physically abused D.H.M. and D.M.M.; that the mother had starved or otherwise maltreated D.H.M.; that the mother suffers from a mental illness, disorder, or deficiency that causes her to be unable to care for the children; that the father had physically abused D.H.M.; that the father had withheld food from D.H.M.; and that the father had failed to protect the children from the mother’s abuse.

[1199]*1199On August 17, 2010, the mother timely filed her notice of appeal in case no. 2091106. On August 24, 2010, the father filed a motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial. The juvenile court denied the father’s postjudgment motion on August 25, 2010. On September 3, 2010, the father timely filed his notice of appeal in case no. 2091130.

On January 17, 2011, after obtaining leave from this court, the father filed a motion for relief from the juvenile court’s August 12, 2010, judgment; that motion was filed pursuant to Rule 60(b)(2), Ala. R. Civ. P. The juvenile court denied that motion on February 8, 2011. On February 15, 2011, the father filed a motion to alter, amend, or vacate the denial of his Rule 60(b)(2) motion; the juvenile court denied that motion on the same date. Also on February 15, 2011, the father filed a second motion for relief from the August 12, 2010, judgment. That motion was filed pursuant to Rule 60(b)(6), Ala. R. Civ. P.; the father did not obtain leave of this court to file that second Rule 60(b) motion. The juvenile court denied that motion on the same date it was filed.

On March 1, 2011, the father filed a petition for a writ of mandamus seeking relief from the denial of his Rule 60(b) motions (case no. 2100496). This court elected to treat the father’s petition as an appeal (see supra note 1).

Case nos. 2091106 and 2091130

The Alleged Lack of Service on the Mother

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Bluebook (online)
75 So. 3d 1195, 2011 Ala. Civ. App. LEXIS 178, 2011 WL 2739660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rm-v-elmore-cty-dept-of-resources-2091106-alacivapp-7-15-2011-alacivapp-2011.