W.R. v. Marshall County Department of Human Resources

• Court: Court of Civil Appeals of Alabama
• Decided: January 20, 2023
• Docket: CL-2022-0853
• Status: Published

Opinion

REL: January 20, 2023

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, 2022-2023 _________________________

CL-2022-0853 _________________________

W.R.

v.

Marshall County Department of Human Resources

Appeal from Marshall Juvenile Court (JU-19-847.03)

MOORE, Judge.

W.R. appeals from a judgment entered by the Marshall Juvenile

Court ("the juvenile court") denying his motion seeking relief from a final

judgment entered by the juvenile court on April 14, 2022. We affirm the

juvenile court's judgment. CL-2022-0853

Procedural History

On April 14, 2022, the juvenile court entered a judgment ("the final

judgment") in case number JU-19-847.03 ("the termination proceeding"),

terminating the parental rights of B.T. and Ju.T. ("the parents") to their

child, J.T. ("the child"). 1 On May 27, 2022, W.R. ("the uncle"), who is the

maternal uncle of the child, filed a motion requesting that he be allowed

to intervene in the termination proceeding for the limited purpose of

filing a motion for relief from the final judgment. On June 22, 2022, the

juvenile court entered an order in which it granted the uncle's motion to

intervene.

On June 22, 2022, the uncle filed a motion asserting that the final

judgment should be set aside because the juvenile court had not served

the uncle with a summons or otherwise notified the uncle of the

termination proceeding. The uncle also maintained that the final

judgment should be set aside because the juvenile court had failed to

consider placing the child with a suitable relative, his son, J.R., as a

1The record on appeal contains none of the filings from the termination proceeding.

2 CL-2022-0853

viable alternative to terminating the parents' parental rights. On June

25, 2022, the Marshall County Department of Human Resources

("DHR"), the petitioner in the termination proceeding, responded to the

uncle's motion for relief from the final judgment. In its response, DHR

acknowledged that the uncle had not been served and that he had not

otherwise received notice of the termination proceeding, but DHR denied

that the uncle was entitled to service or notice of that proceeding. DHR

further maintained that all proper and necessary parties had been served

in the termination proceeding and that the juvenile court had properly

considered all viable alternatives before terminating the parents' rights

to the child. On July 7, 2022, the juvenile court entered an order

summarily denying the uncle's motion for relief from the final judgment.

The uncle filed a timely notice of appeal.

Issues on Appeal

The uncle argues that the juvenile court erred in denying his motion

for relief from the final judgment for three reasons. First, the uncle

maintains that he was entitled to service in the termination proceeding

under Rule 13(A)(1), Ala. R. Juv. P., and that, in the absence of such

service, the juvenile court was required to set aside the final judgment. 3 CL-2022-0853

Second, the uncle contends that the juvenile court deprived him of due

process by failing to give him notice of the termination proceeding and an

opportunity to be heard in violation of the Fourteenth Amendment to the

United States Constitution. Third, the uncle asserts that the juvenile

court erroneously failed to consider placing the child with his son, J.R.,

as a viable alternative to terminating the parents' rights to the child.

We cannot consider the second argument, which relies on the

uncle's assertion that the final judgment terminated his visitation rights.

Our review of the record indicates that the uncle did not present any

evidence to the juvenile court indicating that he had been awarded

visitation rights with the child and that he was exercising those visitation

rights at the time of the termination proceeding; based on our review, he

also did not present any evidence indicating that the final judgment had

terminated his right to visit with the child. The uncle also did not argue

to the juvenile court that the juvenile court had violated his right to due

process under the Fourteenth Amendment by terminating his purported

visitation rights without providing him notice and an opportunity to be

heard. See Alabama Power Co. v. Turner, 575 So. 2d 551, 553 (Ala. 1991)

("In order for an appellate court to review a constitutional issue, that 4 CL-2022-0853

issue must have been raised by the appellant and presented to and

reviewed by the trial court."). Therefore, we do not address the issue

whether the Fourteenth Amendment requires that a relative who has

been awarded visitation rights with a child receive service in a

termination proceeding. Likewise, to the extent that the uncle may be

arguing that the juvenile court unconstitutionally impaired his ability to

seek a return of the child to his custody, the uncle did not make that

specific argument to the juvenile court. "This [c]ourt cannot consider

arguments raised for the first time on appeal; rather, our review is

restricted to the evidence and arguments considered by the trial court."

Andrews v. Merritt Oil Co., 612 So. 2d 409, 410 (Ala. 1992). And even if

the uncle's postjudgment motion could be broadly construed as making

such an argument, on appeal he does not support that position with any

argument with citation to legal authority in compliance with Rule 28,

Ala. R. App. P. "[W]hen an appellant fails to properly argue an issue,

that issue is waived and will not be considered." Asam v. Devereaux, 686

So. 2d 1222, 1224 (Ala. Civ. App. 1996).

We also cannot consider the uncle's third argument on appeal.

Assuming that the juvenile court erred in failing to investigate and 5 CL-2022-0853

exclude J.R. as a placement for the child before entering the final

judgment, that error would not be one that would render the final

judgment void. See Bowen v. Bowen, 28 So. 3d 9, 15 (Ala. Civ. App. 2009)

("Errors in the application of the law by the trial

court do not render a judgment void."). It would render the final

judgment only voidable on appeal if raised by the parents as the parties

aggrieved by the error; the uncle lacks standing to assert the rights of the

parents in this appeal, see B.H. v. Marion Cnty. Dep't of Hum. Res., 998

So. 2d 475, 477 (Ala. Civ. App. 2008), which relates solely to whether his

rights have been substantially prejudiced by the juvenile court's denial

of the motion for relief from the final judgment.

Standard of Review

The only issue raised by the uncle that can be reviewed in this

appeal is the first issue concerning whether the uncle was entitled to

service in the termination proceeding. The uncle maintains that, without

service upon him, the final judgment is void and, therefore, is due to be

aside under Rule 60(b)(4), Ala. R. Civ. P. However, "[w]hen a party

asserts that a juvenile court erred by not joining it as a party to a juvenile

proceeding, that party must follow the procedure established in Rule 6 CL-2022-0853

13(a)(5), Ala. R. Juv. P., [now Rule 13(A)(6), Ala. R. Juv. P.,] in order to

obtain relief from an order of the juvenile court." Limestone Cnty. Dep't

of Hum. Res. v. Long, 182 So. 3d 541, 544 (Ala. Civ. App. 2014).

Rule 13(A)(6), Ala. R. Juv. P., provides:

"A party not served under this rule may, for good cause shown, petition the juvenile court in writing for a modification of any order or judgment of the juvenile court. The juvenile court may dismiss this petition if, after a preliminary investigation, the juvenile court finds that the petition is without substance. If the juvenile court finds that the petition should be reviewed, the juvenile court may conduct a hearing upon the issues raised by the petition and may make any orders authorized by law relative to the issues as it deems proper."

In his motion seeking relief from the final judgment, the uncle asserted

that he had not been served in the termination proceeding as provided by

Rule 13(A)(1), Ala. R. Juv. P., and, in his prayer for relief, the uncle

requested that the juvenile court set aside the final judgment, rehear the

case, and consider whether the child should be placed with J.R. In

substance, the motion set forth a petition for a modification of the final

judgment under Rule 13(A)(6). "Although the father relied on Rule

60(b)(4)[, Ala. R. Civ. P.,] throughout this case, we conclude that Rule

13(A)(5), Ala. R. Juv. P., controls." T.L. v. W.C.L., 203 So. 3d 66, 71 (Ala.

Civ. App. 2016) (noting that it is the substance of the motion and the 7 CL-2022-0853

relief requested that determines whether a motion is a motion under

former Rule 13(A)(5), Ala. R. Juv. P., the precursor to Rule 13(A)(6), or a

motion under Rule 60(b)(4)). See also Ex parte L.L.H., 294 So. 3d 795,

798 (Ala. Civ. App. 2019) (applying the precursor to Rule 13(A)(6)

although the parties cited cases applying Rule 60(b)(4)). A juvenile court

exercises judicial discretion when ruling on a motion filed pursuant to

Rule 13(A)(6) and this court will reverse an order denying a Rule 13(A)(6)

motion only when the record clearly shows that the juvenile court

exceeded that discretion. See D.S.W. v. R.D., 340 So. 3d 406, 409 (Ala.

Civ. App. 2021).

Facts

In his Rule 13(A)(6) motion, the uncle alleged that he had served as

the "previous custodian of the child" pursuant to an order of the juvenile

court but that the child had been removed from his custody by DHR. In

its response to the uncle's motion, DHR asserted that the child had been

removed from the custody of the uncle pursuant to an order entered by

the juvenile court on March 24, 2021, after a hearing in a dependency

proceeding concerning the child. The uncle further alleged that DHR had

developed a permanency plan for the child to be returned to the uncle; 8 CL-2022-0853

that he had cooperated with DHR's plan; that the child had not been

returned to his custody despite his cooperation; and that DHR instead

had instituted the termination proceeding. DHR indicated that it had

filed a petition to terminate the parents' rights to the child on January

26, 2022. The uncle finally alleged that DHR had not served the uncle

with summons or otherwise notified him of the termination proceeding.

DHR acknowledged that the uncle had not been served or notified of the

termination proceeding and alleged that the juvenile court had not

ordered that he be served as a proper or necessary party to that

proceeding.

Analysis

Before addressing the merits of the uncle's argument on appeal, we

first address DHR's assertion that the uncle cannot maintain this appeal

because he was not a party to the termination proceeding. When a person

is permitted to intervene in a proceeding, that person becomes a party to

that proceeding and may appeal any judgment entered in that proceeding

by which he or she is personally aggrieved. M.C. v. Lee Cnty. Dep't of

Hum. Res., [Ms. 2201009, Oct. 14, 2022] ___ So. 3d ___, ___ (Ala. Civ.

App. 2022). It is undisputed that the uncle was permitted to intervene 9 CL-2022-0853

for the limited purpose of filing a Rule 13(A)(6) motion and that the

juvenile court denied that motion. The uncle has a right to appeal from

the order denying his motion. See Ala. Code 1975, § 12-15-601 ("A party,

including the state or any subdivision of the state, has the right to appeal

a judgment or order from any juvenile court proceeding pursuant to this

chapter."); D.S.W., supra.

Proceeding to the merits, we note that Rule 13(A)(1) provides, in

pertinent part, that, after a termination-of-parental-rights petition has

been filed, "summonses shall be issued to and personally served ... upon

each of the following persons: … legal guardian, or legal custodian, and

other persons who appear to the juvenile court to be proper or necessary

parties to the proceedings." It is undisputed that, at the time of the filing

of the petition to terminate the parents' rights to the child, the uncle was

not the legal guardian or legal custodian of the child. The uncle asserts,

however, that he should have been considered a "proper or necessary"

party to the termination proceeding under Rule 13(A)(1) because, as he

asserts in his appellate brief, "he had been awarded custody of [the child]

in a prior case." As noted, the uncle had lost custody of the child on March

24, 2021, and the child was not in his care at any point during the 10 CL-2022-0853

termination proceeding in 2022. Considering that context, we perceive

the uncle's argument to present the rather narrow issue of whether a

former relative caregiver is entitled to service under Rule 13(A)(1) based

solely on the fact that he or she once exercised custody of a child.

Our review of caselaw indicates that this court has not discussed

the class of persons who may be deemed "proper or necessary parties" to

a termination proceeding within the meaning of Rule 13(A)(1). The

operative language appears to be derived from Ala. Code 1975, § 12-15-

122(a), a part of the Alabama Juvenile Justice Act ("the AJJA"), Ala. Code

1975, § 12-15-101 et seq., which governs service in other types of juvenile

proceedings and provides:

"After a petition alleging delinquency, in need of supervision, or dependency has been filed, the juvenile court shall direct the issuance of summonses to be directed to the child if he or she is 12 or more years of age, to the parents, legal guardian, or other legal custodian, and to other persons who appear to the juvenile court to be proper or necessary parties to the proceedings, requiring them to appear personally before the juvenile court at the time fixed to answer or testify as to the allegations of the petition. Where the legal custodian is summoned, the parent or legal guardian, or both, shall also be served with a summons."

11 CL-2022-0853

(Emphasis added.) The AJJA does not define the phrase "proper or

necessary parties" and our research reveals that this court also has not

examined the meaning of that phrase in the context of § 12-15-122(a).

However, the legislature has not left this court without guidance on

the question whether a former relative caregiver is entitled to be joined

as a party to a termination proceeding. Section 12-15-307, Ala. Code

1975, another part of the AJJA, provides, as follows:

"Relative caregivers, preadoptive parents, and foster parents of a child in foster care under the responsibility of the state shall be given notice, verbally or in writing, of the date, time, and place of any juvenile court proceeding being held with respect to a child in their care.

"Foster parents, preadoptive parents, and relative caregivers of a child in foster care under the responsibility of the state have a right to be heard in any juvenile court proceeding being held with respect to a child in their care.

"No foster parent, preadoptive parent, and relative caregiver of a child in foster care under the responsibility of the state shall be made a party to a juvenile court proceeding solely on the basis of this notice and right to be heard pursuant to this section."

See also Rule 13(D), Ala. R. Juv. P. (containing similar notice language).

Section 12-15-307 requires a juvenile court to notify a relative caregiver

of a termination proceeding and to provide the relative caregiver an 12 CL-2022-0853

opportunity to be heard "with respect to a child in [his or her care]." The

last paragraph of § 12-15-307 plainly states that the juvenile court shall

not make a relative caregiver a party to a termination proceeding based

on the rights granted in the first two paragraphs.

Section 12-15-307 does not provide any notice and hearing rights to

a former relative caregiver who no longer has the child "in [his or her]

care." See T.N. v. I.B., 188 So. 3d 675, 681 (Ala. Civ. App. 2015)

(explaining that the plain language of § 12-15-307 applies only when the

child is presently in the care of a foster parent, a preadoptive parent, or

a relative caregiver). Because a former relative caregiver has no

statutory right to notice and an opportunity to be heard under the terms

of the AJJA, it logically follows that a former relative caregiver would not

automatically be entitled to service in a termination proceeding. If the

opposite was true, as the uncle advocates, a former relative caregiver

actually would have greater procedural rights than a current relative

caregiver for a child and every former relative caregiver would have to be

identified and served to properly adjudicate a termination petition, a

result we believe the legislature did not intend. See Junkins v. Glencoe

Volunteer Fire Dep't, 685 So. 2d 769, 772 (Ala. Civ. App. 1996) (holding 13 CL-2022-0853

that statutes should be construed to avoid absurd results that could not

have been intended by the legislature).

We hold that the mere status as a former relative caregiver does

not, in and of itself, make a person a "proper and necessary" party

entitled to service under Rule 13(A)(1), and we find no merit in the uncle's

contention that, solely because he had formerly exercised custody of the

child, the juvenile court was required to serve him in the termination

proceeding. In so holding, we do not intend that a juvenile court can

never order a former relative caregiver to be served and joined as a party

in a termination proceeding. The specific argument advanced by the

uncle does not require us to consider whether additional circumstances,

other than the bare fact that a relative once served as a custodian of the

child, may support a determination that a former relative caregiver is a

proper or necessary party who should be served in a termination

Conclusion

After reviewing the uncle's Rule 13(A)(6) motion and DHR's

response thereto, the juvenile court summarily denied the motion,

effectively determining that the motion was "without substance," within 14 CL-2022-0853

the meaning of Rule 13(A)(6). The uncle has not presented any valid

argument that the juvenile court erred in reaching that determination.

We also conclude that the juvenile court did not exceed its discretion in

denying the motion, although the motion should have been treated as a

petition and should have been dismissed, as required by the language of

Rule 13(A)(6). Thus, the juvenile court's judgment is affirmed.

AFFIRMED.

Thompson, P.J., and Edwards, Hanson, and Fridy, JJ., concur.