W.R. v. Marshall County Department of Human Resources ( 2023 )

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
proceeding.
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.
15