T.L. v. W.C.L.

Decision Date08 January 2016
Docket Number2140500.,2140499
Citation203 So.3d 66
Parties T.L. v. W.C.L. and C.S.L. C.G.W. v. W.C.L. and C.S.L.
CourtAlabama Court of Civil Appeals

Alabama Supreme Court 1150394.

Cecilia A. Pope, Huntsville, for appellant T.L. Ronald W. Smith, Huntsville, for appellant C.G.W.

Joan–Marie Sullivan, Huntsville, for appellees.

MOORE, Judge.

In these consolidated appeals, T.L. ("the mother") and C.G.W. ("the father") separately appeal from a judgment entered by the Madison Juvenile Court ("the juvenile court") denying their respective motions to set aside a September 13, 2012, judgment finding P.S.L. ("the child") dependent and awarding his custody to W.C.L. and C.S.L. ("the grandparents"). We affirm the judgment.

Background

The child was born out-of-wedlock on September 21, 2008. Although the mother and the father maintained that the child was the biological child of the father,1 they did not take any steps to establish the paternity of the child through adjudication or legitimation proceedings. On August 6, 2012, the grandparents and the mother filed in the juvenile court a "Joint Petition for Custody" ("the complaint") in which they stipulated that the child was dependent and that the best interests of the child would be served by placing the child in the custody of the grandparents; that action was assigned case no. JU–12–734.01. In the complaint, the grandparents and the mother alleged that the child had no legal father. That same date, the mother filed a "Consent to Dependency Order and Waiver of Notice" in which she waived notice of any further proceedings and consented to the entry of a judgment finding the child dependent and awarding custody of the child to the grandparents. The juvenile court appointed a guardian ad litem for the child on August 16, 2012. On August 29, 2012, the mother filed a request for the juvenile court to appoint her counsel and executed an "Affidavit of Indigency." The juvenile court denied the mother's request, stating, in pertinent part: "The State do [es] not appoint for parents in private cases." On September 3, 2012, the mother signed an "Acknowledgment of Non–Representation" in which she confirmed that the grandparents' attorney did not represent her, that she had the right to employ her own attorney, and that she had been advised that it might be in her best interest to employ her own attorney.

On September 4, 2012, the juvenile court conducted a hearing on the complaint. At that hearing, the guardian ad litem filed an "Answer and Initial Report" in which she denied the allegations in the complaint and requested that the father, who she described as a "putative father," be served so that his paternity and child-support obligation could be established. The guardian ad litem attached to the answer a document, dated August 2012, in which the grandparents agreed to transfer title of a mobile home to the mother and to pay the mother $10,000. The juvenile court also received the acknowledgment of nonrepresentation that had been signed by the mother the day before. The mother did not appear at the hearing. According to the guardian ad litem, that hearing lasted approximately five minutes and the juvenile court did not take any evidence. On September 13, 2012, the juvenile court entered a judgment ("the dependency judgment") adjudicating the child to be dependent, awarding custody of the child to the grandparents, and establishing a visitation schedule for the mother.

On April 9, 2013, the grandparents commenced an action to modify the visitation provisions of the dependency judgment; the modification action was assigned case no. JU–12–734.02. On June 23, 2014, the father filed a motion to intervene and a motion to set aside the dependency judgment. On June 26, 2014, the mother moved to set aside the dependency judgment. On October 16, 2014, the juvenile court held a hearing on the mother's and the father's motions to set aside the dependency judgment. The father, the child's paternal grandfather, the mother, and the guardian ad litem testified at the hearing. On March 27, 2015, the juvenile court entered a judgment in the dependency action (case no. JU–12–734.01) granting the father's motion to intervene, adjudicating the paternity of the child in favor of the father, and denying the mother's and the father's motions to set aside the dependency judgment.2 The mother and the father filed separate notices of appeal to this court. The appeals have been consolidated by this court ex mero motu.

Analysis
The Mother's Appeal

The mother first argues that the juvenile court violated her due-process rights when it entered the dependency judgment without appointing counsel for her. A judgment is void and may be set aside at any time under Rule 60(b)(4), Ala. R. Civ. P., if it was entered in a manner inconsistent with due process. Ex parte Full Circle Distrib., L.L.C., 883 So.2d 638, 641 (Ala.2003).

"The standard of review on appeal from an order granting [or denying] relief under Rule 60(b)(4), Ala. R. Civ. P. (‘the judgment is void’), is not whether the trial court has exceeded its discretion. When the decision to grant or to deny relief turns on the validity of the judgment, discretion has no field of operation. Cassioppi v. Damico, 536 So.2d 938, 940 (Ala.1988). ‘If the judgment is void, it is to be set aside; if it is valid, it must stand....’ Seventh Wonder v. Southbound Records, Inc., 364 So.2d 1173, 1174 (Ala.1978)...."

883 So.2d at 641. A judgment is entered in a manner inconsistent with due process when the substantive rights of a party are adjudicated without notice or an opportunity to be heard. M.H. v. Jer.W., 51 So.3d 334, 337–38 (Ala.Civ.App.2010).

In this case, the mother acknowledges that she expressly consented to the entry of the dependency judgment and that she formally waived her right to notice of the proceedings that led to the dependency judgment. She asserts, however, that the juvenile court violated her right to appointed counsel. Section 12–15–305(b), Ala.Code 1975, provides, in pertinent part:

"In dependency ... cases, the respondent parent ... 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, counsel shall be appointed where the respondent parent ... is unable for financial reasons to retain his or her own counsel."

The mother argues that, because she proved that she was indigent through the affidavit of indigency that she filed with the juvenile court on August 29, 2012, the juvenile court was required to appoint counsel for her. According to the mother, the juvenile court's failure to do so caused the dependency judgment to be entered in a manner inconsistent with her due-process rights.

We do not decide whether the juvenile court erred in construing § 12–15–305(b) to apply only to dependency cases filed by the State. We hold only that, if the juvenile court erred by not appointing counsel for the mother as an indigent parent, that error affected only a statutory right and not a constitutional due-process right. "It is well settled that the ‘constitutional due process clause does not require the appointment of counsel for an indigent parent in dependency and temporary custody proceedings.’ " W.C. v. State Dep't of Human Res., 887 So.2d 251, 256 (Ala.Civ.App.2003) (quoting Morgan v. Lauderdale Cnty. Dep't of Pensions & Sec., 494 So.2d 649, 651 (Ala.Civ.App.1986), citing in turn Lassiter v. Department of Social Servs. of Durham Cnty., North Carolina, 452 U.S. 18, 34, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) ). More particularly, in Lassiter, the United States Supreme Court held that the Due Process Clause does not require the appointment of counsel in a child-deprivation proceeding in which the parent does not contest custody and expresses an intention not to attend or to participate in the proceedings. 452 U.S. at 32. Based on the circumstances of this case, the juvenile court did not offend the due-process rights of the mother by failing to appoint counsel for her during the initial dependency proceedings.

Because the dependency judgment was not entered in a manner inconsistent with due process, the juvenile court did not err in denying the mother's Rule 60(b) motion to set aside that judgment based on her lack of appointed legal representation. Furthermore, we note that, if the juvenile had violated the mother's statutory rights under § 12–15–305(b), any such violation could have been remedied only by appeal. See Morgan, supra. A Rule 60(b) motion cannot be used as a substitute for appeal, "nor is it available to relieve a party from its own deliberate choices." State ex rel. G.J. v. W.J., 622 So.2d 353, 356 ( Ala.Civ.App.1992). The mother did not appeal from the dependency judgment, and she cannot now use Rule 60(b) to impermissibly collaterally attack that judgment. Morgan, supra.

The mother next argues that the dependency judgment is void because it rests on her agreement to give the grandparents custody of the child in exchange for a mobile home and $10,000. We need not address the merits of this contention because the mother failed to prove that any such agreement existed. The record contains a document whereby the grandparents agreed to pay the mother $10,000 and to transfer title of a mobile home to her. As the juvenile court determined, that document does not contain any promise by the mother to give the grandparents custody of the child or to capitulate to their custody demands for the child. The document does not even mention the child. Based on the lack of evidence to substantiate the mother's claim, the juvenile court reasonably could have determined that the grandparents had not unlawfully procured the mother's consent to the dependency judgment through payment of monetary and other consideration. See Allsopp v. Bolding, 86 So.3d 952 (Ala.2011) (holding that, when a trial court makes factual findings in a Rule 60(b) hearing, those findings are afforded a presumption of...

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