E.D. v. Madison County Dep't of Human Res.., 2090415.

• Decision Date: 05 November 2010
• Docket Number: 2090415.
• Citation: 68 So.3d 163
• Parties: E.D.v.MADISON COUNTY DEPARTMENT OF HUMAN RESOURCES.
• Court: Alabama Court of Civil Appeals

68 So.3d 163

E.D.

v.MADISON COUNTY DEPARTMENT OF HUMAN RESOURCES.

2090415.

Court of Civil Appeals of Alabama.

Aug. 27, 2010.Rehearing Denied Nov. 5, 2010.Certiorari Denied Feb. 11, 2011

Alabama Supreme Court 1100210.

Ronald W. Smith of Clark, Smith & Lambert, P.C., Huntsville, for appellant.Sharon E. Ficquette, chief legal counsel, and Karen P. Chambless, staff atty., Department of Human Resources, for appellee.BRYAN, Judge.

E.D. (“the father”) appeals from a judgment entered on December 30, 2009, by the Madison Juvenile Court that found his child, A.N. (“the child”), dependent, that awarded legal custody of the child to the Madison County Department of Human Resources (“DHR”), and that “authorized and directed” DHR to place physical custody of the child with L.T. (“the mother”). On appeal, the father specifically contends that an order entered by the juvenile court on August 19, 2009, is due to be reversed because he was not represented by an attorney at the adjudicatory and permanency-plan hearing that preceded the entry of the August 19, 2009, order. For the reasons stated below, we affirm the December 30, 2009, judgment entered by the juvenile court.

Procedural History

On May 14, 2009, DHR filed a petition in the juvenile court alleging that the child was dependent. The petition alleged that the child had been living with the father in Huntsville and that the father had been arrested on May 12, 2009, for domestic violence and failure to register as a sex offender. The juvenile-court clerk issued a summons to the father notifying him of the dependency action; attached to the summons was a “Notification of Right to Counsel.” The record does not contain a return of service for the father.

The juvenile court conducted a shelter-care hearing on May 14, 2009; the mother was present at the hearing, but the father was not. Pursuant to an order dated June 2, 2009, DHR was awarded shelter care of the child and was ordered to perform a home study of the mother's residence in Los Angeles, California.

The juvenile court conducted a permanency hearing on July 31, 2009 (“the July 2009 hearing”). The record reveals that the mother and her attorney were present at the July 2009 hearing but that neither the father nor an attorney for the father was present at the July 2009 hearing.¹ The juvenile-court judge read into the record DHR's recommended permanency plan for the child, which was to return the child to the parents, and proceeded to hear testimony from the mother and the foster mother of the child. The juvenile court entered an “Order on Adjudicatory, Dispositional, and Permanency Hearing” on August 19, 2009 (“the August 2009 order”). Pursuant to the August 2009 order, the juvenile court found the child dependent, determined that DHR had made reasonable efforts to finalize the permanency plan for the child, adjudicated the father to be the father of the child, and awarded temporary legal and physical custody of the child to DHR.

The father filed an “Affidavit of Indigency” on August 27, 2009, and the father was appointed legal counsel on August 28, 2009. On December 22, 2009, more than four months after the juvenile court had entered the August 2009 order, the father filed a motion to set aside or vacate the August 2009 order, pursuant to Rule 59(e), Ala. R. Civ. P.² The father argued that the August 2009 order was due to be vacated because he had a right to be present at the July 2009 hearing and he had “a fundamental right to appointed counsel at every stage of a dependency proceeding,” citing R.H. v. D.N., 5 So.3d 1253 (Ala.Civ.App.2008), and § 12–15–305(b), Ala.Code 1975. A notation in the case-action summary has the word “DENIED” in parentheses after the December 22, 2009, entry of the father's Rule 59(e) motion.

The juvenile court conducted a dispositional and permanency hearing on December 23, 2009 (“the December 2009 hearing”), and the father and his appointed attorney were present. At that hearing, the father argued that the August 2009 order was due to be reversed because the father had not been represented by counsel at the July 2009 hearing. The juvenile court only heard testimony from the child's foster mother. On December 30, 2009, the juvenile court entered an “Order on Dispositional and Permanency Hearing” (“the December 2009 order”), and, pursuant to that order, legal custody of the child remained with DHR and DHR was “authorized and directed” to return physical custody of the child to the mother. The father was awarded telephone contact with the child and supervised visitation with the child. The juvenile court's order stated that all provisions of prior orders that were not inconsistent with the December 2009 order were to remain in effect, and the juvenile court set a dispositional hearing to be conducted on April 5, 2010.

On January 5, 2010, the father filed a motion to alter, amend, or vacate the December 2009 order. The father again argued that the August 2009 order was due to be vacated because he had not been represented by an attorney at the July 2009 hearing that led to the juvenile court's August 2009 order finding the child dependent. The father alleged that he was “prejudiced by hearsay testimony that may have been allowed in without objection.” The father also argued that it was not in the child's best interest to be placed in the physical custody of the mother. The father's postjudgment motion was denied by operation of law on January 19, 2010. See Rule 1(B), Ala. R. Juv. P. (“A postjudgment motion is deemed denied if not ruled on within 14 days of filing.”). The father timely filed a notice of appeal to this court.

Issue

On appeal, the only issue presented by the father is whether his due-process rights were violated because he was denied representation by an attorney at all stages of the child's dependency proceeding.

Standard of Review

“Because the issue before us presents a pure question of law, we review the matter de novo, without any presumption of correctness.” Ex parte Byrom, 47 So.3d 791, 794 (Ala.2010) (citing Simcala, Inc. v. American Coal Trade, Inc., 821 So.2d 197, 200 (Ala.2001)).

Discussion

Before we reach the merits of the father's argument on appeal, we must first address DHR's contention that the father's appeal is due to be dismissed as an appeal from a nonfinal judgment. See James v. Rane, 8 So.3d 286, 288 (Ala.2008) (an appellate court is without jurisdiction to review a case appealed from a nonfinal judgment). DHR argues that the father's appeal is premature because the juvenile court, in the December 2009 order, set a dispositional hearing to be held in April 2010. We disagree. In D.P. v. Limestone County Department of Human Resources, 28 So.3d 759, 763 (Ala.Civ.App.2009) (quoting J.J. v. J.H.W., 27 So.3d 519, 522 (Ala.Civ.App.2008)), we stated:

“ ‘Under our caselaw, a formal determination by a juvenile court of a child's dependency coupled with an award of custody incident to that determination will give rise to an appealable final judgment even if the custody award is denominated as a “temporary” award and further review of the case is envisioned.’ ”

In this case, the judgment appealed from, the December 2009 order, maintained the child's status as a dependent child, awarded legal custody of the child to DHR, and authorized and directed DHR to give physical custody of the child to the mother.

“[W]e have treated a juvenile court's permanency order as final and appealable when it results in depriving a parent of the care, custody, or visitation with his or her child. See R.J.L. v. Lee County Dep't of Human Res., 976 So.2d 455, 456 (Ala.Civ.App.2007) (appeal of a permanency order transferring ‘physical custody of ... the mother's two-year-old son[ ] from the child's foster parents in Alabama to the mother's cousins ... in Watertown, New York’), and D.B. v. Madison County Dep't of Human Res., 937 So.2d 535, 536 (Ala.Civ.App.2006) (appeal of a permanency order awarding legal and physical custody of the child to the maternal aunt).

“In determining whether any juvenile-court order that is subject to revision is appealable, we consider that the focus should be on whether the order addresses crucial issues that, if not objected to by the aggrieved party, are thereafter precluded from appellate review. This court has long considered dependency determinations to be final and appealable, but there is nothing magic about dependency determinations as opposed to permanency orders. We hold that it is immaterial, for purposes of finality and appealability, that a juvenile court's order emanates from the permanency-plan hearing rather than from the periodic review of a dependency determination. If the order addresses crucial issues that could result in depriving a parent of the fundamental right to the care and custody of his or her child, whether immediately or in the future, the order is an appealable order.”

D.P. v. Limestone County Dep't of Human Res., 28 So.3d at 764.

The December 2009 order addressed, among other thing, the disposition of the child pursuant to the juvenile court's finding of dependency. The December 2009 order deprived the father of the care, custody, and control of the child by continuing legal custody of the child with DHR and by permitting DHR to place physical custody of the child with the mother, who lived in California. Pursuant to this court's decision in D.P., supra, we conclude that the father's appeal from the December 2009 order is properly before this court.

On appeal, the father argues that the...