Ex parte ED

• Decision Date: 21 July 2000
• Citation: 777 So.2d 113
• Parties: Ex parte E.D. (In re E.D. v. State Department of Human Resources).
• Court: Alabama Supreme Court

777 So.2d 113

Ex parte E.D.

(In re E.D. v. State Department of Human Resources).

1990167.

Supreme Court of Alabama.

July 21, 2000.

Katie Seals Ferguson, Tuscaloosa, for petitioner.

J. Coleman Campbell and Lynn S. Merrill, asst. attys. gen., Department of Human Resources, for respondent.

LYONS, Justice.

E.D. appealed to the Court of Civil Appeals from the juvenile court's dismissal of her Rule 60(b)(6), Ala.R.Civ.P., motion, in which she had asked the court to set aside its judgment terminating her parental rights as to her minor children. The Court of Civil Appeals affirmed. See R.D. v. State Dep't of Human Resources, 777 So.2d 110 (Ala.Civ.App.1999). E.D. sought certiorari review from this Court; we granted her petition.¹ We reverse and remand.

On June 30, 1998, the Tuscaloosa Juvenile Court entered a judgment terminating E.D.'s parental rights. On July 9, E.D.'s attorney withdrew from the case, and the court appointed E.D. a new attorney for the purpose of appeal. On July 14, E.D. filed a notice of appeal. On January 8, 1999, the Court of Civil Appeals affirmed, without an opinion. R.D. v. State Dep't of Human Resources (No. 2971140), 776 So.2d 220 (Ala.Civ.App.1999) (table). On March 3, E.D. filed a Rule 60(b)(6) motion with the juvenile court, alleging ineffective assistance of trial counsel.

In her motion, E.D. asked the court, pursuant to Rule 60(b)(6), to set aside or reopen the judgment terminating her parental rights, to order a new trial, or to enter a new judgment. She argued that because a new attorney was appointed to represent her on appeal, that attorney could not have known what had happened at the termination hearing until the trial transcript was completed and filed with the court. That occurred on September 8, she said, well beyond the 14-day period within which a party in a juvenile proceeding can file an appeal. Therefore, she argues, it would have been impossible for her appellate attorney to raise her ineffective-assistance-of-counsel claim within the 14-day period provided by the Rules of Juvenile Procedure. The trial court denied E.D.'s motion as untimely. The court treated her motion as a motion for a new trial pursuant to Rule 59, Ala.R.Civ.P., and stated that Rule 60(b) does not apply to juvenile cases. E.D. appealed.

In affirming, the Court of Civil Appeals concluded that, although E.D. filed her motion pursuant to Rule 60(b)(6), the trial court correctly treated it as a motion filed pursuant to Rule 59 and correctly denied the motion as untimely. The court based its decision on Rule 1(B), Ala.R.Juv.P., which provides in part that "[a]ll postjudgment motions, whether provided for by the Alabama Rules of Civil Procedure or the Alabama Rules of Criminal Procedure, must be filed within 14 days after entry of judgment and shall not remain pending for more than 14 days." The Court of Civil Appeals reasoned that granting E.D.'s motion would require rewriting Rule 1(B).

The Court of Civil Appeals noted that in her motion E.D. argued (1) that her trial attorney did not meet with her from February 6, 1998, until the time of trial on June 29, 1998; (2) that he had failed to offer evidence of the counseling she was receiving; and (3) that he had failed to timely request certain services provided by the Department of Human Resources ("DHR") for reunification purposes and had failed to discuss the issue of services with her. The court reasoned that these matters were ascertainable through discussions between E.D. and her appellate attorney and were not solely ascertainable from a review of the termination hearing transcript. Therefore, the court concluded, E.D. could have filed a motion for a new trial within the time allowed by the juvenile rules.

Judge Crawley, in a dissenting opinion, questioned whether, "under most circumstances or under the circumstances of this case, a claim of ineffective assistance of counsel can reasonably be presented in a post-trial motion filed within 14 days of a judgment terminating parental rights." 777 So.2d at 112. The dissent argued that the trial court erred by treating E.D.'s Rule 60(b)(6) motion as one for a new trial pursuant to Rule 59. The Court of Civil Appeals has held that a parent's right to legal representation in a parental-rights-termination case includes the right to effective assistance of counsel. See Crews v. Houston County Dep't of Pensions & Sec., 358 So.2d 451, 454 (Ala.Civ.App.1978). Because the same right is afforded a defendant in a criminal case, the dissent discussed the use of Rule 32 proceedings in a criminal case to raise an ineffective-assistance-of-counsel claim in a collateral attack and pointed out that a collateral attack on a judgment in a civil case is permitted by Rule 60(b)(6). The dissent concluded, "Rule 60(b)(6) appears to be the appropriate vehicle for a parent claiming ineffective assistance of counsel to seek relief from a judgment terminating parental rights." 777 So.2d at 113.

In her certiorari petition, E.D. states that the trial court did not appoint a new attorney for her until the 13th day of the 14-day period within which she could file a postjudgment motion or an appeal. E.D. repeats her argument that her new attorney could not have known what happened at trial until the trial transcript was completed and filed with the court in September 1998. Therefore, she argues, it was impossible for her attorney to file an ineffective-assistance-of-counsel claim within the 14-day period provided by Rule 1(B), Ala.R.Juv.P.

DHR argues that, in September 1998, when E.D.'s appellate attorney first discovered the evidence that E.D. claims supports a new trial, E.D. should have sought leave from the Court of Civil Appeals to file a Rule 60(b) motion with the trial court. Instead, it argues, E.D. chose to wait until almost two months after the completion of her appeal, almost six months after the completion of the transcript, and almost nine months after the entry of the trial court's order. DHR also argues that E.D. did not prove that her trial counsel was ineffective or that more effective trial counsel would have made a difference in the outcome of the parental-rights-termination hearing.

In a parental-rights-termination case, a parent has a right to appointed counsel. Section 12-15-63(b), Ala.Code 1975, states:

"In dependency cases, the parents, guardian or custodian shall be informed of their right to be represented by counsel and, upon request, counsel shall be appointed where the parties are unable for financial reasons to retain their own."

See, also, Valero v. State Dep't of Human Resources, 511 So.2d 200, 202 (Ala.Civ. App.1987); Matter of Ward, 351 So.2d 571, 573 (Ala.Civ.App.1977). "[I]nherent [in] a parent's right to legal representation in a deprivation hearing is the right to effective assistance of counsel." Crews, supra, 358 So.2d at 455.

Similarly, in a criminal case, a defendant has a right to court-appointed counsel. A criminal defendant must raise a claim of ineffective-assistance-of-counsel in a motion for a new trial in order for that claim to be properly preserved for review upon direct appeal. Ex parte Ingram, 675 So.2d 863, 865 (Ala.1996). However, when a criminal defendant cannot reasonably make an ineffective-assistance-of-counsel claim in a motion for new trial within the 30 days allowed by Rule 24.1(b), Ala. R.Crim.P., the proper method for presenting that claim is to petition for post-conviction relief pursuant to Rule 32, Ala. R.Crim.P. Id. at 866. As a general rule, a court will not entertain a Rule 32 petition more than two years after the Court of Criminal Appeals has issued its certificate of judgment, or, in the case of a conviction from which no appeal is taken, more than two years after the time for filing an appeal elapses. See Rule 32.2(c).

Just as Rule 32, Ala.R.Crim.P., allows a criminal defendant to collaterally attack his conviction,...