M.W. v. Calhoun Cnty. Dep't of Human Res.

• Decision Date: 30 June 2022
• Docket Number: 2210093,2210094,2210095
• Parties: M.W. v. Calhoun County Department of Human Resources
• Court: Alabama Court of Civil Appeals

M.W.
v.
Calhoun County Department of Human Resources

Nos. 2210093, 2210094, 2210095

Alabama Court of Civil Appeals

June 30, 2022

Appeals from Calhoun Juvenile Court (JU-20-513.02, JU-20-514.02, and JU-20-515.02)

EDWARDS, Judge.

On August 23, 2021, the Calhoun County Department of Human Resources ("DHR") filed petitions in the Calhoun Juvenile Court ("the juvenile court") seeking to terminate the parental rights of M.W. ("the

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mother") to her children, A.F., T.F. and K.F.; those petitions were assigned case numbers JU-20-513.02, JU-20-514.02, and JU-20-515.02, respectively.^[1] The juvenile court entered an order in each action on August 26, 2021, setting the petitions for a trial to be held on October 14, 2021. On September 1, 2021, DHR filed a motion in each action seeking to serve the mother by publication. DHR supported each of its motions with an affidavit stating that "[t]he mother's whereabouts are unknown and cannot be ascertained with reasonable and due diligence." The juvenile court granted those motions the following day.

On October 14, 2021, the mother submitted an affidavit of substantial hardship and requested the appointment of counsel to represent her. At the commencement of the trial, the juvenile court appointed the mother counsel, who accepted the appointment and

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immediately challenged service by publication. In his argument to the juvenile court, the mother's counsel contended that DHR had been aware, as indicated by information in a court report, that the mother had relocated from Calhoun County to Sylacauga; that DHR had attempted to serve the mother at her former Anniston address, despite its knowledge that she had relocated; and that DHR had not made any effort to ascertain the mother's address in Sylacauga before filing the motions to serve the mother by publication. DHR's counsel admitted that DHR had known that the mother intended to relocate to Sylacauga but stated that the mother's actual address was unknown to DHR; counsel for DHR also stated that the mother had neither provided her address to DHR nor contacted DHR for months. The juvenile court denied the oral motion challenging service of process and proceeded to try the termination-of-parental-right actions.

On October 15, 2021, the juvenile court entered a judgment in each action, terminating the parental rights of the mother and the children's respective fathers. See note 1, supra. The mother filed timely notices of

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appeal. We dismiss the appeals with instructions to the juvenile court to vacate the judgments terminating the mother's parental rights.

On appeal, the mother's initial argument is that service by publication was not properly authorized by the juvenile court and that, therefore, she was not properly served with the termination-of-parental-rights petitions. DHR contends that the mother waived that argument by appearing and testifying at the trial. Although a party may...