E.S.R., Jr. v. Madison County

• Decision Date: 28 March 2008
• Docket Number: 2060800.
• Citation: 11 So. 3d 227
• Parties: E.S.R., Jr. v. MADISON COUNTY DEPARTMENT OF HUMAN RESOURCES.
• Court: Alabama Court of Civil Appeals

11 So.3d 227

E.S.R., Jr. v.MADISON COUNTY DEPARTMENT OF HUMAN RESOURCES.

2060800.

Court of Civil Appeals of Alabama.

March 28, 2008.

Rehearing Denied June 13, 2008.

E.S.R., Jr., pro se.

Troy King, atty. gen., and Sharon E. Ficquette and Elizabeth Hendrix, asst. attys. gen., for appelleeDepartment of Human Resources.

MOORE, Judge.

E.S.R., Jr. ("the father"), appeals from an order dated May 30, 2007, denying his motion for relief from a series of judgments entered by the Madison Juvenile Court.We affirm.

Jurisdiction

Although neither party has raised the issue of jurisdiction before this court, "`jurisdictional issues are of such significance that a court may take notice of them ex mero motu.Eubanks v. McCollum,828 So.2d 935, 937(Ala.Civ.App.2002).'"D.V.P. v. T.W.P.,905 So.2d 853, 855(Ala. Civ.App.2005)(quotingHeaston v. Nabors,889 So.2d 588, 590(Ala.Civ.App.2004)).

This appeal arises from juvenile proceedings; therefore, the Rules of Juvenile Procedure govern this action.Rule 1(A), Ala. R. Juv. P. Rule 1(B), Ala. R. Juv. P., provides:

"All 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 the entry of judgment and shall not remain pending for more than 14 days."

In this case, the juvenile court entered a series of judgments between October 5, 2003, and August 25, 2006, in a dependency proceeding.The father filed a notice of appeal on August 29, 2006.On February 19, 2007, while his appeal was pending,¹the father filed a motion with this court for leave to file a Rule 60(b), Ala. R. Civ. P., motion with the juvenile court.This court granted the motion on February 28, 2007.The father's court-appointed counsel filed a document entitled "Motion for Relief from Judgment" on March 6, 2007.The juvenile court set that motion for a hearing on May 18, 2007.However, on May 7, 2007, the father filed his own "Motion for Relief from Judgment," along with a motion to strike the March 6, 2007, "Motion for Relief from Judgment."The juvenile court held a hearing on the father's motions on May 18, 2007, and entered an order denying the motions on May 30, 2007.

The father's postjudgment motions are deemed to have been filed on February 19, 2007.SeeRule 60(b)("If leave of the appellate court is obtained, the motion shall be deemed to have been made in the trial court as of the date upon which leave to make the motion was sought in the appellate court.").In the first motion, the father sought to have two judgments, one entered on December 15, 2005, and one entered on August 25, 2006, set aside on the grounds of mistake and excusable neglect as set out in Rule 60(b)(1), newly discovered evidence as set out in Rule 60(b)(2), misconduct of an adverse party as set out in Rule 60(b)(3), and ineffective assistance of counsel under Rule 60(b)(6).In the second motion, the father sought to have five judgments set aside on the ground that the judgments were void as set out in Rule 60(b)(4), that they had been procured by fraud upon the court, and that he had received ineffective assistance of counsel under Rule 60(b)(6).²If the Rule 60(b) motions are considered "postjudgment" motions, pursuant to the strict terms of Rule 1(B), the juvenile court could not entertain them because they were not filed with 14 days of the entry of any of the judgments being challenged.

However, in Ex parte R.S.C.,853 So.2d 228, 233-34(Ala.Civ.App.2002), this court held that Rule 60(b) motions do not fall within Rule 1(B) because they form "a collateral attack on the judgment" that "does not affect the finality of the judgment or suspend its operation."Based on R.S.C., the failure of the father to file his Rule 60(b) motions within 14 days of the entry of the challenged judgments does not automatically divest the juvenile court of jurisdiction.

Although the time limitations established in Rule 1(B) do not apply, the father still had to comply with the time limitations set out in Rule 60(b).Rule 60(b) states that motions for relief from a judgment based on reasons set out in subdivisions (1), (2), and (3)"shall be made within a reasonable time and ... not more than four (4) months after the judgment, order, or proceeding was entered or taken."SeeBryant v. First Tuskegee Bank,866 So.2d 1139, 1142 n. 1(Ala.Civ.App.2002), overruled on other grounds, Ex parte Full Circle Distrib., L.L.C.,883 So.2d 638(Ala.2003).Hence, the juvenile court did not have jurisdiction to consider the father's motions asserting grounds under Rule 60(b)(1), (2), and (3) that were filed well beyond four months after the entry of the final August 25, 2006, judgment.

In Ex parte E.D.,777 So.2d 113(Ala.2000), our supreme court held in a termination-of-parental-rights case that "under certain circumstances," when a parent cannot reasonably file a claim of ineffective assistance of counsel within the period established for the filing of motions for a new trial, a parent may file a Rule 60(b)(6) motion based on ineffective assistance of counsel within a reasonable time following the judgment.³777 So.2d at 116.The court also noted that "Rule 60(b) allows a trial court to entertain an independent action `within a reasonable time and not to exceed three (3) years after the entry of the judgment,'"id., to, among other things, "set aside a judgment for fraud upon the court."Rule 60(b).⁴Our supreme court also ruled in Ex parte Full Circle Distribution, L.L.C., supra, that a motion for relief from a void judgment filed pursuant to Rule 60(b)(4) may be made at any time after rendition of the judgment.Taking these cases together, it appears that the juvenile court did have jurisdiction to consider the father's motions to set aside the judgments as void under Rule 60(b)(4), to set aside the judgments based on ineffective assistance of counsel under Rule 60(b)(6), and to set aside the judgments due to fraud upon the court under Rule 60(b).Therefore, on this appeal, we review the judgment on the father's Rule 60(b)motions only to determine if the juvenile court erred in failing to grant the father's motions on those grounds.

Rule 60(b)(4) Claims

The father argues that the juvenile court erred in failing to declare five judgments void.The father argues that the first judgment, entered on October 8, 2003, is void because of lack of personal jurisdiction and that the judgments entered on April 6, 2004, October 31, 2005, May 2, 2006, and August 25, 2006, are void because they were procured in a manner inconsistent with due process.

When considering an appeal from the denial of a Rule 60(b)(4) motion,

"`[t]he standard of review ... is not whether there has been an abuse of discretion....If the judgment is valid, it must stand; if it is void, it must be set aside.A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process.'"

Systrends, Inc. v. Group 8760, LLC,959 So.2d 1052, 1062(Ala.2006)(quotingInsurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp.,590 So.2d 209, 212(Ala.1991)).The father, as the party asserting lack of personal jurisdiction and lack of due process, had the burden of proving those grounds.SeeSeymore v. Taylor,716 So.2d 1216(Ala.Civ.App.1997).

On October 8, 2003, the juvenile court adopted the order of a referee, finding E.S.R III ("the child") and two of his half siblings dependent and awarding shelter-care custody to the Madison County Department of Human Resources("DHR").The father argues that the October 8, 2003, judgment is void because, he says, he was not provided service of summons and was not notified of his right to counsel before the September 5, 2003, hearing upon which the October 8, 2003, judgment was based.

When a child is not released from shelter care as provided in Ala.Code 1975, § 12-15-58, the law requires the filing of a petition to be filed within 72 hours to determine whether continued shelter care is required.Ala.Code 1975, § 12-15-60(a).Pursuant to Ala.Code 1975, § 12-15-60(b):

"Notice of the detention or shelter care or other care hearing, either oral or written, stating the time, place and purpose of the hearing and the right to counsel shall be given to the parent, guardian or custodian if they can be found...."

Although Rule 13, Ala. R. Juv. P., provides that "[s]ervice of summons shall be pursuant to the Alabama Rules of Civil Procedure" and that summons "shall be served at least 24 hours before the hearing on the merits," that rule only applies when service of summons is required by law.Section 12-15-60,Ala.Code 1975, plainly does not require service of summons, but only oral or written notice.Thus, the mere fact that the record does not contain a return of service of summons is not dispositive.

According to the judgment, the court determined that "notice of the Shelter Care hearing stating time, place and purpose of the hearing and the right to counsel has been given to the natural parents."The record does not contain a transcript of the September 5, 2003, hearing.In the absence of a transcript, this court presumes that the juvenile court had before it sufficient evidence to sustain its findings.SeeDiffer v. State,962 So.2d 876, 877(Ala.Civ.App.2007).Based on this presumption, we must conclude that the juvenile court received some information that the father had received proper notice of the hearing and his right to counsel.Although the father alleges that he did not learn of the dependency proceedings until October 24, 2003, the father did not file any affidavit or deposition testimony in support of that contention.The father instead requested the juvenile court to accept his unsworn statements as evidence because he was acting as his own counsel.The father did not cite to the juvenile court or to this court any legal authority to the effect that...