Summary
In D.B.R. v. Mobile County Department of Human Resources, 757 So.2d 1190, 1191–92 (Ala.Civ.App.1998), reversed by Ex parte D.B.R., supra, this court stated that “[r]equests for rehearing pursuant to [former] § 12–15–6(d) [, Ala.Code 1975,]... are subject to Rule 1(B), Ala. R. Juv.
Summary of this case from Jefferson Cnty. Dep't of Human Res. v. C.S. (Ex parte Quarles)Opinion
2960799.
January 16, 1998. Rehearing Denied February 20, 1998.
Appeal from Mobile Juvenile Court, No. JU-95-1641.92, John F. Butler, J.
Patricia W. Hall, Mobile, for appellant.
J. Coleman Campbell and Lynn S. Merrill, asst. attys. gen., Department of Human Resources, for appellees.
H.K.R. was born on July 17, 1995, while the mother was a patient at Searcy Hospital; H.K.R. has been in the custody of the maternal grandmother since shortly after her birth. The record reflects that the father is 51 years old with a history of mental illness and drug use, who lives in the back of a store; the mother is 31 years old, with a history of mental illness; and the child is now 2 years old.
The case action summary sheet reflects that on July 20, 1995, by petition for instanter and temporary custody, instanter temporary custody of the 3-year-old child was awarded to the Department of Human Resources ("DHR"). The child was placed in the maternal grandmother's home on August 31, 1995, and has remained in her care. Both the father and the mother were represented by retained legal counsel, although the father's attorney withdrew on September 25, 1995. Following a hearing on April 8, 1996, the child was found to be dependent and temporary legal custody of the minor child was awarded to Mobile County DHR with physical custody remaining with the maternal grandmother; the father was awarded supervised visitation. No appeal was taken by either parent.
The present case began on October 7, 1996, when the father and the mother filed a motion to establish visitation. On November 21, 1996, DHR requested a dispositional hearing, and the case was set for March 3, 1997. The maternal grandmother filed a petition for custody on January 14, 1997.
Initially, the mother and the father were represented by the same attorney and the child was represented by a guardian ad litem. After some disagreement arose between the father and the mother regarding the maternal grandmother's custody petition (the father had decided he wanted to have full physical custody of the little girl), the father asked the referee to appoint a public defender to represent him. The father did not file an affidavit of substantial hardship, but simply stated that he was making only $5,500 per year and could not continue paying his attorney. The referee denied his request for a public defender, and this denial was confirmed by the trial court. The attorney continued to represent the mother, the father represented himself in his petition for custody, and the minor child was represented by a guardian ad litem.
Following a hearing, the referee issued his findings and recommendations to the judge, pursuant to § 12-15-6 (c), Ala. Code 1975. The referee's findings and recommendations were confirmed by the trial court on March 10, 1997, pursuant to § 12-15-6 (e), Ala. Code 1975. On March 18, 1997, the father filed a pleading on behalf of the child, even though the child was being represented by a guardian ad litem. The pleading was entitled "APPEAL OF DECISIONS OF MARCH 3, 1997." The pleading specifically stated that it was being filed "On behalf of [the minor child], by [the father]." The pleading recited many alleged errors committed by the referee.
The trial court specifically treated the March 18, 1997, pleading as a petition for rehearing pursuant to § 12-15-6 (d), Ala. Code 1975. The trial court, after reviewing the audio record of the hearing before the referee, denied the petition for rehearing on April 4, 1997, and appointed the father an attorney for purposes of appeal.
This section provides that any party may file a written request, within 14 days after receipt of the referee's findings and recommendations, for a rehearing before the trial court.
On April 17, 1997, the father's attorney filed a notice of appeal. In the notice of appeal, the attorney specifically called the March 18, 1997, pleading a motion to alter, amend, or vacate.
As to Judge Crawley's dissent, the record does not support his statements that the trial court and the father's appointed counsel treated the "earlier pro se pleading as both a post-judgment motion and as a notice of appeal."
Requests for rehearings pursuant to § 12-15-6 (d) and motions to alter, amend, or vacate are subject to Rule 1 (B), Ala.R.Juv.P., the 14-day-rule in juvenile proceedings. The comment to Rule 1 (B) specifically states: "This Rule is meant to apply in dependency, custody, or other proceedings of a civil nature filed in the juvenile court where no rule of juvenile procedure addresses the matter." The request for rehearing, or post-judgment motion, was filed on March 18, 1997, and could remain pending for only 14 days, i.e., until April 1, 1997, when it was disposed of by operation of law. Id. The last possible day to file a notice of appeal was April 15, 1997. Rule 28 (C), Ala.R.Juv.P. The father did not file his notice of appeal until April 17, 1997. Therefore, the appeal to this court is untimely; this court is without jurisdiction; and the appeal must be dismissed. M.C. v. K.B., 634 So.2d 595 (Ala.Civ.App. 1994).
APPEAL DISMISSED.
YATES, MONROE, and THOMPSON, JJ., concur.
CRAWLEY, J., dissents.
I do not agree that the appeal was untimely. The father's March 18, 1997, pro se filing entitled "Appeal of Decisions of March 3, 1997" was treated by the trial court — and should be construed by this court — both as a petition for rehearing pursuant to § 12-15-6 (d), Ala. Code 1975, and as a notice of appeal.
Upon receipt of that filing, the juvenile court not only denied the father post-judgment relief, but also appointed him appellate counsel and granted him a free transcript on appeal. The father's appointed counsel, taking her cue from the trial court, also treated her client's earlier pro se filing as both a post-judgment motion and a notice of appeal. Counsel averred:
"The appellant has previously filed an affidavit of hardship requesting appointed attorney for appeal, permission to proceed without prepayment of costs or fees or the necessity of giving security therefor and for a free transcript."
The majority is apparently troubled by the fact that the father's filing alleged that it was filed "on behalf of the minor child." However, the language used by a pro se litigant cannot be viewed in a technical sense. It is likely that, by the phrase, "on behalf of [the minor child] by [her father]," the father meant only that the child was the object of his concern, and not that she was his ward or that he was her legal guardian. Moreover, "the incorrect naming of the appealing party may be . . . treated as a clerical error," Ex parte Singleton, 475 So.2d 186, 189 (Ala. 1985), and "[n]othing in the [appellate] rules is designed to catch the unwary on technicalities." Edmondson v. Blakey, 341 So.2d 481, 484 (Ala. 1976).
The father's March 18, 1997, filing clearly indicated an intent to appeal from the juvenile court's judgment, and the juvenile court treated it as a notice of appeal. This court's hypertechnical construction of that filing is the epitome of the elevation of form over substance. I would hold that the appeal was timely. On the merits of the appeal, I would hold that § 12-15-63 (b), Ala. Code 1975, controls, and that the father was entitled to appointed counsel at trial.
Section 12-15-63 (b) provides:
"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.
"[P]arents of a child in a dependency case must be advised of their right to be represented by counsel and to have counsel appointed, pursuant to § 12-15-63 (b), Ala. Code 1975." F.D.M. v. C.D.S., 646 So.2d 117, 118 (Ala.Civ.App. 1994). "The right of the parents of a child in a dependency case to be represented by counsel at every stage of the proceeding is a fundamental one." Smoke v. State Dep't of Pensions Security, 378 So.2d 1149, 1150 (Ala.Civ.App. 1979) (emphasis added). See Rule 22, Ala.R.Juv.P. This case arises out of the dispositional stage of a dependency proceeding. The father was entitled to appointed counsel if he was "unable for financial reasons to retain [his] own."
The juvenile court did not state a reason for denying the father's request for a "public defender" at trial. However, because the court appointed appellate counsel for the father and granted the father a free transcript on appeal, there is a substantial probability that the court determined that the father was indigent. I would, therefore, remand with instructions for the trial court to determine whether, at the time of trial, the father was indigent, and, if so, to grant the father a new trial.