Summary
noting that review of initial appointed counsel's no-merit brief on behalf of one parent revealed "certain potentially viable arguments on appeal, none of which ... had [been] identified or briefed"; only later did parent's replacement appointed counsel raise and argue dispositive issue that parent had been denied statutory right to trial counsel
Summary of this case from J.L. v. Ala. Dep't of Human Res.Opinion
2180509 2180510
01-10-2020
M.L.M. v. MADISON COUNTY DEPARTMENT OF HUMAN RESOURCES F.B. v. Madison County Department of Human Resources
Chris Messervy, Huntsville, for appellant M.L.M. Karen Humphrey, Huntsville, for appellant F.B. Steve Marshall, atty. gen., and Felicia M. Brooks, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for appellee.
Chris Messervy, Huntsville, for appellant M.L.M.
Karen Humphrey, Huntsville, for appellant F.B.
Steve Marshall, atty. gen., and Felicia M. Brooks, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for appellee.
EDWARDS, Judge.
In appeal number 2180509, M.L.M. ("the father") appeals from a judgment entered by the Madison Juvenile Court ("the juvenile court") terminating his parental rights to L.G.B.-M ("the child"). In appeal number 2180510, F.B. ("the mother") appeals from that same judgment to the extent it terminates her parental rights to the child.
On October 24, 2018, the Madison County Department of Human Resources ("DHR") filed in the juvenile court a petition seeking to terminate the parental rights of the mother and the father to the child. On October 26, 2018, the juvenile court entered an order setting the matter for a pretrial hearing to be held on November 8, 2018. That order indicates that it was to be served on Reta McKannan, the attorney for the mother, and Chris Messervy, the attorney for the father; however, the record does not contain a request to proceed in forma pauperis from either parent or an order appointing counsel for either parent, neither of whom had been served with the petition as of October 26, 2018. Messervy filed a notice of appearance accepting his appointment as counsel for the father on November 8, 2018; McKannan filed her notice of appearance as counsel for the mother on December 6, 2018.
On November 26, 2018, DHR filed a motion seeking to serve the mother and the father by publication. The juvenile court granted that request on November 27, 2018. That same date, the juvenile court set the termination-of-parental-rights trial for February 26, 2019. Thus, the publication notice intended to serve the parents with the termination-of-parental-rights petition included the date of the termination-of-parental-rights trial. Messervy filed an answer on behalf of the father on November 30, 2018. On January 7, 2019, DHR notified the court that service by publication had been completed.
When the trial commenced on February 26, 2019, neither the mother nor the father were in attendance. After brief introductions of those present, the following occurred:
"McKannan: Your Honor, I realize that you're excusing me and I appreciate it. My client contacted me a week ago.
"The Court: Okay.
"McKannan: She made an appointment – A little more than week ago. She made an appointment. She did not appear to the appointment.
"She then called and asked to speak to me and have a phone appointment. I told her no, I needed her to come let me see her face-to-face and us discuss the case, and she declined to do that. I've had no further contact. That was the first time that I've spoken to her since I represented her four or five years ago.
"The Court: So the only contact you've had with her in the last four or five years was by phone a few days ago.
"McKannan: Yes, Sir.
"The Court: All right. And no contact since that time?
"McKannan: No, sir.
"The Court: And did she come by your office?
"McKannan: She did not.
"The Court: And the Court understands that you are obligated for another hearing so you wish to be excused. I'll do so. Now, if she does show up, I will at least let you know that she is here."
McKannan left the courtroom, and the trial proceeded without the presence of the mother or her court-appointed counsel.
At trial, DHR presented the testimony of Andra Carter, who testified about the results of the mother's drug tests. Carter indicated that the mother had been required to test twice per month; however, he said that she had not regularly tested. Carter related the results of what he characterized as the mother's last three recorded drug tests. He said that the mother had tested positive for amphetamines in July 2018 but that she had tested negative for illegal substances in February 2019 and in February 2014. The documentary evidence presented further indicates that the mother also had negative drug tests in July, September, and November 2015. She had no other positive drug tests.
Kristine Arnold, the most recent caseworker on the parents' case, testified that the child had been born at home, that the mother and the father had taken the child to the hospital in March 2018 because the child appeared to be suffering respiratory distress, that both the child and the mother were hospitalized, and that the mother left the hospital against medical advice, leaving the child behind. Other testimony and documentary evidence revealed that the father is named on the child's birth certificate and that the mother has a 2015 misdemeanor conviction for assault in the third degree, see Ala. Code 1975, § 13A-6-22, and a 2017 felony conviction for the manufacture of a controlled substance in the second degree. See Ala. Code 1975, § 13A-12-217.
Arnold indicated that the parents had had very little contact with DHR. She specifically testified that the parents had had contact with DHR in July 2018 but that she was not the caseworker at that time and was not aware of the details of that contact. When questioned about whether she had been able to locate the parents for purposes of service, Arnold said that she had attempted to contact the parents by checking at all the addresses DHR had for them to no avail. Arnold testified that she had spoken with the mother in person on February 14, 2019, that she had informed the mother of the upcoming trial, that she had told the mother to contact her attorney, that the mother had indicated to her that she was unaware that she had been appointed counsel, and that she had provided the mother with the names and telephone numbers of both McKannan and Messervy. Arnold said that she had not asked the mother for an address but that she had taken the mother's telephone number down, although she said that she had not used it to contact the mother at any point before the trial. In addition, Arnold admitted that the mother had told her that she had a relative who was interested in serving as a placement or adoptive resource for the child; Arnold further admitted that she had not taken the contact information for that relative from the mother.
The trial concluded, and the juvenile court entered a judgment on March 12, 2019, terminating the parental rights of both parents. On March 26, 2019, Messervy filed a postjudgment motion in which he asserted that the mother and the father desired a new trial on the grounds of improper service of process, lack of proper notice of the trial setting, and the violation of the mother's statutory right to counsel. In that motion, which was supported by affidavits from the mother, the father, and Judy Upton, who had been present when the mother spoke with Arnold on February 14, 2019, Messervy further asserted that Arnold had informed the mother of the wrong day for the hearing; in their affidavits, the mother and Upton both state that Arnold informed the mother that the trial would be held on the Wednesday of the last week of the month of February instead of on the Tuesday of that week. Messervy also filed, on behalf of the mother and the father, a request to proceed in forma pauperis on appeal and two separate notices of appeal of the juvenile court's judgment. Later on that same date, McKannan filed, purportedly on behalf of the mother, a request to proceed in forma pauperis on appeal and a notice of appeal.
On March 29, 2019, the juvenile court set the postjudgment motion for a hearing to be held on April 5, 2019. On April 3, 2019, McKannan sought a continuance of the postjudgment hearing to a date after April 9, 2019, which was the 14th day after the filing of the postjudgment motion; therefore, McKannan requested that the juvenile court postpone the postjudgment hearing to a date after it would have lost jurisdiction over that motion. See Rule 1(B), Ala. R. Juv. P.; see also D.V.P. v. T.W.P., 905 So. 2d 853, 855 (Ala. Civ. App. 2005). The juvenile court granted McKannan's motion to continue the postjudgment hearing, and the postjudgment motion was denied by operation of law on April 9, 2019.
The juvenile court set the postjudgment hearing for April 10, 2019, the day after the motion was denied by operation of law, and purported to deny the postjudgment motion by order entered on April 15, 2019. That order was a nullity. See, e.g., S.D.C. v. N.L., 864 So. 2d 1089, 1091 (Ala. Civ. App. 2002) (explaining that a juvenile court's order entered after a postjudgment motion is denied by operation of law is a nullity).
In support of the mother's appeal, McKannan submitted to this court a "no-merit" brief and a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and J.K. v. Lee County Department of Human Resources, 668 So. 2d 813 (Ala. Civ. App. 1995). Upon our review of McKannan's brief and the record on appeal, we concluded that the mother had certain potentially viable arguments on appeal, none of which McKannan had identified or briefed. Thus, we ordered that McKannan be relived of representation of the mother and ordered the juvenile court to appoint the mother new counsel to advance the mother's potential arguments on appeal. In compliance with our order, the juvenile court appointed the mother replacement appellate counsel.
Through that replacement counsel, the mother now argues, among other things, that the juvenile court's allowing McKannan to be absent from the courtroom during the termination-of-parental-rights trial violated her statutory right to counsel under Ala. Code 1975, § 12-15-305(b), and, therefore, that the juvenile court's judgment must be reversed. The father argues, among other things, that, if the judgment is reversed insofar as it terminated the mother's parental rights, the judgment, insofar as it terminated his parental rights, is also due to be reversed because the mother could be a suitable custodian and, thus, a potential viable alternative to the termination of his parental rights. See W.A. v. Calhoun Cty. Dep't of Human Res., 211 So. 3d 849, 853 (Ala. Civ. App. 2016). We agree with the parents.
We first address DHR's contention, in response to the mother's argument, that the mother failed to preserve any error regarding the failure of her counsel to attend the trial because she did not object at the trial or file a postjudgment motion. We agree that the error of which the mother complains must have been raised before the juvenile court before it may be considered on appeal. See D.A. v. Calhoun Cty. Dep't of Human Res., 976 So. 2d 502, 504 (Ala. Civ. App. 2007) (explaining that this court may not consider an argument that a parent's right to counsel was infringed if that argument was not first made to the trial court either at trial or in a postjudgment motion). However, we disagree with DHR's proposition that the mother did not join in the filing of the father's postjudgment motion. The postjudgment motion clearly states that it was filed by Messervy on behalf of the mother and the father and that both parents requested a new trial. DHR has not provided this court with authority indicating that Messervy could not represent the mother because she was otherwise represented, and we know of none. The weight of authority appears to indicate that, when an attorney acts on behalf of a client, his or her authority to do so is presumed unless and until other facts indicate otherwise. See HICA Educ. Loan Corp. ex rel. Sallie Mae, Inc. v. Fielding, 953 So. 2d 1261, 1263–64 (Ala. Civ. App. 2006).
"As our supreme court has explained:
" ‘ " ‘An appearance in a suit by an attorney of the proper court, is presumed to be authorized. The burden of proof is upon the party denying the authority.’ " Pallilla v. Galilee Baptist Church, 215 Ala. 667, 669, 112 So. 134, 135 (1927) (quoting Doe v. Abbott, 152 Ala. 243, 245, 44 So. 637, 637 (1907) ). "Where the authority of an attorney to appear for a party to a cause or proceeding is a subject of inquiry, the appearance of the attorney is presumptive evidence of the authority of the attorney to represent the party; and, in the absence of evidence to the contrary, such appearance is sufficient to justify the conclusion that the attorney was authorized by the party to appear and represent him in the cause or proceeding." Kemp v. Donovan, 208 Ala. 289, 290, 94 So. 168, 169 (1922) (citations omitted). Accord 7 Am. Jur. 2d Attorneys at Law § 160 (1997) and 7A C.J.S. Attorney & Client § 171 (1980) ; [b]ut cf. Singleton v. Allen, 431 So. 2d 547, 549 (Ala. Civ. App. 1983).’
"[ Kingvision Pay–Per–View, Ltd. v.] Ayers, 886 So. 2d [45,] 52 [ (Ala. 2003) ]. See also Big Red Elephant v. Bryant, 477 So. 2d 342, 344 (Ala. 1985) (holding that an attorney who purported to represent a party and against whom no allegation that he did not represent that party was made had authority to file a suggestion of death on behalf of that party despite the fact that he had not filed a notice of appearance)."
Fielding, 953 So. 2d at 1263–64.
Although McKannan was the mother's appointed attorney, the mother had the right, especially after McKannan's conduct, to seek alternative representation after the trial. See, generally, 7A C.J.S. Attorney & Client § 338 (2015) ("The client ordinarily has the right to make a change or substitution of attorneys at any stage of the proceedings, unless it will prejudice the other party or interfere with the administration of justice ...."). At no point before the juvenile court did DHR challenge Messervy's ability to represent the mother. Thus, we presume that Messervy acted with authority when he filed the postjudgment motion on behalf of the mother, see Fielding, 953 So. 2d at 1264 (noting that, because the appellant had not challenged an attorney's authority to appear on behalf on the appellee in the trial court, the attorney "was presumed to have had that authority"), and that, therefore, that motion preserved the mother's complaint that she was denied her right to be represented by counsel in the termination-of-parental-rights trial.
That is not to say that Messervy, who was not appointed to represent the mother, is entitled to be compensated by the State for his representation of the mother.
Under Alabama law, a parent facing the termination of his or her parental rights has a statutory right to be represented by counsel. Ala. Code 1975, § 12-15-305(b). In addition, our supreme court has determined that the right of a parent facing a termination of his or her parental rights to be represented by counsel is a due-process right under the Alabama Constitution. See K.P.B. v. D.C.A., 685 So. 2d 750, 752 (Ala. Civ. App. 1996) (citing Ex parte Shuttleworth, 410 So. 2d 896, 899 (Ala. 1981) ). "The termination of parental rights is a solemn matter that deserves the law's utmost protection." Ex parte E.D., 777 So. 2d 113, 116 (Ala. 2000). In the present case, McKannan chose to seek to be excused from the trial, leaving the mother without legal representation, to which the mother was statutorily entitled. The juvenile court's decision to conduct the termination-of-parental-rights trial after excusing McKannan from the trial was tantamount to allowing McKannan to withdraw from representation and forcing the mother, who was not present, to be unrepresented at trial, much like the situation in J.A.H. v. Calhoun County Department of Human Resources, 846 So. 2d 1093, 1095 (Ala. Civ. App. 2002). In J.A.H., the Calhoun Juvenile Court required appointed counsel for an indigent parent to withdraw based on a conflict of interest and failed to appoint replacement counsel, resulting in the parent's appearing at the trial unrepresented. Thus, as we did in J.A.H., we conclude that the juvenile court in this case violated the mother's statutory and due-process rights under the Alabama Constitution to be represented by counsel at the termination-of-parental-rights trial. Accordingly, we reverse the judgment of the juvenile court insofar as that judgment terminated the parental rights of the mother.
To the extent that DHR relies on Lassiter v. Department of Social Services, 452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981), to support its argument that the failure of the mother to have counsel represent her adequately at trial did not result in a due-process violation, we explained in K.P.B. v. D.C.A., 685 So. 2d 750, 752 (Ala. Civ. App. 1996), that, although there is no federal due-process right to be represented by an attorney in a case involving a termination of parental rights, our supreme court determined in Ex parte Shuttleworth, 410 So. 2d 896, 899 (Ala. 1981), that a due-process right to such representation exists under the Alabama Constitution. Lassiter, therefore, is not controlling.
As permitted by this court, the father contends briefly in his supplemental brief that the juvenile court's judgment, insofar as that judgment terminated his parental rights, should be reversed because our reversal of the termination of the mother's parental rights might result in the mother's being "a suitable custodian, who ... would be a viable alternative to terminating the [father's] parental rights." W.A., 211 So. 3d at 853. Because the mother was deprived of her right to counsel and a new trial is warranted, and because we cannot tell what the evidence presented at the new trial might be, we agree that the judgment, insofar as it terminated the father's rights, should also be reversed so as to allow for the possibility that the mother's rights might not be terminated upon retrial and therefore that termination of the father's rights might not be warranted under the circumstances. Accordingly, the judgment of the juvenile court is reversed in its entirety, and we remand the cause for proceedings consistent with the principles outlined in this opinion.
In light of our resolution of the appeals based on the failure of the mother to be provided counsel, we pretermit the other issues raised by the parents on appeal. See L.M.W. v. D.J., 116 So. 3d 220, 223 (Ala. Civ. App. 2012) (indicating that this court may pretermit other issues raised on appeal when one issue is dispositive of the appeal).
2180509—REVERSED AND REMANDED.
2180510—REVERSED AND REMANDED.
Thompson, P.J., and Moore and Hanson, JJ., concur.
Donaldson, J., concurs specially.
DONALDSON, Judge, concurring specially. I concur. I write specially to emphasize that the attorney appointed by the juvenile court to represent the mother had not been permitted to withdraw from that court-ordered representation in advance of the trial. No issue is presented in this case regarding any potential waiver or forfeiture of the mother's right to counsel based on a failure to communicate and/or cooperate with appointed counsel.