Opinion
1190521, 1190523
06-05-2020
EX PARTE A.M.M. (In re: A.M.M. v. S.E. and M.E.) Ex parte A.C.B. (In re: A.C.B. v. S.E. and M.E.)
Petition for Writ of Certiorari to the Court of Civil Appeals (Blount Juvenile Court, JU-17-287.05; Sherry C. Burns, Judge; Court of Civil Appeals, 2180495 and 2180496) Thomas E. Drake II, Cullman, for petitioners. Submitted on certiorari petition only.
Petition for Writ of Certiorari to the Court of Civil Appeals (Blount Juvenile Court, JU-17-287.05; Sherry C. Burns, Judge; Court of Civil Appeals, 2180495 and 2180496)
Thomas E. Drake II, Cullman, for petitioners.
Submitted on certiorari petition only.
WISE, Justice.
1190521—WRIT DENIED. NO OPINION.
1190523—WRIT DENIED. NO OPINION.
Shaw, Bryan, Sellers, Mendheim, and Stewart, JJ., concur.
Parker, C.J., and Bolin and Mitchell, JJ., dissent.
PARKER, Chief Justice (dissenting).
I believe that the petitioners, A.M.M. and A.C.B., adequately allege a conflict between the Court of Civil Appeals’ order affirming the termination of their parental rights and United States Supreme Court jurisprudence recognizing that parents have a right to "fundamentally fair procedures" when their parental rights are at issue, see Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). In my view, the parents make a colorable argument that allowing their newly-appointed counsel less than six days to prepare for trial did not constitute "fundamentally fair procedures."
The facts presented by the petitioners indicate that A.M.M. ("mother") and A.C.B. ("father") are the biological parents of T.J.B. At some point in 2018 or 2019, the mother's cousins, S.E. and M.E. ("cousins"), took physical custody of T.J.B. At the time, the parents were struggling to make ends meet but provided T.J.B. with adequate food, clothing, and housing. There was no indication of domestic abuse, neglect, or drug abuse in the home.
In 2020, the cousins petitioned the Blount Juvenile Court to terminate A.M.M.'s and A.C.B.'s parental rights under § 12-15-317, Ala. Code 1975. The juvenile court set the matter for trial. Six days before trial, the juvenile court determined that the parents were indigent and appointed counsel to represent them. The parents’ counsel was not given notice of appointment until some time thereafter. The parents moved for a continuance to allow their attorneys time to prepare for trial. The juvenile court denied the motion in open court, saying, "This is the way we do things and that is the way we will continue to do things." Only the mother, father, and cousins testified at the trial.
The juvenile court entered an order terminating the parents’ rights. The parents appealed, and the Court of Civil Appeals affirmed without an opinion. See A.C.B. v. S.E., (No. 2180495, March 31, 2020) ––– So. 3d –––– (Ala. Civ. App. 2020)(table); A.M.M. v. S.E., (No. 2180496, March 31, 2020) ––– So. 3d –––– (Ala. Civ. App. 2020)(table). The parents now seek certiorari review, alleging that the Court of Civil Appeals’ decision conflicts with Santosky, supra. See Rule 39(a)(1)(A), Ala. R. App. P.
Both the United States Supreme Court and this Court have recognized that " ‘the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.’ " Ex parte E.R.G., 73 So. 3d 634, 643 (Ala. 2011) (quoting Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ); see Ex parte J.E., 1 So. 3d 1002, 1006 (Ala. 2008) (" ‘The right to parent one's child is a fundamental right.’ " (quoting K.W. v. J.G., 856 So. 2d 859, 874 (Ala. Civ. App. 2003) )). This fundamental right "does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State." Santosky, 455 U.S. at 753, 102 S.Ct. 1388. Indeed, "persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures." Id. at 753–54, 102 S.Ct. 1388 (emphasis added).
It is with this fundamental-fairness language in Santosky that the parents allege the Court of Civil Appeals’ decision conflicts. They argue that depriving their appointed counsel of an opportunity to be adequately prepared was not "fundamentally fair." The parents’ argument is consistent with Alabama courts’ understanding of due process. Indeed, the Court of Civil Appeals has held that, in an insurance agent's license-revocation proceeding, the agent was entitled to "a reasonable opportunity to prepare a defense with assistance of counsel." Parducci v. Payne, 360 So. 2d 1023, 1024 (Ala. Civ. App. 1978). If the revocation of a license to sell insurance requires "a reasonable opportunity to prepare a defense," then the revocation of a parent's fundamental right to parent his or her child certainly requires the same opportunity. The failure of the juvenile court to permit A.M.M. and A.C.B.'s attorney a reasonable opportunity to prepare their defense, therefore, was likely not fundamentally fair. Therefore, I believe that A.M.M. and A.C.B. sufficiently allege a conflict between the Court of Civil Appeals’ decision and Santosky, and the writ should be granted.