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J.S.M. v. Cleburne County Dep't of Human Res.

Alabama Court of Civil Appeals

August 16, 2013

J.S.M.
v.
Cleburne County Department of Human Resources

Released for Publication June 6, 2014.

Appeal from Cleburne Juvenile Court. (JU-12-09.02), Warren G. Sarrell, Jr., Trial Judge.

DONALDSON, Judge. Thompson, P.J., and Pittman and Moore, JJ., concur. Thomas, J., concurs in the result, without writing.

OPINION

DONALDSON, Judge.

J.S.M. appeals from the denial of his " Motion to Establish Paternity" and this " Motion to Intervene" as the alleged biological father in the underlying termination-of-parental-rights case. Because we hold that the juvenile court erred in failing to hold a hearing on J.S.M.'s motion to intervene, we reverse the underlying judgment and remand the matter for a hearing.

Facts and Procedural History

L.E. (" the child" ) was born on January 16, 2012, while K.E. (" the mother" ) was married to J.O. The Cleburne County Department of Human Resources (" DHR" ) obtained temporary custody of the child on

Page 485

January 18, 2012. On June 21, 2012, DHR petitioned the juvenile court (" the trial court" ) to terminate the parental rights of the mother and J.O. as to the child " due to the parents' failure and inability to properly care for the child." J.O. was served by publication directed to " [J.O.] and any unknown fathers," after which he filed an affidavit of substantial hardship and was appointed counsel. On October 1, 2012, J.O. filed an answer to DHR's petition, denying the allegations. The trial court set the matter for a hearing on October 22, 2012, and it reset that hearing for November 16, 2012. On October 24, 2012, J.O. filed a " Motion for Immediate DNA Testing." On November 1, 2012, J.O. filed a " Motion to Repudiate Paternity."

On November 8, 2012, J.S.M., the alleged biological father of the child, filed a " Motion to Establish Paternity," presumably in response to the notice by publication. On November 15, 2012, J.S.M. filed an answer to DHR's petition, a motion to continue the hearing on DHR's petition, and a " Motion to Intervene." On November 15, 2012, the trial court denied J.O.'s " Motion to Repudiate Paternity" and his " Motion for Immediate DNA Testing" and also denied J.S.M.'s " Motion to Establish Paternity," his motion to intervene, and his motion to continue. The trial court did not hold a hearing on any of the motions it denied.

On November 16, 2012, J.O. filed an " Answer and Consent to Petition for Permanent Custody and Termination of Parental Rights." On November 16, 2012, the trial court terminated the mother's and J.O.'s parental rights, and neither filed an appeal. J.S.M. filed a motion to alter, amend, or vacate, addressing the denial of his motion to intervene and his " Motion to Establish Paternity," on November 29, 2012, which was denied by operation of law. J.S.M. filed this timely appeal.

J.S.M. raises two issues on appeal: whether the trial court erred in denying J.S.M.'s motion to intervene and whether the trial court erred in denying his " Motion to Establish Paternity" without holding an evidentiary hearing. DHR agrees with J.S.M.'s allegations of error.

Standard of Review

" Alabama law does indeed afford a party whose motion to intervene has been denied a right to appeal from that decision; in Thrasher v. Bartlett,424 So.2d 605, 607 (Ala. 1982), and Universal Underwriters Insurance Co. v. Anglen, 630 So.2d 441, 442 (Ala. 1993), the Alabama Supreme Court, citing federal authorities in support, concluded that an order denying intervention as of right and an ...

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