October 24, 2014
Limestone County Department of Human Resources
Deborah Long, as guardian ad litem for D.R., a minor child
from Limestone Juvenile Court. (JU-09-160.02).
Judge. Pittman, Thomas, and Donaldson, JJ., concur. Thompson,
P.J., concurs specially.
On Application for Rehearing
court's opinion issued on August 8, 2014, is withdrawn,
and the following is substituted therefor.
Limestone County Department of Human Resources ("
DHR" ) appeals from a judgment of the Limestone Juvenile
Court (" the juvenile court" ) awarding custody of
D.R. (" the child" ) to DHR. We affirm.
October 17, 2013, the child's paternal grandparents, J.R.
and L.R. (" the grandparents" ), filed a petition
alleging that the child was dependent. The juvenile court
appointed Deborah Long as the guardian ad litem for the
child. After a hearing, the juvenile court entered an order
on November 6, 2013, finding the child dependent, awarding
temporary legal and physical custody of the child to the
grandparents, setting a dispositional and permanency hearing
for January 17, 2014, and ordering DHR to complete a home
study of the grandparents' home. DHR submitted a report
of the home study it had conducted on January 14, 2014,
recommending that, if they desired custody, the grandparents
be awarded custody of the child. The January 2014 hearing was
continued until February 7, 2014.
January 17, 2014, the guardian ad litem filed a motion to
transfer custody, alleging that the grandparents had told her
on January 16, 2014, that they were no longer willing or able
to maintain custody of the child, that the child had been
" admitted to Mountain View[, a psychiatric hospital,]
for an assessment and services," and that the child
would be discharged in five days with no place to go. The
guardian ad litem also alleged that DHR's employees had
been contacted and had stated that a dependency petition must
be filed. The guardian ad litem asserted that she had
responded by informing DHR that there was an ongoing
dependency case pending in the juvenile court, i.e., the
present action. The guardian ad litem requested that a
hearing be held and that
custody of the child be placed with DHR or some other viable
January 21, 2014, the juvenile court entered a judgment
placing custody of the child with DHR and noting that the
matter had been set for a hearing on February 7, 2014. On
January 22, 2014, an attorney for DHR filed an appearance in
the dependency action. On January 24, 2014, DHR filed a
" motion to alter, amend, or vacate" the juvenile
court's January 21, 2014, judgment, alleging that its
due-process rights had been violated because it had not been
given notice or an opportunity to heard on the motion to
transfer custody that had been filed by the guardian ad
litem. DHR requested a hearing on its motion. On January 28,
2014, the juvenile court entered an order denying DHR's
motion to alter, amend, or vacate.
February 6, 2014, the guardian ad litem filed a motion
seeking review of the case; she alleged that the child had
been discharged from Mountain View but that both the
grandparents and DHR had refused to pick up the child upon
his release. The juvenile court held a hearing on February 7,
2014. On February 10, 2014, DHR filed a petition for a writ
of mandamus or, in the alternative, a notice of appeal
directed to the January 21, 2014, judgment and the January
28, 2014, order denying its motion to alter, amend, or vacate
that judgment. On February 18, 2014, the juvenile
court entered two additional orders, both of which ordered
DHR to take custody of the child.
proceeding to address the issues raised by DHR, we first
consider the nature of the proceedings below. The juvenile
court took jurisdiction of this case pursuant to Ala. Code
1975, § 12-15-114(a) (" A juvenile court shall
exercise exclusive original jurisdiction of juvenile court
proceedings in which a child is alleged to have committed a
delinquent act, to be dependent, or to be in need of
supervision." ). When a juvenile-court intake officer
receives a dependency petition, he or she has a statutory
duty to refer the dependency petition to the Department of
Human Resources under Ala. Code 1975, § 12-15-118(2).
Pursuant to Ala. Code 1975, § 12-15-122, the juvenile
court must then direct that the dependency petition be served
with summons on the child, if he or she is over 12 years old,
the parents of the child, the legal guardian of the child,
the legal custodian of the child, and " other persons
who appear to the juvenile court to be proper or necessary
parties to the proceedings."
case, at the time the dependency petition was filed, DHR was
not the legal guardian or legal custodian of the child. DHR
also apparently was not deemed a proper or necessary party
because the juvenile court did not direct that DHR be served
with the petition. The juvenile court did refer the case to
DHR for a home study of the grandparents, but it did not
thereby make DHR a party.
course of the dependency proceedings, the juvenile court
concluded that the child was dependent and made an initial,
temporary placement of the child with the grandparents, which
it was considering making permanent. Before any permanent
disposition could occur, however, the grandparents informed
the guardian ad litem for the child that they no longer could
or would act as custodians for the child. Recognizing that
the child had no other person willing to accept his custody,
and that the child would soon be released from inpatient
mental-health care, the guardian ad litem moved the juvenile
court to appoint a custodian for the child on an emergency
basis. That motion was filed pursuant
to Ala. Code 1975, § 12-15-138, which provides:
" The juvenile court, at any time after a dependency
petition has been filed, or on an emergency basis, may enter
an order of protection or restraint to protect the health or
safety of a child subject to the proceeding."
Code 1975, § 12-15-141, specifically allows for the
entry of an ex parte order of protection, without notice or a
hearing, in emergencies in which it is alleged that the
health or safety of a child is endangered due to neglect,
which, of course, would include abandonment by his or her
legal custodians. The juvenile court granted the motion on
January 21, 2014, by entering an order (" the placement
order" ) directing DHR to assume custody of the child in
order to protect the welfare of the child.
receiving the order, DHR filed a motion objecting to the
failure of the juvenile court to make it a party and to
afford it due process before ordering it to assume custody of
the child. When a party asserts that a juvenile court erred
by not joining it as a party to a juvenile proceeding, that
party must follow the procedure established in Rule 13(A)(5),
Ala. R. Juv. P., in order to obtain relief from an order of
the juvenile court. Rule 13(A)(5) provides:
" A party not served under this rule may, for good cause
shown, petition the juvenile court in writing for a
modification of any order or judgment of the juvenile court.
The juvenile court may dismiss this petition if, after a
preliminary investigation, the juvenile court finds that the
petition is without substance. If the juvenile court finds
that the petition should be reviewed, the juvenile court may
conduct a hearing upon the issues raised by the petition and
may make any orders authorized by law relative to the issues
as it deems proper."
In re D.M., 738 So.2d 898 (Ala.Civ.App. 1999)
(opinion prepared by Beatty, Retired Justice, while serving
on active-duty status as a judge of the Court of Civil
Appeals, with Yates and Crawley, JJ., concurring and
Robertson, P.J., and Monroe and Thompson, JJ., concurring in
the result), a plurality of this court determined that the
Department of Mental Health and Retardation could not argue
on appeal any error with regard to lack of service when it
did not raise that issue to the juvenile court through former
Rule 27(A), Ala. R. Juv. P., which is now Rule 13(A)(5).
case, DHR did not cite Rule 13(A)(5), but it did request that
the juvenile court modify the placement order, so, in
essence, DHR did follow the rule. Upon examination of the
motion, the juvenile court determined that it was due to be
denied, explaining that it had entered the placement order to
protect the welfare of the child. In substance, the juvenile
court determined that DHR had not presented valid grounds for
modification of the order on the basis of the lack of service
of the petition or motion or on the basis of the lack of its
formal joinder as a party. Because Ala. Code 1975, §
12-15-141, specifically authorizes ex parte transfers of
custody for the benefit of a child in emergency
circumstances, the juvenile court had a valid basis for its
determination. The juvenile court thus acted properly when it
" dismiss[ed] th[e] petition" -- i.e., DHR's
motion -- without a hearing, as authorized by Rule 13(A)(5).
also asserted that the juvenile court deprived it of due
which is a ground for vacating a final judgment under Rule
59, Ala. R. Civ. P. See Ala. Code 1975, §
12-13-11(a)(1). In Montgomery County Department of Human
Resources v. McDermott, 74 So.3d 455, 458 (Ala.Civ.App.
2011), this court stated: " [A] juvenile court would
violate the due-process rights of DHR if it adjudicated a
child dependent and transferred custody of the child to DHR
without providing DHR ... notice and an opportunity to be
heard." In retrospect, the court erred in making that
one of the Fourteenth Amendment to the United States
Constitution provides that no state shall " deprive any
person of life, liberty, or property, without due process of
law." The United States Supreme Court has generally held
that, because they are not " persons" within the
meaning of the Fourteenth Amendment, states are not entitled
to due-process protections. South Carolina v.
Katzenbach, 383 U.S. 301, 323-24, 86 S.Ct. 803, 15
L.Ed.2d 769 (1966), abrogated on other grounds, Shelby
County, Alabama v. Holder, __ U.S. __, 133 S.Ct. 2612,
186 L.Ed.2d 651 (2013). Generally speaking, like the
individual states themselves, agencies of the state "
have never been included under the umbrella of the right to
due process. The protections guaranteed by the constitutional
right to due process were designed to protect people from
governmental abuses. They were not designed to protect the
government from the people." Associated Press v.
Board of Pub. Educ., 246 Mont. 386, 390, 804 P.2d 376,
379 (1991); see also City of Dora v. Beavers, 692
So.2d 808, 811 n.4 (Ala. 1997) (recognizing the broad
proposition that a municipality, as a division of the state,
is not a " person" within the meaning of the
Fourteenth Amendment who is entitled to due process). Because
a county department of human resources is considered a state
agency with the same rights and privileges as the state,
see Ex parte Franklin Cnty. Dep't of Human Res.,
674 So.2d 1277 (Ala. 1996), DHR ordinarily would not be
treated as a " person" entitled to the due-process
protections of the Fourteenth Amendment.
also relies on Ala. Const. 1901, art. I, § 7, to support
its argument that the juvenile court violated its right to
due process. However, that section provides that, " in
all criminal prosecutions the accused ... shall not ... be
deprived of his life, liberty, or property, but by due
process of law." In the underlying action, DHR did not
stand in the position of an accused in a criminal
prosecution. See Comment to Rule 1, Ala. R. Juv. P.
(characterizing dependency and child-custody actions in
juvenile courts as " proceedings of a civil nature"
). Other provisions of Alabama's Constitution guarantee
due process in civil proceedings, but only to its citizens.
See Ala. Const. 1901, art. I, § 11 (" no person
shall be debarred from prosecuting or defending, before any
tribunal in this state, by himself or counsel, any civil
cause to which he is a party" ) and § 14 ("
all courts shall be open" and " every person ...
shall have a remedy by due process of law" and "
justice shall be administered without sale, denial, or
delay" ). Our supreme court " has interpreted the
due process guaranteed under the Alabama Constitution to be
coextensive with the due process guaranteed under the United
States Constitution." Elliott v. Van Kleef, 830 So.2d
726, 730 (Ala. 2002). Alabama's constitution does not
afford a state agency any additional right to due process not
found in the federal constitution.
Alabama Court of Criminal Appeals has recognized that, in a
criminal prosecution, in which the State acts as the accuser,
the State has a federal due-process right to notice and an
opportunity to be heard as to a pretrial motion to suppress
evidence before a court may grant
that motion. State v. Morrell, 8 So.3d 353
(Ala.Crim.App. 2008) (citing Snyder v.
Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 78 L.Ed.
674 (1934), overruled in part on other grounds, Malloy v.
Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653
(1964)). However, given the general rule that state agencies
do not have due-process rights, that opinion cannot be read
broadly as extending to a child-welfare agency a
procedural-due-process right to notice and an opportunity to
be heard before a court exercising civil jurisdiction may
order that agency to accept custody of a dependent child in
an emergency situation.
hereby overrule McDermott, supra, to the extent that it
purports to recognize that the state or county departments of
human resources have a general right to constitutional due
process independent of any statutory rights they may have
under the Alabama Juvenile Justice Act, Ala. Code 1975,
§ 12-15-101 et seq., and the Alabama Rules of Juvenile
Procedure. Because DHR has not established that
it has a constitutional right to due process in this
circumstance, it cannot claim that the judgment entered by
the juvenile court should be vacated due to the juvenile
court's failure to provide DHR prior notice and an
opportunity to be heard. DHR has not proven that the juvenile
court committed any legal error, so we affirm the judgment of
the juvenile court placing custody of the child with
GRANTED; OPINION OF AUGUST 8, 2014, WITHDRAWN; OPINION
Thomas, and Donaldson, JJ., concur.
P.J., concurs specially.
Presiding Judge, concurring specially.
January 17, 2014, motion, Deborah Long, the guardian ad litem
appointed to represent D.R. (" the child" ),
alleged that the child had no relatives willing or able to
provide him a home, that he was to be released from a
mental-health facility, and that he had no place to go. I
agree with the concerns the Limestone County Department of
Human Resources (" DHR" ) raised in its January 24,
2014, postjudgment motion, in which it argued that, had it
been made a party, different avenues might have been pursued
and the child might not have been determined to be dependent.
Although those arguments may have some validity, the safety
and security of the minor child at issue were more important.
It is clear from the allegations of the guardian ad litem in
her motion to transfer custody and from the arguments made by
DHR in its January 24, 2014, postjudgment motion that this
emergency situation involving the child arose suddenly
because the child's grandparents were no longer willing
or able to properly handle or care for the child. It is the
function of DHR, as the state agency charged with the
protection of children, to step in at such times. Although
DHR might have handled the situation differently had it been
involved from the beginning of this action, it is often
preferable that family members step in to assist when needed,
as the grandparents in this case attempted to do.
February 6, 2014, " motion for review," the
guardian ad litem further alleged that, even after the entry
of the juvenile court's January 21, 2014, judgment, DHR
" failed or refused" to retrieve the dependent
child from the mental-health facility after the grandparents
determined that they could no longer take care of the child.
I recognize that the allegations of counsel in a motion are
not evidence. However, the guardian ad litem is an officer of
the court, and, therefore, it is to be assumed that there is
truth in the representations she makes to the courts. Based
on that assumption, I write to express my concern that DHR
failed in its duty to protect this child by refusing to
comply with the January 21, 2014, judgment. Regardless of
DHR's disagreement over the procedures employed in the
juvenile court, it should not have disregarded the juvenile
court's judgment transferring custody of the child to it.
It is the function and duty of DHR to protect dependent
children in this state. See Rule 660-1-2-.01(2)(a), Ala.
Admin. Code (DHR).
We elected to treat this matter as an
On appeal, DHR raises the due-process
rights of the parents of the child; however, DHR may not
assert the due-process rights of the parents. See, e.g.,
J.S. v. Etowah Cnty. Dep't of Human Res., 72
So.3d 1212, 1223-24 (Ala.Civ.App. 2011).
Because the issue is not before us, we do
not decide if McDermott and Russell County Department of
Human Resources v. K.W., 87 So.3d 1217 (Ala.Civ.App.
2012), which relied on McDermott, should be completely
DHR also argues that the juvenile
court violated the separation-of-powers doctrine. DHR did not
make this argument to the juvenile court; therefore, it is
waived. See Andrews v. Merritt Oil Co., 612 So.2d
409, 410 (Ala. 1992).