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J.S. v. J.C.

Alabama Court of Civil Appeals

May 8, 2015

J.S.
v.
J.C. and C.C

          Appeal from Walker Juvenile Court. (JU-11-290.02).

          OPINION

Page 1068

          MOORE, Judge.

         J.S. (" the father" ) appeals from a judgment of the Walker Juvenile Court (" the juvenile court" ) terminating his parental rights to K.T.S. (" the child" ), asserting that the juvenile court erred in failing to provide him with appointed counsel both before the juvenile court and on appeal. We remand the case to the juvenile court.

         On August 8, 2014, J.C. and C.C., the child's maternal uncle and aunt, respectively, filed a petition to terminate the father's parental rights to the child. The father, through counsel, filed an answer to the petition on August 19, 2014. On September 22, 2014, the father's attorney filed a motion to withdraw, in which he indicated, among other things, that the father wished for him to withdraw as his attorney, that the father was incarcerated in the Limestone Correctional Facility, that the father was indigent and could not pay the attorney for representation, and that the father requested that the juvenile court appoint him another attorney to represent him in the present case. The juvenile court granted the motion in part, allowing the father's attorney to withdraw, by a notation on the motion dated September 29, 2014.

         On October 16, 2014, the juvenile court entered a final judgment, terminating the parental rights of the father. In that judgment, the juvenile court noted, among other things, that the father's attorney had withdrawn as the father's counsel, that the father's attorney had requested that the father receive a court-appointed attorney, and that the father had not been appointed an attorney. The father filed his notice of appeal to this court on October 22, 2014.

         The father argues on appeal that the juvenile court erred in failing to appoint him an attorney, both at the hearing on the termination of his parental rights and on appeal, and that his due-process rights were violated as a result. J.C. and C.C. argue, citing D.A. v. Calhoun County Department of Human Resources, 976 So.2d 502 (Ala.Civ. 2007), that the father failed to preserve this issue for review on appeal. In D.A., this court affirmed a judgment terminating the parental rights of the father in that case, in which the juvenile court had dismissed the father's appointed attorney before conducting the termination-of-parental-rights hearing. This court stated, in pertinent part:

" The oft-quoted and long-standing rule is that an appellate court may not consider an issue raised for the first time on appeal. See Ex parte Weaver, 871 So.2d 820, 823 (Ala. 2003); W.C. v. State Dep't of Human Res., 887 So.2d 251 (Ala.Civ. 2003); and Centers v. Jackson County Dep't of Pensions & Sec., 472 So.2d 1069, 1070 (Ala.Civ. 1985). '" [A juvenile] court should not be placed in error [by an appellate court] on matters which the record reveals it neither ruled upon nor was presented the opportunity

Page 1069

to rule upon" ' at trial or in a postjudgment motion. J.K. v. Lee County Dep't of Human Res., 668 So.2d 813, 817 (Ala.Civ. 1995) (quoting Wilson v. State Dep't of Human Res., 527 So.2d 1322, 1324 (Ala.Civ. 1988)); see also Norman v. Bozeman, 605 So.2d 1210, 1214 (Ala. 1992)."

976 So.2d at 504.

         The father cites J.A.H. v. Calhoun County Department of Human Resources, 846 So.2d 1093 (Ala.Civ. 2002), in which this court concluded that, because the defendant in that case had previously completed an affidavit of substantial hardship and had requested that an attorney be appointed to represent him, the defendant was not required to repeatedly request assistance of counsel upon the dismissal of the attorney who was initially appointed by the court. 846 So.2d at 1095. In the present case, the father's attorney filed a motion to withdraw and requested that the father be appointed an attorney because the father was indigent. The juvenile court granted that motion in part, allowing the attorney to withdraw, and later noted in its judgment that the father had requested that an attorney be appointed to represent him but that he had not been appointed an attorney.

" '" To preserve an issue for appellate review, the issue must be timely raised and specifically presented to the trial court and an adverse ruling obtained." Mitchell v. State, 913 So.2d 501, 505 (Ala.Crim.App. 2005). The purpose of requiring an issue to be preserved for review is to allow the trial court the first opportunity to correct any error. See, e.g., Ex parte Coulliette, 857 So.2d 793 (Ala. 2003).'"

Ex parte Malone, 12 So.3d 60, 66 (Ala. 2008). In the present case, the father, via his attorney, presented his request to the juvenile court for the appointment of counsel, and, by the juvenile court's granting the motion in part and allowing the father's attorney to withdraw and noting in its judgment that the father had requested an attorney but that one had not been appointed, an adverse ...


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