May 8, 2015
Cullman County Department of Human Resources
from Cullman Juvenile Court. (JU-14-198.01).
March 31, 2014, the Cullman County Department of Human
Resources (" DHR" ) filed a petition in the Cullman
Juvenile Court seeking to have E.G.D. (" the child"
) declared dependent. On June 5, 2014, the juvenile court
entered a judgment declaring the child dependent. In the June
2014 judgment, the juvenile court awarded " physical
placement" of the child to C.M. and ordered that
A.D.J.D. (" the mother" ) and R.C.D. (" the
father" ) complete drug treatment. The judgment further
indicated that a review hearing would be held in 90 days. A
review hearing was held on September 11, 2014; a notation
written on the case-action-summary sheet on September 11,
2014, indicates that the case was to be set for another
review hearing in 90 days.
October 2014 the juvenile court set a hearing to be held on
December 11, 2014. At the December 11, 2014, hearing, the
juvenile court took no testimony. However, on December 17,
2014, the juvenile court entered an order finding that the
child remained dependent, awarding legal and physical custody
of the child to C.M., and relieving DHR of the duty to
provide services to the family. The mother filed a
postjudgment motion, which the juvenile court denied. She
then filed a timely notice of appeal to this court.
appeal the mother argues that the juvenile court violated her
right to due process by failing to hold an evidentiary
hearing before awarding custody of the child to C.M. and
relieving DHR of the duty to provide services and that the
juvenile court's finding of dependency and resulting
award of custody to C.M. is not supported by clear and
convincing evidence. DHR has filed a letter brief admitting
that the manner in which the juvenile
court conducted the proceedings on December 11, 2014, denied
the mother due process. Indeed, this case is much like
N.J.D. v. Madison County Department of Human
Resources, 110 So.3d 387, 390 (Ala.Civ. 2012), in which
a father made a similar due-process argument. As we explained
" '" [A] parent is entitled to due process in
proceedings involving the custody of a child."
Strain v. Maloy, 83 So.3d 570, 571 (Ala.Civ. 2011).
In Strain v. Maloy, supra, this court explained:
" '" 'In dealing with such a delicate and
difficult question -- the welfare of a minor child -- due
process of law in legal proceedings should be observed. These
settled courses of procedure, as established by our law,
include due notice, a hearing or opportunity to be heard
before a court of competent jurisdiction.'
" '" Danford [v. Dupree], 272 Ala.
[517,] 520, 132 So.2d [734,] 735-36 [(1961)]. As this court
has further explained:
" '" '[P]rocedural due process contemplates
the basic requirements of a fair proceeding including an
impartial hearing before a legally constituted court; an
opportunity to present evidence and arguments; information
regarding the claims of the opposing party; a reasonable
opportunity to controvert the opposition's claims; and
representation by counsel if it is desired.'
" '" Crews v. Houston Cnty. Dep't of
Pensions & Sec., 358 So.2d 451, 455 (Ala.Civ. 1978)
" '83 So.3d at 571.'"
N.J.D., 110 So.3d at 390-91 (quoting Gilmore v.
Gilmore, 103 So.3d 833, 835 (Ala.Civ. 2012)).
court has long adhered to the principle that, in cases
involving the custody of a child, " [a] parent must have
notice of the issues the court will decide in order to adduce
evidence on those issues before the court, to give the court
a basis from which a determination most beneficial to the
child can be made." Thorne v. Thorne, 344 So.2d
165, 170 (Ala.Civ. 1977). DHR concedes that the mother was
not informed that the December 11, 2014, hearing was a
permanency hearing; the record reflects that the mother did
not appear at that hearing and that no party presented
evidence at that hearing regarding the child's
dependency, the suitability of C.M. for custody, or the
propriety of terminating DHR's services to the family.
The December 17, 2014, judgment is devoid of evidentiary
support and was entered in a manner inconsistent with the
mother's right to due process. Accordingly, we reverse
the judgment and remand the cause for further proceedings
consistent with this opinion.
P.J., and Pittman, Moore, and Donaldson, JJ., concur.
In her brief to this court, the mother
argues that the juvenile court's award of custody to
C.M., a third party, was not supported by clear and
convincing evidence as required by Ex parte Terry,
494 So.2d 628, 632 (Ala. 1986). We note that this is an
appeal from a dependency case and that Ex parte Terry has no
application in a dependency case. See J.W. v. T.D.,
58 So.3d 782, 788 (Ala.Civ. 2010). A juvenile court may award
custody of a dependent child to a third party found to be
" qualified to receive and care for the child"
pursuant to Ala. Code 1975, § 12-15-314(a)(3)c., and the
juvenile court is required to use the best-interest standard
in the dispositional phase of a dependency proceeding. See
S.T.S. v. C.T., 746 So.2d 1017, 1020 (Ala.Civ.
1999). However, the mother also states in her argument that
the juvenile court lacked clear and convincing evidence
to support a conclusion that the child was dependent. See
Ala. Code 1975, § 12-15-311(a) (requiring clear and
convincing evidence to establish that a child is dependent).
We therefore construe the mother's argument that the
juvenile court lacked clear and convincing evidence to award
C.M. custody under Ex parte Terry as an argument that the
juvenile court lacked clear and convincing evidence to find
the child dependent.