June 19, 2015
Limestone County Department of Human Resources
for Publication April 28, 2016
from Limestone Juvenile Court. (JU-02-230.02). Jeanne W.
Anderson, Trial Judge.
Appellant: Douglas L. Patterson, Athens.
Appellee: Sharon E. Ficquette, Chief legal counsel, and Karen
P. Phillips, Asst. Atty. Gen., Department of Human Resources.
Judge. Thompson, P.J., and Pittman, Thomas, and Donaldson,
Sr. (" the father" ), appeals from a judgment
finding K.B., Jr. (" the child" ), dependent and
awarding temporary legal and physical custody of the child to
the child's paternal grandparents. We affirm the
background pertinent to this appeal is as
follows. The Limestone County Department
of Human Resources (" DHR" ) filed a dependency
petition on February 25, 2014, alleging that the father had
physically abused the child and that the child had run away
from home to escape further abuse. The Limestone Juvenile
Court (" the juvenile court" ) conducted a
shelter-care hearing on that same date, finding that, due to
a substantial threat of harm to the child, the child should
not be returned to the father's home but should be placed
into the temporary legal and physical custody of the paternal
grandparents. The juvenile court further scheduled a
dependency hearing to take place on March 21, 2014.
the juvenile court had appointed a guardian ad litem for the
child on February 25, 2014, the guardian ad litem informed
the juvenile court on March 21, 2014, the date scheduled for
the dependency hearing, that she had not had an opportunity
to meet with the child. The guardian ad litem and DHR orally
moved for a continuance, which the juvenile court granted,
over the objection of the father, rescheduling the dependency
hearing to April 25, 2014. On the morning of April 25, 2014,
DHR filed a " First Amended Petition," reasserting
its original allegations against the father and adding that,
other than submitting to a psychological evaluation, the
father had refused to cooperate with DHR's
family-reunification efforts by declining to attend
anger-management counseling or other counseling and by
canceling the health insurance covering the child. DHR orally
moved the juvenile court to accept the amended petition,
which motion the juvenile court granted over the objection of
the father. The juvenile court granted the father a
continuance in order to give him time to evaluate and defend
the new allegations raised in the amended petition. The
juvenile court rescheduled the dependency hearing to take
place on May 23, 2014.
23, 2014, DHR and the guardian ad litem moved for a
continuance, which motion was granted over the objection of
the father. The juvenile court rescheduled the dependency
hearing to take place on June 27, 2014. On June 18, 2014, the
guardian ad litem moved for a continuance on the ground that
she would be unable to attend the June 27, 2014, dependency
hearing because she was going to be out of town attending her
child's freshman orientation for college. The juvenile
court granted the motion, rescheduling the dependency hearing
to take place on July 25, 2014. On July 22, 2014, DHR moved
for a continuance on the ground that the caseworker assigned
to the case would be unable to attend the hearing on July 25,
2014, because he was scheduled to be out of the country on
that date. The guardian ad litem joined in DHR's motion,
which the juvenile court granted, over the objection of the
father, rescheduling the dependency hearing to take place on
August 22, 2014.
August 8, 2014, DHR moved the juvenile court to allow it to
amend its petition to reflect that the father had refused to
allow DHR to evaluate his home and had failed to cooperate
further with any of DHR's family-reunification efforts.
The juvenile court granted that motion on August 11, 2014. On
August 22, 2014, the father's counsel, in the absence of
the father, agreed to a continuance of the dependency
hearing, subject to certain conditions, and the juvenile
court rescheduled the dependency hearing to take place on
October 24, 2014. The father subsequently filed a motion to
vacate the conditions established in the August 22, 2014,
order on the ground that the father had not, as his attorney
had represented to the court, agreed
to those conditions. The juvenile court granted that motion.
October 24, 2014, the father informed the juvenile court that
he had previously consulted with the attorney representing
DHR and that he believed DHR's attorney had a conflict of
interest. DHR's attorney moved to withdraw from the case,
which motion the juvenile court granted, and the juvenile
court rescheduled the dependency hearing to take place on
December 19, 2014. After denying the father's motion
seeking the recusal of the trial judge, the juvenile court
conducted the dependency hearing on December 19, 2014.
Following the hearing, the juvenile court entered a judgment
finding the child to be dependent and ordering that the
temporary legal and physical custody of the child remain
vested with the paternal grandparents. The father timely
appealed on December 31, 2014.
of Service on the Child
12-15-122(a), Ala. Code 1975, provides:
" After a petition alleging delinquency, in need of
supervision, or dependency has been filed, the juvenile court
shall direct the issuance of summonses to be directed to the
child if he or she is 12 or more years of age, to the
parents, legal guardian, or other legal custodian, and to
other persons who appear to the juvenile court to be proper
or necessary parties to the proceedings, requiring them to
appear personally before the juvenile court at the time fixed
to answer or testify as to the allegations of the petition.
Where the legal custodian is summoned, the parent or legal
guardian, or both, shall also be served with a summons."
Section 12-15-122(b) provides further that " [a] copy of
the petition shall be attached to each summons."
case, the child was over 12 years of age at the time the
dependency petition was filed. The father assumes that the
juvenile court served the child with a summons, as well as a
copy of the original petition and/or the first amended
petition, but the father complains that the juvenile
court's file contains no indication that the child was
served with the second amended petition that DHR filed on
August 11, 2014. The father argues that, without such
service, the judgment purporting to adjudicate that petition
is void for lack of subject-matter jurisdiction.
Section 12-15-122(b) requires service of a petition with
" each summons" served on an allegedly dependent
child over 12 years of age. However, no statute or rule of
juvenile procedure requires service of additional summonses
after service of the original summons, and no statute or rule
of juvenile procedure specifies if, or how, amended petitions
shall be served. Rule 1(A), Ala. R. Juv. P., provides that
the Alabama Rules of Civil Procedure govern in the absence of
any more specific rule of juvenile procedure. Rule 5, Ala. R.
Civ. P., generally requires amended pleadings to be served on
every party to the proceedings. If that party is represented
by an attorney, service " shall be made upon the
attorney" unless the court orders otherwise. Rule 5(b),
Ala. R. Civ. P.
Section 12-15-304(a), Ala. Code 1975, requires juvenile
courts, in each dependency case, to appoint a guardian ad
litem " whose primary responsibility shall be to protect
the best interests of the child." Pursuant to Rule
17(d), Ala. R. Civ. P., " [w]henever a guardian ad litem
shall be necessary, the court in which the action is pending
shall appoint to serve in that capacity some person who is
represent the minor or incompetent person in the capacity of
an attorney or solicitor ...." Furthermore, §
26-14-11, Ala. Code 1975, provides: " In every case
involving an abused or neglected child which results in a
judicial proceeding, an attorney shall be appointed to
represent the child in such proceedings. Such attorney will
represent the rights, interests, welfare, and well-being of
the child, and serve as guardian ad litem for the
child." Section 12-15-304(b)(1) requires the appointed
guardian ad litem to meet with the child before any scheduled
hearing to explain " what is expected to happen before,
during, and after" each hearing. Section 12-15-304(b)(4)
further obligates the appointed guardian ad litem to file any
pleadings necessary to facilitate the best interests of the
no statute or rule expressly provides that a guardian ad
litem may accept service of an amended dependency petition on
behalf of a child, it is clearly implied from the advisory
and representative duties outlined above that the guardian ad
litem must inform the child of the contents of any amended
petition before a hearing on that petition and must respond
appropriately to any amendment in order to protect the best
interests of the child. Arguably, therefore, service upon the
appointed guardian ad litem should be sufficient to apprise
the child of the filing of an amended dependency petition and
should satisfy any requirement of service on the child.
Even if not, in Jones v. Henderson, 228 Ala. 273,
276, 153 So. 214, 216 (1934), our supreme court held that, in
cases in which a minor child is not served as required by
law, " the representation of the minor by a guardian
ad litem, appointed by the court, renders the proceeding
immune" from a challenge that the judgment is void.
case, the record shows that, when DHR filed its second
amended petition, DHR's attorney certified that he had
delivered a copy to the courthouse mailbox of the guardian ad
litem appointed by the juvenile court. The father does not
argue that that method of service was ineffectual or
unauthorized by Rule 5, Ala. R. Civ. P. Furthermore, the
guardian ad litem fully participated in the dependency
hearing and represented the best interests of the child in
relation to the allegations in the second amended dependency
petition. Thus, we hold that the judgment of the juvenile
court is not void due to lack of service of the second
amended petition on the child.
to Dependency Petition
father next argues that the juvenile court erred in
permitting DHR to file its two amended dependency petitions.
We cannot consider the arguments presented by the father,
however. The record shows that the father orally objected to
the first amended dependency petition, but the record does
not explain the grounds for that objection. In light of the
silence of the record, we cannot presume that the father
raised the same arguments before the juvenile court that he
now asserts on appeal. See generally Kimbrough v.
Kimbrough, 963 So.2d 662, 665-66 (Ala.Civ.App. 2007);
and Winn-Dixie Montgomery, LLC v. Purser, 154 So.3d
1025, 1027-28 (Ala.Civ.App. 2014). The record also does not
contain any objection by the father to the filing of the
second amended dependency petition, so the father did not
secure any adverse ruling by the juvenile court for this
court to review. See Shiver v. Butler Cnty. Bd. of
Educ., 797 So.2d 1086 (Ala.Civ.App. 2000).
father did object to the juvenile court's continuance of
hearing on at least three separate occasions. However, as was
the case with his objection to the first amended dependency
petition, the father did not secure a record of the grounds
he asserted to the juvenile court regarding his objections to
" As in Kimbrough v. Kimbrough[, 963 So.2d 662
(Ala.Civ.App. 2007)], this court is unable to determine in
this case whether [the appellant] asserted before the trial
court the various arguments pertaining to the admissibility
of certain evidence that it includes in its briefs submitted
to this court. '" This court cannot assume error,
nor can it presume the existence of facts [as] to which the
record is silent .... The appellant has the burden of
ensuring that the record contains sufficient evidence to
warrant reversal." ' Alfa Mut. Gen. Ins. Co. v.
Oglesby, 711 So.2d 938, 942 (Ala. 1997) (quoting
Newman v. State, 623 So.2d 1171, 1172 (Ala.Civ.App.
1993)), overruled on other grounds, Ex parte Quality
Casualty Ins. Co., 962 So.2d 242 (Ala. 2006); and
Kimbrough v. Kimbrough, supra. 'The record does
not reveal any error, and, thus, we cannot conclude that the
trial court committed error.' Kimbrough v.
Kimbrough, 963 So.2d at 665-66. See also Drummond
Co. v. Lolley, 786 So.2d 509, 511 (Ala.Civ.App. 2000)
('[The appellant] has the burden to provide this court
with a record containing sufficient evidence to warrant
reversal. Gotlieb v. Collat, 567 So.2d 1302 (Ala.
1990). The record cannot be changed, altered, or varied on
appeal by statements in briefs. Id.')."
Purser, 154 So.3d at 1027-28 (footnote omitted).
Hence, we cannot consider the father's arguments on
appeal regarding the juvenile court's rulings on the
on the foregoing, this court rejects the father's
contention that the juvenile court lacked subject-matter
jurisdiction, and this court cannot consider the other
arguments made by the father on appeal. Therefore, the
judgment of the juvenile court is affirmed.
P.J., and Pittman, Thomas, and Donaldson, JJ., concur.
We do not summarize the testimony of the
witnesses from the dependency hearing because the father does
not argue that sufficient evidence fails to support the
dependency finding and because the other issues he argues do
not require consideration of that evidence.