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D.K. v. S.M.S.

Alabama Court of Civil Appeals

December 13, 2019

D.K.
v.
S.M.S., S.L., and A.L.

          Appeals from Houston Juvenile Court (JU-17-494.01 and JU-17-495.01)

          THOMPSON, PRESIDING JUDGE.

         On October 13, 2017, D.K. ("the maternal grandfather") filed in the Houston Juvenile Court ("the juvenile court") petitions seeking to terminate the parental rights of S.M.S. ("the father") to the father's two surviving minor children ("the children"). In those petitions, the maternal grandfather alleged that the father had murdered the children's mother, K.A.S., and the children's sibling, Z.L.S., in February 2013. The maternal grandfather alleged in his October 13, 2017, petitions that he wanted to adopt the children.

         In amended petitions filed in December 2017, the maternal grandfather alleged that he shared joint legal custody of the children with S.L. and A.L., who are the children's paternal aunt and uncle, that he has physical custody of the children, and that the paternal aunt and uncle had been awarded rights of visitation with the children. The record contains a November 3, 2016, judgment corroborating the maternal grandfather's allegations regarding the custody arrangement. The maternal grandfather did not name the paternal aunt and uncle as defendants in his termination-of-parental-rights actions, but, in amended petitions, he stated that the paternal aunt and uncle were "parties." The father was served with process of the maternal grandfather's actions in October 2017.

         Also in October 2017, an attorney filed on behalf of the paternal aunt a notice of appearance in the termination-of-parental-rights actions. On December 22, 2017, the juvenile court entered orders finding that the paternal aunt did not have standing to be a party to the termination actions, and it directed the juvenile-court clerk to remove the paternal aunt's attorney from receiving further notices from the court in the two termination actions. On that same date, the juvenile court entered two other orders in which it set aside the first orders entered earlier on December 22, 2017. Later, the paternal aunt's attorney also filed a notice of appearance on behalf of the paternal uncle.

         The termination-of-parental-rights actions were stayed pending the resolution of criminal charges against the father. In February 2019, the father was convicted on two counts of capital murder pertaining to his killing of the children's mother and the children's sibling. The father was sentenced to incarceration for life without the possibility of parole. In the juvenile court, the stays in the termination-of-parental-rights actions were lifted, and the juvenile court scheduled a hearing on the merits of those actions for April 4, 2019.

         The juvenile court granted a motion to continue the hearing, and it rescheduled the ore tenus hearing on the maternal grandfather's petitions for May 2, 2019. On the second scheduled date for the termination-of-parental-rights hearing, May 2, 2019, the paternal aunt and uncle filed in the juvenile court "answers" in opposition to the maternal grandfather's petitions seeking to terminate the father's parental rights. In those filings, the paternal aunt and uncle stated, among other things, that, as joint legal custodians of the children, they "objected" to the termination-of-parental-rights actions and "den[ied] the material allegations of the [petitions, as amended, ] and demand[ed] strict proof thereof."

         The paternal aunt and uncle and the maternal grandfather attended the ore tenus hearing that same date. The father was incarcerated and not present at the hearing, but he was represented by an attorney. At the termination hearing, the paternal aunt and uncle objected to the termination actions, arguing, among other things, that the termination of the father's parental rights might impact their rights as joint legal custodians of the children. The maternal grandfather argued that his petitions sought only to terminate the parental rights of the father and did not impact the joint-legal-custody rights of the paternal aunt and uncle.

         On May 2, 2019, the juvenile court entered orders noting that, during the hearing, the paternal aunt and uncle had orally moved to dismiss the termination-of-parental-rights actions. In its May 2, 2019, orders, the juvenile court specified that the paternal aunt and uncle, the maternal grandfather, and the father should submit briefs on their positions on the motion to dismiss filed by the paternal aunt and uncle, and they all did so.[1]

         On July 2, 2019, the juvenile court entered judgments granting the paternal aunt and uncle's motion to dismiss the maternal grandfather's termination-of-parental-rights actions. The maternal grandfather timely appealed from both judgments, and his appeals were consolidated in this court.

         Initially, although none of the parties has addressed this issue, we note that the maternal grandfather, the juvenile court, and the paternal aunt and uncle clearly considered the paternal aunt and uncle to have intervened in the termination actions. In Sidwell v. Wooten, 473 So.3d 1036 (Ala. 1985), our supreme court interpreted a third-party complaint filed by nonparties as a motion to intervene in the action before the trial court in that case. Our supreme court explained its decision, stating:

"We find that in order to do 'substantial justice' in compliance with Rule 8(f), Ala. R. Civ. P., the 'third-party complaint' should be interpreted as a motion to intervene granted by the circuit court. We believe this is the just result, especially in view of the fact that [the defendant/appellant] did not object to the filing of the 'third-party complaint' and did not otherwise raise the issue in the trial court or on appeal."

473 So.2d at 1037-38.

         In the two actions from which these appeals arise, the maternal grandfather alleged claims only against the father. A "termination of parental rights" means "[a] severance of all rights of a parent to a child." § 12-15-301(17), Ala. Code 1975 (emphasis added). The maternal grandfather's actions assert claims against the father, i.e., seeking to terminate his parental rights. In these actions, the maternal ...


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