C.M.L. v. B.E.L.

160 So.3d 775

C.M.L.

v.B.E.L.

2120824.

Court of Civil Appeals of Alabama.

Aug. 1, 2014.

Robert M. Echols, Jr., Birmingham, for appellant.

J.O. Isom, Hamilton, for appellee.

On Return to Remand^*

DONALDSON, Judge.

Due process requires notice and an opportunity for a hearing appropriate to the nature of the case. This case raises an issue regarding whether C.M.L. (“the mother”), whose parental rights to J.D.L. (“the child”) were terminated by a judgment of the Marion Juvenile Court (“the juvenile court”), was adequately apprised of the hearing on the merits and, thus, whether she was afforded procedural due process guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, § 6, of the Alabama Constitution of 1901. Because we conclude that the judgment was entered in a manner inconsistent with due process, we reverse the judgment and remand the cause to the juvenile court.

On March 5, 2013, B.E.L. (“the father”), the father of the child, filed a petition to terminate the mother's parental rights to the child in the juvenile court. In the petition, the father alleged that the mother had abused narcotics for years, had been in numerous rehabilitation facilities, and had been charged with felony criminal offenses. The father also alleged in the petition that “the physical and emotional health of the ... child [was] at risk.” On the petition, the father provided a Houston, Alabama, address for the mother (“the Houston address”). Along with the petition, the father submitted a partially completed “Order of Service and Return” form, Unified Judicial System Form C–15 (“the Form C–15”), indicating his intent to effect service upon the mother by special process server. The Form C–15 was stamped as being received in the juvenile-court clerk's office on March 5, 2013. The Form C–15 listed the address for the mother as the Houston address. The completed return of service of the Form C–15 does not appear in the record; therefore, the record does not reflect whether the petition was personally served on the mother or whether the special process server left “a copy of the summons and the complaint at the [mother's] dwelling house or usual place of abode with some person of suitable age and discretion then residing therein....” Rule 4(c)(1), Ala. R. Civ. P. However, a March 19, 2013, entry on the case-action summary indicates that the mother was purportedly served with the summons and the petition by a special process server on March 17, 2013.

On March 25, 2013, the mother, without the assistance of counsel, filed an answer to the father's petition, in which she stated that she had abused drugs in the past, that she had been to various rehabilitation facilities, that she was not presently abusing drugs, that she had been charged with two felony offenses but that those charges had been dismissed, that the physical and emotional health of the child was not at risk, and that it would not be in the best interest of the child for her parental rights to be terminated. The mother further asserted in her answer: “I humbly admit that I have had issues with drug dependency in the past. However, today I am not under the influence of any drugs and I am in a very hopeful position. I am currently living in The Lovelady Center which is a transitional facility for both women and children. ” (Emphasis added.)

On April 10, 2013, the juvenile court entered an order setting a final hearing on the merits of the father's petition for May 29, 2013. The case-action summary indicates that the juvenile-court clerk mailed a copy of the juvenile court's order to the mother on April 15, 2013. The record shows that the envelope containing the notice of the hearing was later returned to the juvenile-court clerk's office as undeliverable. The record does not show the address used by the juvenile-court clerk for the mother in mailing the envelope. The returned envelope, which appears in the record, shows the mother as the intended recipient, but the recipient's address block is obscured by a sticker affixed by the post office to notify the sender of the delivery failure. That notice, however, states that the delivery failed because the recipient had “no mail receptacle” and that the post office was “unable to forward.”

On May 9, 2013, the father issued subpoenas to various witnesses, directing them to appear to testify at the hearing scheduled for May 29, 2013. The father issued a subpoena to J.M., the mother's father, and V.M., the mother's mother. The address on the subpoenas for J.M. and V.M. is the same Houston address listed for the mother on the petition and on the incomplete Form C–15. The return of service for the subpoenas for J.M. and V.M. indicate that they were personally served with the subpoenas on May 22, 2013, presumably at the Houston address.

The juvenile court held an ore tenus hearing on the termination petition on May 29, 2013. The mother did not appear at the hearing. At the commencement of the proceedings, the juvenile court noted on the record:

“Now, let me just say first of all that the parties that are here or the party that is here, [B.E.L.], the petitioner, is here this morning with his counsel.... I have appointed [a] guardian ad litem in this case, and he is present in the courtroom this morning. However, the respondent, [C.M.L.], is not present in the courtroom, but after checking with the clerk's office, it appears that [C.M.L.] did, in fact, get notice of the setting of the hearing for today. In fact, I think the clerk's office just told us that the notice was sent to her on April the 15th, and they did not receive a—they did not get a return back where she didn't pick up the mail.”

The juvenile court proceeded to hear the testimony of the father; of B.L., who had custody of B.B., one of the mother's other children, and who worked for J.M., the mother's father; and of F.W., the paternal grandmother of B.B. When asked by the guardian ad litem about her knowledge of the mother's current whereabouts, B.L. testified:

“Q. Where is she now?

“[B.L.:] She is in Lovelady Rehab.

“Q. She's where? Where is that?

“[B.L.:] The Lovelady Rehab.

“Q. Where is that?

“[B.L.:] Birmingham.”

Concerning the mother's location, the father testified as follows:

“THE COURT: .... [I]s [the mother] in trouble with the law again? I mean, the incident I understand the earlier testimony about showing up at some undesirable man's place in Sumiton.

“[The father]: No, sir, I don't believe she's in trouble with the law. I think that they caught her messed up, and then that's when, you know, she told [P.W., an adult relative of B.B.,] that she sold everything that she owned, all of her furniture, everything. And then at this time her mom and dad has completely cut her off. She had nothing. [J.M.] told me that her rent was paid up through March, I believe. He was paying her rent in Birmingham, and after that, since she didn't have a vehicle—it mysteriously came up stolen. She didn't have any transportation or any income. That's when she volunteered to go back to rehab because it's free living.

“THE COURT: And as far as you know, this rehab she's in, she's not there as a result of any kind of court order?

“[The father]: Not that time, no, sir.

“THE COURT: And do you know if she's free to come and go, I mean, if you know?

“[The father]: All I know is what [P.W. and B.L.]—you know, since [B.L.] has had communication with her, and all I know is what [B.L.] told the Court today about she can leave anytime as long as she's with another person in that rehab and that has transportation.

“THE COURT: And you said you know of at least three times she's been back in Haleyville?

“[The father]: Yes, sir, to see [B.B.].

“THE COURT: To see [B.B.]. Has that been since she's been back at Lovelady?

“[The father] Yes, sir. That's been in the last three months. That's been since all of her court with the custody case, with [B.B.] and North Carolina. That's all happened since March.

“THE COURT: Have you had any discussions with her parents, or her for that matter, but with her parents about this particular proceeding and—

“[The father]: Yes. Yes, sir. Of course, [V.M.]—every time it's hard for me to trust them because they'll tell me every time she gets out of rehab that they're done, they've washed their hands. But I really feel like this time they have washed their hands with her.

“THE COURT: But I guess what I'm getting at—and I understand that. They've probably had all of course, it's their daughter, but they've probably had all they can take. But you know, she's obviously not here, but do you know—do you have any personal knowledge that she knows about this hearing, or at least that her parents know about this hearing?

“[The father]: Oh, yes, sir, because after [J.M.] got served with the subpoenas last week, he called me at 8:30 and said, ‘... I don't disagree with what you're doing. I support you, but I don't see any need for me to be there. I'm supposed to be out of town that week.’ I said, ... ‘The reason why we're at this stage right now is because of what you and [V.M. have] been doing for the last ten years of feeding her money left and right.’ I said, ‘My attorney thinks it's very important, you being the father of her, and you're willing to cut ties with her, for being here.’ They know exactly when the court was.”

At the conclusion of the testimony, during a colloquy with the court concerning whether the mother had received notice of the hearing, the guardian ad litem stated:

“I support this petition. I expect this is not going to be the last time we're going to be up here though. I think there's a good chance of [this case] coming back, but I think the petition should be granted.”

On May 30, 2013, the juvenile court entered a judgment terminating the mother's parental rights to the child. In the judgment, the juvenile court stated that the

“[o]rder Setting Hearing in this cause for May 29, 2013 was filed in the Clerk's Office on April 11, 2013. A copy of the Order Setting Hearing

...