81 So. 3d 377
Ala. Civ. App.2011Background
- DHR filed petitions (JU-05-429.04 for M.L.P.; JU-05-430.04 for T.L.P.) seeking termination of parental rights of mother D.D. and father F.P. in June 2010.
- Publication service on the mother was permitted/ordered in August 2010; mother appointed counsel.
- Trial held December 2010; mother did not appear; her counsel appeared and participated.
- January 12, 2011 order in JU-05-429.04 terminated mother’s rights to M.L.P. but did not adjudicate father’s rights; case JU-05-430.04 not final as to father at that time.
- March 15, 2011 judgments terminated mother and father’s rights to M.L.P in JU-05-429.04 and terminated only mother’s rights to T.L.P. in JU-05-430.04, but those orders were not final judgments for lack of addressing all parties’ rights.
- March 21, 2011 set-aside orders purportedly correcting clerical errors but also setting aside the earlier judgment and, on JU-05-429.04, again terminating rights to M.L.P; mother filed Rule 59 motion which was denied by operation of law; mother appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service by publication was proper. | DHR asserts publication service was proper; mother contends improper service. | Mother argues service insufficient due to lack of address-location efforts in the affidavit. | Waived issue due to mother's lack of challenge at trial; service deemed proper. |
| Whether the March 21, 2011 set-aside orders and subsequent judgments were final and thus appealable. | DHR seeks to address termination orders on appeal; set-aside restored finality. | Mother argues earlier judgments were final; set-aside undermines finality. | March 21, 2011 set-aside rendered some orders nonfinal; appeal denied for JU-05-430.04; affirmed as to JU-05-429.04. |
| Sufficiency of evidence to terminate mother’s rights to M.L.P. | DHR presented evidence supporting termination. | Mother challenges sufficiency of evidence; notices/participation issues argued. | Court affirms termination of mother’s rights to M.L.P in JU-05-429.04; issue not successful on appeal. |
| Whether mother was notified of trial date; notice issues barred by waiver. | DHR relied on notice provided; no objection raised by mother. | Mother contends lack of proper notice. | Waived by appearance; not a persuasive basis to void the judgment. |
Key Cases Cited
- P.D.S. v. Marshall Cnty. Dep't of Human Res., 32 So. 3d 1288 (Ala. Civ. App. 2009) (set finality and nonfinal judgments; treatment of pending claims in juvenile appeals)
- Pierce v. American Gen. Fin., Inc., 991 So.2d 212 (Ala. 2008) (trial court can modify within postjudgment period)
- Ennis v. Kittle, 770 So.2d 1090 (Ala. Civ. App. 1999) (early authority on postjudgment modification within period)
- Rheams v. Rheams, 378 So.2d 1125 (Ala. Civ. App. 1979) (interlocutory judgments subject to revision)
- Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So.2d 45 (Ala. 2003) (appearance may waive service defects)
- Klaeser v. Milton, 47 So.3d 817 (Ala. Civ. App. 2010) (failure to challenge service waives defect)
- D.B. v. M.A., 975 So.2d 927 (Ala. Civ. App. 2006) (waiver of improper service by participation)
- Levine v. Malaga Rest., Inc., 501 So.2d 1231 (Ala. Civ. App. 1987) (clerical error corrections and effect on finality)