86 So. 3d 391
Ala. Civ. App.2011Background
- DHR petitioned in June 2009 alleging J.E. was dependent due to lack of proper parental care and control and that mother D.E., age 16, was in DHR custody for lack of home and income.
- A shelter-care hearing on June 30, 2009 resulted in immediate temporary removal of the child and pendente lite custody to DHR.
- On July 8, 2009, the juvenile court adjudicated the child dependent and transferred custody to DHR.
- A September 17, 2009 judicial review found the child safe in foster care, services offered to the mother, and that return would be contrary to the child’s welfare, with custody remaining with DHR.
- A December 18, 2009 judicial review continued foster-care safety, kept DHR as legal custodian, and ordered DNA testing to determine paternity; January 25, 2010 adjudicated J.D.R. as the father.
- On September 16, 2010, DHR petitioned to terminate parental rights; termination hearing held December 15, 2010; mother consented to termination, father did not appear; December 21, 2010 judgment terminated both parents’ rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of Rule 60(b) motion | Father contends he lacked notice and sought relief within a reasonable time. | DHR argues the Rule 60(b)(1) motion was untimely under four-month limit. | Motion untimely; court lacked jurisdiction. |
| Effect of void judgment on appellate jurisdiction | Father seeks relief after judgment; argues procedural irregularities merit relief and appeal. | Court relied on lack of timely relief; argues no valid judgment to review. | Appeal dismissed for lack of jurisdiction; void judgment vacated per instructions to vacate. |
Key Cases Cited
- Kennedy v. Merriman, 963 So.2d 86 (Ala.Civ.App.2007) (jurisdictional issues may be noticed ex mero motu)
- Dobbins v. Anderson, 496 So.2d 63 (Ala.Civ.App.1986) (Rule 60(b) applies to lack of notice)
- Noll v. Noll, 47 So.3d 275 (Ala.Civ.App.2010) (Rule 60(b) four-month limit for timely relief)
- Jones v. Sears Roebuck & Co., 342 So.2d 16 (Ala.1977) (void judgments cannot support an appeal)