181 So. 3d 1067
Ala. Civ. App.2015Background
- Petitioners (child’s maternal aunt and uncle) filed to terminate the father’s parental rights; father answered through retained counsel.
- Father’s counsel filed a motion to withdraw stating father was incarcerated, indigent, wanted counsel replaced, and could not pay; the juvenile court granted the motion in part and noted counsel withdrew.
- The juvenile court entered a final judgment terminating the father’s parental rights without appointing substitute counsel for the father.
- The father appealed, arguing the juvenile court violated his due-process rights by failing to appoint counsel at the termination hearing and on appeal.
- The juvenile court’s record included the withdrawing attorney’s statements that the father had no income and had not paid counsel, indicating possible indigency, but the court made no further inquiry into indigency or appointment of counsel.
- The appellate court remanded for the juvenile court to determine indigency, appoint counsel if appropriate, and, if counsel is appointed, grant a new trial; the juvenile court must report back within 28 days.
Issues
| Issue | Father’s Argument | Petitioners’ Argument | Held |
|---|---|---|---|
| Whether the juvenile court erred by failing to appoint substitute counsel after retained counsel withdrew | Father (via counsel) argued the court violated his due-process rights by not appointing counsel despite counsel’s withdrawal and statements of indigency | Petitioners argued issue not preserved and father personally never requested appointment or proved indigency | Issue preserved; remand ordered for juvenile court to determine indigency and appoint counsel if indigent; new trial if counsel appointed |
| Whether father needed to personally request appointed counsel or repeatedly assert indigency after counsel’s withdrawal | Father relied on counsel’s motion requesting appointment and prior affidavit law analogies to avoid repeated requests | Petitioners said father never personally requested appointment nor proved indigency | Court held counsel’s motion preserved the issue; statute requires court to inform and appoint counsel if indigent—father need not personally re-request |
| Whether the juvenile court had enough information to find indigency without further inquiry | Father pointed to attorney’s statements that he had no income and unpaid fees | Petitioners conceded no further affidavit but disputed sufficiency of evidence | Court held facts before court (nonpayment, incarceration, lack of income) required the court to inquire into indigency; failure to do so was error |
| Appropriate remedy for failure to determine indigency and appoint counsel | Father sought reversal and new trial | Petitioners sought affirmance (or that issue be dismissed as unpreserved) | Court remanded for indigency determination; if indigent, appoint counsel and grant a new trial; appeal to be dismissed if new trial granted |
Key Cases Cited
- D.A. v. Calhoun County Dep’t of Human Resources, 976 So.2d 502 (Ala. Civ. App.) (preservation rule for raising new issues on appeal)
- J.A.H. v. Calhoun County Dep’t of Human Resources, 846 So.2d 1093 (Ala. Civ. App.) (previous counsel’s affidavit can preserve right to appointed counsel after dismissal)
- Ex parte D.B.R., 757 So.2d 1193 (Ala.) (trial court should reassess indigency and appoint counsel if indicated)
- R.H. v. D.N., 5 So.3d 1253 (Ala. Civ. App.) (nonpayment to retained counsel can show inability to afford counsel)
- Ex parte Weaver, 871 So.2d 820 (Ala.) (appellate courts generally do not consider issues raised first on appeal)
- Ex parte Malone, 12 So.3d 60 (Ala.) (preservation requires timely presentation and adverse ruling to the trial court)