K.H. v. Jefferson County Department of Human Resources
106 So. 3d 420
Ala. Civ. App.2012Background
- DHR filed a dependency petition in October 2010 alleging the mother lacked adequate shelter and stable employment.
- Child removed from the mother’s custody on October 22, 2010, and custody was placed with the maternal grandfather in October 2010.
- Father was awarded visitation with the child in April 2011.
- Mother’s appointed counsel withdrew in June 2011; a new attorney was appointed, but the mother retained Edward May II, who filed a notice of appearance on August 2, 2011.
- At the dependency trial, disputed evidence centered on the mother’s residence, employment, and income; a dispositional trial was set for September 26, 2011.
- On September 26, 2011, the mother appeared but her retained counsel did not; the court proceeded with the dispositional trial, and the final judgment awarded custody to the father with supervised visitation to the mother; the mother appealed on two issues and the court affirmed the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Counsel absence at dispositional trial</Issue> | Mother argues she should have had counsel at dispositional trial. | Court noted no basis to appoint new counsel and proceeded with trial. | No reversible error; court could continue without retained counsel. |
| Ineffective assistance of counsel</Issue> | Mother contends retained counsel’s failure to appear amounted to ineffective assistance. | Argument not raised in trial court; cannot be reviewed on appeal. | Not reviewable; no reversal for ineffective-assistance claim. |
Key Cases Cited
- D.A. v. Calhoun Cnty. Dep’t of Human Res., 976 So.2d 502 (Ala.Civ.App. 2007) (continuance not required; lack of counsel does not always require delay)
- Papaspiros v. Southeast General Contractors, Inc., 982 So.2d 1099 (Ala.Civ.App. 2007) (limits on right to counsel and continuances in dispositional trials)
- Ex parte McCain, 804 So.2d 186 (Ala. 2001) (constitutional right to counsel with limits in civil trials)
- R.H. v. D.N., 5 So.3d 1253 (Ala.Civ.App. 2008) (indigency and appointment of counsel; affidavits of hardship considered)