89 So. 3d 780
Ala. Civ. App.2012Background
- DHR appeals a summary judgment in favor of the mother terminating its efforts to terminate her parental rights to the child.
- This is the second time the parties have appeared in this court on DHR’s termination petitions.
- In 2009, this Court reversed a prior termination judgment in C.S.B. v. State Dept. of Human Resources for lack of clear and convincing evidence.
- A May 2010 petition alleged changes since the 2009 decision; the mother moved for summary judgment March 28, 2011.
- DHR did not submit evidence opposing the motion, relying on an interrogatory stating there had been no change in circumstances.
- The juvenile court granted summary judgment in favor of the mother on July 22, 2011, and the court did not hold a ruling on a later Rule 59 motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Change in circumstances issue | DHR had new evidence since 2009 showing change in circumstances. | There was no change in circumstances; relitigation was improper. | No genuine issue; summary judgment proper. |
| Proper consideration of postjudgment evidence | Rule 59 motion allowed submission of new evidence not previously offered. | New evidence could not be belatedly introduced; error harmless. | Postjudgment evidence not timely; harmless error; no reversal. |
| Harmlessness of failure to hold a Rule 59 hearing | Hearing on postjudgment motion should have been held. | Failure to hold a hearing was harmless given lack of merit. | Harmless error; judgment affirmed. |
Key Cases Cited
- C.S.B. v. State Department of Human Resources, 26 So.3d 426 (Ala.Civ.App.2009) (reversed termination for lack of clear and convincing evidence)
- In re Hickman, 489 So.2d 601 (Ala.Civ.App.1986) (poverty/limited mentality not sole basis to remove a child)
- Moore v. Glover, 501 So.2d 1187 (Ala.1986) (review of motions to reconsider/postjudgment evidence; proper use)
- Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366 (Ala.1988) (proper handling of new evidence in post-judgment motions)
- Isbell v. Rogers Auto Sales, 72 So.3d 1258 (Ala.Civ.App.2011) (harmless error analysis for Rule 59 issues)
- McCollough v. Regions Bank, 955 So.2d 405 (Ala.2006) (standards for opposing a properly supported summary judgment)
- Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989) (substantial evidence standard in summary judgments)