R.M. v. Elmore Cty. Dept. of Resources, 2091106 (ala.civ.app. 7-15-2011)
75 So. 3d 1195
Ala. Civ. App.2011Background
- DHR became involved in 2008 due to reports of physical abuse to D.H.M. and began in-home rehabilitative services.
- In 2009 DHR removed D.H.M. and D.J.M. III; D.M.M. was born prematurity and tested positive for benzodiazepines at birth, leading to DHR custody in 2009.
- All three children were placed with paternal aunt and uncle in Florida in 2009; DHR filed petitions to terminate parental rights in June 2010 based on abuse, neglect, and parental incapacity.
- Criminal charges for felony child abuse were filed against the parents; motions for stay and for discovery were denied by the juvenile court in July 2010.
- A termination hearing occurred August 5, 2010; the juvenile court terminated parental rights on August 12, 2010; notices of appeal were filed by the mother and father.
- The father later sought Rule 60(b) relief; the court treated this as an appeal and ultimately dismissed some aspects for lack of jurisdiction, while the appellate court reversed the termination judgments and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service of process was valid or waived. | Mother argues improper service on her; asserts lack of jurisdiction. | DHR contends mother waived any service defects by appearing and filing a stay request. | Waiver of service is found; general appearance cured any defect. |
| Whether the termination hearing should have been stayed due to Fifth Amendment concerns. | Mother and father contend Fifth Amendment rights require stay pending criminal trials. | DHR and court balancing weigh permanency and public interest; stay not required. | The juvenile court exceeded discretion; stay was warranted; reversed and remanded for further proceedings. |
| Whether the appeal on Rule 60(b) motions was timely or moot. | Father seeks relief from judgment under Rule 60(b); timely appeal. | Appeal timing defects; motion untimely and not properly before the court. | Appeal dismissed for lack of jurisdiction; moot after reversal of judgment. |
Key Cases Cited
- Horizons 2000, Inc. v. Smith, 620 So. 2d 606 (Ala. 1993) (personal jurisdiction requires perfected service; lack voids judgment)
- Ex parte Rawls, 953 So. 2d 374 (Ala. 2006) (factors for staying civil proceedings amid overlapping criminal actions)
- Ex parte Baugh, 530 So. 2d 238 (Ala. 1988) (balancing fifth amendment rights against prejudice to civil proceedings)
- Ex parte Ebbers, 871 So. 2d 776 (Ala. 2003) (Ebbers factors for stay balancing)
- Ex parte Windom, 763 So. 2d 946 (Ala. 2000) (fifth amendment protection and civil proceedings overlap)
- Ex parte Weems, 711 So. 2d 1011 (Ala. 1998) (parallelism of civil and criminal proceedings analysis)
- Carter v. Drumm, 700 S.W.2d 423 (Ky. Ct. App. 1985) (stay denial in dependency actions where termination may cause irrevocable loss)
- Lowe v. Lowe, 561 So. 2d 240 (Ala. Civ. App. 1990) (relevance of protecting constitutional rights when others are at stake)