J.M.L. v. Tuscaloosa County Department of Human Resources (Appeal from Tuscaloosa Juvenile Court: JU-22-622.02).

Rel: April 26, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2023-2024
_________________________

CL-2023-0765
_________________________

J.M.L.

v.

Tuscaloosa County Department of Human Resources

Appeal from Tuscaloosa Juvenile Court
(JU-22-622.02)

LEWIS, Judge.

J.M.L. ("the mother") appeals from a judgment entered by the

Tuscaloosa Juvenile Court ("the juvenile court") terminating her parental

rights to A.H.S. ("the child"). We affirm the juvenile court's judgment.
CL-2023-0765

Procedural History

On June 13, 2023, the Tuscaloosa County Department of Human

Resources ("DHR") filed a petition seeking to terminate the parental

rights of the mother and of S.F. ("the father") to the child. A trial was

held on October 24, 2023. At the commencement of the trial, the

mother's attorney made an oral request for a continuance because the

mother was not present. The mother's attorney stated that she

"underst[ood] from past communications with [the mother] that [the

mother] has transportation problems." The juvenile court denied the

request for a continuance. The juvenile court proceeded to hold a trial on

DHR's petition, and the mother's attorney cross-examined the witnesses

that were called to testify.

On October 26, 2023, the juvenile court entered a judgment

terminating the parental rights of the mother and of the father to the

child. The mother filed a postjudgment motion on October 30, 2023,

pointing out, among other things, that the mother's attorney had moved

for a continuance, again citing the mother's problems with

transportation. The mother filed her notice of appeal with this court that

same day. The notice of appeal was held in abeyance pending the denial

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CL-2023-0765

of the postjudgment motion, which occurred on November 3, 2023. 1 See

Rule 4(a)(5), Ala. R. App. P. The father did not appeal.

Discussion

On appeal, the mother argues that the juvenile court erred in

denying the oral motion for a continuance made by the mother's attorney

on behalf of the mother when the mother failed to appear for the trial.

Specifically, the mother sets forth arguments that the juvenile

court violated her due-process rights as well as an argument that having

the trial without the mother undermined the public's trust in the legal

system. We note, however, that the mother did not raise, to the juvenile

court, her due-process arguments or her argument that the juvenile

court's actions undermined the public's trust in the legal system.

"This Court cannot consider arguments raised for the first time on

appeal; rather, our review is restricted to the evidence and arguments

considered by the trial court." Andrews v. Merritt Oil Co., 612 So. 2d 409,

410 (Ala. 1992). However, this court in A.B. v. A.A., 334 So. 3d 223, 225

(Ala. Civ. App. 2021), reasoned:

1The juvenile court held a hearing on the mother's postjudgment

motion; the mother was not present for that hearing.
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"[A] judgment is deemed to be void if it is entered in a manner
that is not consistent with the requirements of due process.
M.G.D. v. L.B., 164 So. 3d 606, 611 (Ala. Civ. App. 2014); M.G.
v. J.T., 90 So. 3d 762, 764 (Ala. Civ. App. 2012); and M.H. v.
Jer. W., 51 So. 3d 334, 337 (Ala. Civ. App. 2010). This court
lacks jurisdiction over an appeal of a void judgment because a
void judgment will not support an appeal. M.H. v. Jer. W., 51
So. 3d at 338. An appellate court may address an issue raised
for the first time on appeal if it implicates the subject-matter
jurisdiction of the court. Health Care Auth. for Baptist Health
v. Davis, 158 So. 3d 397, 402 (Ala. 2013)."

We note, though, that the holding in A.B. is contrary to well-

established precedents from this court and from our supreme court. In

Yeager v. Lucy, 998 So. 2d 460, 463 (Ala. 2008), our supreme court held

that an appellant's argument that "the trial court violated Art. I, § 10 of

the Constitution of Alabama 1901, which provides '[t]hat no person shall

be barred from prosecuting or defending before any tribunal in this state,

by himself or counsel, any civil cause to which he is a party ' " was not

preserved for review. The supreme court explained:

" 'The rule is well settled that a constitutional
issue must be raised at the trial level and that the
trial court must be given an opportunity to rule on
the issue, or some objection must be made to the
failure of the court to issue a ruling, in order to
properly preserve that issue for appellate review.
This Court succinctly stated this rule as follows:

" ' "In order for an appellate court to
review a constitutional issue, that

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issue must have been raised by the
appellant and presented to and
reviewed by the trial court.
Additionally, in order to challenge the
constitutionality of a statute, an
appellant must identify and make
specific arguments regarding what
specific rights it claims have been
violated. " '
" 'Alabama Power Co. v. Turner, 575 So. 2d 551
(Ala.1991) (citations omitted).'

"Cooley v. Knapp, 607 So. 2d 146, 148 (Ala. 1992)."

Yeager, 998 So. 2d at 463. Additionally, in Elliott Law Group, P.A. v.

Five Star Credit Union, 297 So. 3d 1148, 1153 n.6 (Ala. 2019) (Per

Mitchell, J., with Sellers and Stewart, JJ., concurring), it was held that,

because the appellants failed to raise the issue of due process with the

trial court, that issue was waived.

In C.F. v. State Department of Human Resources, 218 So. 3d 1246,

1248 (Ala. Civ. App. 2016), C.F. argued to this court that the juvenile

court's denial of her motion for a continuance violated her due-process

rights. This court noted, though, that the due-process argument had not

been raised to the trial court. Quoting Smith v. State Department of

Pensions & Security, 340 So. 2d 34, 37 (Ala. Civ. App. 1976), this court

explained: " 'It has long been the law in this state that constitutional
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CL-2023-0765

questions not raised in the court below will not be considered for the first

time on appeal.' " C.F., 218 So. 3d at 1248. Therefore, we did not address

C.F.'s due-process argument. Multiple other opinions from this court

similarly hold that issues of due process must be preserved for appellate

review. See, e.g., Docen v. Docen, 294 So. 3d 767, 770 (Ala. Civ. App.

2019); Smith v. Smith, 196 So. 3d 1191, 1198 (Ala. Civ. App. 2015); A.F.

v. Madison Cnty. Dep't of Hum. Res., 58 So. 3d 205, 213 (Ala. Civ. App.

2010); and Wu v. Wu, 37 So. 3d 792, 796-97 (Ala. Civ. App. 2009).

We also note that our supreme court has recently recognized that a

party may attack, as void, a judgment that was entered in a manner that

is inconsistent with due process by filing with the trial court a motion

pursuant to Rule 60(b)(4), Ala. R. Civ. P. See Crowder v. Blevins, [Ms.

SC-2023-0445, Mar. 22, 2024] ___ So. 3d ___, ___ (Ala. 2024). Therefore,

a party has a procedural vehicle through which to challenge, in the first

instance, a denial of due process in the trial court.

We conclude that the precedents requiring preservation of issues of

due process are well-established and well-reasoned, and the inconsistent

reasoning set forth in A.B. was incorrect. Therefore, to the extent that

A.B. holds that an appellant is not required to preserve a due-process

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CL-2023-0765

argument for appellate review, A.B. is hereby expressly overruled. We

unequivocally hold, in accordance with the other well-established

precedents, that issues of due process must be first presented to a trial

court to be preserved for appellate review.

Accordingly, in this case, because the mother did not preserve her

due-process arguments for review by this court, we will not address that

issue. In addition, the mother did not preserve her argument concerning

the undermining of the public's trust in the legal system. Therefore, we

similarly decline to address that issue. See Andrews, 612 So. 2d at 410.

To the extent that the mother simply argues that the juvenile court

exceeded its discretion in denying her motion for continuance, this court

has explained:

"A juvenile court exercises judicial discretion when
ruling on a motion for a continuance, and its decision to deny
a motion to continue may be reversed only upon a
determination by the appellate court that the juvenile court
abused its discretion. See C.O. v. Jefferson Cnty. Dep't of
Hum. Res., 206 So. 3d 621, 630 (Ala. Civ. App. 2016). A court
abuses its discretion when ' "it has committed a clear or
palpable error, without the correction of which manifest
injustice will be done . " ' Clayton v. State, 244 Ala. 10, 12, 13
So. 2d 420, 422 (1942) (quoting 16 C.J. 453). "

V.G.J. v. Tuscaloosa Cnty. Dep't of Hum. Res., 368 So. 3d 886, 892 (Ala.

Civ. App. 2022).

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CL-2023-0765

In D.A. v. Calhoun County Department of Human Resources, 976

So. 2d 502 (Ala. Civ. App. 2007), this court rejected D.A.'s argument that

the juvenile court erred in denying his motion for a continuance, which

was based on his assertion that a snowstorm had prevented him from

attending the trial. This court stated that "the juvenile court could

properly have determined that the father failed to provide a good cause

for continuing the proceeding again in light of the juvenile court's

previous experience with the father and the children's need for stability

and permanency." D.A., 976 So. 2d at 504.

Here, the mother's attorney did not represent that she had even

spoken to the mother to ascertain a reason for the mother's absence. She

based her motion for continuance on likely transportation problems given

the mother's past difficulties with transportation. Therefore, we

conclude that the explanation of the mother in this case was weaker than

the argument made in D.A.

Because of the absence of a concrete explanation for the mother's

absence from the trial, we cannot conclude that the juvenile court

" ' "committed a clear or palpable error, without the correction of which

manifest injustice will be done . " ' " V.G.J., 368 So. 3d at 892 (quoting

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Clayton, 244 Ala. at 12, 13 So. 2d at 422, quoting in turn 16 C.J. 453).

Therefore, the juvenile court did not exceed its discretion in denying the

motion for a continuance.

Conclusion

Based on the foregoing, the juvenile court's judgment terminating

the mother's parental rights is affirmed.

AFFIRMED.

Moore, P.J., and Edwards, Hanson, and Fridy, JJ., concur.

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