E.L.F. v. Lee County Department of Human Resources

Rel: September 26, 2025

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
SPECIAL TERM, 2025
_________________________

CL-2025-0255 and CL-2025-0256
_________________________

S.A.

v.

Lee County Department of Human Resources
_________________________

CL-2025-0257 and CL-2025-0258
_________________________

E.L.F.

v.

Lee County Department of Human Resources

Appeals from Lee Juvenile Court
(JU-21-257.03 and JU-22-486.04)
CL-2025-0255, CL-2025-0256, CL-2025-0257, and CL-2025-0258

MOORE, Presiding Judge.

S.A. ("the mother") and E.L.F. ("the father") appeal from two

judgments entered by the Lee Juvenile Court ("the juvenile court")

terminating their parental rights to Z.F., who was born on August 26,

2021, and I.F., who was born November 21, 2022, respectively. Because

the juvenile court did not consider whether the mother was indigent and

should be appointed counsel, we reverse the judgments and remand the

cases to the juvenile court with instructions.

Background

The parties were previously before this court in 2022 in an appeal

from a judgment finding Z.F. to be dependent, which this court affirmed

without a published opinion. See S.A. and E.F. v. Lee Cnty. Dep't of Hum.

Res., 378 So. 3d 538 (Ala. Civ. App. 2022) (table). At that time, the

mother and the father were represented by retained counsel. The record

shows that, in August 2023, the Lee County Department of Human

Resources ("DHR") returned Z.F. to the mother's custody. In November

2023, however, DHR assumed custody of both Z.F. and I.F. ("the

children") and commenced new dependency actions relating to the

children. At the shelter-care hearing in those cases, the mother implied

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that she would be represented by the same retained counsel, but her

retained counsel never appeared in the cases.

On December 30, 2024, DHR filed petitions to terminate the

parental rights of the mother and of the father to the children. The

juvenile court entered a standing order in both cases providing that, if a

respondent parent who could not afford to hire counsel desired appointed

counsel, the parent must file an affidavit of substantial hardship to

request the appointment. On January 27, 2025, the juvenile court

entered orders setting the cases for trial on February 24, 2025. Those

orders were on a standard form that advised parents of their right to

request appointed counsel in a termination-of-parental-rights case. The

orders further provided that a failure to secure an attorney would not

delay the trial of the cases. Nonetheless, on February 24, 2025, the

juvenile court continued the trial to March 18, 2025, to enable the father

to retain an attorney.

On March 18, 2025, the trial commenced, and DHR called its first

witness, a Luverne police officer who had arrested the mother on

February 7, 2025, for disorderly conduct. The police officer testified that

he had responded to a report that the mother was panhandling outside

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an automobile-parts store and that the manager of the store wanted her

to leave. Upon his arrival, the mother reported to the police officer that

her automobile was out of gas and that she needed money for fuel.

According to the police officer, the mother refused to identify herself and

caused such a disturbance that she was taken into police custody and

jailed. The police officer testified that it had appeared to him that the

mother was having a mental-health crisis.

Midway through the police officer's testimony, the father

complained that he had not been given ample time to find an attorney

and that he could not afford the one that he had contacted. The father

also stated that the mother "should be getting an attorney because she

don't have a job." The mother immediately requested a continuance. The

father interrupted the mother before she could explain why she was

requesting a continuance, but, in context, it appears that the mother was

requesting that the trial be delayed until she could obtain legal

representation. The juvenile court did not expressly rule on the request,

but it impliedly denied the request by proceeding with the trial.

The evidence showed that the mother and the father had never

married. The mother resided with the father in a house that they were

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renting to own, but they were no longer in an intimate relationship, and

she slept on the couch. The mother depended on the father financially.

The mother suffers from schizophrenia, and she had applied for Social

Security disability benefits. The mother last worked in January 2025,

when she was employed at a fast-food restaurant. In early February

2025, the mother went missing. The father filed a missing person's report

in Opelika, fearing that the mother was off her psychotropic medication.

The mother testified that she had transported someone to Crenshaw

County and that she became stranded there when she ran out of gas and

did not know the directions to get back home. The mother said that, over

the next few days, she had begged for money but that she did not receive

sufficient funds to leave the area. She testified that she had slept in her

truck for several days until she was arrested on February 7, 2025. The

mother was released from the Luverne jail on February 23, 2025, the day

before the original scheduled trial setting. The mother said that her

truck had been impounded; after she returned to Lee County, she relied

on the father to transport her to her mental-health and other

appointments. The mother said that she would have to walk to work if

she obtained employment.

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During the trial, the father cross-examined witnesses and made

objections to their testimony. The mother interspersed statements

throughout the trial, and she did cross-examine one witness; she did not,

however, effectively present a defense to the termination-of-parental-

rights petitions. In closing, the mother again requested a continuance to,

among other things, obtain a lawyer.

On March 25, 2025, the juvenile court entered judgments

terminating the mother's and the father's parental rights to the children.

The mother and the father filed timely postjudgment motions to alter,

amend, or vacate the judgments. On April 8, 2025, while those motions

were pending, the father and the mother filed notices of appeal from each

judgment. The postjudgment motions were denied by operation of law,

see Rule 1(B), Ala. R. Juv. P., and Rule 59.1, Ala. R. Civ. P., and the

notices of appeal became effective on April 22, 2025. See Rule 4(a)(5),

Ala. R. App. P. After the mother and the father appealed, they both filed

an affidavit of substantial hardship to request court-appointed appellate

counsel; upon finding the mother and the father to be sufficiently

indigent, the juvenile court granted the requests. The mother and the

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father are represented on appeal by the attorneys appointed by the

juvenile court.

Issues

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

failing to appoint counsel for her and by denying her requests to continue

the trial of the cases. The mother and the father argue that the juvenile

court did not receive sufficient evidence to terminate their parental

rights. We find the first issue dispositive of these consolidated appeals.

Analysis

Section 12-15-305(b), Ala. Code 1975, provides:

"In dependency and termination of parental rights cases, the
respondent parent, legal guardian, or legal custodian shall be
informed of his or her right to be represented by counsel and,
if the juvenile court determines that he or she is indigent,
counsel shall be appointed where the respondent parent, legal
guardian, or legal custodian is unable for financial reasons to
retain his or her own counsel."

"The obvious purpose of § 12-15-305(b) is to ensure that indigent parents

facing termination of their parental rights receive meaningful legal

representation." J.Q. v. Calhoun Cnty. Dep't of Hum. Res., [Ms. CL-2025-

0067, June 27, 2025] ___ So. 3d ___, ___ (Ala. Civ. App. 2025). This court

has construed § 12-15-305(b) to require a juvenile court, upon being

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notified that a parent may be claiming indigency, to inquire into the

matter and ascertain whether the parent is unable for financial reasons

to retain his or her own counsel; if so, the juvenile court has a mandatory

duty to appoint counsel for the parent at the expense of the state. See

J.S. v. J.C., 181 So. 3d 1067, 1070 (Ala. Civ. App. 2015).

In these cases, the mother appeared without counsel at the trial of

the petitions to terminate her parental rights to the children. The

juvenile court heard testimony from the first witness called by DHR that,

only one month earlier, the mother had been found begging for money to

fuel her truck and that she had been incarcerated for disorderly conduct

at that time. The father informed the juvenile court that the mother

needed an attorney because she was not employed, and the mother

requested a continuance at that time. That information placed the

juvenile court on notice that the mother may be indigent and that she

may have the right to appointed counsel. See J.S., 181 So. 3d at 1069-70

(noting that an indigent parent does not have to personally request

appointed counsel). However, the juvenile court did not halt the trial to

inquire further into the matter. The juvenile court subsequently heard

testimony indicating that the mother suffers from a serious mental-

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health problem, that she had last worked in January 2025, that she went

missing in February 2025, that she had been incarcerated, that she had

no independent income, that she had applied for Social Security disability

benefits, and that she lacked transportation. That evidence reinforced

that the mother was impoverished and that she probably was unable to

afford an attorney for financial reasons.

Ultimately, the juvenile court determined that the mother, as an

indigent respondent, qualified for appointed counsel, but only after the

trial had ended, adverse judgments had been entered against her, and

she had filed an affidavit of substantial hardship. The record implies

that the juvenile court would not consider appointing an attorney for the

mother until an affidavit of substantial hardship was filed, as required

by a local procedural order. However, "§ 12-15-305(b) does not specify

the procedure a parent must follow to apply for court-appointed counsel

in a termination-of-parental-rights proceeding." J.Q., ___ So. 3d at ___.

Section 12-15-305(a) specifically requires a private petitioner in a

termination-of-parental-rights case to formally request appointed

counsel before a juvenile court must make a finding regarding indigency,1

1Section 12-15-305(a) provides: "Upon request and a finding of
indigency, the juvenile court may appoint an attorney to represent the
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but § 12-15-305(b), which applies to respondent parents, does not require

a formal request. To trigger the duty of a juvenile court to determine his

or her indigency, a parent may apply for indigent status by filing an

affidavit of substantial hardship or by "otherwise showing that [he or]

she was indigent." Ex parte B.M.F., 383 So. 3d 682, 685 (Ala. Civ. App.

2023). Rule 83, Ala. R. Civ. P., does not permit the adoption of a local

rule of procedure to limit how § 12-15-305(b) should be applied. We do

not believe that the mother waived her right to appointed counsel by

failing to file an affidavit of financial hardship before or during the trial.

Compare Harper v. Jackson Cnty. Dep't of Pensions & Sec., 494 So. 2d

428, 430 (Ala. Civ. App. 1986) (recognizing that a respondent parent may

intentionally surrender right to appointed counsel in termination-of-

parental-rights case by taking unequivocal action bespeaking an

intention to proceed without counsel).

We recognize that requiring juvenile courts to inquire into the

indigency of a parent during the trial would hinder the prompt

petitioner and may order recoupment of the fees of the attorney to be paid
to the State of Alabama."

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disposition of a termination-of-parental-rights case; 2 however, "the

permanent severance of the relationship between a parent and his or her

natural child through termination of parental rights can be achieved only

through 'fundamentally fair procedures.' " V.G.J. v. Tuscaloosa Cnty.

Dep't of Hum. Res., 368 So. 3d 886, 890 (Ala. Civ. App. 2022) (quoting

Santosky v. Kramer, 455 U.S. 745, 754 (1982)). "[P]ermanency for a

dependent child cannot be achieved through the sacrifice of a parent's

right to effective assistance of counsel in a termination-of-parental-rights

proceeding." V.G.J., 368 So. 3d at 892. "An indigent parent facing the

termination of his [or her] parental rights is entitled to the appointment

of counsel." J.A.H. v. Calhoun Cnty. Dep't of Hum. Res., 846 So. 2d 1093,

1095 (Ala. Civ. App. 2002). Because the mother was indigent, her

parental rights should not have been terminated in a proceeding in which

she was unrepresented by counsel. To the extent that the mother must

show that she was harmed by the lack of counsel, see In re K.M.W., 376

N.C. 195, 851 S.E.2d 849 (2020) (holding that actual prejudice is not

2The record shows that the children had been safely residing
together in the same foster home since November 2023 and that the
foster parents intended to adopt the children if the petitions to terminate
parental rights were granted. Any delay in the termination proceedings
will postpone their permanency, but it will not disturb their long-
standing custody arrangement.
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required to obtain reversal of a judgment terminating the parental rights

of a parent entered in violation of his or her right to counsel), the record

shows that the mother could not adequately represent herself, whether

due to her mental-health problems or lack of legal training, and, thus,

any error committed by the juvenile court in failing to appoint counsel for

her was not harmless. See Rule 45, Ala. R. App. P.

Conclusion

A juvenile court has discretion to deny a motion for a continuance

in a termination-of-parental-rights case. See C.C. v. Madison Cnty. Dep't

of Hum. Res., [Ms. CL-2024-1022, June 27, 2025] ___ So. 3d ___ (Ala. Civ.

App. 2025). When the mother first requested a continuance during the

trial, the juvenile court should have determined her indigency, and, upon

a determination that she was unable for afford retained counsel, the

juvenile court should have appointed counsel for the mother and

continued the trial to allow her appointed counsel time to adequately

prepare for the trial. Id. We hold that the juvenile court exceeded its

discretion by proceeding with the trial without making an immediate

indigency determination and by granting the mother indigent status only

after the judgments were entered. Therefore, we reverse the judgments

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and remand the cases for the mother to receive a new trial with duly

appointed trial counsel.

We also reverse the judgments terminating the father's parental

rights. We do not know whether the juvenile court would have reached

a different decision regarding the petitions to terminate the mother's

parental rights had she been properly represented by counsel. If so, the

juvenile court may have also determined that the father's parental rights

should not have been terminated because returning the children to the

mother's custody would be a viable alternative. See M.L.M. v. Madison

Cnty. Dep't of Hum. Res., 298 So. 3d 509, 514 (Ala. Civ. App. 2020)

(holding that reversal of judgment terminating parental rights of a

mother who was deprived of her right to counsel warranted reversal of

judgment terminating the parental rights of father because, on remand,

juvenile court could find mother to be a suitable custodian and a viable

alternative to the termination of the parental rights of father). The

father does not argue on appeal that the juvenile court erred in failing to

appoint him counsel, so the father has waived his right to appointed

counsel, see generally S.J. v. Limestone Cnty. Dep't of Hum. Res., 61 So.

3d 303, 306 (Ala. Civ. App. 2010)(holding that the right to appointed

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counsel may be waived if not properly preserved for appellate review);

Gary v. Crouch, 923 So. 2d 1130, 1136 (Ala. Civ. App. 2005) ("[T]his court

is confined in its review to addressing the arguments raised by the

parties in their briefs on appeal; arguments not raised by the parties are

waived."). On remand, however, the father should be allowed to

participate in the new trial.

CL-2025-0255 -- REVERSED AND REMANDED WITH

INSTRUCTIONS.

CL-2025-0256 -- REVERSED AND REMANDED WITH

INSTRUCTIONS.

CL-2025-0257 -- REVERSED AND REMANDED WITH

INSTRUCTIONS.

CL-2025-0258 -- REVERSED AND REMANDED WITH

INSTRUCTIONS.

Edwards, Hanson, Fridy, and Bowden, JJ., concur.

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