Alabama appellate court reverses TPRs on multiple occasions due to violation of RTC

In J.Q. v. Calhoun County Dep’t of Human Res., — So.3d —-, 2025 WL 1774932 (Ala. Civ. App. 2025), a trial court held that a parent who requested appointed counsel on the first day of trial regarding termination of parental rights was not entitled to a continuance so that the appointed attorney could prepare for trial.  The Alabama Court of Civil Appeals reversed, pointing to the seriousness of termination of parental rights and the fact that the trial court could have appointed the same attorney the parent had in the dependency phase so that the appointed attorney would be familiar with the case, but the trial court had not done so.  While recognizing the importance of expediency in child welfare matters, it cautioned against undermining parental rights:

Our legislature has indicated that termination-of-parental-rights proceedings should be resolved expeditiously so that dependent children can receive permanency. However, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality, and and “permanency 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.

The Court of Appeals also pointed out the trial court knew the parent was indigent (by virtue of the fact that he had appointed counsel earlier in the case) yet required him to re-prove his indigence, commenting that “[W]e find it unduly burdensome and overly technical to require a parent to repeatedly request the appointment of counsel when he or she has previously requested counsel and has already proven his or her entitlement to such counsel.

Then, in C.C. v. Madison Cty. Dep’t of Human Servs., 2025 WL 1774945 (Ala. Civ. App. 2025), the Court of Appeals again reversed a TPR based on the denial of a continuance for appointed counsel.  In this case, counsel was not appointed for an incarcerated parent until 3 days before trial despite the parent having requested counsel over a month earlier.  The court pointed out that the father’s attorney “ had not spoken to the father or had an opportunity to review DHR’s case file”, and as with J.Q., brushed aside the concern that the need to avoid delaying permanency justified the denial of the continuance.  The court held that this denial was “a clear or palpable error, without the correction of which manifest injustice will be done.”

Finally, in S.A. v. Lee County Department of Human Resources, — So.3d —-, 2025 WL 2738038 (Ala. Civ. App. 2025), the Court of Civil Appeals held that a local procedural order requiring a parent to complete an affidavit of substantial hardship before the trial court would consider whether to appoint counsel in a TPR violated the statutory right to counsel, which contained no such requirement.  Some key points from the case:

• The court noted that it had previously construed the statute to require the court, upon being on notice that a parent might claim indigency, to determine whether the parent is qualified for appointed counsel.  In the instant case, the court was aware that the mother had been begging for money on the street just to fuel her car and that the mother was unemployed, all of which put the court on notice.  Further, “The juvenile court subsequently heard testimony indicating that the mother suffers from a serious mental-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.”  However, the trial court failed to appoint counsel until after the trial was over and the mother had completed the affidavit.
• The Court of Appeals pointed out that whereas the statute requires TPR petitioners to formally request counsel, there is no such request requirement for respondents, who instead establish eligibility by “filing an affidavit of substantial hardship or by ‘otherwise showing that [he or] she was indigent.’”
• The Court of Appeals concluded that Alabama law “does not permit the adoption of a local rule of procedure to limit how § 12-15-305(b) should be applied” and that “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.”
• The Court of Appeals acknowledged that its ruling might hinder prompt disposition of the case but that the interests at stake were too severe to do otherwise and that ““[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.”
• The Court of Appeals held that “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 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.”
• Notably, the Court of Appeals reversed the TPR against the father too, commenting that “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.”