8:00am - 5:00pm
Monday - Friday (or by appt)
(205) 293-5293
Select Page

In K.A.B. v. J.D.B., a mother with narcolepsy had her children removed and custody ultimately awarded to the father.  Mother challenged several aspects of the case, including an alleged failure to hold a 72 hour hearing.  At the end of the case, the mother appeal, but did not receive relief from the Alabama Court of Civil Appeal.

The 72 Hour Hearing

Parents have a fundamental right to the care, custody, and control of their children. If a government, like the State of Alabama for example, wants to interfere with that right by taking a parents children out of their custody, they must first get past a number of significant hurdles.  One of the earliest rights of a parent whose child has been taken from them is the right to a hearing within 72 hours.  Even thought the parent has the right to a hearing within 72 hours, what happens when the government fails to get a parent that hearing?

According to the Alabama Court of Civil Appeals, if a parent is denied their 72 hour hearing, the time to raise that issue is somewhere around hour 73.  For the second time in two years, the appellate court in K.A.B. v. J.D.B. held that if a parent waits until the dependency case is finished to raise the the issue, it’s too late.  A child removal happens pursuant to a “shelter-care order” which is temporary.  Eventually, that “shelter-care order” is supplanted by a more permanent custody order from the juvenile court.  In the K.A.B. case, the Alabama Court of Civil Appeals found a parent’s allegation that they didn’t receive a hearing within 72 hours moot because the “shelter-care order” that the 72 hour hearing would address had been supplanted by the custody order.  In essence the time for challenging the failure to hold a timely hearing had passed, and the parent’s appeal was dismissed.

The take-away from the court’s holding is that if a parent that has had a child removed and did not receive a 72 hour hearing, it must be challenged through an immediate appeal or writ. Waiting to appeal the matter at the end of the case is unlikely to result in the parent receiving any relief.

Other Issues Raised in K.A.B.

There were a host of issues raised in the parent’s appeal in K.A.B.: jurisdiction, the guardian ad litem’s actions, the court’s findings, and evidentiary issues.  Each issue was rejected in turn.

Mother argued the circuit court where there had been a custody determination and not the juvenile court had jurisdiction, and therefore the juvenile court’s rulings could not stand.  When a circuit court decides child custody, the circuit court is usually the exclusive court to have jurisdiction – and therefore the ability to alter the custody arrangement.  The key phrase is “usually the exclusive court” rather than always the exclusive court.  In situation s where (1) any court needs to take emergency (presumably temporary) action to protect the children; and (2) where a separate dependency cases (for neglect or abuse) is started.  Because the case fell in an exception, it did not have to proceed in the circuit court.

During the course of the dependency action, the guardian ad litem may have – as Mother complained – exceeded its authority by requesting the that Mother’s visitation be suspended. But like the issue of the 72 hour hearing, that the order suspending visitation had been replaced by a new order and therefore the issue was moot and Mother could no longer challenge it.

Mother argued that the juvenile court decision could not stand because it had failed to make an express finding of dependency – in other words the court’s order didn’t say “the chid is dependent.”  Nevertheless, the Court of Appeals ruled that the failure to make an express finding wasn’t a problem because the juvenile’s implicit finding of dependency was sufficient.

Mother argued that she wasn’t allowed to present certain particular evidence included in a letter.  Except, the letter was admitted as an exhibit at trial.  So, the evidence was presented and admitted.

Mother argued that the juvenile court made a mistake when it determined that reasonable efforts had been made to reunite Mother and child.  Except, the juvenile court hadn’t made that determination.  And it hadn’t made that determination because it wasn’t required to.  While if the Department Human Resources is awarded custody of a child the court must find that reasonable efforts were made to reunite the parent and child, no such finding is required where – as here – custody goes to the other parent.

Why to Avoid Shotgun Approach to Appeal

The appellant in K.A.B. raised a host of other issues each one of which was quickly disposed of by the Court of Civil Appeals.  The practice of raising every possible issue on appeal is often derisively referred to as a “shotgun approach.”

Rather than appeal every possible issue, appellants tend to do better when they raise only two or three issues.  When fewer issues are raised, the alleged injustice can be more fully explored and their consequences better outlined to the appellate judges.  The unfortunate appellant in K.A.B. probably suffered from too many issues, each of which was probably under-explored and under-explained to the appellate court.

If you need a consultation or representation on your appeal, contact Browne House Law today.  Browne House Law has an active appellate practice in Alabama and elsewhere.  Read the opinion from the Alabama Court of Civil Appeals here.