SR v. LIMESTONE COUNTY DEPARTMENT OF HUMAN RESOURCES (2026)

AFFIRMED BY UNPUBLISHED MEMORANDUM.

T.O.F., Sr. (“the father”), appeals from a judgment of the Limestone Juvenile Court (“the juvenile court”); however, the record on appeal lacks a reporter's transcript of the juvenile-court proceeding central to the father's appeal. Because the record on appeal lacks that reporter's transcript, the plain meaning of Rule 28, Ala. R. Juv. P. -- and our clear precedent applying that rule -- requires that we transfer the father's appeal to the Limestone Circuit Court. Although transfer may be an unpalatable result, “it is our job to say what the law is, not to say what it should be,” Ex parte National Western Life Ins. Co., 899 So. 2d 218, 223 (Ala. 2004), and “[i]f a meaning of a [rule] is, in fact, ill-informed, unwise, or outdated, the [Alabama Supreme Court] -- not this Court -- must amend or update that [rule].” LePage v. Center for Reprod. Med., P.C., 408 So. 3d 678, 713 n.41 (Ala. 2024). Following a transfer, the Limestone Circuit Court need not conduct a trial de novo if the relevant reporter's transcript can be created and the record supplemented.

Analysis

Section 12-15-601, Ala. Code 1975, provides that the procedure for appealing a judgment from a juvenile court “shall be pursuant to rules of procedure adopted by the Supreme Court of Alabama.” In 1982, the Supreme Court of Alabama adopted Rule 28 as the rule of procedure governing the appeal of a juvenile-court judgment. See Wright v. Montgomery Cnty. Dep't of Pensions & Sec., 423 So. 2d 256, 256-57 (Ala. Civ. App. 1982). Accordingly, Rule 28 governs the procedure for appeals from a juvenile-court judgment. See Ex parte A.A., 263 So. 3d 1063, 1065 (Ala. Civ. App. 2018)(“Rule 28, Ala. R. Juv. P., sets out the circumstances in which appeals from judgments entered in the juvenile courts may be taken to the circuit court or to this court.”); Ex parte T.C., 96 So. 3d 123, 129 (Ala. 2012)(“ Rule 28, Ala. R. Juv. P., continues to govern the detailed procedure for appeals from the juvenile court ․.”).

Furthermore, under our current caselaw, whether an appeal complies with Rule 28 raises a question of this court's jurisdiction to hear the appeal. See In re O.J.G.-O., 403 So. 3d 185, 187 (Ala. Civ. App. 2024) (“We have jurisdiction to consider the appeal pursuant to Rule 28(A)(1)(c)(ii), Ala. R. Juv. P., because a court reporter was present at the adjudicatory hearing.”); T.F.H. v. A.L.S., 383 So. 3d 407, 409 (Ala. Civ. App. 2023)(“[T]his court has appellate jurisdiction because the record containing the transcript of the audio recording of the hearing was prepared at the direction of the juvenile court, which certified it as adequate for appellate review under Rule 28(A)(1)(c)(i), Ala. R. Juv. P.”); C.T. v. E.R., 373 So. 3d 840, 842 (Ala. Civ. App. 2022)(“We have jurisdiction pursuant to Rule 28(A)(1)(c)(i), Ala. R. Juv. P., because there exists a trial transcript prepared after the fact by a court reporter and a determination by the juvenile court that an adequate record exists.”); S.M. v. Madison Cnty. Dep't of Hum. Res., 395 So. 3d 1046, 1047 (Ala. Civ. App. 2023)(citing Rule 28 and stating “(see generally Rule 28(A)(1)(c)(ii), Ala. R. Juv. P., regarding this court's appellate jurisdiction)”(footnote omitted)); T.E. v. Calhoun Cnty. Dep't of Hum. Res., 344 So. 3d 895, 897 (Ala. Civ. App. 2021) (“[U]pon a review of the record, which contains a transcript of the trial prepared by a licensed court reporter who was present, we conclude that we have jurisdiction pursuant to Rule 28(A)(1)(c)(ii), Ala. R. Juv. P., because an adequate record for appellate review is available.”); J.L. v. Alabama Dep't of Hum. Res., 335 So. 3d 670, 671 n.1 (Ala. Civ. App. 2021) (“We have appellate jurisdiction under Rule 28(A)(1)(c)(i), Ala. R. Juv. P., because the ore tenus proceeding held in the juvenile court on DHR's petition was transcribed by a court reporter from an audio recording and the ensuing record was certified as adequate for appellate review by the juvenile-court judge.”); A.V. v. Houston Cnty. Dep't of Hum. Res., 353 So. 3d 1140, 1143 (Ala. Civ. App. 2021)(“This court has jurisdiction over the appeal pursuant to Rule 28(A)(1)(c)(i), Ala. R. Juv. P.”); J.D. v. E.R., 266 So. 3d 1088, 1095 (Ala. Civ. App. 2018)(“This court has jurisdiction to consider the appeals pursuant to § 12-15-601, Ala. Code 1975, and Rule 28, Ala. R. Juv. P.”); S.J. v. K.J., 206 So. 3d 641, 642 (Ala. Civ. App. 2016)(“This court may exercise jurisdiction of [an appeal from a juvenile-court proceeding] if the record is adequate for our review.”); P.J. v. Shelby Cnty. Dep't of Hum. Res., 338 So. 3d 781, 786 (Ala. Civ. App. 2021)(deciding whether an adequate record for direct appellate review existed under Rule 28, instead of allowing the circuit court to first determine that question, because “ ‘ “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.” ’ ” (citations omitted)).

Thus, the threshold question that we must decide is whether the father's appeal complies with Rule 28, not whether the father failed to comply with Rule 10, Ala. R. App. P., as the unpublished memorandum suggests.

Under the current formulation of Rule 28, this court may hear an appeal of a juvenile-court judgment if (1) the condition regarding a jury trial in Rule 28(A)(1), Ala. R. Juv. P., is not applicable and (2) one of the conditions set out in Rule 28(A)(1)(a), (b), or (c) is satisfied. In this case, the right to a jury trial is not applicable, and the parties have not stipulated to a set of facts (Rule 28(A)(1)(a)) or stipulated that the father's appeal concerns only issues of law (Rule 28(A)(1)(b)). Thus, the father's appeal is appropriately before this court only if it satisfies Rule 28(A)(1)(c).

Rule 28(A)(1)(c) provides that an appeal from a final judgment of a juvenile court shall be to the appropriate appellate court if an “adequate record of the proceeding is available.” (Emphasis added.) The “record of the proceeding” referred to in Rule 28(A)(1)(c) is a reporter's transcript of the underlying juvenile-court proceeding that has been created pursuant to the process described in either Rule 28(A)(1)(c)(i) or Rule 28(A)(1)(c)(ii). P.J., 338 So. 3d at 785. As we clearly stated in P.J.: “[I]t is the role of the juvenile-court judge to designate an appropriate person to ‘prepare a reporter's transcript’ that will constitute ‘the record of the proceeding.’ ” Id. (emphasis added).

Our unequivocal statement in P.J. that the “record of the proceeding” in Rule 28(A)(1)(c) is a reporter's transcript finds support from the practical reality of applying Rule 28(A)(1)(c). As noted, Rule 28(A)(1)(c) provides that an adequate record of the proceeding is available if either of the processes described in Rule 28(A)(1)(c)(i) or Rule 28(A)(1)(c)(ii) is followed.¹ And the outcome of either process outlined in Rule 28(A)(1)(c)(i) or Rule 28(A)(1)(c)(ii) is a reporter's transcript. Under Rule 28(A)(1)(c)(i), the juvenile court must designate a person to “transcribe” the “record of the proceeding” to create a reporter's transcript pursuant to Rule 10(b), Ala. R. App. P. (Emphasis added). Similarly, under Rule 28(A)(1)(c)(ii), a court reporter present at the juvenile-court hearing must “transcribe the record of the proceeding and prepare a reporter's transcript in accordance with the provisions of Rule 10(b)(2) of the Alabama Rules of Appellate Procedure.” (Emphasis added). Thus, the end result after following either Rule 28(A)(1)(c)(i) or Rule 28(A)(1)(c)(ii) is a reporter's transcript.

Precedents from this court have held clearly that the record on appeal is inadequate when it lacks a reporter's transcript of the juvenile-court proceeding relevant to the appeal. See S.J. v. K.J., 206 So. 3d 641, 644 (Ala. Civ. App. 2016)(“When a juvenile court indicates in its judgment that it considered witness testimony for which no transcript exists, the juvenile-court record is not adequate for this court to review an issue regarding the sufficiency of the evidence.”); F.G. v. A.S., 86 So. 3d 1005, 1006 (Ala. Civ. App. 2011)(“[I]t appears that the juvenile court considered evidence from previous hearings, the transcripts of which have not been included in the record on appeal. Therefore, ‘[i]n accordance with Rule 28(D), Ala. R. Juv. P., [now Rule 28(E), Ala. R. Juv. P.,] we transfer the mother's appeal to the [Shelby] Circuit Court for a trial de novo.’ R.G. [v. C.M.], 980 So. 2d [417,] 418 [(Ala. Civ. App. 2007)].”); C.J. v. Jefferson Cnty. Dep't of Hum. Res., 76 So. 3d 268, 269 (Ala. Civ. App. 2011)(“The absence from the record of a transcript of the December 2010 proceeding ․ renders the record on appeal in this case inadequate for review by this court”); R.G. v. C.M., 980 So. 2d 417, 418 (Ala. Civ. App. 2007)(holding that record was inadequate for appellate review “[b]ecause the transcripts of the March 31, 2006, May 31, 2006, August 9, 2006, and February 14, 2007, hearings [were] not included in the record on appeal”); W.E.C. v. Madison Cnty. Dep't of Hum. Res., 909 So. 2d 849, 850 (Ala. Civ. App. 2005)(“The absence from the record on appeal of a transcript of the August 6 proceeding renders the record on appeal inadequate for an appeal to this court.”).

Accordingly, when an adequate record of the juvenile-court proceeding is not available under Rule 28(A)(1)(c) -- i.e., when the record on appeal lacks a transcript of the juvenile-court proceeding relevant to the issues raised on appeal -- and no other provision of Rule 28(A)(1) is satisfied, this court does not have the authority to consider an appeal from a juvenile court.

Rather than dismiss the appeal, however, Rule 28(E) permits this court to “transfer an appeal to another court if it determines that the appeal should be transferred.” In doing so, we have often directed the circuit court to conduct a trial de novo. See, e.g., C.J., 76 So. 3d at 269; F.G., 86 So. 3d at 1006; R.G., 980 So. 2d at 418; and W.E.C., 909 So. 2d at 850. But a transfer under Rule 28(E) is “ ‘without prejudice,’ and is based solely upon the current state of the record.” P.J., 338 So. 3d at 786. As we noted in P.J.: “[T]he circuit court retains the power to ‘ensur[e] any necessary preparation of the records, such as the [transcript of the relevant proceeding in the juvenile court],’ in lieu of conducting a trial de novo.” 338 So. 3d at 786 (quoting Ex parte A.A., 263 So. 3d at 1067). Thus, “the circuit court may take measures, if necessary, to direct the completion of the records in order to determine whether an adequate record exists in each case.” Ex parte A.A., 263 So. 3d at 1067. And if the circuit court later determines that the conditions of Rule 28(A) have been satisfied, it may transfer the appeal to this court. See Rule 28(E). Otherwise, the circuit court must conduct a trial de novo.

Conclusion

The record on appeal lacks a reporter's transcript of the juvenile-court proceeding central to the father's appeal. Without such a reporter's transcript, the plain meaning of Rule 28 -- and our numerous precedents applying that rule -- require this court to transfer the father's appeal to the Limestone Circuit Court. Following our transfer of the case, however, the Limestone Circuit Court need not conduct a trial de novo, if the relevant transcript can be created and the record supplemented.

Unfortunately, the court's unpublished memorandum declines to follow the clear path set by Rule 28 and our precedent; therefore, I respectfully dissent.

FOOTNOTES

1.   Rule 28(A)(1)(c), Ala. R. Juv. P., provides:“(c) An adequate record of the proceeding is available pursuant to one of the following circumstances:“(i) Proceeding Recorded by Electronic Means. Other than as addressed by (ii) below, if the proceeding has been recorded by electronic means, the juvenile court judge designates a person to transcribe the record of the proceeding and to prepare a reporter's transcript in accordance with the provisions of Rule 10(b)(2) of the Alabama Rules of Appellate Procedure, and the juvenile court judge certifies that the record of the proceeding is adequate.“(ii) Proceeding Recorded by a Court Reporter Present at the Proceeding. If a licensed court reporter or reporters are present at the proceeding to record the proceeding, the reporter or reporters, upon being designated by the juvenile court judge to do so, shall transcribe the record of the proceeding and prepare a reporter's transcript in accordance with the provisions of Rule 10(b)(2) of the Alabama Rules of Appellate Procedure.”

MOORE, Presiding Judge.

Edwards, Hanson, and Fridy, JJ., concur. Bowden, J., dissents, with opinion.