C.S. v. J.C. (2026)

C.S. (“the mother”) appeals from a judgment of the DeKalb Juvenile Court (“the juvenile court”) denying her Rule 60(b)(4), Ala. R. Civ. P., motion to set aside as void the juvenile court's judgment that terminated her parental rights to E.L. (“the child”). Among other things, the mother argues that she had a statutory and procedural-due-process right to be represented by counsel during the termination-of-parental-rights trial and that the juvenile court had a duty to determine whether she was entitled to counsel under the facts of this case. For the reasons stated herein, we reverse the juvenile court's judgment denying the mother's Rule 60(b)(4) motion and remand the cause to the juvenile court to determine whether the mother was indigent at the time of the termination-of-parental-rights trial.

Procedural History

On September 8, 2025, J.C., the custodian of the child, filed a petition in the juvenile court seeking to terminate the parental rights of the mother.¹ The juvenile court entered an order on September 10, 2025, notifying the mother that she had a right to counsel. The September 10, 2025, order required the mother to submit an affidavit of substantial hardship requesting appointed counsel within 30 days of either the issuance of the September 10, 2025, order or service of the termination-of-parental-rights petition and summons, whichever was later. Less than two months later, on November 6, 2025, the juvenile court conducted a trial on J.C.’s petition to terminate the mother's parental rights. The mother appeared without counsel. The following colloquy took place before the trial:

“The Court: The parents are here. Let me make this note. So y'all are here and you're not represented and we have an order that was entered in September that set forth that if you were to want an attorney, you needed to request that within 30 days, and that was September 10th. Today is November [6]th. I don't see anywhere in here that y'all have filed anything in this case, no letters.

“[The mother]: I tried to. I was going to file whenever I got out of jail. I get out Thursday.

“The Court: How long have you been in jail?

“[The mother]: Since August. But I had my -- we're having the bench trial on our court Thursday and I feel it will all be done by then.

“․.

“The Court: All right. I just wanted to point that out that they do have that order.

“[Counsel for J.C.]: And I would object to [the mother] being allowed extra time because those forms are available at the jail.

“The Court: All right. I will let [J.C.] proceed.”

The mother testified during the termination-of-parental-rights trial that she had been incarcerated since August 13, 2025, or nearly three months before the trial. The mother testified that she had not worked since “[r]ight before [she] got locked up” but that she was still employed. The mother also testified that she had “pretty much” lived with her parents and grandmother since 2021, and J.C. testified that, to his knowledge, the mother did not have stable housing when she was not in jail.

When the juvenile court instructed the mother to “say anything you want the Court to consider from your side,” the mother stated, among other things:

“Let me have a fighting chance to get me an attorney for her like I did [in termination-of-parental-rights cases for other children]. ․ I get out of jail this coming up Thursday when I have my bench trial upstairs and I will have me an attorney and I will fight, please, Your Honor.”

When the juvenile court asked if the mother had any witnesses or evidence to present, the mother stated: “I didn't know that we were doing this today. I would like to.” The juvenile court took the matter under submission and entered a judgment on December 1, 2025, terminating the mother's parental rights to the child. The juvenile court specifically found that the mother had been notified that she had a right to request counsel within 30 days of service of the September 10, 2025, order and that she had not requested counsel.

After the juvenile court had entered the termination-of-parental-rights judgment, the mother obtained representation and, through her attorney, filed a “motion to set aside termination of parental rights and to reopen case” on February 27, 2026. In that motion, the mother argued, among other things, that the termination-of-parental-rights judgment was void because the juvenile court had violated her statutory and procedural-due-process right to counsel. See Rule 60(b), Ala. R. Civ. P. (“On motion and upon such terms as are just, the court may relieve a party ․ from a final judgment, order, or proceeding for the following reason[ ] ․ (4) the judgment is void.”). The juvenile court held a hearing on the mother's motion on April 6, 2026. The juvenile court entered a judgment denying the mother's postjudgment motion on April 13, 2026. The mother filed a notice of appeal from that judgment on April 14, 2026.

Standard of Review

“The standard of review applicable to a ruling on a Rule 60(b)(4)[, Ala. Code 1975,] motion is de novo.” Langley v. Farrar, 318 So. 3d 1199, 1202 (Ala. Civ. App. 2019).

“[U]nlike all other subsections of the rule, [the standard of review] is not whether the trial court abused its discretion in granting or denying the motion; instead, an appellate court must determine whether, in fact, the judgment under attack is or is not void. ․ If a judgment is void, the trial court must set it aside; and, conversely, if it is not, the trial court cannot grant the requested relief.”

Bowen v. Bowen, 28 So. 3d 9, 14 (Ala. Civ. App. 2009). See Slocumb Law Firm, LLC v. Greenberger, 332 So. 3d 903, 908 (Ala. Civ. App. 2020)(“ ‘ “A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process.” ’ ” (quoting Image Auto, Inc. v. Mike Kelley Enters., Inc., 823 So. 2d 655, 657 (Ala. 2001))).

Analysis

Among other things, the mother argues that she had a statutory and procedural-due-process right to be represented by counsel during the termination-of-parental-rights trial and that, based on the facts of this case, the juvenile court had a duty to determine whether she was entitled to the appointment of counsel. We agree.

A parent responding to a petition to terminate his or her parental rights has both a statutory and procedural-due-process right to be represented by counsel. M.L.M. v. Madison Cnty. Dep't of Hum. Res., 298 So. 3d 509, 513 (Ala. Civ. App. 2020) (“[O]ur supreme court has determined that the right of a parent facing a termination of his or her parental rights to be represented by counsel is a due-process right under the Alabama Constitution.”); see § 12-15-305(b), Ala. Code 1975, and S.A. v. Lee Cnty. Dep't of Hum. Res., [Ms. CL-2025-0255, Sept. 26, 2025] ___ So. 3d ___, ____ (Ala. Civ. App. 2025). When a respondent parent requests counsel and there is information indicating that the parent might be indigent, the trial court has a duty to determine whether that parent is in fact indigent and is therefore entitled to appointed counsel. See S.A., ___ So. 3d at ___. That duty arises regardless of whether the termination-of-parental-rights petition was filed by the State or a private party. See L.S.H. v. T.J., 422 So. 3d 525, 528 (Ala. Civ. App. 2025).

The implications of a judgment rendered in violation of the Alabama Constitution's due-process clause have not been plumbed to the same depths as the implications of a judgment rendered in violation of the similar right found in the United States Constitution. However, our supreme court has provided a clear indication that a right to counsel in certain circumstances is protected under the Alabama Constitution and that the violation of a statute protecting that right renders any subsequent judgment void. In Ex parte Bashinsky, 319 So. 3d 1240, 1255-56 (Ala. 2020), our supreme court analyzed a respondent's statutory right to counsel in a guardianship and conservatorship proceeding. See §§ 26-2A-102 and -135, Ala. Code 1975. However, the probate court in that case, operating under what it believed was an emergency, disqualified the respondent's counsel and conducted a hearing without affording the respondent an opportunity to obtain replacement counsel. Ex parte Bashinsky, 319 So. 3d at 1250-51. Thus, temporary letters of guardianship and conservatorship were issued over the respondent without the benefit of counsel being present to assist her at the hearing. Id. at 1251-52. The respondent sought relief from the supreme court by filing a petition for the writ of mandamus. Id. at 1252. After finding that no emergency existed, the supreme court stated the following about the right to counsel:

“[I]t is still the case that the probate court disqualified [the respondent's] attorneys at the outset of the October 17, 2019, hearing on the emergency petition and that she was not afforded the opportunity to retain new attorneys or to present any evidence or question witnesses at that hearing. Because we have determined that no ‘emergency’ was presented in that hearing, the representation and case-presentation rights afforded to a respondent in §§ 26-2A-102 and 26-2A-135[, Ala. Code 1975,] were applicable. Those provisions, and [the respondent's] basic due-process rights, were egregiously violated, as the probate court treated the proceeding like an ex parte hearing even though [the respondent] was present.

“.․

“In sum, because the allegations raised in the emergency petition and the facts presented in the hearing on that petition clearly did not constitute an ‘emergency,’ the provisions for appointing a temporary guardian or conservator in §§ 26-2A-107(a) and 26-2A-136(b)(1)[, Ala. Code 1975,] were inapplicable. Under §§ 26-2A-102 and 26-2A-135, [the respondent] was entitled to have counsel of her choosing represent her, to cross-examine witnesses, and to present evidence on her behalf, none of which she was afforded in the October 17, 2019, hearing and which, in fact, was openly refused by the probate court. Furthermore,

“ ‘[p]rocedural due process, as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, § 6, of the Alabama Constitution of 1901, broadly speaking, contemplates the rudimentary requirements of fair play, which include a fair and open hearing before a legally constituted court or other authority, with notice and the opportunity to present evidence and argument, representation by counsel, if desired, and information as to the claims of the opposing party, with reasonable opportunity to controvert them.’

“Ex parte Weeks, 611 So. 2d 259, 261 (Ala. 1992) (emphasis added). Thus, [the respondent's] constitutional and statutory rights of due process were also violated through a deprivation of counsel and a lack of opportunity to present evidence and argument before the probate court. ‘A judgment is void ․ if the court rendering it ․ acted in a manner inconsistent with due process.’ Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So. 2d 209, 212 (Ala. 1991). Accordingly, we conclude that the probate court's October 17, 2019, order appointing a temporary guardian and conservator must be set aside. Given that the hearing appointing a temporary guardian and conservator was a nullity, it follows that the determination to disqualify [the respondent's] attorneys that occurred during that hearing, and which precipitated the aforementioned due-process violations, must also be set aside.”

Ex parte Bashinsky, 319 So. 3d at 1262-63.

The holding in Bashinsky leaves us with two important constitutional principles. One, a violation of a statutory right to counsel in a civil case that results in the deprivation of a fundamental right is a procedural-due-process violation. Two, a determination of such a violation, whether the right is grounded in the United States Constitution or the Alabama Constitution, renders a subsequent judgment void. Finally, we note that this court may take judicial notice of a void judgment or of the lack of subject-matter jurisdiction ex mero motu. Williams v. Mari Props., LLC, 329 So. 3d 1237, 1240 (Ala. 2020); R.W. v. G.W., 2 So. 3d 869, 871 (Ala. Civ. App. 2008); Davis Plumbing Co. v. Burns, 967 So. 2d 94, 96 (Ala. Civ. App. 2007).

In this case, there was evidence indicating that the mother was indigent. The mother testified during the termination-of-parental-rights trial that she was incarcerated and that she had not worked for nearly three months at the time of the trial. There was also testimony indicating that the mother had had unstable housing and had lived with her parents “pretty much” since 2021 when she was not in jail.

Furthermore, the mother indicated a desire to have counsel appointed for her. In response to the juvenile court's inquiry about why the mother had not filled out the paperwork to request an attorney, the mother stated that she “tried to” and that “she was going to file whenever [she] got out of jail.” Thus, the juvenile court had before it both evidence of indigency and a request that counsel be appointed to assist her. See J.A.H. v. Calhoun Cnty. Dep't Hum. Res., 846 So. 2d 1093, 1095 (Ala. Civ. App. 2002)(“An indigent parent facing the termination of his parental rights is entitled to the appointment of counsel.”).

When similar information about a respondent parent has been available during a termination-of-parental-rights trial, we have held that the trial court should have determined whether the respondent parent was indigent and therefore entitled to appointed counsel. See, e.g., J.S. v. T.C., 181 So. 3d 1067, 1070 (Ala. Civ. App. 2015). In J.S., there was information indicating that the respondent parent was incarcerated and without income at the time of the termination-of-parental-rights trial. There was also information indicating that the respondent parent in that case had initially retained her own counsel but had been unable to pay him. Id. Based on that information, this court remanded the cause to the Walker Juvenile Court to determine whether the respondent parent was indigent at the time of the termination-of-parental-rights trial. Id.

The record in this case indicates that the juvenile court denied the mother's request for counsel because the mother had not completed the paperwork necessary to request an attorney within the time prescribed in the September 10, 2025, order. But § 12-15-305(b) does not require that a respondent parent request appointed counsel by filing an affidavit of substantial hardship or completing other paperwork. See S.A., ___ So. 3d at ___ (“[Section] 12-15-305(b), [Ala. Code 1975,] does not require a formal request.”). Moreover, 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. Id. at ___ (noting that the record implied that the Lee Juvenile Court would not consider appointing an attorney for the respondent parent until she had filed an affidavit of substantial hardship as required by a local procedural order). Thus, the mother did not waive her right to appointed counsel even though she did not file an affidavit of substantial hardship within the time prescribed in the juvenile court's September 10, 2025, order. Id. at ___.

Further, the record indicates that the mother “tried to” request an attorney within 30 days of the entry of the September 10, 2025, order but was in jail at that time. The mother also asked the juvenile court to “[l]et [her] have a fighting chance” to obtain representation in the underlying matter during the termination-of-parental-rights trial. Thus, the record does not indicate that the mother expressly waived her right to counsel at any point during the termination-of-parental-rights proceeding. Cf. Turley v. Marshall Cnty. Dept. of Pensions & Sec., 481 So. 2d 406, 408 (Ala. Civ. App. 1985) (holding that the trial court did not violate a respondent parent's due-process right to be represented by counsel when the respondent parent had initially waived her right to counsel and there was no evidence that she had subsequently requested counsel or that the trial court had denied such a request).

In his dissent, Presiding Judge Moore cites T.L. v. W.C.L., 203 So. 3d 66 (Ala. Civ. App. 2016), to demonstrate that the mother is not entitled to relief in this case. However, T.L. is distinguishable from this case because T.L. involved the right to counsel in a dependency case. In this case, the mother had her rights to her child terminated. As we have often noted, “[t]erminating a parent's legal relationship with his or her child is the most drastic and permanent form of governmental interference with parental rights.” M.P. v. DeKalb Cnty. Dep't of Hum. Res., 394 So. 3d 1080, 1086 (Ala. Civ. App. 2023). “ ‘[T]he 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.” ’ ” S.A., ___ So. 3d at ____ (citations omitted).

That T.L.’s guidance is limited to dependency actions is further highlighted by its express holding: “We hold only that, if the juvenile court erred by not appointing counsel for the mother as an indigent parent, that error affected only a statutory right and not a constitutional due process right.” T.L., 203 So. 3d at 70 (emphasis added). However, we have repeatedly held that failure to appoint counsel in a termination-of-parental-rights case is both a statutory violation and a procedural-due-process violation. See M.L.M., 298 So. 3d at 513.

“It is well settled that the ‘constitutional due process clause does not require the appointment of counsel for an indigent parent in dependency and temporary custody proceedings.’ Morgan v. Lauderdale County Dep't of Pensions & Sec., 494 So. 2d 649, 651 (Ala. Civ. App. 1986)(citing Lassiter v. Department of Social Servs. of Durham County, North Carolina, 452 U.S. 18, 34, 101 S. Ct. 2153, 68 L.Ed. 2d 640 (1981)). However, a due-process right to appointed counsel does exist for an indigent parent in termination-of-parental-rights proceedings.”

W.C. v. State Dep't of Hum. Res., 887 So. 2d 251, 256 (Ala. Civ. App. 2003). Thus, we disagree with Presiding Judge Moore's dissent about the impact of T.L. in resolving the mother's claims in this case.

Conclusion

“ ‘[T]he 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.” ’ ” S.A., ___ So. 3d at ___ (quoting V.G.J. v. Tuscaloosa Cnty. Dep't of Hum. Res., 368 So. 3d 886, 892 (Ala. Civ. App. 2022), quoting in turn Santosky v. Kramer, 455 U.S. 745, 754 (1982)). The record indicates that the mother requested counsel to assist her before the start of the termination-of-parental-rights trial and that evidence was before the juvenile court that the mother was indigent. Failing to appoint counsel without further determining her indigency status, through a hearing or affidavit of hardship, violated the mother's statutory and procedural-due-process right to counsel. Because her procedural-due-process rights were violated, the judgment terminating her parental rights is void.² Therefore, we reverse the juvenile court's judgment denying the mother's Rule 60(b)(4) motion.³

Whether the mother was indigent at the time of the termination-of-parental-rights trial and, thus, was entitled to appointed counsel is a finding for the juvenile court to make -- not this court. See L.S.H., 422 So. 3d at 528. Therefore, we remand the cause and direct the juvenile court to determine whether the mother was indigent at the time of the termination-of-parental-rights trial and, if she was, to appoint her an attorney and to grant her a new trial. See J.S., 181 So. 3d at 1070.

REVERSED AND REMANDED WITH INSTRUCTIONS.

I respectfully dissent.

The record shows that, on September 8, 2025, J.C. (“the custodian”) filed in the DeKalb Juvenile Court (“the juvenile court”) a petition to terminate the parental rights of C.S. (“the mother”) and of C.L. (“the father”) to their child, E.L. On September 10, 2025, the juvenile court entered an order providing, in pertinent part:

“The Respondent Parent, Legal Guardian or Legal Custodian of the child/ren, whose parental rights are being terminated, is hereby informed of his/her right to be represented by counsel. Further, if the Court determines that the Respondent, Parent, Legal Guardian or Legal Custodian is indigent and unable for financial reasons to retain his/her own counsel, then the Court will appoint counsel upon request.

“The Respondent Parent, Legal Guardian or Legal Custodian of the child/ren shall within (30) days of this Order of service of the Summons and Complaint in this matter, whichever is longer, submit to the Court an Affidavit of Hardship requesting appointed counsel properly executed and notarized if they intend to do so in this case․ ”

On September 23, 2025, the custodian served the mother with the summons and petition, notifying her that the case was set for a “final hearing” on November 6, 2025.

On November 6, 2025, the father and the mother appeared at the scheduled hearing without counsel. The following colloquy then occurred:

“[The juvenile-court judge]: So y'all are here and you're not represented and we have an order that was entered in September that set forth that if you were to want an attorney, you needed to request that within 30 days, and that was September 10th. Today is November [6]th. I don't see anywhere in here that y'all have filed anything in this case, no letters.

“[The mother]: I tried to. I was going to file whenever I got out of jail. I get out Thursday.

“[The juvenile-court judge]: How long have you been in jail?

“[The mother]: Since August. But I had my -- we're having the bench trial on our court Thursday and I feel it will all be done by then.

“․

“[The juvenile-court judge]: All right. I just wanted to point that out that they do have that order.

“[The custodian's counsel]: And I would object to her being allowed extra time because those forms are available at the jail.

“[The juvenile-court judge]: All right. I will let you proceed.”

The case was then tried on the merits of the petition.

During the trial, the custodian testified that the mother was currently residing in the DeKalb County Jail and that, before her incarceration, to his knowledge, the mother did not have stable housing. The mother testified that she had been residing with her parents and her grandmother since 2021; that she had worked for two construction businesses during the five years before the trial; and that, although she had not worked since August 13, 2025, when she had become incarcerated, she was still employed by both businesses. The mother testified that she had five children, including the child that was the subject of the termination proceedings. The mother said that she had custody of her youngest child, who was 18 months old, but that she had lost custody of her four older children in court proceedings in which she had been represented by counsel. When asked if she intended to present any other witnesses, the mother stated that she would like to do so but that she had not understood the purpose of the hearing. At the close of her testimony, the mother requested that the juvenile court give her an opportunity “to get ․ an attorney,” and she said: “I get out of jail this coming up Thursday when I have my bench trial upstairs and I will have me an attorney and I will fight, please, Your Honor.”⁴

On December 1, 2025, the juvenile court entered a judgment terminating the parental rights of the mother and of the father. In the judgment, the juvenile court noted that the September 10, 2025, order regarding appointment of counsel had been served on the mother and the father, that they had been notified of their right to counsel “to be requested within 30 days of service,” and “[t]hat [the mother and the father] did not request counsel.” Neither the mother nor the father appealed the judgment.

On February 18, 2026, an attorney the mother retained filed a notice of appearance on her behalf. On February 27, 2026, the mother filed a motion to set aside the judgment and to reopen the case. In the motion, the mother alleged, in pertinent part, that she was, “[a]t all relevant times, indigent and financially unable to retain private counsel; that, “[a]t the outset of the [termination] hearing, [she had] affirmatively requested appointment of counsel, citing her indigency and incarceration”; and that the juvenile court had denied her request for appointed counsel. The mother further alleged that she had requested a continuance to secure counsel and to prepare her defense but that that request had also been denied.

The mother argued in the motion that she had a statutory right to counsel under Ala. Code 1975, § 12-15-305(b), and that the juvenile court's failure to appoint counsel for her and to allow her a continuance to secure counsel and to prepare her defense was reversible error and had denied her due process. The mother maintained that the judgment terminating her parental rights was void or voidable, and she requested that the juvenile court set aside the judgment pursuant to Rule 60(b)(4) or Rule 60(b)(6), Ala. R. Civ. P., and set the case for a new trial. The custodian responded that the juvenile court had informed the mother of her right to counsel and had given her 30 days to request appointed counsel but that she had not timely made such a request. The juvenile court conducted a hearing on the mother's motion, and, on April 13, 2026, it denied the motion. The mother appeals.

The mother first argues that the judgment terminating her parental rights should have been set aside under Rule 60(b)(4), which provides that a court may relieve a party from a final judgment when “the judgment is void.” This court reviews the denial of a Rule 60(b)(4) motion de novo because the question of the validity of a judgment is a question of law. Allsopp v. Bolding, 86 So. 3d 952, 957 (Ala. 2011). In passing on that legal question, this court does not decide “whether there has been an abuse of discretion. When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside.” Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So. 2d 209, 212 (Ala. 1991).

“A void judgment is a legal nullity. See Black's Law Dictionary 1822 (3d ed. 1933)․ Although the term ‘void’ describes a result, rather than the conditions that render a judgment unenforceable, it suffices to say that a void judgment is one so affected by a fundamental infirmity that the infirmity may be raised even after the judgment becomes final. See Restatement (Second) of Judgments 22 (1980); see generally id., § 12. The list of such infirmities is exceedingly short; otherwise, [Ala. R. Civ. P.,] Rule 60(b)(4)’s exception to finality would swallow the rule.”

United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 270 (2010). A judgment is void under Rule 60(b)(4) only if the court that rendered the judgment lacked subject-matter or personal jurisdiction or if the court deprived a party to the judgment of due process of law. Osborn v. Roche, 813 So. 2d 811 (Ala. 2001).

In this case, the mother asserts that, in rendering the judgment terminating her parental rights, the juvenile court deprived her of due process of law. Under this theory, a judgment is void if, in rendering the judgment, a court deprived a party of procedural due process in violation of the Alabama or United States Constitution. See Ex parte Third Generation, Inc., 855 So. 2d 489, 492 (Ala. 2003).

“Procedural due process, as guaranteed by ․ the United States Constitution and ․ the Alabama Constitution ․, broadly speaking, contemplates the rudimentary requirements of fair play, which include a fair and open hearing before a legally constituted court or other authority, with notice and the opportunity to present evidence and argument, representation by counsel, if desired, and information as to the claims of the opposing party, with reasonable opportunity to controvert them.”

Ex parte Weeks, 611 So. 2d 259, 261 (Ala. 1992). A party moving for relief from a judgment on the ground that it was entered in a manner inconsistent with due process must demonstrate not just that a court has made a procedural error but that that error was so fundamental that it deprived the party of the right to be heard at a meaningful time and in a meaningful manner. See Alabama Republican Party v. McGinley, 893 So. 2d 337, 344 (Ala. 2004). A due-process violation so gross as to make the judgment void is extremely rare. Ex parte Murray, 267 So. 3d 328, 334 (Ala. Civ. App. 2018).

The mother argues that the juvenile court entered an invalid judgment terminating her parental rights because, as an indigent parent, she had a constitutional right to appointed counsel. Although the United States Constitution does not guarantee an indigent parent a right to appointed counsel in every termination-of-parental-rights proceeding, see Lassiter v. Department of Social Servs. of Durham Cnty., North Carolina, 452 U.S. 18 (1981), the Alabama Constitution does. In Ex parte Shuttleworth, 410 So. 2d 896, 899 (Ala. 1981), the Alabama Supreme Court held that the same due-process safeguards applicable in juvenile-delinquency cases, which require that juveniles and their parents be informed of the right to counsel and to be appointed counsel when unable to afford legal representation, apply identically in termination-of-parental-rights cases. In K.P.B. v. D.C.A., 685 So. 2d 750, 752 (Ala. Civ. App. 1996), this court determined that the due-process right to appointed counsel emanates from the Alabama Constitution. As now recognized, the right to due process under the Alabama Constitution includes the right to appointed counsel for indigent parents in termination-of-parental-rights cases. See M.L.M. v. Madison Cnty. Dep't of Hum. Res., 298 So. 3d 509 (Ala. Civ. App. 2020). Consequently, a judgment terminating the parental rights of an indigent parent who has been deprived of the constitutional right to appointed counsel would be void.

However, as even the mother acknowledges, at no point during the underlying proceedings did the mother establish that she was indigent. Before trial, the mother did not submit an affidavit of substantial hardship to prove her indigency as the juvenile court ordered. During the trial, the mother presented evidence indicating that she was financially struggling, but she did not conclusively prove her indigency,⁵ and the juvenile court did not determine that she was an indigent parent. After the judgment was entered, the mother alleged in her Rule 60(b) motion that she was indigent at the time of the termination-of-parental-rights trial, but she did not present any evidence to support that allegation in her motion. See Wilson v. Crosby Lumber Co., 386 So. 2d 1173, 1175 (Ala. Civ. App. 1980) (holding that allegations in Rule 60(b) motion unsupported by probative evidence “are worthless”). In analogous cases, courts have held that a criminal defendant who seeks relief from a conviction, based on the alleged infringement of the right to appointed counsel must establish, through admissible evidence, that he or she was indigent at the time of the criminal proceedings. See People v. Kanouse, 134 Mich. App. 401, 403, 350 N.W.2d 760, 761 (1984), modified, 362 N.W.2d 238 (1985) (holding that movant has the burden of proving indigency at the time of conviction in collateral proceeding to vacate conviction based on failure to appoint counsel); Coleman v. State, 183 So. 2d 714, 715 (Fla. Dist. Ct. App. 1966) (“Allegation and proof of indigency is an indispensable prerequisite to relief from a judgment of conviction on the ground that the petitioner was unlawfully denied the right to counsel.” (footnote omitted)). Hence, at this juncture, the mother has failed to demonstrate that she was an indigent parent with a constitutional right to appointed counsel at the time of the termination-of-parental-rights trial.

The mother maintains, however, that the juvenile court deprived her of her right to due process by failing to conduct an inquiry into her indigency when she requested appointment of counsel at the trial. The juvenile court had already provided the mother with a pretrial procedure for obtaining the appointment of counsel that the mother did not utilize. During the trial, the mother explained that she did not avail herself of the pretrial procedure while she was incarcerated because she had planned on doing so after she was released from jail the following week. The mother said that she had not understood that the case was set for a trial on November 6, 2025. She pleaded with the juvenile court to provide her with a second opportunity to obtain appointment of counsel, which the juvenile court denied. The mother contends that, under the circumstances, the juvenile court was required, as a matter of due process, to determine her indigency instead of proceeding with the trial.

To support her argument, the mother cites a series of cases from this court construing and applying § 12-15-305(b), which 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.”

As this court has determined, § 12-15-305(b) provides that a juvenile court must appoint counsel for a respondent parent in a termination-of-parental-rights case once it determines that the parent is indigent. See J.S. v. J.C., 181 So. 3d 1067 (Ala. Civ. App. 2015). Section 12-15-305(b) does not require the respondent parent to formally request appointment of counsel; if, at any time during the proceedings, the juvenile court receives information indicating that the respondent parent may be indigent and that the respondent parent desires legal representation, the juvenile court must determine whether the parent qualifies for appointment of counsel. See J.Q. v. Calhoun Cnty. Dep't of Hum. Res., [Ms. CL-2025-0067, June 27, 2025] ___ So. 3d ___ (Ala. Civ. App. 2025)(holding that determination that parent was indigent and appointment of counsel only shortly before trial deprived parent of right to effective assistance of counsel).

In S.A. v. Lee County Department of Human Resources, [Ms. CL-2025-0255, Sept. 26, 2025] ___ So. 3d ___ (Ala. Civ. App. 2025), a case with remarkably similar procedural facts as those in this case, this court explained, at length, the steps a juvenile court must undertake when determining indigency under § 12-15-305(b). The Lee Juvenile Court entered a standing pretrial order in a termination-of-parental-rights case 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. S.A., the mother in that case, did not comply with that order, and she appeared pro se at trial. As the trial progressed, the testimony of the witnesses indicated that S.A. might be indigent because of her recent incarceration, her unemployment, her disability, and her lack of a stable home. E.L.F., the father in that case, requested counsel for S.A., who asked for a continuance, suggesting that she needed additional time to secure legal representation. The Lee Juvenile Court did not stop the trial to inquire into the indigency of S.A. After entering a judgment terminating her parental rights, the Lee Juvenile Court only then determined that S.A. was indigent and appointed appellate counsel for her. This court determined that the Lee Juvenile Court had violated § 12-15-305(b) by failing to inquire into S.A.’s indigency once it received evidence indicating that she was likely indigent. This court explained that the Lee Juvenile Court had erred in concluding that S.A. had waived her right to appointed counsel by failing to submit an affidavit of substantial hardship before the trial because, this court said, § 12-15-305(b) does not limit the method by which a respondent parent may apply for appointed counsel. This court held that, once the evidence at trial demonstrated that S.A. was likely indigent, the Lee Juvenile Court should have halted the trial, inquired into her indigency, and, as required by § 12-15-305(b), determined whether she was entitled to appointed counsel.

In her brief to this court, the mother argues that the juvenile court failed to follow the procedure set forth in those cases. In summary, the mother states:

“The reasoning of S.A. controls this case. The [m]other appeared unrepresented. She told the court she was incarcerated and had tried to act. She later expressly asked for a chance to get counsel. The juvenile court did not halt the proceeding, determine indigency, appoint counsel, or continue the trial. Under S.A., the court exceeded its discretion by proceeding with the termination hearing without making the required indigency determination and without appointing counsel if the [m]other qualified.

“If the judgment in J.Q. could not stand where counsel was appointed too late to be meaningful, and if the judgment in S.A. could not stand where the trial court failed to stop and inquire into indigency, this judgment cannot stand where no counsel was appointed at all.”

The mother's brief, p. 25 (emphasis added). However, when determining whether a judgment is void under the theory the mother advocates, the question is not whether the trial court exceeded its discretion or misapplying the law in rendering the judgment.

An erroneous judgment is not void, R.J. Reynolds Tobacco Co. v. Cantley, 717 So. 2d 751 (Ala. 1998), because a misapplication of law or abuse of discretion does not equate to a deprivation of due process. See Neal v. Neal, 856 So. 2d 766, 782 (Ala. 2002). An erroneous judgment is only voidable, subject to being directly challenged and vacated through a timely postjudgment motion or by reversal on appeal. Smith v. Clark, 468 So. 2d 138, 141 (Ala. 1985). A judgment cannot be challenged as erroneous in a collateral proceeding under Rule 60(b)(4), which cannot be used as a substitute for an appeal. Cantley, supra. The mother maintains that the termination-of-parental-rights judgment should be vacated for the same reason that the judgments in J.Q. and S.A. were vacated; however, in both of those cases, this court reversed the judgments because of prejudicial legal error, not because the judgments were void. The mother has not cited any legal authority providing that a judgment entered in violation of § 12-15-305(b) deprives a parent of due process of law and renders the judgment void. See Rule 28(a)(10), Ala. R. App. P. (requiring appellant to cite relevant legal authority supporting his or her legal argument).

The mother implies that the violation of § 12-15-305(b) alone deprived her of her right to procedural due process. However, the mother fails to cite any legal authority recognizing that a violation of statutory procedure, by itself, denies a party due process and renders a judgment void. For that reason alone, this court may consider this argument waived. See White Sands Grp., L.L.C. v. PRS II, LLC, 998 So. 2d 1042, 1058 (Ala. 2008). Moreover, this court has explicitly rejected that approach in a similar context in T.L. v. W.C.L., 203 So. 3d 66 (Ala. Civ. App. 2016).

In T.L., T.L., the mother of P.S.L., and W.C.L. and S.L., the grandparents of that child, jointly filed a dependency petition in the Madison Juvenile Court. Although T.L. did not contest the dependency petition, she requested appointed counsel and submitted an “affidavit of indigency” to support her request. The Madison Juvenile Court denied the request, reasoning that § 12-15-305(b) does not apply in private dependency cases, and it ultimately entered a judgment finding P.S.L. dependent and awarding his custody to W.C.L. and S.L. Approximately two years later, T.L. filed a Rule 60(b)(4) motion to set aside the dependency judgment, arguing that, by denying her request for appointed counsel, the Madison Juvenile Court had rendered the dependency judgment in a manner inconsistent with due process. That motion was denied, and T.L. appealed.

Relying solely on § 12-15-305(b), T.L. maintained on appeal that, upon proving her indigency, she had a right to appointed counsel and that the Madison Juvenile Court's failure to appoint counsel for her rendered its judgment void. This court disagreed, saying:

“We do not decide whether the juvenile court erred in construing § 12-15-305(b)[, Ala. Code 1975,] to apply only to dependency cases filed by the State. We hold only that, if the juvenile court erred by not appointing counsel for [T.L.] as an indigent parent, that error affected only a statutory right and not a constitutional due-process right. ‘It is well settled that the “constitutional due process clause does not require the appointment of counsel for an indigent parent in dependency and temporary custody proceedings.” ’ W.C. v. State Dep't of Human Res., 887 So. 2d 251, 256 (Ala. Civ. App. 2003) (quoting Morgan v. Lauderdale Cnty. Dep't of Pensions & Sec., 494 So. 2d 649, 651 (Ala. Civ. App. 1986), citing in turn Lassiter v. Department of Social Servs. of Durham Cnty., North Carolina, 452 U.S. 18, 34, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981)). More particularly, in Lassiter, the United States Supreme Court held that the Due Process Clause does not require the appointment of counsel in a child-deprivation proceeding in which the parent does not contest custody and expresses an intention not to attend or to participate in the proceedings. 452 U.S. at 32. Based on the circumstances of this case, the juvenile court did not offend the due-process rights of [T.L.] by failing to appoint counsel for her during the initial dependency proceedings.”

203 So. 3d at 70 (emphasis added). We determined that the Madison Juvenile Court had not erred in denying the Rule 60(b)(4) motion because T.L. had alleged only a violation of statutory procedure not constitutional due process. This court stated:

“Furthermore, we note that, if the juvenile court had violated [T.L.]’s statutory rights under § 12-15-305(b), [Ala. Code 1975,] any such violation could have been remedied only by appeal. See Morgan [v. Lauderdale Cnty. Dep't of Pensions & Sec., 494 So. 2d 649 (Ala. Civ. App. 1986)]. A Rule 60(b)[, Ala. R. Civ. P.,] motion cannot be used as a substitute for appeal, ‘nor is it available to relieve a party from its own deliberate choices.’ State ex rel. G.J. v. W.J., 622 So. 2d 353, 356 (Ala. Civ. App. 1992). [T.L.] did not appeal from the dependency judgment, and she cannot now use Rule 60(b) to impermissibly collaterally attack that judgment. Morgan, supra.”

Id. T.L. clearly holds that a movant cannot obtain Rule 60(b)(4) relief based solely on a violation of § 12-15-305(b). The movant must also show some violation of the right to constitutional procedural due process.

Ex parte Bashinsky, 319 So. 3d 1240 (Ala. 2020), the primary case cites the main opinion for the proposition that a statutory violation can render a judgment void, applies the same principle. In Ex parte Bashinsky, associates of Joann Bashinsky, a wealthy elderly woman, commenced a guardianship proceeding in the Jefferson Probate Court claiming that Bashinsky was mentally incapacitated and unable to handle her own financial affairs. Bashinsky retained counsel to defend the guardianship petition, as was her statutory right under Ala. Code 1975, § 26-2A-102(c), but the Jefferson Probate Court disqualified her counsel before conducting a hearing on the petition and entering an order establishing a temporary guardianship. Bashinsky filed a petition for the writ of mandamus, arguing that the orders disqualifying her counsel and establishing a temporary guardianship were void. In analyzing the case, the supreme court noted that, in addition to her statutory right to counsel, Bashinsky also had a constitutional right to be represented by counsel, citing Ex parte Weeks, supra. The supreme court determined that the Jefferson Probate Court had rendered a series of void judgments in the guardianship proceeding by violating Bashinsky's “constitutional and statutory rights of due process.” 319 So. 3d at 1263 (emphasis added).

Ex parte Bashinsky does not hold that the violation of a statutory right to counsel alone renders a judgment void. The supreme court observed that the Jefferson Probate Court had rendered a void judgment because it had also simultaneously violated the constitutional guarantee of due process of law by depriving Bashinsky of her right to be represented by counsel in the guardianship proceeding. Thus, Ex parte Bashinsky only stands for the unremarkable proposition that, when a court violates both a statutory right to a certain procedure and a constitutional right to due process in the same judgment, the judgment is void. That proposition does not aid the mother in this case, however, because, insofar as she contends that the juvenile court erred in failing to follow the procedure set forth in S.A., the mother has not demonstrated a separate violation of her constitutional right to due process.

We cannot presume that a violation of § 12-15-305(b) automatically deprives a respondent parent of due process. The legislature is free to enact laws affording procedural protections beyond the minimum safeguards the constitution commands. See Lassiter, 452 U.S. at 33-34. Thus,

“failure to comply with a statute or ordinance does not necessarily establish a due process violation. See [Weizberg v. City of Des Moines, 923 N.W.2d 200,] 214 [(Iowa 2018)] (‘The failure to follow such a procedure or ordinance cannot give rise, in and of itself, to a due process violation.’); Behm [v. City of Cedar Rapids], 922 N.W.2d [524,] 568 [(Iowa 2019)] (‘A mere violation of a statute does not give rise to a due process violation ․’); see also Womack v. Carroll County, 840 F. App'x 404, 407 (11th Cir. 2020) (per curiam) (‘[T]he mere violation of a state statute outlining a required procedure does not necessarily equate to a due process violation.’). ‘[I]n all cases, the focus of the analysis must be on the critical question of whether the process that was provided comported with the basic requirements of notice and an opportunity to be heard.’ Weizberg, 923 N.W.2d at 214.”

Stogdill v. City of Windsor Heights, 991 N.W.2d 719, 731 (Iowa 2023). Although the mother has shown that the juvenile court did not comply with § 12-15-305(b), she has not demonstrated that the juvenile court failed to provide her with a constitutionally adequate procedure to obtain appointment of counsel.

When deciding whether a judgment should be set aside under Rule 60(b), it is well settled that a court should approach all issues regarding the reopening of judgments “in the light of the strong arguments in favor of finality of a prior judgment.” Ex parte State ex rel. J.Z., 668 So. 2d 566, 569 (Ala. 1995). In the end, the mother demonstrated, at best, only that the juvenile court erred in applying § 12-15-305(b). If so, that error could be remedied only by a timely postjudgment motion to vacate the judgment and to conduct a new trial or by an appeal, and not by a Rule 60(b)(4) motion. The mother has not proven that the judgment was rendered without affording her basic due process. Accordingly, the judgment is not void and the juvenile court did not err in denying her Rule 60(b)(4) motion.

The mother alternatively argues that

“the circumstances here warrant relief under Rule 60(b)(6)[, Ala. R. Civ. P.]. The [m]other was incarcerated, pro se, and facing permanent termination of her parental rights. The court knew she was unrepresented. ․ She explained that she had tried to act from jail. ․ She asked for a chance to get counsel. ․ She stated that she did not know final adjudication was occurring that day. ․ Yet the court denied relief. ․

“The denial of Rule 60(b) relief left in place a judgment entered after the [m]other was forced to stand alone in a proceeding that permanently severed her parental rights. That was error.”

The mother's brief, p. 28. However, the mother cites only Ex parte E.D., 777 So. 2d 113, 115-16 (Ala. 2000), to support her argument, but that case, which involves a claim of ineffective assistance of counsel, is not on point. The mother has not provided the court with a cogent legal argument supported by relevant legal authority regarding that argument, so it is waived. See White Sands, supra. Accordingly, the order denying the mother's Rule 60(b) motion should be affirmed.

I respectfully dissent. In my opinion, C.S. (“the mother”) failed to establish that she was entitled to relief under Rule 60(b)(4), Ala. R. Civ. P. First, I am not convinced that the mother effectively argued in her Rule 60(b)(4) motion that her right to due process had been infringed based on the failure of the DeKalb Juvenile Court to afford her the right to counsel provided in the Alabama Constitution. In her motion, the mother failed to relate the alleged violation of her due-process rights to the right to counsel afforded to her by the Alabama Constitution or to cite any authority regarding the constitutional right to counsel. Instead, she argued only that her statutory right to counsel pursuant to Ala. Code 1975, § 12-15-305(b), had been infringed. Secondly, the mother failed to make an adequate showing that she was entitled to appointment of counsel under the Alabama Constitution. See Ex parte Shuttleworth, 410 So. 2d 896, 899 (Ala. 1981) (determining that, like a juvenile and his or her parents in a delinquency case, a parent in a termination-of-parental-rights case has a right to be appointed legal counsel if indigent); K.P.B. v. D.C.A., 685 So. 2d 750 (Ala. Civ. App. 1996) (explaining that the right to counsel for indigent parents in termination-of-parental-rights cases emanates from the Alabama Constitution). At the Rule 60(b)(4) stage, the mother could prevail only if she established that the judgment was void. She could do that only if she could prove entitlement to counsel under the Alabama Constitution such that her due-process rights were infringed when she was not appointed counsel. The mother's Rule 60(b)(4) motion was unsupported by proof that she was indigent and was therefore entitled to counsel. She did not present an affidavit in support of her Rule 60(b)(4) motion or request a hearing at which she could present testimony indicating that she was truly indigent. Thus, I respectfully dissent from the main opinion's reversal of the denial of the mother's Rule 60(b)(4) motion.

FOOTNOTES

1.   The petition also sought to terminate the parental rights of the child's father, C.L., who is not a party to this appeal.

2.   This court has previously held that a violation of a statute affecting the significant rights of a party renders a judgment void. See A.S. v. M.W., 100 So. 3d 1112, 1114 (Ala. Civ. App. 2012) (holding that the failure to join an indispensable party in violation of § 26-17-603, Ala. Code 1975, rendered the judgment void).

3.   Because we find this issue to be dispositive, we pretermit discussion of the mother's remaining issues presented on appeal. See L.S.H. v. T.J., 422 So. 3d 525, 529 n.2 (Ala. Civ. App. 2025).

4.   I take judicial notice that November 6, 2025, the date of the trial, was a Thursday, see Eddins v. State, 555 So. 2d 323 (Ala. Crim. App. 1989), so the mother was apparently referring to the following Thursday, November 13, 2025.

5.   To prove indigency, a respondent parent in a termination-of-parental-rights case must prove that he or she is:“a. A person that has an income level at or below 125 percent of the United States poverty level as defined by the most recently revised poverty income guidelines published by the United States Department of Health and Human Services, unless the court determines that the person is able to pay for the cost of an attorney to represent the person on the pending case[, or]“b. A person that has an income level greater than 125 percent, but at or below 200 percent, of the most recently revised poverty income guidelines published by the United States Department of Health and Human Services and the court makes a written finding that not providing indigent defense services on the pending case would cause the person substantial hardship.”Ala. Code 1975, § 15-12-1(4).

BOWDEN, Judge.

Hanson and Fridy, JJ., concur. Moore, P.J., and Edwards, J., dissent, with opinions.