
    S.N.S.D. v. M.D.K. and Lee County Department of Human Resources.
    2050305.
    Court of Civil Appeals of Alabama.
    Aug. 18, 2006.
    
      Laura Wheeling Farrar of Ezell, Chan-cey, Raiford & Farrar, LLP, Phenix City, for appellant.
    Submitted on appellant’s brief only.
   CRAWLEY, Presiding Judge.

This is a dependency action. The juvenile court failed to inform S.N.S.D. (“the mother”) of her right to counsel during the three proceedings in this action. At the conclusion of the December 13, 2005, proceeding in which the juvenile court ruled that the child at issue would not be returned to the mother, the following colloquy transpired:

“[The Mother]: So I just need to get a lawyer?
“THE COURT: Pardon me?
“[The Mother]: Do I need to get a lawyer?
“THE COURT: That’s up to you on that.”

The juvenile court led the mother to believe that whether she obtained legal counsel was a matter with which the court was not concerned. The court informed her neither that she had a right to be represented by a lawyer nor that if she could not afford a lawyer one would be appointed for her.

The Alabama Legislature has extended the right to counsel to parents in dependency proceedings. See 12-15-63(b), Ala. Code 1975. Furthermore, in Smoke v. State Department of Pensions & Security, 378 So.2d 1149 (Ala.Civ.App.1979), this court stated:

“The right of the parents of the child in a dependency case to be represented by counsel at every stage of the proceeding is a fundamental one protected by statute and court decision. § 12—15— 63, Code of Alabama (1975); Crews v. Houston County Department of Pensions and Security, 358 So.2d 451 (Ala.Civ.App.1978); In re Ward, 351 So.2d 571 (Ala.Civ.App.1977). The statute places upon the court the duty of informing the parents, guardian or custodian of their right to counsel and their right to have counsel appointed where they are unable for financial reasons to retain their own. §§ 12-15-63(b), 65(b), Code of Alabama (1975). A careful review of the record reveals that Smoke was never [apprised] of his right to be represented by counsel at the dependency hearing. Absent an informed waiver of his rights under the statute, the failure of the trial court to inform him of those rights as required by §§ 12-15-63(b), 65(b) was error requiring reversal of the trial court’s order.”

378 So.2d at 1150 (emphasis added).

Based on the foregoing, we reverse the juvenile court’s judgment and remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

THOMPSON and MURDOCK, JJ., concur.

BRYAN, J., concurs in the result, without writing.

PITTMAN, J., dissents, with writing.

PITTMAN, Judge,

dissenting.

The main opinion correctly notes that parties to a juvenile proceeding have the right to be represented by counsel, including the right to appointed counsel if they are indigent, and that it is the duty of juvenile courts to give notice of that right. See also Ala.Code 1975, § 12-15-65(c) (providing that parties to cases filed in the juvenile court “shall be advised of their rights under law in their first appearance at intake and before the court” (emphasis added)). That said, however, any error as to that issue in this case was not raised in the juvenile court at any time. Based upon that omission, I conclude that the issue upon which the main opinion reverses the juvenile court’s judgment has not been preserved for appellate review. See Ex parte State ex rel. Ohio, 718 So.2d 669, 671 (Ala.1998) (“Appellate courts will not consider an issue that was not properly raised or pleaded in the trial court.”), and Sea Calm Shipping Co. v. Cooks, 565 So.2d 212, 216 (Ala.1990) (appellate courts “will not hold a trial court to be in error unless that court has been apprised of its alleged error and has been given the opportunity to act thereon”). I therefore respectfully dissent from the judgment of reversal.  