A.K. v. Henry County Department of Human Resources.

84 So. 3d 68, 2011 WL 3211179, 2011 Ala. Civ. App. LEXIS 191
CourtCourt of Civil Appeals of Alabama
DecidedJuly 29, 2011
Docket2100313
StatusPublished
Cited by8 cases

This text of 84 So. 3d 68 (A.K. v. Henry County Department of Human Resources.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A.K. v. Henry County Department of Human Resources., 84 So. 3d 68, 2011 WL 3211179, 2011 Ala. Civ. App. LEXIS 191 (Ala. Ct. App. 2011).

Opinion

PITTMAN, Judge.

A.K. (“the mother”) appeals from a judgment of the Henry Juvenile Court terminating her parental rights as to N.K. (“the child”).

The child was born on March 29, 2009. On May 7, 2009, the Henry County Department of Human Resources (“DHR”) became involved in this matter after re[69]*69ceiving a report of child neglect. As a result of DHR’s investigation, DHR implemented a safety plan that included placing the child in the custody of his maternal grandmother; the mother was also living in the home of the maternal grandmother. In May 2009, DHR and the mother collaborated to develop an Individualized Service Plan (“ISP”) for the mother. The safety plan was terminated in June 2009 after the maternal grandmother and the mother had violated its terms. The child was then adjudicated dependent and placed in foster care. On September 7, 2010, DHR petitioned to have the mother’s parental rights terminated as to the child. Following an ore tenus hearing, the juvenile court entered a judgment terminating the mother’s parental rights on December 8, 2010. The mother thereafter timely appealed.1 On appeal, the mother argues that DHR did not present clear and convincing evidence sufficient to support the juvenile court’s termination of the mother’s parental rights.

The standard of review applied by appellate courts in reviewing the propriety of decisions to terminate parental rights is well established. “The trial court’s decision in proceedings to terminate parental rights is presumed to be correct when the decision is based upon ore tenus evidence, and such a decision based upon such evidence will be set aside only if the record shows it to be plainly and palpably wrong.” Ex parte State Dep’t of Human Res., 624 So.2d 589, 593 (Ala.1993). That “presumption is based on the trial court’s unique position to directly observe the witnesses and to assess their demeanor and credibility.” Ex parte Fann, 810 So.2d 631, 633 (Ala.2001).

This court has explained the juvenile court’s authority to terminate parental rights as follows:

“‘The right to maintain family integrity is a fundamental right protected by the due process requirements of the Constitution. Pursuant to this right, Alabama courts recognize a presumption that parental custody will be in the best interests of a child. This prima facie right of a parent to the custody of his or her child can only be overcome by clear and convincing evidence that permanent removal from the parent’s custody would be in the child’s best interest.... In making that determination, the court must consider whether the parent is physically, financially, and mentally able to care for the child. If the court finds from clear and convincing evidence that the parent is unable or unwilling to discharge his or her responsibilities to and for the child, his or her parental rights can then be terminated.... ’

“Bowman v. State Dep’t of Human Res., 534 So.2d 304, 305 (Ala.Civ.App.1988) (citations omitted). The trial court’s decision to terminate parental rights, which is based on evidence presented ore tenus, is presumed correct and will be reversed only if the record demonstrates that the decision is unsupported by the evidence and is plainly and palpably wrong. R.B. v. State Dep’t of Human Res., 669 So.2d 187 (Ala.Civ.App.1995).

“To terminate parental rights, the trial court must first determine from clear and convincing evidence that the child is dependent. S.F. v. Dep’t of Human Res., 680 So.2d 346 (Ala.Civ.App.1996). The trial court must then determine that [70]*70there exists no alternative to termination. L.A.G. v. State Dep’t of Human Res., 681 So.2d 596 (Ala.Civ.App.1996).”

M.W. v. Houston Cnty. Dep’t of Human Res., 773 So.2d 484, 485-86 (Ala.Civ.App.2000).

The juvenile court’s decision whether to terminate a parent’s parental rights is guided by Ala.Code 1975, § 12-15-319, which became effective January 1, 2009. Section 12-15-319 provides, in pertinent part, as follows:

“(a) If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child and to terminate the parental rights, the juvenile court shall consider the following factors including, but not limited to, the following:
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“(2) Emotional illness, mental illness, or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of a duration or nature as to render the parent unable to care for the needs of the child.
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“(7) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.
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“(9) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of support of the child, where the parent is able to do so.
“(10) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the Department of Human Resources, or any public or licensed private child care agency, and agreed to by the parent.
“(11) Failure by the parents to maintain consistent contact or communication with the child.
“(12) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.”

It is also well recognized that, “[a]t some point, ... the child’s need for permanency and stability must overcome the parent’s good-faith but unsuccessful attempts to become a suitable parent.” M.W., 773 So.2d at 487 (affirming a judgment terminating parental rights of a mother who had made diligent efforts to visit her child and to comply with the Houston County DHR’s requests but had failed to establish a home and get a job over a period longer than three years); see also Talladega Cnty. Dep’t of Human Res. v. M.E.P., 975 So.2d 370 (Ala.Civ.App.2007) (holding that clear and convincing evidence mandated termination of parental rights when the children had already been in foster care for two and one-half years and would need to stay in foster care for additional months because their parents’ drug addictions and drug-related incarcerations had prevented them from being able to immediately establish a [71]*71home and get a job, as required in order to be able to reestablish a familial relationship with the children). Applying the appropriate standard of review and the aforementioned principles of law, we address the merits of the mother’s appeal.

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Bluebook (online)
84 So. 3d 68, 2011 WL 3211179, 2011 Ala. Civ. App. LEXIS 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ak-v-henry-county-department-of-human-resources-alacivapp-2011.