J.W. v. State Department of Human Resources

855 So. 2d 539, 2003 Ala. Civ. App. LEXIS 55, 2003 WL 203249
CourtCourt of Civil Appeals of Alabama
DecidedJanuary 31, 2003
Docket2011218
StatusPublished
Cited by1 cases

This text of 855 So. 2d 539 (J.W. v. State 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
J.W. v. State Department of Human Resources, 855 So. 2d 539, 2003 Ala. Civ. App. LEXIS 55, 2003 WL 203249 (Ala. Ct. App. 2003).

Opinion

THOMPSON, Judge.

J.D.W. (“the child”) was placed in the custody of the Houston County Department of Human Resources (“DHR”) by a July 5, 2001, order of the trial court shortly after she was born on June 27, 2001. Following a hearing on November 20, 2001, the trial court determined that the child was dependent. On May 16, 2002, DHR filed a petition seeking to terminate the parental rights of J.W. (“the father”) and K.W. (“the mother”) to the child. The petition indicated that the whereabouts of the mother was unknown. DHR filed an affidavit in support of serving notice on the mother by publication, and notice of the petition was subsequently published in the Dothan Eagle on May 19, May 26, June 2, and June 9. On August 13, 2002, the trial court conducted a hearing in which it received ore tenus evidence. The father was present and was represented by counsel at the hearing. The mother was not present at the hearing, but she was represented by her court-appointed counsel.1 On August 27, 2002, the trial court entered an order terminating the father’s and the mother’s parental rights to the child. The father appealed. The record indicates that the mother filed a notice of appeal on September 5, 2002, but failed to file a brief on appeal in this court. Therefore, we affirm the trial court’s order insofar as it terminates the mother’s parental rights.

The record reveals that both the father and the mother suffer from schizophrenia and from mild mental retardation. The father and the mother both receive Social Security disability benefits. The father has been committed to the state mental-health system at least twice, and the mother has been previously committed to four separate mental-health facilities. When the child was born, the father was 50 years old and the mother was 22 years old. After the child was born, the staff at the [541]*541hospital where the child was born attempted to teach the father and the mother parenting skills, but both had difficulty performing basic tasks such as feeding and bathing the child. A hospital social worker telephoned DHR and requested an assessment of the father and the mother. DHR filed a petition for dependency, and the child was subsequently removed from the hospital and placed in foster care. The father visited the child every week following her removal from the parents’ care. However, the mother did not visit the child while she was in foster care.

Dr. Barry Funkhouser, a clinical psychologist, testified that the father was a regular patient of his and that he had seen the father 28 times since July 20, 2001. The father was initially referred to Dr. Funkhouser by DHR in order to help the father improve his parenting skills so that he could properly parent the child. Dr. Funkhouser initially met with the father after the father had threatened to commit suicide by taking an overdose of medication. Dr. Funkhouser noted that when he began his treatment, the father was not compliant with his prescribed medications for schizophrenia but that during treatment he became compliant. Dr. Funk-houser testified that the father was easily angered and was agitated when things did not go his way. In addition, Dr. Funk-houser testified that the father’s moods were unstable.

Dr. Funkhouser diagnosed the father with schizophrenia and mild mental retardation. Dr. Funkhouser stated that schizophrenia was a permanent condition. Because the father would always suffer from schizophrenia, Dr. Funkhouser determined that the father could not be the sole parent of the child. Dr. Funkhouser acknowledged that the father loved the child dearly; however, Dr. Funkhouser stated that love could not outweigh the problems the father would have with the day-to-day care of the child.

The father testified that he was disabled and that because of his disability he was currently unemployed; the last time he worked was in 1977. The father became physically disabled when he was working on a construction site and a steel beam fell on him. The father testified that as a result of his injury he now has only one kidney and a “bad liver.” The father currently receives $554 in Social Security disability benefits and is unable to pay child support from that income. The father testified that he has another child, by a woman other than the mother, who was 9 years old at the time of the termination hearing. That child receives $875 in Social Security benefits as a result of the father’s disability; however, the father has yet to apply for Social Security benefits for the child at issue in this appeal.

Cynthia Hobdy, a social worker with DHR, testified that she had never met the mother but that the mother had contacted her once. Hobdy testified that the mother had asked her about getting the child back. Hobdy also testified that the mother stated that she was living with her mother, A.L., and that A.L. would help her care for the child; however, A.L. is also mentally unstable. The mother did not leave a contact address when she spoke with Hobdy. Hobdy noted that, at the time of trial, neither the mother nor any of her immediate family had come forward to file a petition for custody. Hobdy had had no other contact with the mother.

Hobdy testified that the father generally became agitated when the child cried excessively. On the occasions the father visited the child while the child was in DHR’s custody, the father required assistance taking care of the child. Hobdy testified that a visitation specialist from DHR would ensure that the time the father [542]*542spent with the child was meaningful, productive, and safe. According to Hobdy, DHR and the individualized-service-plan team decided that the permanent plan for the child should be adoption. Hobdy testified that she knew of a family who wished to adopt the child following the termination proceeding.

On appeal, the father contends that the trial court erred in terminating his parental rights and that the termination of his parental rights was premature. A trial court’s determination of factual issues following the presentation of ore tenus evidence is presumed correct and will not be disturbed on appeal absent a showing of palpable error. F.L.L. v. State Dep’t of Human Res., 612 So.2d 501 (Ala.Civ.App.1992). Section 26-18-7, Ala. Code 1975, sets forth the statutory authority for the termination of a parent’s parental rights, providing, in pertinent part:

“(a) If the 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 is such as to render them unable to properly care for the child and that such 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, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:
“(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.
“(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for the needs of the child.

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Bluebook (online)
855 So. 2d 539, 2003 Ala. Civ. App. LEXIS 55, 2003 WL 203249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jw-v-state-department-of-human-resources-alacivapp-2003.