Lag v. State Dept. of Human Resources

681 So. 2d 596, 1996 Ala. Civ. App. LEXIS 599, 1996 WL 448223
CourtCourt of Civil Appeals of Alabama
DecidedAugust 9, 1996
Docket2950433
StatusPublished
Cited by33 cases

This text of 681 So. 2d 596 (Lag v. State Dept. 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
Lag v. State Dept. of Human Resources, 681 So. 2d 596, 1996 Ala. Civ. App. LEXIS 599, 1996 WL 448223 (Ala. Ct. App. 1996).

Opinion

681 So.2d 596 (1996)

L. A. G.
v.
STATE DEPARTMENT OF HUMAN RESOURCES.

2950433.

Court of Civil Appeals of Alabama.

August 9, 1996.

*597 Diane Haden Henderson, Winfield, for Appellant.

William Prendergast and Lynn Sensabaugh Merrill, Asst. Attys. Gen., for Appellee.

YATES, Judge.

This case involves the termination of parental rights of the mother, L.A.G., as to her son, P.D.G. On November 22, 1989, the Lamar County Department of Human Resources (DHR) petitioned the juvenile court, requesting temporary custody of P.D.G., born March 7, 1989. DHR alleged that P.D.G. had been physically, mentally, or emotionally abused by his parents; that he was without the proper parental care and control necessary for his well-being; and that his parents were either unable or unwilling to provide the proper parental care and control. Following an ore tenus proceeding, the court granted DHR's petition. Over the next five years, reports were filed with the court and dispositional hearings were held regarding the ongoing status of this case. P.D.G. has lived in two foster homes since being in the custody of DHR.

On October 6, 1995, DHR petitioned for the termination of parental rights of the mother, stating that the father of P.D.G. is unknown. Following an ore tenus proceeding, the court, on December 29, 1995, terminated the mother's parental rights, finding: that P.D.G. is a dependent child; that the mother "has not made sufficient efforts to adjust her circumstances to meet the needs of [P.D.G.]"; and that there are no viable alternatives to the termination of parental rights. The mother appeals.

At the time of the hearing, P.D.G. was seven years old; he had been in foster care since he was approximately eight months old. P.D.G. is a "special needs" child, suffering from "severe microcephaly," which is associated with small stature and weight. He has severe bowel problems and is not toilet trained. He has delayed motor skills and poor muscle development, and is approximately one and one-half years behind in his development. P.D.G. had received physical, occupational, and speech therapy; however, his growth and development is not expected to rise to within the normal range. P.D.G. is suspected of suffering from some degree of mental retardation; however, he has not yet been tested, because his communication skills are too low to provide an accurate test. He requires close supervision, because he is prone to wander off and because he does not appear to feel pain; unless someone sees him injure himself or sees some external sign of injury, one would not know that he had been injured. P.D.G. receives SSI and Medicaid benefits based on his physical limitations.

*598 L.A.G. was 17 years old when P.D.G. was born; she was 24 years old at the time of the hearing. She is mildly retarded and receives SSI benefits. She requires a payee for her SSI check because she is unable to attend to her own financial affairs. L.A.G. has a ninth-grade education, is literate, can prepare meals, clean house, and wash clothes. She lives with her parents; her father is unemployed and her mother works. While her mother is at work, L.A.G. does the housework and prepares dinner every day for the family. She is unemployed; however, she occasionally babysits a 14-month-old child.

At the time of the initial proceedings in November 1989, the mother was married to D.P.G., who was serving a four-year prison sentence. D.P.G. advised DHR that the mother was pregnant when he married her, and that he was not P.D.G.'s biological father; this was confirmed by blood tests. Thereafter, the mother provided DHR with the name of another man that might be P.D.G.'s father; however, blood tests also excluded this man as the father. L.A.G. and D.P.G. have since divorced.

The trial court stated in its termination order that DHR had made "extensive efforts" to "train" the mother. We disagree.

We note that the ore tenus rule is applicable to cases involving the termination of parental rights; when evidence is received ore tenus, the judgment of the trial court is presumed to be correct and will be set aside only if the record shows the judgment to be plainly and palpably wrong. J.L.B. v. State Dep't of Human Resources, 608 So.2d 1367 (Ala.Civ.App.1992). Section 26-18-7(a), Ala. Code 1975, provides, "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 ... it may terminate the parental rights of the parents." "A natural parent has a prima facie right to the custody of his child, unless it can be proven by clear and convincing evidence that permanent removal of the child from the parent's custody would serve the best interests of the child." T.M.S. v. Elmore County Dep't of Human Resources, 647 So.2d 746, 747 (Ala.Civ.App. 1994). The paramount concern of the court in these proceedings is the child's best interests. In determining the child's best interests, the court must consider whether the parents are physically, financially, and mentally able to provide for the child. G.D.M. v. State, 655 So.2d 1020 (Ala.Civ.App.1995). When the state seeks to terminate one's parental rights, the court must apply a two-pronged test. Ex parte Beasley, 564 So.2d 950 (Ala.1990). First, the court must find by clear and convincing evidence that the child is dependent; second, the court must consider and reject all alternatives to termination of parental rights. Id. The termination of one's parental rights is an extreme matter that is not considered lightly. G.D.M., supra. Once parental rights have been terminated, we know of no means by which those rights can be reinstated. K.M. v. Shelby County Dep't of Human Resources, 628 So.2d 812 (Ala.Civ.App.1993).

Cheryl Stone, a social worker for DHR, became involved in this case in November 1989. The record contains her first report of November 1991 to the court in which she states that L.A.G. and P.D.G. were enrolled in a program designed to teach the mother how to meet the needs of her son, but that her participation in the program was "a complete failure" because she was unable to accept instructions ... to help [P.D.G.] in his work at the [program]. The report also states that "[L.A.G.] is willing to do whatever it takes to get her child back" and that she "continues to work with our agency to do whatever is requested." Stone stated that DHR had attempted to develop the mother's parenting skills by allowing the mother to visit P.D.G. in his first foster home, where the foster mother would instruct L.A.G. on meeting P.D.G.'s basic needs, including proper feeding and bathing, when he was an infant. However, Stone admitted at the January 1996 hearing that L.A.G. had been allowed only one overnight visit with P.D.G. in the seven years that DHR had had custody of him. She further admitted that structured parenting classes had not been offered to L.A.G. since 1990. Stone testified that she did not believe L.A.G. has the ability to care for P.D.G. and that L.A.G. had not been *599 given an opportunity to independently care for P.D.G. because, she said, "[W]e did not feel comfortable in leaving her with him because of her lack of skills on just supervising him." She further stated that L.A.G. had always had contact with P.D.G. and had never missed a visit with him. Stone's involvement in the case ended in June 1994 when Diane Turner, a social worker for DHR, became involved.

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Bluebook (online)
681 So. 2d 596, 1996 Ala. Civ. App. LEXIS 599, 1996 WL 448223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lag-v-state-dept-of-human-resources-alacivapp-1996.