M.S. v. State Department of Human Resources

648 So. 2d 584, 1994 Ala. Civ. App. LEXIS 468
CourtCourt of Civil Appeals of Alabama
DecidedSeptember 23, 1994
DocketAV93000162
StatusPublished
Cited by4 cases

This text of 648 So. 2d 584 (M.S. 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
M.S. v. State Department of Human Resources, 648 So. 2d 584, 1994 Ala. Civ. App. LEXIS 468 (Ala. Ct. App. 1994).

Opinion

THIGPEN, Judge.

This case involves the termination of parental rights.

In December 1992, the Cleburne County Department of Human Resources (DHR) filed petitions seeking to terminate the parental rights of M.S. (father) and D.S. (mother) to their three minor children. The petitions alleged that the father was “unable or unwilling to comply with the requests of the Department of Human Resources for the return of said minor ehild[ren] to his care, custody and control,” and that the mother was unable to care for the minor children. The petitions also alleged that parental, relative, or long-term foster care was not in the children’s best interests. Following ore ten-[586]*586us proceedings, the trial court found that the children were dependent, terminated the parental rights of the parents, awarded permanent custody of all three children to DHR. Only the father appeals.

The record reveals that the children were removed from the custody of the parents in February 1991, and that the parents were divorced later that year. The father has since remarried, and, at the time of these proceedings, had two additional children.

The father raises four issues on appeal: (1) whether the trial court erred in terminating his parental rights “without a finding of unfitness”; (2) whether there was clear and convincing evidence that there was no viable alternative to the termination of parental rights; (3) whether the trial court erred in failing to allow the father’s attorney to view files maintained by DHR; and (4) whether the trial court erred in granting only a five-day continuance on the father’s motion.

The termination of one’s parental rights is an extreme matter that is not considered lightly, and, where the State seeks to terminate parental rights, the trial court must apply a two-pronged test. The trial court must find that the child is dependent; then, the trial court must find that there are no viable alternatives to the termination of parental rights. Ex parte Beasley, 564 So.2d 950 (Ala.1990); see also B.O. v. Department of Human Resources, 628 So.2d 805 (Ala. Civ. App.1993). A natural parent’s prima facie right to the custody of his or her child can be overcome only by clear and convincing evidence that permanent removal from the parent’s custody serves the best interests of the child. L.N. v. State Department of Human Resources, 619 So.2d 928 (Ala.Civ.App.1993). In determining the child’s best interests, for purposes of termination of parental rights, the trial court must consider whether the parents are physically, financially, and mentally able to care for the child. J.L.B. v. State Department of Human Resources, 608 So.2d 1367 (Ala.Civ.App.1992).

To support his first issue, the father cites Ex parte Terry, 494 So.2d 628 (Ala. 1986), and several other cases, for the proposition that a finding of unfitness is a prerequisite to the termination of his parental rights. Those cases involve custody disputes between parents and nonparents, and they do not involve the termination of parental rights. The father’s reliance on those cases is misplaced, and his characterization of the posture of this case is simply incorrect.

A trial court may terminate parental rights
“[i]f 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 condition is unlikely to change in the foreseeable future....”

Ala.Code 1975, § 26-18-7(a). Although a finding in that regard may be synonymous with a finding of unfitness, Anonymous v. Anonymous, 504 So.2d 289 (Ala.Civ.App.1986), there is no absolute requirement for a trial court to specifically find a parent to be unfit in these proceedings.

Next, the father argues that because he has remarried and he now has the responsibility of two additional children, there was a viable alternative to the termination of his parental rights.

A trial court may consider several factors determining whether a parent is unable to discharge responsibilities to and for the child, including whether reasonable efforts by DHR directed toward rehabilitation of the parent have failed. Ala.Code 1975, § 26-18-7(a)(6). In cases such as this, where the child is not in the physical custody of the parent, the trial court may also consider whether the parent has: 1) failed to provide for the material needs of the child or to pay a reasonable portion of the child’s support; 2) faded to maintain regular visits pursuant to a plan with DHR; 3) failed to maintain consistent communication; or 4) demonstrated a lack of effort to adjust his circumstances to meet the needs of the child pursuant to an agreement or plan devised by DHR or a judicial review. Ala.Code 1975, § 26-18-7(b).

[587]*587The trial court made the following findings regarding the father:

“The natural father lacks the ability to properly care for the subject child[ren] in that he has failed to comply with the ‘D.H.R.-treatment-plan(s)’, same having been modified on several occasions to accommodate his ‘new-situation(s)’ (e.g. new home, new job, new spouse, etc.). Specifically, he has failed in his rehabilitative efforts; has failed to pay child support on a regular basis. As of the trial date, he continues to be unable to provide his child[ren] with a stable home and stable income; has an unstable marriage; and has no apparent ability to provide stable care and supervision for his child[ren].”

Ample evidence within the record supports the trial court’s findings. The record is replete with evidence that the father could not provide a stable environment for the three children. The father resided at numerous addresses in Alabama and in Georgia during the two years before the final hearing. At the July hearing, the father testified that he had been separated from his present wife for six to seven months on several occasions during their two-year marriage, and there was evidence that the father had returned to his present wife’s home only one week before that hearing. The father also testified that during the previous two years, he had been employed at a total of seven jobs, and that he had been employed at his present job only approximately two months.

Teresa Ward, a DHR ease worker, indicated that since the children had been removed from the parents’ custody, the father’s interest in the children had wavered. She testified that “[a]t times he would seem interested and then at other times he would go several months without any contact with [DHR] or with the kids.” Ward further testified that there was an attempt to place the children in the father’s custody following a home evaluation in March 1992. Ward testified that DHR had attempted to place the children in the father’s home at the end of that school year. Ward stated, however, that everything “fell through” because the father moved without giving notice and owing approximately $1000 in back rent. Ward further testified that while the father was residing in Georgia, DHR officials had requested that the Georgia officials conduct a home study, but that the Georgia officials were unable to locate the father with the address he had provided.

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C.J.L. v. Jefferson County Department of Human Resources
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Bluebook (online)
648 So. 2d 584, 1994 Ala. Civ. App. LEXIS 468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ms-v-state-department-of-human-resources-alacivapp-1994.