R.F.W. v. Cleburne County Department of Human Resources

70 So. 3d 1270, 2011 Ala. Civ. App. LEXIS 89, 2011 WL 1205555
CourtCourt of Civil Appeals of Alabama
DecidedApril 1, 2011
Docket2091023
StatusPublished
Cited by6 cases

This text of 70 So. 3d 1270 (R.F.W. v. Cleburne 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
R.F.W. v. Cleburne County Department of Human Resources, 70 So. 3d 1270, 2011 Ala. Civ. App. LEXIS 89, 2011 WL 1205555 (Ala. Ct. App. 2011).

Opinions

MOORE, Judge.

R.F.W. (“the father”) appeals from a judgment of the Cleburne Juvenile Court (“the juvenile court”) declaring M.W. (“the child”) dependent and awarding custody of the child to S.J.P., the child’s maternal great-grandmother, subject to certain visitation rights of the father and C.D.W. (“the mother”). In that judgment, which was entered on July 14, 2010, the juvenile court set forth the following specific findings of fact:

“That child is dependent in that the child’s parents, guardian, or other custodian are unable to discharge their responsibilities to and for the child and the child is in need of the care and protection of the state. The Court specifi[1272]*1272cally finds that, although the father has attempted to comply with all the requirements of the Department of Human Resources, the father continues to be unable to provide for the child’s care, custody and control for any extended period of time. The Court specifically notes that the father has assistance in caring for himself and would need such assistance to continue to adequately care for the child.”

The father timely appealed, arguing that clear and convincing evidence does not support the individual factual findings of the juvenile court and its ultimate determination of the dependency of the child.

As a matter of constitutional law, a parent who has exercised custody over a child has a prima facie right to the continued custody of the child. See In re Moore, 470 So.2d 1269, 1270 (Ala.Civ.App.1985). The presumptive right of parents to the custody of their child may be overcome by clear and convincing evidence demonstrating that the parents are currently unable to discharge their responsibilities to and for the child and that the child requires additional care and supervision through the state, i.e., that the child is “dependent.” See Ala.Code 1975, § 12-15-102(8)a.6.; see also V.W. v. G.W., 990 So.2d 414, 417 (Ala.Civ.App.2008) (quoting K.B. v. Cleburne County Dep’t of Human Res., 897 So.2d 379, 389 (Ala.Civ.App.2004) (Murdock, J., concurring in the result)) (“‘[I]n order to make a disposition of a child in the context of a dependency proceeding, the child must in fact be dependent at the time of that disposition.’ ”). “Clear and convincing evidence” is defined as

“ ‘[ejvidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.’ ”

L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002) (quoting Ala.Code 1975, § 6-11-20[ (b) ](4)).

On appeal from a judgment finding a child dependent following an ore tenus proceeding, we presume the juvenile court’s factual findings are correct. J.W. v. C.H., 963 So.2d 114, 119 (Ala.Civ.App.2007). Those findings will not be disturbed if they are supported by sufficient evidence. Ex parte Floyd, 550 So.2d 982, 984 (Ala.1989). In passing on the question of the sufficiency of the evidence as to a finding of dependency, this court does not reweigh the evidence; instead, this court determines whether the juvenile court, acting in its fact-finding role, reasonably could have determined from its own weighing of the evidence that the dependency of the child was proven by clear and convincing evidence as that standard is defined above. J.B. v. DeKalb County Dep’t of Human Res., 12 So.3d 100, 112 (Ala.Civ.App.2008). Giving due regard to the judgment of the juvenile court, we conclude that the record in this case does not contain sufficient evidence demonstrating that the father is unable to discharge his parental responsibilities to and for the child.

The record shows that, at the time of the trial, the father was living with his mother and his stepfather, while working on a separate house for eventual habitation. The father had been employed in a construction job for approximately 1 year [1273]*1273earning $8.75 per hour, he averaged working 40 to 50 hours per week, and he was earning enough money to provide day care for the child and to cover his living expenses. The father had been exercising unsupervised visitation with the child for over six months. Leslie Driver, a social worker with the Cleburne County Department of Human Resources (“DHR”) who was assigned to the case, testified that she had no concerns with regard to those visits. Driver testified that the child’s room at the father’s house is adequate and appropriate, that the home meets minimal standards, and that it is sanitary. The child interacts well with the father, who testified that the child cries to come home with him at the end of visits. Driver testified that she had not observed any problems between the father and the child, and she indicated that she did not perceive any safety issues relating to the child. The record contains no evidence indicating that the persons residing in the home would provide anything but proper care for the child.

The juvenile court nevertheless found that the father could not meet his parental obligations to the child on the basis of the father’s failure to meet DHR’s goals and his reliance on others for assistance with caring for the child. As to the first reason, the evidence shows that, in this case, DHR did not establish any requirements for the father to meet in order to regain custody of the child. In a prior case, DHR had requested that the father complete a parenting class and anger-management counseling. The father completed the parenting class, but not the anger-management counseling. However, Driver testified that the only anger the father had exhibited related to the mother, who had intentionally interfered with his visitation rights. The mother had since lost custody and was in jail at the time of the dependency trial. The father testified that he had “let go” of his anger regarding the mother. In this case, DHR did not identify that former problem as a barrier to reuniting the father and the child, and, as stated above, Driver testified that she did not perceive any safety issues regarding the child while in the care of the father. Given those circumstances, the failure of the father to complete anger-management counseling does not render him unable to properly parent the child.

As to the other reason given by the juvenile court — the father’s reliance on others for assistance with caring for the child — the evidence shows that the father completed only the eighth grade and that he cannot read and write well. As a result, the father depends on his mother to write checks for him “and stuff like that.” Other than that one responsibility, the record contains no evidence indicating that the father does not properly take care of his own needs. The evidence appears undisputed that the father’s mother, stepfather, and girlfriend all assist the father with caring for the child. Driver specifically testified that the father told her that his mother helps “a lot” by “cooking, bathing [the child], that sort of thing.” The juvenile court apparently believed that any dependence on his family rendered the father incompetent to parent the child. However, “in the abstract, a parent’s reliance on others, particularly family, for support is not, in and of itself, determinative of the parent’s unfitness.” Ex parte A.M.B., 4 So.3d 472, 478 (Ala.2008).

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J.P. v. Calhoun County Department of Human Resources
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R.F.W. v. Cleburne County Department of Human Resources
70 So. 3d 1270 (Court of Civil Appeals of Alabama, 2011)

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Bluebook (online)
70 So. 3d 1270, 2011 Ala. Civ. App. LEXIS 89, 2011 WL 1205555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rfw-v-cleburne-county-department-of-human-resources-alacivapp-2011.