BS v. CULLMAN COUNTY DEPT., HUM. RES.

• Citation: 865 So.2d 1188
• Parties: B.S. v. CULLMAN COUNTY DEPARTMENT OF HUMAN RESOURCES.
• Decision Date: 07 March 2003
• Court: Alabama Court of Civil Appeals

865 So.2d 1188

B.S. v. CULLMAN COUNTY DEPARTMENT OF HUMAN RESOURCES.

2010977.

Court of Civil Appeals of Alabama.

March 7, 2003.

Certiorari Denied May 16, 2003.

G. Edward Coey, Hanceville, for appellant.

William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and Lynn S. Merrill, asst. atty. gen., Department of Human Resources, for appellee.

Alabama Supreme Court 1021017.

PER CURIAM.

B.S. ("the mother") appeals the termination of her parental rights to K.M.R. ("the child").¹

The mother was known to the Department of Human Resources as an infant, when she was removed from the home of her biological parents and placed in foster care. The mother was later adopted. The mother has two children other than the child as to whom her parental rights were terminated; none of the mother's children lives with her. The mother's oldest child, L.M.R., a daughter, lives with her father. The mother's other child, A.R., a son, lives with J.R., the mother's biological sister, with whom he was placed shortly after his birth.

In May 1994, the adult-protective-services division of the Cullman County Department of Human Resources (hereinafter "DHR") was informed that the mother, who is mildly mentally retarded, was living in a home unfit for habitation with a boyfriend, J.T.; the mother had been supporting herself and J.T. with her Social Security disability benefits. DHR investigated and found the home to be filthy; windows were missing and dogs penned inside. Although the mother was informed that J.T. was mismanaging her money and was told that she could have a conservator appointed for her, she indicated a desire to remain with J.T.

In October 1996, the mother gave birth to the child. Based on a report from a nurse at the hospital at which the child was born, and also based on discussions with J.M.T., the mother's biological mother, and J.R., her sister, DHR filed a dependency petition and was awarded legal custody of the child. DHR first investigated placing the child with T.W., another sister of the mother's with whom the mother was living at the time. However, T.W.'s husband, W.W., had been found guilty of sexual misconduct. Therefore, DHR refused to place the child in T.W.'s home.

DHR placed the child with J.R.; that placement continued for nine months, after which time J.R. requested that the child be removed from her home. The child was then placed with the mother's cousin, J.G. However, the child was removed from J.G.'s home after approximately six months, when the Morgan County Department of Human Resources, which was supervising the placement, discovered that the cousin had misreported her income and was financially unable to assume responsibility for the child. DHR then placed the child in a foster home for a time; the foster parents requested that she be removed from their home. Finally, the child was placed with her current foster family. She had resided with that family for over two years at the time of the termination hearing. Although test results for the child were not available at the time of the termination hearing, the child suffers from developmental delays, and she exhibits some behavioral problems.

Judy Sandlin, a DHR caseworker, testified on behalf of DHR. Sandlin testified that she had been assigned to this case in May 2001, after DHR had decided to petition to terminate the mother's parental rights. Sandlin testified that she had never seen or spoken with the mother before the termination hearing. According to Sandlin's testimony, which was based upon a court report she prepared that summarized the records in DHR's file on the child,² the mother visited the child only sporadically during the five years the child was in DHR's custody, in spite of the fact that DHR urged the mother to visit the child and had offered to provide her transportation to those visits. The mother never requested transportation to visit her child. In the 12 months before the termination hearing, the mother neither visited nor contacted the child.

At the time of the termination hearing, the mother had been married to S.S. for five years. S.S. testified that he had not been supportive of the mother's visitation with the child because, he said, he did not want either the mother's or the child's "heart broken" if they were not ultimately reunited.

Sandlin testified that the mother's sporadic visitations with the child were observed by DHR caseworkers and that the caseworkers had made notes concerning their observations of those visitations. Sandlin specifically noted that at the visitations, the mother's behavior was reported to be "child-like," and that S.S. often slept during the visits. In a visit Sandlin specifically described, the mother failed to intervene when the child colored the furniture with markers.

Sandlin testified that the observations of the mother's visitations with the child, coupled with the mother's failure to visit the child regularly, contributed to DHR's decision to seek to terminate the mother's parental rights. Another basis for DHR's decision was the opinion of two professionals that the mother was not capable of independently caring for herself or a child.

The mother has an IQ of either 58 or 61, depending on which evaluation is consulted; those scores place her in the mildly mentally retarded range. The mother was first evaluated in 1995 by Kenneth P. Sullivan, a psychologist, in connection with her son's custody determination. Dr. Sullivan's testing indicated that the mother had a full-scale IQ of 61. Dr. Sullivan commented that persons like the mother could participate in their own care—and even the care of children—provided they were given a structured environment and close supervision. Dr. Sullivan opined that the mother in this case was unable to care for herself or for a child without constant supervision. Dr. Sullivan noted that persons like the mother are incapable of managing their own finances or other aspects of self-care like food preparation, cleaning, and arranging transportation. Dr. Sullivan noted that the mother could likely assist in taking care of her infant son if she were placed in a structured environment "in which skilled individuals maintained primary responsibility for the [son], while permitting [the mother] to share in care-taking tasks." However, Dr. Sullivan's assessment was that the mother could not independently provide adequate care for a child and that, in fact, being left alone with the mother would place an infant in peril.

In 1999, the mother's intelligence was evaluated in connection with this action; Patrick Dunne, a licensed professional counselor, performed that evaluation. Dunne determined that the mother had a full-scale IQ of 58, and that she was mildly mentally retarded. Dunne opined that the mother was unable to effectively parent a child, citing the fact that the mother depended on others for her own care and that she had difficulty understanding that her limited mental capacity was the reason her children had been removed from her custody. Dunne commented that the mother's insight and judgment were limited and that she did not fully understand her children's needs. He also noted that the mother appeared to have feelings for the child, but he stated that "[h]er bond with her other two children appeared to be quite shallow." Dunne noted that there is no treatment for mental retardation, and he stated that the mother's limitations were unlikely to ever improve. Dunne also believed that neither individual nor family counseling was likely to benefit the mother.

The mother, who was 40 years old at the time of the termination hearing, testified that she wanted the opportunity to raise her child. The mother testified that she had raised her first child, a daughter, until she and her first husband divorced when the daughter was eight years old. The mother said that she knew how to change diapers, how to cook for her family, and how to keep a house neat and clean. The mother has never worked, and she receives Supplemental Security Income ("SSI") benefits.

The mother said that she had not visited the child in the year before the termination hearing, and she indicated that she did not know why she had not visited the child. The mother also admitted that she had not sent the child cards or gifts, but she stated that she planned to start doing so.

The mother stated that S.S., whose driver's license had been suspended, expected to have that license reinstated soon. The mother explained that she could not call DHR to arrange for transportation to visitation, which she admitted DHR had offered, because, she said, she had no telephone. The mother testified that she uses her neighbor's telephone when necessary, but that the neighbor does not have long-distance service.³

S.S., the mother's husband, testified that he and the mother married in July 1997. S.S. testified that the mother cooked meals and cleaned the home in which the couple lived; he said that the mother was a good cook and a fairly good housekeeper. S.S. explained that he was the driver in the household, and that he had had his driver's license suspended for one year after he was convicted of driving under the influence. S.S. also stated that the mother was a loving person and that he believed the child would be well-cared for by her.

S.S. commented on the relationship between the mother and her eldest daughter; he said that the two got along fairly well during their bimonthly visitation weekends, in light of the fact that the daughter is a teenager. When specifically questioned about his readiness to have a preschool child in his home, S.S., who was 60 years old, admitted that he had not always been supportive of the mother's regaining custody of the child, and that at one time, he had been against the idea because he thought he was too old to have a young child around. However, S.S. testified that he was, at the time of the termination hearing, committed to helping ...