Brown v. Alabama Dept. of Pensions and Sec.

• Decision Date: 05 June 1985
• Citation: 473 So.2d 533
• Parties: Yvonda BROWN v. ALABAMA DEPARTMENT OF PENSIONS AND SECURITY. Civ. 4706.
• Court: Alabama Court of Civil Appeals

Page 533

473 So.2d 533

Yvonda BROWN v. ALABAMA DEPARTMENT OF PENSIONS AND SECURITY.

Civ. 4706.

Court of Civil Appeals of Alabama.

June 5, 1985.

Jimmy Cashion, Hamilton, for appellant.

Mrs. Mary Lee Stapp and John Coleman Campbell, Asst. Attys. Gen., Montgomery, for appellee.

WRIGHT, Presiding Judge.

This is a termination of parental rights case.

The Alabama Department of Pensions and Security (DPS) brought three separate petitions, seeking permanent custody of each of the mother's three minor daughters and the termination of all parental rights. After a trial in which the evidence was presented to the trial court ore tenus, the trial court entered three orders granting DPS custody of each child and terminating all parental rights in and to the three children.

From each of the three orders, the mother appeals to this court. We note that there are two fathers, both of whom refused service of the DPS petitions in this case. Neither appears to have contributed to the support of the children in the last three to four years. The father of the younger two children, who was also the husband of the mother, was incarcerated in a Michigan prison at the time of the trial. In short, neither father sought to prevent the termination of his parental rights, and we are concerned here only with the mother's parental rights. We affirm the decision of the trial court terminating those rights.

The overriding consideration in child custody cases is the best interest of the child. Wix v. State, Department of Pensions and Security, 464 So.2d 118 (Ala.Civ.App.1985); Phillips v. Alabama Department of Pensions and Security, 394 So.2d 51 (Ala.Civ.App.1981). Although parents have a prima facie right to the custody of their child, this court has held that such right must always yield to the best interests of the child if it is shown that parental custody is contrary to those interests. In the Matter of Moore, 470 So.2d 1269 (Ala.Civ.App.1985); Gaddy v. Alabama Department of Pensions and Security, 428 So.2d 91 (Ala.Civ.App.1983); Fitzgerald v. Jeter, 428 So.2d 84 (Ala.Civ.App.1983); Vinson v. AGAPE of Central Alabama, Inc., 416 So.2d 1075 (Ala.Civ.App.1982); Phillips, 394 So.2d at 53. For the trial court to terminate parental rights, however, the evidence must be clear and convincing that the child's best interests are served by permanent removal from the custody of the parent or parents. In the Matter of Clingan, 471 So.2d 435 (Ala.Civ.App.1985); In the Matter of Moore, 470 So.2d 1269; Gaddy, 428 So.2d at 93; Vinson, 416 So.2d at 1077.

The sole issue raised by the mother on appeal is whether there was clear and convincing evidence to support the orders terminating her parental rights. She argues that such clear and convincing evidence was lacking and that the trial court thus erred in terminating her parental rights.

In child custody cases where the evidence was presented to the trial court ore tenus, that court's decision is presumed to be correct and will not be set aside on appeal, unless it is shown to be plainly and palpably wrong. In the Matter of Moore, 470 So.2d 1269; Wix, 464 So.2d at 118; Gaddy, 428 So.2d 93; Fitzgerald, 428 So.2d at 85; Phillips, 394 So.2d at 53. Applying this standard of review in the present case, we conclude that the decision of the trial court was not plainly or palpably wrong because it is supported by clear and convincing evidence that the best interests of the children would be served by removing them from the mother's custody.

The starting point in our decision to affirm the trial court is the 1984 Child Protection Act, effective May 8, 1984 and codified at §§ 26-18-1 to -10, Code of Alabama 1975, which gives the juvenile courts of this state authority to terminate parental rights in appropriate cases. Under this act, proceedings to terminate parental rights are to be conducted much as they had been prior to the passage of the act in accordance with juvenile court procedures provided by §§ 12-15-50 to -76, Code 1975. See § 26-18-4, Code of Alabama 1975.

Under § 26-18-7(a) a juvenile court may terminate parental rights if it finds from clear and convincing evidence that the parents are unwilling or unable to discharge their responsibilities to and for their child. The statute lists several factors which the court may consider, but to which it is not limited, in determining whether parental rights may be terminated. These factors include emotional or mental illness or excessive use of alcohol or drugs which render the parent unable to care for the needs of the child. § 26-18-7(a)(2), Code of Alabama 1975.

The Child Protection Act enumerates only some of the many factors this court has long taken into consideration in making determinations concerning the termination of parental rights. Among the factors we have emphasized are the conduct of the parents toward the child, the parent's love or interest in the child, activities of the parents that could be detrimental to the safety and welfare of the child, and whether there are less drastic alternatives available than the permanent removal of parental custody. Miller v. Alabama Department of Pensions and Security, 374 So.2d 1370 (Ala.Civ.App.1979). See Glover v. Alabama Department of Pensions and Security, 401 So.2d 786 (Ala.Civ.App.1981).

In this case the evidence of neglect over the years was clear and convincing and showed an inability or an unwillingness on the part of the mother to properly care for her children. Prior to moving to the State of Alabama in approximately January 1981, the family resided in Michigan. There they were under the supervision of the Michigan Department of Social Services, due to the alleged neglect or abuse of the oldest daughter, who had been severely burned. When the family moved to Alabama, DPS picked up the children and placed them in foster homes at the request of the Michigan Department of Social Services. The mother and her husband had not informed the department of their departure from Michigan.

The children were returned to the mother's custody in September 1981. They were removed again in July 1982, when a DPS investigation, prompted by an anonymous phone call concerning the eldest child's involvement with alcohol, revealed that the mother and children were living in uninhabitable and squalid conditions. The mother and her husband had apparently separated sometime prior to July 1982, and the mother and the three daughters were living with her sister and the sister's children. There was ample evidence at the trial that demonstrated extreme neglect of the children, two of whom had scars on them from...