CB v. STATE DEPT. OF HUMAN RESOURCES

• Decision Date: 20 November 1998
• Citation: 782 So.2d 781
• Parties: C.B. v. STATE DEPARTMENT OF HUMAN RESOURCES.
• Court: Alabama Court of Civil Appeals

782 So.2d 781

C.B. v. STATE DEPARTMENT OF HUMAN RESOURCES.

2970931.

Court of Civil Appeals of Alabama.

November 20, 1998.

Rehearing Denied February 5, 1999.

Certiorari Quashed September 1, 2000.¹

Pam M. Parker of Dawson, McGinty & Parker, Scottsboro, for appellant.

J. Coleman Campbell and Lynn S. Merrill, asst. attys. gen., Department of Human Resources, for appellee.

Alabama Supreme Court 1980835.

MONROE, Judge.

C.B., the mother, appeals from the trial court's judgment terminating her parental rights to her daughter and twin sons.

The procedural history is long and complicated, and it appears nothing would be gained by providing many of the details of this history. In brief, the court system first became involved in this case in July 1991, when the Jackson County Department of Human Resources filed a petition alleging that the three minor children of C.B. and J.B. were dependents. After a trial, the children were found to be dependent and were placed in the custody of DHR. For the next several years, the children remained in the legal custody of DHR; they were in the physical custody of DHR with the exception of a five-month period ending in February 1993 in which they were returned to their mother. Although the mother successfully cared for the children during this period, she voluntarily returned the children to their foster home because their father had started drinking and she was concerned for their safety. The mother never regained custody of her children, although she did have many weekend visitations with them.

In August 1994, DHR filed for permanent custody of the children. On April 13, 1995, the juvenile court entered an order terminating the parental rights of C.B. and J.B. They both appealed to this court. However, the tape recording of the proceeding in juvenile court was not audible and therefore could not be transcribed. This court transferred the case to the circuit court for a trial de novo pursuant to Rule 28, Ala. R. Juv. P. On August 13, 1996, the trial was held and on December 10, 1996, the trial court entered an order terminating the parental rights C.B. and J.B. At trial, the father relinquished his parental rights, and he is not a party to this appeal. In response to the mother's postjudgment motion, the trial court, on March 26, 1997, entered an amended order requiring DHR to submit evidence regarding its efforts to locate alternative relative resources. A hearing was held on November 5, 1997, and on November 25, 1997, the trial court entered another order terminating parental rights. The mother appeals.

Natural parents have a prima facie right to the care and custody of their children, M.C. v. L.B., 607 So.2d 1267 (Ala. Civ.App.1992), and it is presumed that parental custody will be in the best interests of the children. Bowman v. State Dep't of Human Resources, 534 So.2d 304 (Ala.Civ. App.1988). When a nonparent is the petitioner in an action to terminate parental rights, the trial court's determination is governed by a two-pronged test. M.C., supra; Ex parte Beasley, 564 So.2d 950 (Ala.1990). First, the trial court must determine from clear and convincing evidence that the child is dependent. Id. Second, the court must consider all other viable relative resources; if all are rejected, then the court can terminate parental rights. Id.

"The trial court shall consider, inter alia, whether the parents have abandoned their children, whether the parents have problems with drug or alcohol abuse, and whether reasonable efforts to rehabilitate the parents have failed. § 26-18-7(a). If the children are not in the physical custody of their parents, the trial court shall also consider whether the parents have provided for the material needs of the children, whether the parents have maintained regular scheduled visits with the children, and whether the parents have adjusted their circumstances to meet the needs of the children according to agreements reached administratively or judicially. § 26-18-7(b)."

M.C., 607 So.2d at 1268-69.

The first issue the mother raises on appeal is whether the judgment terminating her parental rights is supported by sufficient evidence. The evidence indicates that DHR was contacted in 1991 regarding injuries to one of the twin boys, who were at that time 5 months old. The mother had gone to the beach and had left the children in the care of relatives. DHR was unable to determine who had inflicted the injuries on the child. DHR filed a dependency petition. The trial court granted the petition and placed them in the custody of DHR. It was later determined that one of the twin boys suffered from cerebral palsy and was legally blind. The mother and father worked with DHR and maintained visitation with the children. After conducting several reviews, the court transferred physical custody to the mother in September 1992 with legal custody remaining in DHR. In February 1993, the mother returned the children to their foster home, explaining that the father had started drinking and had thrown a crowbar at her, and that she was concerned for the children's safety.

The mother maintained visitation with the children until her parental rights were terminated by the juvenile court in April 1995. According to the testimony of DHR social worker Melba Flowers, the mother's visitation history after she returned the children to the foster home is as follows: 12 visits from February 1993 to August 1993; nine visits from September 1993 to December 1993, with many of these visits being for the weekend; 12 weekend visits from January 1994 to August 1994; 3 visits from August 1994 to December 1994, although there were no visits between September 24 and December 24; and 4 visits from January 1995 to April 1995. Ms. Flowers also testified that the mother visited as often as she could, and that it was DHR's policy that visitation was not allowed once parental rights were terminated. Thus, the mother was not allowed visitation after April 1995. In fact, Ms. Flowers testified that she would not have permitted visitation unless the judge had ordered it. The trial court states in its judgment that the mother did not attempt to visit the children after March 1995; however, the record contains a petition for visitation filed by the mother in March 1996, stating that DHR would not allow her visitation and requesting that the trial court provide her visitation rights. In addition, the mother did visit one of the twin boys in the hospital in June 1995, where he was recovering from a head injury he suffered after he was run over by a four-wheeler while in the foster parents' custody.

DHR contends that the mother has not shown that she has the ability to care for her children. The foster mother testified that on several occasions the twin who has cerebral palsy was covered with mosquito bites when he was returned to her after visitation with his mother, and that the children were always dirty when they returned from weekend visitations. DHR also contends that the mother failed to take the children to the doctor when they got sick while they were visiting her. In addition,...