Columbus v. State, Dept. of Human Resources

• Citation: 523 So.2d 419
• Parties: Denise COLUMBUS; Michael Moore v. STATE of Alabama, DEPARTMENT OF HUMAN RESOURCES. (In the Matter of Adam COLUMBUS). Civ. 5801-A.
• Decision Date: 16 December 1987
• Court: Alabama Court of Civil Appeals

Page 419

523 So.2d 419

Denise COLUMBUS; Michael Moore v. STATE of Alabama, DEPARTMENT OF HUMAN RESOURCES.

(In the Matter of Adam COLUMBUS).

Civ. 5801-A.

Court of Civil Appeals of Alabama.

Dec. 16, 1987.

Rehearing Denied Feb. 3, 1988.

Certiorari Denied April 29, 1988

Alabama Supreme Court 87-584 and 87-585.

George W. Harris, Tuscaloosa, for appellant Michael Moore.

Robert M. Weinberg, Tuscaloosa, for appellant Denise Columbus.

William Prendergast and Coleman Campbell, Asst. Attys. Gen., for appellee.

BRADLEY, Presiding Judge.

This is a termination of parental rights case.

The Juvenile Court of Tuscaloosa County ordered the permanent termination of all the parental rights of the mother, Denise Columbus, and the father, Michael Moore, in their child Adam Columbus. Custody was awarded to the Department of Human Resources (Department) so that permanent arrangements could be made for Adam. Both mother and father appeal. We affirm.

The natural parents have a prima facie right to the custody of their child, Fitzgerald v. Fitzgerald, 490 So.2d 4 (Ala.Civ.App.1986), which right can be overcome only by clear and convincing evidence that the best interests of the child will be served only by being permanently removed from parental custody. Johnson v. State, 485 So.2d 1185 (Ala.Civ.App.1986). In order to terminate parental rights, the trial court must apply a two-pronged test. First, the court must find from clear and convincing evidence that the child is dependent. § 12-15-65(e), Code 1975. See, Brown v. Alabama Department of Pensions & Security, 473 So.2d 533 (Ala.Civ.App.1985). Second, the court must determine whether there are available less drastic alternatives than termination of parental rights. Matter of Colbert, 474 So.2d 1143 (Ala.Civ.App.1985).

The Child Protection Act of 1984, codified at sections 26-18-1 to -10, Code 1975, authorizes a juvenile court to terminate parental rights if it finds from clear and convincing evidence that a parent is unwilling or unable to satisfy his responsibilities to his child. This section lists several factors which may be considered by the court in finding a child dependent, thus authorizing termination of parental rights. Matter of Colbert, supra; § 26-18-7(a), Code 1975. Among the factors listed are the following:

"(1) That the parents have abandoned the child, as herein defined;

"(2) Emotional illness, mental illness or mental deficiency of the parent ... of such duration or nature as to render the parent unable to care for needs of the child."

§ 26-18-7(a), Code 1975. We hasten to note that the Child Protection Act is a codification of only one of the grounds upon which a court can determine that a child is dependent and thus in need of a decision as to his welfare. Matter of Colbert, supra. In addition to a finding of dependency, the court must also consider whether there are less drastic alternatives than termination of parental rights. Brown v. Alabama Department of Pensions & Security, supra. When evidence is presented ore tenus, the trial court's judgment will be presumed correct and will not be set aside on appeal absent a showing that it is so unsupported by the evidence as to be considered plainly and palpably wrong. Wallace v. Jefferson County Department of Pensions & Security, 501 So.2d 473 (Ala.Civ.App.1986).

The mother contends that the ore tenus rule should not be applied when determining whether parental rights should be terminated. We do not find merit in this argument. The ore tenus rule is merely a standard of review that the appellate courts use to review factual determinations of the trial court and not the burden of persuasion. The burden of proof required is clear and convincing evidence as mandated by statute in Alabama. See, §§ 12-15-65(e) and 26-18-7(a), Code 1975. The appellate court must find, within the record, sufficient evidence that is clear and convincing in order to affirm.

The pertinent facts reveal that Denise Columbus gave birth to Adam Columbus on June 25, 1979 without identifying the father. The Department obtained custody of Adam when Youth Aid found the ten-day-old child alone and unattended. The mother was unemployed, having no visible means of support other than food stamps. The Department worked with the mother on employment motivation while Adam was in foster care and provided visitation between mother and child, as well as other rehabilitative services so that custody of Adam could be returned to her.

In April of 1981 the mother regained physical custody of Adam. The Department retained legal custody of Adam and supervised his return home. From April 1981 until August 1981 the Department provided four different day care facilities for Adam, none of which was suitable to the mother. The mother made several moves without notifying the Department as required, and she missed food stamp appointments which resulted in a temporary loss of food stamps. In August 1981 the Department visited the home to discuss with the mother these various complaints. The case worker determined Adam was improperly supervised and subsequently removed him from the home.

During the period of foster care between August 1981 and July 1982, the Department provided the mother with counseling services and visitation, and encouraged the mother to join Parents Anonymous, which she did. The Department concluded that the child could be returned to the custody of the mother in July 1982. Adam remained in the mother's custody until October 1985 with one exception during August of 1982 when babysitters discovered red marks on Adam's face, hands, and ears, and found his hands and ears swollen. Youth Aid was notified and Adam was rushed to the hospital. Adam had suffered from an allergic reaction to an unknown type of bug bite. Further investigation of the incident revealed that the mother had been aware of the marks prior to leaving the child. Adam was placed by the Department in shelter care for medical observation.

After this incident, custody was returned to the mother in late 1982 with support services of an early childhood day care program, Parents Anonymous, and the services of a doctor who did research on noncompliant children and was contacted to help the mother with Adam. During the spring of 1983 the mother withdrew Adam from the early childhood day care, which was one of the support system services. During the rest of 1983 and 1984 the Department provided periodic services to Adam and his mother, but contact was very limited. In May 1985 day care was requested by the mother, specifically the services of Connie Turner, who had been Adam's foster care mother. The Department made the arrangements, agreeing to pay Ms. Turner $95 per month, while the mother contributed $5 per week. Day care began in June but was terminated in July due to the mother's failure to pay the co-payment.

In September 1985 Adam's school officials contacted Adam's caseworker and expressed concern about his development. They also indicated that Adam had said he was alone at night frequently. The caseworker contacted the mother regarding these concerns and found the mother evasive and uncooperative in providing necessary information. The caseworker explained to the mother the gravity of leaving the child alone at night and informed her that if the child were found alone again she would lose custody of him. The Department, upon receipt of an anonymous call, sent Youth Aid to Adam's home. With the assistance of the apartment manager, Youth Aid entered the apartment at 9:30 p.m. to find Adam unattended.

The Department filed a petition for custody and placed the child with his foster mother, Ms. Turner. The Department also asked for termination of parental rights of the mother. This decision was based on six years of rehabilitative efforts with the mother.

At trial there was testimony from a school counselor who had worked with Adam from October 1985 through May 1986 that Adam was a fearful child. The counselor testified that Adam's behavior was more fearful than is normally exhibited by the typical child changing schools or starting school for the first time.

When questioned about Adam's improvement one year after being placed in foster care, the counselor replied that he showed significant improvement in his behavior, had a higher self esteem, was better able to express his feelings, and was involved in a special privilege program at school. As to Adam's emotional attachment with his mother, the counselor testified that Adam was fearful of his mother and often made negative remarks about her.

The record further reveals that Adam was tested by the school's psychometrist, who does psychological evaluations on children referred for special education services. Adam's scores indicated he was educably mentally retarded. The psychometrist's opinion was that Adam qualified for the special class for children with emotional problems; however, he was not placed in this class since it was believed that the change would be more detrimental than beneficial to him. Adam was tested again prior to trial. He qualified for, and was placed in, a class for children with emotional conflicts.

In November 1985 Adam was referred to Dr. Karen Turnbow at Indian Rivers Mental Health Center because he was disruptive in school and exhibited inappropriate speech, underdeveloped communication skills, and poor social skills. Dr. Turnbow's initial evaluation of Adam indicated that he was immature and aggressive, had poor impulse control, had limited verbal skills, and had difficulty acknowledging and expressing his feelings. He was also anxious, oppositional, and demanding, as well as having difficulty trusting others.

Dr. Turnbow indicated that Adam resembled a child that had been emotionally and culturally deprived. Adam has since improved in his abilities to relate to others, is not as anxious, has better speech development, and is better able to express his feelings, all of which Dr. Turnbow...