Ex parte Beasley

Citation564 So.2d 950
PartiesEx parte Karen BEASLEY. (Re In the Matter of Barrett Ryan BEASLEY. (Re Karen BEASLEY v. Byron E. BEASLEY)). 88-1373.
Decision Date02 February 1990
CourtSupreme Court of Alabama

E.L. Brobston, Bessemer, for petitioner.

Elizabeth Potter Graham of Legal Aid Soc. of Birmingham, Inc., Guardian ad litem.

PER CURIAM.

We granted certiorari in this case to determine whether the Court of Civil Appeals erred in holding that the 1984 Child Protection Act, Ala.Code 1975, §§ 26-18-1 to 26-18-10, requires a juvenile court to make a "finding of dependency" before parental rights can be terminated. The trial court determined that a finding of dependency was not required; the Court of Civil Appeals, citing Ex parte Brooks, 513 So.2d 614 (Ala.1987), reversed. Because we hold In 1981, Karen Walker married Byron Beasley. Byron was initially employed in a steel plant located in Bessemer, Alabama, where Karen and Byron purchased a home. After Karen became pregnant, Byron quit his job at the steel plant and got a job transporting musical groups touring the country. When Karen gave birth to their son, Barrett Ryan Beasley, Byron was given a two-week leave of absence from his job so that he could spend time with Karen and the son. Despite the two-week leave given to him, Byron chose to return to his job transporting a musical group in California and thus left three days after his son's birth.

that, when one parent seeks to terminate the other parent's parental rights, a "finding of dependency," as a matter of law, is not required, we reverse the judgment of the Court of Civil Appeals, 1 and remand the cause with instructions.

Upon leaving the hospital, Karen and the baby returned to their Bessemer home. Three months later, Karen and her infant were forced to vacate the house, because Byron had failed to mail Karen the required mortgage payments. The default in payments ultimately resulted in foreclosure.

Having no other place to live, Karen and her son moved in with her parents. Three months later, Karen divorced Byron. Because Byron was unemployed at the time of the divorce, Karen agreed not to seek child support payments from him. Byron was granted reasonable visitation with his son.

Next, Karen and her infant son moved to Texas, where they lived for two years. While Karen was living in Texas, Byron occasionally visited her, requesting to see his son. Occasionally, Byron made child support payments to Karen. In the meantime, Byron remarried. Following an argument between Karen and Byron, Byron did not again visit with his son for two years.

During that two-year absence by Byron, Karen and her son again moved back to Alabama in order to again live with her parents. Later, Byron and his second wife contacted Karen in order to reschedule visits with his son. During that period, Byron visited with his son during the weekends for five months.

After Karen requested that Byron permit her to change their son's last name to Walker, Karen's maiden name, she did not hear from Byron again until she was notified that he had filed a motion to modify the divorce judgment, seeking "set" visitation periods with his son. In response to Byron's motion, Karen filed a motion to terminate Byron's right of visitation granted in the divorce decree. After a hearing, at which Byron did not appear, the trial court held that Byron's sporadic visits had confused his son rather than created a meaningful parent/child relationship; therefore, the trial court terminated Byron's right of visitation.

Claiming that Byron had "abandoned" his son by withholding his presence, care, love, protection, maintenance, and display of filial affection from him, Karen filed a petition to terminate Byron's parental rights.

Following service of process by publication, the Family Court of Jefferson County held a hearing. Although Byron did not appear at that hearing, a guardian ad litem appeared to represent the child. The court heard conflicting testimony from Karen, Karen's father, and Byron's mother concerning Byron's fitness as a parent to his son. At the conclusion of that hearing, the court granted the mother's petition on the ground that there was evidence that Byron had "abandoned" his son, as that word is defined in Ala.Code 1975, § 26-18-3(1), and that his abandonment constituted sufficient grounds to terminate Byron's parental rights pursuant to Ala.Code 1975, § 26-18-7(a)(1). The court also stated that such a termination of parental rights would be in the "child's best interest." In its order, the court stated that under its interpretation of the 1984 Child Protection Act a "finding of dependency [was] not a requisite to granting a petition for termination of parental rights."

The guardian ad litem, on behalf of the child, appealed to the Court of Civil Appeals, which reversed, holding that it "[could not] find that the 1984 Child Protection Act negates the necessity for the requisite finding of the child's dependency in any termination of parental rights regardless of whether the petition is brought by a parent or non-parent."

The purpose of the 1984 Child Protection Act is set out in § 26-18-2, which states:

"It is the purpose of this chapter to provide meaningful guidelines to be used by the juvenile court in cases involving the termination of parental rights in such a manner as to protect the welfare of children by providing stability and continuity in their lives, and at the same time to protect the rights of their parents. Appeals from an order terminating parental rights or refusing to terminate parental rights shall have precedence over all other cases in the court to which the appeal is taken. (Acts 1984, No. 84-261, p. 442, § 2.)" (Emphasis added.)

As stated by that section, the primary focus of a court in cases involving the termination of parental rights is to protect the welfare of children and at the same time to protect the rights of their parents. Inasmuch as the termination of parental rights strikes at the very heart of the family unit, a court should terminate parental rights only in the most egregious of circumstances. Moreover, the age-old principle that, as against a challenge by a nonparent, a parent who is neither unfit nor guilty of forfeiting his or her parental rights is entitled to custody has been strengthened rather than weakened by the 1984 adoption of the Uniform Child Protection Act. See Ex parte Johnson, 474 So.2d 715 (Ala.1985).

Mindful of the serious nature of terminating parental rights, this Court and the Court of Civil Appeals have stated that before a court can terminate an individual's parental rights it must apply a two-prong test. First, the court must make a "finding of dependency." Second, after it has determined that the child is "dependent," the court must inquire as to whether "all viable alternatives to termination have been considered." See Ex parte Brooks, 513 So.2d 614 (Ala.1987); Muffoletto v. Department of Human Resources, 537 So.2d 939 (Ala.Civ.App.1988); Wilson v. State Dep't of Human Resources, 527 So.2d 1322 (Ala.Civ.App.1988); Buchanan v. Department of Human Resources, 520 So.2d 539 (Ala.Civ.App.1988).

We begin our review by noting that nowhere in the Uniform Child Protection Act, Ala.Code 1975, §§ 26-18-1 to 26-18-10, does the Act require a "finding of dependency" by a court before it can order the termination of parental rights to a child. The grounds upon which a court can order the termination of parental rights are set forth in § 26-18-7, which reads as follows:

"(a) If the court finds from clear and convincing evidence, competent, material and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:

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

"(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for needs of the child;

"(3) That the parent has tortured, abused, cruelly beaten or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat or otherwise maltreat the child, or the said child is in clear and present danger of "(4) Conviction of or imprisonment for a felony;

being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by such treatment of a sibling;

"(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent;

"(6) That reasonable efforts by the department of human resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.

"(b) Where a child is not in the physical custody of its parent or parents appointed by the court, in addition to the foregoing, [the court] shall also consider, but is not limited to the following:

"(1) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of its support, where the parent is able to do so.

"(2) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the department, or any public or licensed private child care agency, and agreed to by the parent.

"(3) Failure by the parents to maintain consistent contact or communication with the child.

"(4) Lack of effort by the parent to...

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