Ex parte Brooks, 85-1115

• Decision Date: 31 July 1987
• Docket Number: No. 85-1115,85-1115
• Citation: 513 So.2d 614
• Parties: Ex parte J. Wynell BROOKS, guardian ad litem for David Carlton Stephenson, a Minor. Re: In the Matter of David Carlton STEPHENSON, a minor.
• Court: Alabama Supreme Court

Page 614

513 So.2d 614

Ex parte J. Wynell BROOKS, guardian ad litem for David Carlton Stephenson, a Minor Re: In the Matter of David Carlton STEPHENSON, a minor.

No. 85-1115.

Supreme Court of Alabama.

July 31, 1987.

J. Wynell Brooks, guardian ad litem, Birmingham, for petitioner.

J. Gary Pate of Najjar, Denaburg, Meyerson, Zarzaur, Max, Boyd & Schwartz, Birmingham, for respondent Sharon Reiss Stephenson.

ADAMS, Justice.

This is a case of first impression in Alabama and involves the termination of parental rights. The divorced parents of David Carlton Stephenson asked the trial court to terminate the parental rights of the child's father. The District Court of Jefferson County denied the parents' petition on the grounds that there was no evidence that David was harmed by the father and that David's future rights to support, parental affiliation, and inheritance would not be protected by the termination of the father's parental rights. The Court of Civil Appeals found that the ore tenus rule was inapplicable in this case and concluded that termination of the father's parental rights was appropriate because he had abandoned his son. We granted the guardian ad litem's petition for writ of certiorari, and the Court heard argument in the case en banc. We reverse the judgment of the Court of Civil Appeals.

The facts reveal that the parents were divorced when the mother, Sharon Reiss Stephenson, was three months pregnant with David. The divorce came about mainly because Mrs. Stephenson would not agree to her husband's insistence that she have an abortion. Since birth, David, who is now four years old, has lived with his mother and his half-sister. The father has never attempted to see David and, except for contributing $100.00 to Mrs. Stephenson's hospital expenses for childbirth, has contributed nothing to David's support.

At the time the Court of Civil Appeals released its opinion in this case in April 1986, the father was 28 years old and the mother was 33 years old. Mr. Stephenson is a deputy sheriff and earns approximately $750.00 biweekly. Mrs. Stephenson works as a bookkeeper, credit worker, Avon saleslady, seamstress, notary public, and child-care worker, and earns aproximately $1,200.00 per month (about $14,400.00 per year). Mrs. Stephenson owns her home and is current with all outstanding debts. She maintains a $100,000.00 life insurance policy on David's father which names David as the beneficiary.

Mrs. Stephenson seeks termination of Mr. Stephenson's parental rights, she contends, because he has shown no interest in David, lacks stability, is ill-tempered, and disapproves of her raising David as a Jew. She professes concern over a possible future custody dispute and disagreements with her former husband regarding David's upbringing.

Mr. Stephenson concurs with his former wife that he generally disagrees with her regarding child-rearing; however, he says he believes Mrs. Stephenson should rear David and has said that he has no interest in visiting his son. He agrees with Mrs. Stephenson that David's best interest would be served by terminating his (Mr. Stephenson's) parental rights.

The principal question before us is whether a parent's child support obligations may be waived by a joint petition for termination of parental rights. David's guardian ad litem argues that termination of the father's parental rights in this case is: (1) contrary to the intent of the Alabama Child Protection Act when no adoption is contemplated; (2) contrary to public policy; (3) impermissible when a less drastic remedy would better serve the child's interests; (4) improper when the petitioners have failed to prove permanent incompetency and unsuitability by clear and convincing evidence; and (5) erroneous without a finding that the child is dependent. Mrs. Stephenson argues that all criteria necessary to show abandonment have been established and that a court-appointed social worker has recommended termination of the father's parental rights.

The Court of Civil Appeals has held previously that termination of a father's parental rights requires clear and convincing evidence that termination would be in the child's best interest. Miller v. Alabama Dep't of Pensions & Sec., 374 So.2d 1370 (Ala.Civ.App.), writ quashed, 374 So.2d 1378 (Ala. 1979); In re Sanders, 420 So.2d 790 (Ala.Civ.App.1982). Ala.Code (1975), § 26-18-7, provides, in part, that abandonment, failure to provide support when the parent is able to do so, and failure of the parent to maintain "consistent contact or communication with the child," are factors which may be considered, among others, in determining whether to permit voluntary relinquishment of parental rights. In the present case, the Court of Civil Appeals found that Mr. Stephenson had abandoned his son and held that the abandonment justified the termination of the father's parental rights.

The purpose of the 1984 Child Protection Act is stated in § 26-18-2, which provides, in part:

It is the purpose of this chapter to provide meaningful guidelines...