Hickman, In re
| Decision Date | 12 March 1986 |
| Citation | 489 So.2d 601 |
| Parties | In re Linda Diane HICKMAN. Jamie and Earl HICKMAN v. STATE of Alabama DEPARTMENT OF PENSIONS AND SECURITY. Civ. 5109. |
| Court | Alabama Court of Civil Appeals |
Charles R. Gillenwaters, Alexander City, for appellants.
Mary Lee Stapp and John Coleman Campbell, Asst. Attys. Gen., for appellee.
This is a case of termination of parental rights. The only issue on appeal is whether there was clear and convincing evidence before the trial court to support its order terminating the parental rights of Jamie and Earl Hickman.
(DPS) received a complaint from Russell Hospital indicating that Earl Hickman, the father of a premature baby girl, was threatening to remove the child from the hospital and that the hospital believed that the baby's life would be endangered. A temporary verbal restraining order was issued on November 7, 1983, to prevent the father from removing the baby from the hospital. DPS later filed a petition for temporary legal custody, which was granted.
The baby was allowed to go home from the hospital with the parents on the condition that they live with the mother's aunt, Ruth Wesson. However, on November 19, 1983, DPS removed the child from the home and placed it in an unrelated foster home, because the father was allegedly once again attempting to place the child in a potentially life-threatening situation. The child has remained in foster care since that time.
A petition was filed by DPS in the Tallapoosa County Juvenile Court in May 1985, seeking permanent custody and termination of parental rights for the child. The petition alleged that the reason for the termination of parental rights was the total inability of the parents to provide financial support, emotional support, medical treatment, food, clothing and shelter for the child. The petition further alleged that the child was a special needs child and that the mother and father were unable to meet her needs in any respect. After a hearing, the court granted the petition of DPS. The mother and father appeal from that judgment.
Natural parents have a fundamental and prima facie right to the custody of their child. Glover v. Alabama Department of Pensions and Security, 401 So.2d 786 (Ala.Civ.App.1981). There is a presumption that the child's best interest will be served by placing it in the custody of the natural parents. Vinson v. AGAPE of Central Alabama, Inc., 416 So.2d 1075 (Ala.Civ.App.1982). This presumption may be overcome only where there is clear and convincing evidence that it would not be in the child's best interest to be in the natural parents' custody. Matter of Moore, 470 So.2d 1269 (Ala.Civ.App.1985). The court must make several findings in order to terminate parental rights. The court must first find that the child is dependent based on clear and convincing evidence. § 12-15-65(e), Code of Alabama 1975. If the court finds that the child is dependent, it must then find that there exists no viable alternative to termination of the parents' custodial rights. Matter of Burnett, 469 So.2d 627 (Ala.Civ.App.1985).
There was a lack of clear and convincing evidence before the trial court to terminate parental rights in this case. The evidence reveals that at the time of the hearing the father was employed as a construction worker and that his gross pay was $205 per week. It further revealed that he has maintained some form of employment during the entire length of the marriage. The mother...
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