Kennedy v. State Dept. of Pensions and Sec.

• Decision Date: 30 June 1964
• Docket Number: 2 Div. 455,Nos. 2,s. 2
• Citation: 277 Ala. 5,166 So.2d 736
• Parties: Eugene Davidson KENNEDY et al. v. STATE DEPARTMENT OF PENSIONS AND SECURITY. Div. 455,A andB.
• Court: Alabama Supreme Court

Page 736

166 So.2d 736

277 Ala. 5

Eugene Davidson KENNEDY et al. v. STATE DEPARTMENT OF PENSIONS AND SECURITY.

Nos. 2 Div. 455, 2 Div. 455A and 2 Div. 455B.

Supreme Court of Alabama.

June 30, 1964.

Geo. Azar and Capell, Howard, Knabe & Cobbs, Montgomery, for appellants.

Richmond M. Flowers, Atty. Gen., and Mary Lee Stapp, Asst. Atty. Gen., for appellee.

HARWOOD, Justice.

This is a most distressing case in that it involves the custody of three young children of parents who are spastics. Despite the high degree of courage displayed by the parents, the evidence discloses that they are caught in a vicious circle of physical incapacity, emotional strain, and financial distress beyond their capabilities to master. The net result has been a destruction of any reasonable hope for a home environment compatible with the welfare of the three young children. Fate has dealt these parents a miserable hand.

We are here reviewing three decrees of the Circuit Court of Dallas County, Alabama, awarding the custody of the three children of the appellants to the State Department of Pensions and Security of the State of Alabama. These cases came to the Circuit Court by appeal from the Juvenile Court of Dallas County, that court having also awarded the custody of the children to the State Department of Pensions and Security.

The decrees of the Circuit Court are so framed as to permit the State Department of Pensions and Security to place these children for adoption.

In the proceedings below the cases were consolidated for trial, the evidence being identical in each case, and likewise the cases were consolidated for purposes of appeal.

In the Circuit Court, and it appears also to have been done in the Juvenile Court, the cases were submitted by agreement upon affidavits, and the records of Bryce Hospital pertaining to Mrs. Kennedy. The cases therefore come to us without any presumption in favor of the findings and decrees of the lower court. Shubert v. Lacy, 257 Ala. 269, 60 So.2d 442; Redwine v. Jackson, 254 Ala. 564, 49 So.2d 115.

The evidence presented below tends to show that Mr. Kennedy, now approximately 50 years of age, was born a spastic. He was educated in the public schools of Selma and earned a B. S. degree in Commerce and Business Administration from the University of Alabama in 1943. After completing his education he operated an insurance agency in Selma and met with a fair degree of success.

In 1949 he married Anne Elizabeth Stowers who also had been born a spastic. She is now approximately 36 years of age. Three children have been born of this marriage, one in 1955, one in 1956, and the third in 1959. Each of these children is perfectly normal.

The appellants appear to have enjoyed a compatible and normal family relationship until the birth of their second child. The responsibility of caring for two children in view of their physical handicaps brought on stresses and strains with a deterioration of the family life into one of chaos and disorder.

Mrs. Kennedy's behavior became so irrational as to compel her admission to Bryce Hospital. In fact there have been several admissions of Mrs. Kennedy to Bryce Hospital due to her emotional condition. On one admission it was discovered that she was pregnant and she was released in order that her third child might be born in Selma.

Staunch friends, and relatives of the Kennedys have through the years given much of their time and effort toward trying to alleviate the domestic situation of the Kennedys. Among these have been the Rector of the Episcopal Church in Selma.

These people appear to have answered the calls of the Kennedys for help at any time during the day or night. These calls would come during violent disagreements between the Kennedys. The visitors would find the house in complete disorder, with beds unmade, furniture overturned, and Mr. and Mrs. Kennedy in violent arguments which sometimes progressed to the point of physical combat. The testimony of these people who were closely associated with the Kennedys depicts them as being emotionally unstable. Their quarrels and bickerings were continuous, and were generally based on petty and insignificant causes. The children were present during most of these exhibitions.

As a result of Mrs. Kennedy's hospitalizations, Mr. Kennedy was compelled to employ domestic help and to devote a considerable part of his time to the domestic troubles. His business deteriorated to the extent that considerable financial aid had to be furnished the Kennedys from other sources. The Episcopal minister arranged for a contribution of $150 per month from the Episcopal Church. Relatives also helped in the financial situation but the main source of this help from relatives has ceased because of inability of the donors to continue the payments.

In addition to...