Lovell v. Department of Pensions and Sec.
| Decision Date | 08 March 1978 |
| Citation | 356 So.2d 188 |
| Parties | Linda LOVELL v. DEPARTMENT OF PENSIONS AND SECURITY of the State of Alabama. Civ. 1274-A. |
| Court | Alabama Court of Civil Appeals |
J. Norman Bradley, Jr., Huntsville, Legal Aid Society of Madison County, for appellant.
William J. Baxley, Atty. Gen. and Mary Lee Stapp, Jamie L. Pettigrew, Asst. Attys. Gen., Fred B. Simpson, Dist. Atty., 23rd Judicial Circuit, Grady L. Morgan, Asst. Dist. Atty., for appellee.
This is a case involving custody of children. The Circuit Court of Madison County found two children, one five years old and the other one month old, to be dependent children within the meaning of Code of Ala.1975, § 12-15-1 (formerly Tit. 13A, § 5-101, Code of Ala.1940).
The trial court awarded permanent custody and the legal guardianship of the children to be the Department of Pensions and Security. Additionally, the trial court's order permanently terminated the parental rights of the mother.
From this decree, the natural mother appeals and presents the following issues: 1. Does the evidence support the trial court's action in awarding custody to the Department of Pensions and Security? 2. Was the mother denied due process of law when the petition seeking permanent custody of one of the children was not served until the day before the hearing?
Viewing the testimony with the attendant presumptions, we find the following: Phillip and Kathy, the children involved, were, at the time of the trial, ages five years and one month, respectively. Each child was fathered by a man not married to Linda Lovell. The mother has been divorced once and her current husband is presently in jail.
Since 1969, the Department of Pensions and Security in Jackson and Madison Counties has been working with the mother in an attempt to bring about a stable home for the children. The training of the mother in basic household skills and parenting-skill training sessions conducted by the Department of Pensions and Security have proved to be unsuccessful.
The mother is mentally retarded. Her full-scale I.Q. has been established at 52. There was testimony from a licensed psychologist to the effect that the mother would need someone to assist her in the areas of housekeeping and mothering. Furthermore, the assistance required would be long-term and extend to "all things we take for granted every day that we do in organizing our lives."
The record further reveals the oldest child, Phillip, has been subjected to neglect and abuse. This was evidenced in a report by the Madison County Department of Pensions and Security which set out instances of dehydration, bruises on the body of the child, and a general description of the home life in which many of the adults drank excessively.
During the time the mother was approximately eight months pregnant with her youngest child, Kathy, she stayed out late at night on numerous occasions with her cousin, a prostitute. On one of these occasions, the mother and her cousin were questioned by the police concerning solicitation although no charges were brought nor solicitation proven concerning the appellant-mother.
Furthermore, the mother has no means of support notwithstanding her social security and AFDC payments. Over the past nine months, she has lived in six different residences.
The record also reveals that the mother does not have a place in which to raise the children besides the homes of relatives. As noted above, the evidence shows that their homes do not offer any improvement in that excessive drinking, drugs and overcrowded conditions predominate.
At the outset, as indicated above, we note the oft stated rule that decrees of the trial court in child custody cases, rendered after hearing witnesses ore tenus, will be given every favorable presumption and will not be disturbed unless palpably wrong. See Strickland v. Osborn, Ala.Civ.App.,333 So.2d 582 (1976); 12 Ala.Dig. Infants k19.3(7).
The controlling consideration in child custody matters is the best interest of the child. See State Department of Pensions and Security v. Hornbuckle, Ala.Civ.App., 336 So.2d 1372 (1976); 12 Ala.Dig. Infants k19.2(2). It therefore follows that while the parent has a prima facie right to the custody of a child, this right is not absolute and must yield to the superior criterion of the child's welfare.
Viewing the evidence as set out above, with the above stated principles in mind, this court can hardly find that the trial court was palpably wrong in finding that the best interest of the children was served by their permanent custody being placed with the Department of Pensions and Security.
For cases where even less evidence than is presented here has been held sufficient to sustain a decree of the trial court awarding custody of a minor to the Department of Pensions and Security, see Smith v. State Department of Pensions and Security, Ala.Civ.App., 340 So.2d 34 (1976); Harrell v. Long, 49 Ala.App. 322, 272 So.2d 248 (1973).
Able counsel for the mother, in an excellent brief, alludes to the contention that the Department of Pensions and Security did not meet its burden of showing that measures less drastic than removal of permanent custody from the mother would be unavailing. Appellant relies on Roe v. Conn, 417 F.Supp. 769 (M.D.Ala.1976), as its authority.
The trial court, in determining the best interests of the children, looks at several factors. Less drastic measures than permanent removal of custody from the mother is such a factor the trial court should consider. The fact that the Department of Pensions and Security itself takes into consideration many factors in determining the best interest of the child, including less drastic measures than attempting removal of permanent custody, is evidenced by the following statement made by the Department of Pensions and Security at the temporary custody hearing of Kathy:
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...75-1205, p. 2384, which is still in effect, as modified, today. See Ala.Code 1975, § 12-15-1 et seq. In Lovell v. Department of Pensions & Security, 356 So.2d 188 (Ala. Civ.App.1978), and Miller v. Alabama Department of Pensions & Security, 374 So.2d 1370 (Ala.Civ.App.1979), this court conc......
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