MHJ v. State Dept. of Human Resources

• Decision Date: 15 September 2000
• Parties: M.H.J. v. STATE DEPARTMENT OF HUMAN RESOURCES. J.D.J. v. State Department of Human Resources.
• Court: Alabama Court of Civil Appeals

785 So.2d 372

M.H.J. v. STATE DEPARTMENT OF HUMAN RESOURCES.

J.D.J. v. State Department of Human Resources.

2916.

Court of Civil Appeals of Alabama.

September 15, 2000.

Rehearing Applications Denied December 1, 2000.

Richard Collins, Cullman, for appellant M.H.J.

C. Blake West, Cullman, for appellant J.D.J.

J. Coleman Campbell and Lynn S. Merrill, asst. attys. gen., Department of Human Resources, for appellee.

CRAWLEY, Judge.

In August 1998, W.J. (the "baby") was born to M.H.J. (the "mother") and J.D.J. (the "father") at Walker Baptist Medical Center. At birth, the baby tested positive for marijuana, as did his mother. Because of the risk of death from respiratory failure faced by the baby, the mother was given an apnea monitor that the baby was to wear to alert her if the child stopped breathing. The mother informed the hospital staff that she intended to nurse the baby. The mother and baby were released from the hospital within 24 hours of the birth, despite the fact that the hospital staff and the Walker County Department of Human Resources ("DHR") knew of the mother's marijuana use and of the mother's plans to nurse the child. The Walker County DHR did notify the Cullman County DHR that the mother and child had tested positive for marijuana, because the mother and father resided in Cullman County and the family was presumed to be heading there. The case was assigned to Dana Rooks.

Rooks tried to locate the family at a relative's home in Cullman County. However, she was told that the family, including the parents' other two children, H.J. (approximate age four) and P.J. (approximate age six), had headed to Arkansas to visit with the father's mother, L.H. (the "grandmother"). Alarmed about the baby's health and the mother's possible continued drug use while nursing the baby, Rooks contacted the grandmother. According to Rooks, she impressed upon the grandmother the importance of locating the family so that DHR could provide assistance. Rooks also said she discussed with the grandmother the need for the baby to be on the apnea monitor and that the mother and baby had tested positive for marijuana. Rooks testified that she asked the grandmother to telephone her, the local child-welfare office, or the local police department if the family arrived at her home. Rooks said that she understood the grandmother to agree to make a telephone call if the family arrived.

The grandmother, however, did not remember that Rooks asked her to call when the family arrived. She testified that she thought that she was to call if the children appeared unhealthy. She said that she spoke with the mother and the father about calling DHR, and that when she did they became agitated and said that DHR wanted to take the baby away from them. They refused to call Rooks and left the grandmother's home. At this point, the grandmother called Rooks and reported that the family had been there, but had left, and that the children all appeared healthy to her.

DHR finally located the family in Cullman County in November 1998. DHR placed the children in foster care. The children were malnourished, and the older children required extensive dental treatment because their teeth were decaying and their gums were infected. The father had placed baby food mixed with formula in the baby's bottle; the baby was only two and one-half months old. DHR filed petitions to terminate parental rights on January 7, 2000; the trial court terminated the parental rights of both parents on March 22, 2000. Both parents appeal, arguing that DHR failed to consider the grandmother as a viable relative resource as an alternative to termination.

"The right to maintain family integrity is a fundamental right protected by the due process requirements of the Constitution. Pursuant to this right, Alabama courts recognize a presumption that parental custody will be in the best interests of a child. This prima facie right of a parent to the custody of his or her child can only be overcome by clear and convincing evidence that permanent removal from the parent's custody would be in the child's best interest.... In making that determination, the court must consider whether the parent is physically, financially, and mentally able to care for the child. If the court finds from clear and convincing evidence that the parent is unable or unwilling to discharge his or her responsibilities to and for the child, his or her parental rights can then be terminated, pursuant to [Ala.Code 1975,] § 26-18-7(a)...."

Bowman v. State Dep't of Human Resources, 534 So.2d 304, 305 (Ala.Civ.App. 1988) (citations omitted). The trial court's decision to terminate parental rights, which is based on evidence presented ore tenus, is presumed correct and will be reversed only if the record demonstrates that the decision is unsupported by the evidence and is plainly and palpably wrong. R.B. v. State Dep't of Human Resources, 669 So.2d 187 (Ala.Civ.App. 1995).

To terminate parental rights, the trial court must first determine from clear and convincing evidence that the child is dependent. S.F. v. Department of Human Resources, 680 So.2d 346 (Ala.Civ.App. 1996). The trial court must then determine that there exists no alternative to termination. L.A.G. v. State Dep't of Human Resources, 681 So.2d 596 (Ala.Civ. App.1996). If both requirements are met, the trial court may terminate the rights of the parent.

The parents concede that the children are dependent children. In fact, the parents were both convicted of child abuse and neglect; the record discloses that the father was given three eight-year sentences. They argue only that the grandmother should have been investigated as an...