Miller v. Alabama Dept. of Pensions and Sec.

• Decision Date: 09 May 1979
• Citation: 374 So.2d 1370
• Parties: Charlotte MILLER v. ALABAMA DEPARTMENT OF PENSIONS AND SECURITY. Civ. 1669.
• Court: Alabama Court of Civil Appeals

Page 1370

374 So.2d 1370

Charlotte MILLER v. ALABAMA DEPARTMENT OF PENSIONS AND SECURITY.

Civ. 1669.

Court of Civil Appeals of Alabama.

May 9, 1979.

Rehearing Denied June 20, 1979.

Myron K. Allenstein, Gadsden, for appellant.

Charles A. Graddick, Atty. Gen., Mary Lee Stapp, Jamie L. Pettigrew, Asst. Attys. Gen., for appellee.

BRADLEY, Judge.

The appeal is from an order of the Circuit Court of Etowah County placing permanent custody of a four year old child in the State Department of Pensions and Security (hereinafter DPS) and terminating the parental rights of the mother and father. The mother appeals.

On March 2, 1977 DPS filed a petition in the Juvenile Court of Etowah County seeking permanent custody of Ricky Lamar Miller. Thereafter the parents of the child filed their own petition seeking his custody. A hearing was held on April 28, 1977 on these petitions. Subsequent to the hearing and before a ruling by the trial court, a conference was had between the parties and the court. The family was given six months to rehabilitate itself and to show the court that a stable, healthful family environment could be established. Should this be done, the child would be returned to the parents. On October 6, 1977 the juvenile court awarded permanent custody to DPS.

On October 13, 1977 the parents appealed the order to the circuit court. The parents filed a motion for summary judgment and a motion for a more definite statement as to why their child was being taken from them. Both motions were denied.

This cause came on for hearing on the merits on July 26, 1978, at which time the mother moved to amend the petition for custody to show that she alone was asking for permanent custody. After a de novo hearing, the court issued its final order, which found that:

Ricky Lamar Miller is a child under sixteen (16) years of age and is a resident or physically located within Etowah County; that the child is neglected and/or dependent within the meaning of Alabama law and that the parents are unable to provide a suitable and stable home environment for the child; that the child is in need of and entitled to the care and protection of this Court and the State of Alabama and that the morals, health and general welfare will be best served by granting permanent care, custody and control of the child to the Department of Pensions and Security of the State of Alabama, and that said department is equipped to care for and has agreed to receive the child, if committed by final order of this Court.

The record shows that DPS gained temporary custody of Ricky in August 1974, when he was two months old. The record further discloses that the father, while in an intoxicated condition, took the child to the father's mother's house. An argument ensued resulting in violence to the grandmother. An ambulance came for the grandmother and the police found the child in the house unattended and in a lifeless condition. The police turned the child over to DPS. Not knowing the whereabouts of the mother, DPS obtained permission from the juvenile court to place the child in a foster home until other arrangements could be made. The next day the parents contacted DPS about their child. After a preliminary investigation and talking to the parents, DPS decided not to release the child to the parents at that time. A hearing was held before the juvenile court several days later and the judge informed the parents that the child would be returned to them if certain conditions were met. The conditions were never met, and the child was never returned to the parents' custody.

Testimony in the record shows that the mother and father have a long history of family arguments and fights, separation and reconciliation. The husband testified that during their short marriage, his wife had left him no less than fifty times, always coming back however. The father's testimony revealed that he has struck his wife on occasions when he had been drinking and they got into arguments. The mother had talked about divorce on several occasions when they had separated, but nothing came of this talk.

The record shows that the father has a serious drinking problem. He has been in and out of the United States Veterans' Administration hospitals seven or eight times for treatment of alcoholism. Also, he has been placed in jail many times for drunkenness. The testimony of the Millers was that in a three year span during the marriage, Mr. Miller had been in jail forty-two times. At the time of the hearing the father was in jail, and otherwise lived in a motel; the mother was living with relatives.

The father's employment record, as well as the mother's, is dismal. The testimony revealed that neither of the parents had held a job for more than a few months at a time. And, neither parent was employed at the time of the hearing in the circuit court.

The social workers employed by DPS testified that at the direction of the juvenile court, the parents had been told many times what they needed to do to rehabilitate their family so that the child could be returned to them. It was suggested that the father stop drinking, obtain regular employment, establish a more harmonious relationship with his wife, and, if necessary, seek counseling for his drinking problem. For the most part, these suggestions were ignored according to the social workers. Although the parents did contact DPS occasionally, most of the contacts with the parents were initiated by DPS; and, there were long periods when DPS had no knowledge of the whereabouts of the parents and could not get in touch with them to see if the conditions laid down by the juvenile court were being met.

The parents very seldom called to inquire about the welfare of the child; however, DPS workers did arrange for the parents to visit with the child so as to establish some familial rapport between them.

The record is replete with instances where not only the juvenile judge counseled with the parents but also where the DPS workers made extensive efforts to get the parents to establish a home to which the child could be returned. The recommendations made by the court and DPS for the establishment of a family environment that would warrant returning the child to the Millers were never met.

There are six issues raised in the mother's brief. The first two issues question the constitutionality of the juvenile code on the grounds that the termination of the parent-child relationship is permitted for reasons less compelling than required by the United States Constitution and that the code is unconstitutionally vague. See §§ 12-15-1 through 12-15-120, Code of Alabama 1975.

As to the first issue, the mother argues the constitutional standard to be applied when a parent-child relationship is terminated is a "harm standard" rather than the "best interests and welfare" standard ordinarily used in child custody cases. For this proposition the mother relies on the case of Roe v. Conn, 417 F.Supp. 769 (M.D.Ala.1976). Roe states:

The State's interest, however, would become "compelling" enough to sever entirely the parent-child relationship only when the child is subjected to real physical or emotional harm and less drastic measures would be unavailing. (Footnote omitted.)

DPS says that Roe does not apply to this case because the child in question is a "dependent child" within the meaning of the juvenile code, and Roe did not speak to "dependent" children.

Roe found that Title 13, §§ 350 and 352, Code of Alabama 1940 were unconstitutional as they applied to "neglected" children and that, as an alternative ground, the code provisions were unconstitutionally vague.

We have held that Roe applies only to "neglected" children and not to "dependent" children. Hunley v. Houston County, Alabama Dept. of Pensions and Security, Ala.Civ.App., 365 So.2d 81 (1978). We have also said that should Roe be construed to apply to "dependent" children, we would not be bound by that decision. Smith v. State Dept. of Pensions and Security, Ala.Civ.App., 340 So.2d 34 (1976).

The standard that has been applied by the courts of this state in child custody cases even where the state is involved is the best interests of the child. Lovell v. Department of Pensions and Security, Ala.Civ.App., 356 So.2d 188 (1978). We also said in that case that the parents have a prima facie right to the custody of their child but that this right is not absolute and must yield to the superior requirement of what is in the best interests and welfare of the child.

In deciding what is in the best interests of a child who is the subject of a custody dispute, the courts of this state consider many factors, among which would be conduct of the parents toward the child, family environment, health of the child, physical and emotional abuse of the child, abandonment of the child, love of and interest in the child by the parents, and activities of the parents that would be detrimental to the safety and welfare of the child. Foremost among the listed factors, especially in a situation where the state is seeking a termination of parental rights, would be less drastic measures than permanent removal of parental custody. Lovell, supra. For example, a court would certainly consider returning the child to parental custody on a trial basis subject to certain definite conditions being met and subject to supervision by DPS workers or other trained personnel; or temporary custody in a foster home with specific visitation with the child and conduct requirements to be met by parents; or that the parents are to be deprived of custody temporarily pending a correction of deficiencies in the home environment that were having or would have a harmful effect on the child should the child be placed back in the family relationship.

In the case at bar it is quite obvious from the record that the use of less drastic measures than permanent deprivation of custody was tried on many occasions and absolutely no cooperation was...