Moore, Matter of

• Decision Date: 17 April 1985
• Citation: 470 So.2d 1269
• Parties: (In the Matter of Chauncey Delano MOORE, a minor). Josephine MOORE v. STATE of Alabama, DEPARTMENT OF PENSIONS AND SECURITY. Civ. 4465.
• Court: Alabama Court of Civil Appeals

Page 1269

470 So.2d 1269

(In the Matter of Chauncey Delano MOORE, a minor) Josephine MOORE v. STATE of Alabama, DEPARTMENT OF PENSIONS AND SECURITY.

Civ. 4465.

Court of Civil Appeals of Alabama.

April 17, 1985.

Myron K. Allenstein, Gadsden, for appellant.

Mary Lee Stapp and John Coleman Campbell, Asst. Attys. Gen., for appellee.

BRADLEY, Judge.

This is a termination of parental rights case.

The Juvenile Court of Etowah County ordered the permanent termination of all parental rights of the mother, Josephine Moore, in her infant son, Chauncey Delano Moore, and awarded custody to the Alabama Department of Pensions and Security (DPS). The mother appeals. We affirm.

The right to maintain family integrity is a fundamental right, protected by due process requirements of the Constitution. Hamilton v. State, 410 So.2d 64 (Ala.Civ.App.1982), citing May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953). See also Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). This affords a parent a prima facie right to custody of its child. Matter of Mastin, 462 So.2d 938 (Ala.Civ.App.1984). The parent's prima facie right to custody, however, may be overcome where it is shown that such custody is contrary to the best interests and welfare of the child. In re Palmer, 387 So.2d 215 (Ala.Civ.App.1980). In order to terminate parental rights, the court must make several findings. First, the court must find that the child is dependent based on clear and convincing evidence. § 12-15-65(e), Code 1975. If dependency is found, the court must then find that there exists no viable alternative to termination of the parent's custodial rights. Glover v. Alabama Department of Pensions & Security, 401 So.2d 786 (Ala.Civ.App.1981). There must also be clear and convincing evidence that it would not be in the best interests of the child to be in the natural parent's custody. Matter of Rivera, 444 So.2d 858 (Ala.Civ.App.1983). Since the trial court hears the evidence presented ore tenus, its decision is then presumed correct and will be set aside only after a careful search of the record reveals the decision to be plainly and palpably wrong. Williams v. State Department of Pensions & Security, 460 So.2d 1348 (Ala.Civ.App.1984).

The mother first contends that the state failed to meet its burden of proving by clear and convincing evidence that her child was dependent and that it would not be in the child's best interests to be placed in her custody. We disagree.

The mother has a long history of mental instability and aggression toward others. At age seven she was found banging her head against a wall and striking herself at school. By age ten she had become such a discipline problem as to be permanently expelled from school. In 1975 she was hospitalized by DPS at the recommendation of a psychiatrist and diagnosed as schizophrenic and mildly retarded. While hospitalized, she suffered from hallucinations, was destructive, struck a staff member with a crutch, and reported hearing voices laughing at her and telling her to do bad things. Thirty-three times she was secluded for her own protection and for the protection of others. In late 1977 she was released.

In July 1981 her first child, Calandra, was born. The mother developed an acute psychotic episode after birth, including auditory and visual hallucinations, and was taken from the obstetrics recovery ward to the psychiatric ward. After being released from the hospital, she threatened to kill Calandra. She was picked up twice on lunacy charges and hospitalized in 1982 for taking an overdose of prescribed medicine. She was committed to the North Alabama Regional Hospital on May 20, 1982, where she threatened to kill other patients, to commit suicide, and stated that she was two persons, one of which did not need to live. She was released on August 6, 1982, shortly after having her parental rights to Calandra terminated.

The mother gave birth to Chauncey, the child at issue in this suit, on November 19, 1983. While pregnant she threatened suicide and to harm her unborn child. She threatened to kill a DPS social worker. Pursuant to a court order, DPS picked up Chauncey at the hospital on November 21 and, with the agreement of the parties, retained temporary custody. In December the mother called DPS to report she had lost control and almost set her apartment on fire. The mother was diagnosed in February 1984 as being a chronic schizophrenic with paranoid ideation and as having significant psychiatric disturbances. The psychiatrist concluded that she would remain at risk for potential neglect or abuse. In March 1984 she called a DPS social worker and split into two personalities, one of which threatened the social worker. In April 1984 she called DPS to report that she might hurt herself or her mother, who lived with her. During this time she was allowed to visit with Chauncey, but only in the presence of others and not in her home.

Based on the foregoing, we conclude that the State did present clear and convincing evidence that Chauncey was a dependent child and that his best interests would not be served by being placed in his mother's custody.

Next, the mother contends that the trial court failed to exhaust all viable alternatives to termination of her rights. We disagree.

She contends that the maternal grandmother was a viable alternative. The facts show otherwise. The grandmother and the...