Pignolet v. State Dept. of Pensions and Sec.

• Decision Date: 22 January 1986
• Citation: 489 So.2d 588
• Parties: Richard PIGNOLET; Donna L. Pierce v. STATE DEPARTMENT OF PENSIONS AND SECURITY. (In the Matter of Amanda PIERCE and Gustave Pierce). Civ. 4993-A.
• Court: Alabama Court of Civil Appeals

Page 588

489 So.2d 588

Richard PIGNOLET; Donna L. Pierce v. STATE DEPARTMENT OF PENSIONS AND SECURITY.

(In the Matter of Amanda PIERCE and Gustave Pierce).

Civ. 4993-A.

Court of Civil Appeals of Alabama.

Jan. 22, 1986.

Rehearing Denied Feb. 26, 1986.

Certiorari Denied May 30, 1986

Alabama Supreme Court 85-643.

Jim L. DeBardelaben of McPhillips, DeBardelaben & Hawthorne, Montgomery, for appellant Donna Pierce.

Stephen K. Simpson of Smith, Cruse & Law, Montgomery, for appellant Richard Pignolet.

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

BRADLEY, Judge.

This is a termination of parental rights case.

After a hearing, Montgomery Circuit Court, Juvenile Division, terminated the parental rights of Richard Pignolet and Donna Pierce in their children, Amanda Pierce and Gustave Pierce. The court placed permanent custody of the two children in the Alabama Department of Pensions and Security (DPS) so that they may be placed for adoption. The mother and father separately appeal this decision.

DPS became involved in this case in December 1983 when responding to a call regarding possible neglect. The family identified themselves as "Richard and Bernice Smith" and their children "David, Dennis, and Sue Smith." They were living at the KOA campground in Hope Hull in a bus which had been converted into a trailer.

The DPS worker explained to "Mrs. Smith," who was pregnant with her fourth child, programs which were available for her and her family, and how to apply for them. The worker offered to assist "Mrs. Smith" in obtaining identification, and to help her improve the family's living conditions, which were described as "filthy."

In January 1984 DPS received another neglect complaint on the "Smith" family. They discovered that there had been no improvement in the living conditions, and "Mrs. Smith" had not followed through on applying to any of the public assistance programs.

DPS observed that even though it was cold outside and the trailer was not adequately heated "Sue" was dressed in nothing but a diaper. "David" and "Dennis" were dressed in filthy pajamas. "David," who was school-age, had never been enrolled in school. A pick-up order was granted, and the children were taken into protective custody.

A medical examination of the children revealed that "Sue" had an ear infection, a bacterial infection on her buttocks caused by repeated urination in the same diaper, and a temperature of 102.6 degrees. The boys were found to have a redness in their genital area, as well as on the legs and buttocks, due to wearing clothes soaked with urine.

At the review hearing held within seventy-two hours, "Mr. and Mrs. Smith" identified themselves and their children as the "Smith" family under oath in open court. They presented fabricated certificates of baptism to verify the children's alias names.

In February 1984 "Mrs. Smith," who was really Donna Pierce, informed DPS of the true identity of herself and her family after "Mr. Smith," who was really Richard Pignolet, abandoned her. The children were identified as Johnathan, Adam, and Amanda Pierce, and there were birth certificates to verify this.

Johnathan's and Adam's father is Willard Pierce, Donna Pierce's first husband. These two children are in the custody of their paternal grandparents in Rhode Island.

Amanda was fathered by Richard Pignolet, Donna Pierce's common law husband. Mrs. Pierce's fourth child, Gustave Pierce, also fathered by Richard Pignolet, was born in May 1984, and was immediately taken into protective custody.

There was evidence that when the mother brought her two oldest children, Johnathan and Adam, to Alabama from Rhode Island it was in violation of a court order. At the time that the father left Rhode Island for Alabama, he was out of jail on bail pending an appeal of his conviction for sexually abusing his stepdaughters from a previous relationship.

In March 1985 a petition asking the court to terminate parental rights and award permanent custody of Amanda and Gustave to DPS was filed. The mother, who had returned to Rhode Island in October 1984, was notified of the petition and, at her request, an attorney was appointed to represent her. Notice was also given to the father, who had been returned to Rhode Island to serve his sentence at an adult correctional facility. The father also requested that an attorney be appointed to represent him, and the request was granted.

In April 1985 the father, through his attorney, filed a motion to compel attendance, which was denied. At the termination hearing the father's attorney indicated that he wished to present testimony and physical evidence from the father but was precluded from doing so because his client was denied attendance at the hearing. On appeal, the father contends that he was denied his fundamental rights of due process when the trial court denied his motion to compel attendance.

In our research we could find no cases where the Alabama courts have specifically addressed the issue of whether a prisoner has the right to personally appear at a termination of parental rights hearing. It has been stated that due process of law requires that there be notice, a hearing conducted in accord with that notice, and a judgment consistent with that notice and hearing. Opinion of the Justices, 345 So.2d 1354 (Ala.1977). Where there is representation by counsel and an opportunity to present testimony through deposition, then due process does not require that an incarcerated parent be allowed to attend the termination hearing. Eastman v. Eastman, 429 So.2d 1058 (Ala.Civ.App.1983); 16D C.J.S. Constitutional Law § 1254 (1985).

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