W.T. v. State Dept. of Human Resources

• Decision Date: 21 November 1997
• Citation: 707 So.2d 647
• Parties: W.T. v. STATE DEPARTMENT OF HUMAN RESOURCES. (In the Matter of E.D.R.). 2960546.
• Court: Alabama Court of Civil Appeals

Page 647

707 So.2d 647

W.T. v. STATE DEPARTMENT OF HUMAN RESOURCES (In the Matter of E.D.R.).

2960546.

Court of Civil Appeals of Alabama.

Nov. 21, 1997.

Ginette A. Dow, Bessemer, for appellant.

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

CRAWLEY, Judge.

A.R. and W.T. are the mother and father of E.D.R., a two-year-old child. The parents are not married, but the father has legitimated the child. When E.D.R. was 10 months old, the State Department of Human Resources (DHR) filed a dependency petition, alleging that the mother had neglected to provide necessary medical care for the child. After an emergency hearing, the juvenile court determined that the child was dependent, placed him with the maternal grandmother, and set the matter for a dispositional hearing.

At the dispositional hearing, the mother did not seek custody of the child. Both the father and the maternal grandmother stipulated that the child was dependent, and each of them sought custody. After an ore tenus proceeding, the juvenile court determined that the father was unfit to have custody of the child and awarded custody to the maternal grandmother.

The father appeals, arguing that the record does not support the trial court's finding that he is unfit. We agree.

The father is 25 years old and has 7 children by 4 different women. He has moved five times in the last two years. At the time of the dispositional hearing, he lived in a two-bedroom house with his wife and her four children, three of whom are his. In addition, he has four other children (one of whom is E.D.R.) by three other women (one of whom is A.R.). The father has been employed by a moving company for seven years and earns $5.50 per hour. He works approximately 70 hours per week in the summer and 20 hours per week in the winter. His wife has a minimum-wage job at a fast-food restaurant. The father has three misdemeanor assault convictions, one of which involved domestic violence on his wife. He also has two prior convictions for public intoxication and one conviction for disorderly conduct.

The evidence was undisputed that the father loves and appropriately cares for the four children who live in his household. The evidence was also undisputed that the father had seen E.D.R. very infrequently during the time that the child was in the maternal grandmother's custody, in part because the father and the grandmother did not get along well and had difficulty arranging mutually convenient times for the father's visitation. The father's wife testified that she would welcome the child into her home. There was no testimony regarding the father's relationship with the three children he fathered by women other than A.R. or his wife.

The maternal grandmother is a college graduate, is retired from the Army, and does not work outside the home. She receives disability income as well as spousal support from her husband who is on active duty with the Army in Korea. She has a three-bedroom apartment that she shares with a daughter other than A.R., that daughter's child, and two of A.R.'s three children--E.D.R. and his older brother.

Valencia Curry, the DHR social worker who did a home study on both the father and the maternal grandmother, concluded that both homes were suitable for the child. However, she recommended to the court that the child be placed with the grandmother because the father had had "limited contact with" the child and because the child had "been placed with his grandmother and his brother the majority of his life and that's really the only people that he knows."

The evidence does not demonstrate that the father is unfit to have custody of E.D.R. The father is employed, his home was deemed suitable by a DHR social worker, and there was no proof of parental neglect. See J.F. v. A.G., 607 So.2d 234 (Ala.Civ.App.1991). The juvenile court erred by determining that the father was unfit to have custody of E.D.R. That error was harmless, however, because a finding of the father's unfitness was not required in order for the trial court to have awarded custody to the grandmother. All that was required was a finding that it was in the best interest of the child to be placed in the grandmother's custody.

The requirement that a trial court find parental unfitness before it deprives a parent of his or her prima facie right to custody applies to a custody dispute between a parent and a nonparent. See, e.g., Ex parte Terry, 494 So.2d 628 (Ala.1986); Ex parte D.J., 645 So.2d 303 (Ala.1994). In Terry, our supreme court held that in a custody dispute between a parent and a nonparent, the trial court may not award the child to the nonparent unless it finds, by clear and convincing evidence, that the parent is unfit. Later, in D.J., the court made it clear that the same parental presumption applies to a custody dispute between the father of a child born out of wedlock and a nonparent.

The parental presumption set out in cases such as Terry and D.J. does not apply, however, in the dispositional phase of a dependency proceeding under § 12-15-71(a), Ala.Code 1975. See, e.g., D.K.G. v. J.H., 627 So.2d 937 (Ala.Civ.App.1993); N.M. v. State, 625 So.2d 448 (Ala.Civ.App.1993); M.M. v. C.M., 600 So.2d 316, 318 (Ala.Civ.App.1992); Wallace v. Pollard, 532 So.2d 632 (Ala.Civ.App.1988); Jones v. Webb, 524 So.2d 374, 374-75 (Ala.Civ.App.1988); Minchew v. Mobile County Dep't of Human Resources, 504 So.2d 310 (Ala.Civ.App.1987); Martin v. State ex rel. Department of Human Resources, 502 So.2d 769 (Ala.Civ.App.1987); Anonymous v. Anonymous, 504 So.2d 289, 291 (Ala.Civ.App.1986), appeal dismissed sub nom. Brown v. Bailey, 484 U.S. 805, 108 S.Ct. 52, 98 L.Ed.2d 16 (1987); Sanders v. Guthrie, 437 So.2d 1313 (Ala.Civ.App.1983); Matter of Stacks, 406 So.2d 979 (Ala.Civ.App.1981).

"There is no requirement to find the parent unfit when dependency is found and temporary custody is placed with a relative to protect the welfare of the child."

C.P. v. M.K., 667 So.2d 1357, 1359 (Ala.Civ.App.1994) (Thigpen, J., concurring specially in part and dissenting in part).

Neither Terry nor D.J. was a dependency case. Each of those cases was, as this court said in Anonymous v. Anonymous, 504 So.2d at 291, "simply a custody dispute between parents and nonparents." Judge Holmes, writing for this court in Anonymous, recognized that a dependency case was something more than "simply a custody dispute." He stated:

"Whether the parents are unfit or not would be a determination necessary for termination of their parental rights. See Ala.Code (1975), § 26-18-7. Such a determination, however, is not necessary in a case such as this one in which the juvenile court makes a disposition following a finding that the child is dependent, as well as in need of supervision. Moreover, this case is not simply a custody dispute between parents and nonparents. Thus, the parents' reliance upon Ex parte Terry, 494 So.2d 628 (Ala.1986), is misplaced."

Anonymous v. Anonymous, 504 So.2d at 291.

On two other occasions, this court has explicitly recognized a distinction between dependency cases and custody disputes. Writing for this court in Jones v. Webb, Judge Ingram stated:

"Our consideration of all the matters before us convinces us that this case comes here more in the shape of a change of custody case than a determination of dependency case."

Jones v. Webb, 524 So.2d at 374-75. In C.P. v. M.K., Presiding Judge Robertson wrote:

"As in Jones, our review of the record evidence convinces us that this case is more of a custody case than a determination of dependency case."

C.P. v. M.K., 667 So.2d at 1358.

"When the petitioners alleged that the child was dependent, that terminology triggered the trial court to utilize the dependency statutes of the juvenile code." C.P. v. M.K., 667 So.2d at 1360 (Thigpen, J., specially concurring in part and dissenting in part). Disposition in a dependency case is governed by § 12-15-71(a), Ala.Code 1975. That section provides, in pertinent part:

"(a) If a child is found to be dependent, the court may make any of the following orders of disposition to protect the welfare of the child:

"(1) Permit the child to remain with the child's parents, guardian, or other custodian, subject to conditions and limitations as the court may prescribe.

"(2) Place the child under protective supervision as herein provided or under the supervision of the Department of Human Resources.

"(3) Transfer legal custody to any of the following:

"a. The Department of Human Resources; provided, that the department is equipped to care for the child.

"b. A local public child-placing agency or private organization or facility willing and able to assume the education, care, and maintenance of the child and which is licensed by the Department of Human Resources or otherwise authorized by law to receive and provide care for the child.

"c. A relative or other individual who, after study by the Department of Human Resources, is found by the court to be qualified to receive and care for the child.

"(4) Make such other order as the court in its discretion shall deem to be for the welfare and best interest of the child."

In M.M. v. C.M., this court explained:

"Once a child is found to be dependent, the trial court is authorized to make any of a number of dispositions under Ala.Code 1975, § 12-15-71, including transferring legal custody to an 'individual who, after study by the department of human resources, is found by the court to be qualified to receive and care for the child.' ... It is not necessary that such an individual be a parent or even a relative of the child."

M.M. v. C.M., 600 So.2d at 318. "Under the statute, there exists no presumption that a CHINS [or a dependent child] should be placed in the natural parent's custody." N.M. v. State, 625 So.2d at 449; Wallace v. Pollard, 532 So.2d at 633. "To require a finding of a parent's unfitness, following a finding that the...