Wilson v. State Dept. of Human Resources
| Decision Date | 14 April 1988 |
| Citation | 527 So.2d 1322 |
| Parties | Gary WILSON and Linda Washburn Wilson v. STATE DEPARTMENT OF HUMAN RESOURCES. Civ. 6236. |
| Court | Alabama Court of Civil Appeals |
J. Kenneth Guin, Jr., of Laird and Wiley, Jasper, for appellants.
William Prendergast and Coleman Campbell, Asst. Attys. Gen., and Lynn Merrill, Sp. Asst. Atty. Gen., for appellee.
L. CHARLES WRIGHT, Retired Appellate Judge.
After a hearing, the Walker County Juvenile Court terminated the parental rights of Linda Washburn Wilson, Jimmy Hadaway, and Charles Pennington in Jennifer Marie Hadaway, a/k/a Jennifer Marie Pennington, age ten (Jennifer). The court also terminated the parental rights of Linda Washburn Wilson and Gary Wilson in Linda Diane Wilson, age seven (Diane), and Sherrie Ann Wilson, age five (Sherrie). The court placed permanent custody of the three children in the Alabama Department of Human Resources (DHR) so that they may be placed for adoption. The parents appeal from that judgment.
DHR became involved with this family in May 1981, when it obtained temporary custody of Jennifer and Diane as dependent children because their mother was unable to provide them with the basic necessities of life, causing them to be in danger of physical harm from malnutrition.
In June 1983, DHR petitioned to be relieved of custody. The court granted the petition and vested custody in the parents and ordered DHR to continue monitoring the situation. In June 1984, DHR petitioned for and received custody of Jennifer, Diane, and Sherrie. The petition alleged that Jennifer and Diane had been physically abused by the parents and that Sherrie was in such unfit surroundings as to endanger her health and welfare.
In early November 1984, physical custody of the children was returned to the parents with the understanding that if DHR found it necessary to pick up the children again, DHR would petition for permanent custody of the children and they would be placed for adoption. On November 19, 1984, DHR received another report of abuse and picked up the children.
In March 1986, a dispositional hearing was held, and the court ordered DHR to retain custody and to proceed with its plan to place the children for adoption. In May 1986, DHR filed a petition for permanent custody and termination of parental rights. A hearing was held in June 1987, and the court issued its order terminating the parental rights in August 1987.
The parents raise several issues dealing with evidentiary matters, in addition to their contention that termination of their parental rights was not the least drastic alternative and that there was insufficient evidence to support the court's order terminating their parental rights.
There is a two-prong test to be applied by the court when it considers whether to terminate an individual's parental rights. Brand v. Alabama Department of Pensions & Security, 479 So.2d 66 (Ala.Civ.App.1985); In the Matter of Burnett, 469 So.2d 627 (Ala.Civ.App.1985). First, there must be a finding of dependency by the court based upon clear and convincing legal evidence. Section 12-15-65(e), Code 1975. After it has been established that the child is dependent, the court must inquire as to whether all viable alternatives to termination have been considered. Brand, 479 So.2d 66; Burnett, 469 So.2d 627.
The record reveals that these children were found to be dependent in August 1984 and custody was vested in DHR. Physical custody of the children was returned to the parents for a short period of time in November 1984, while the parents were attending Parents Anonymous. DHR removed the children from the parents' home on November 19, 1984, based upon an anonymous report that Diane had been abused. The DHR social worker testified that she saw the bruise on Diane (a long, narrow bruise of one centimeter by four centimeters located on her right lower back area). Diane told her that her father had done it. The children were removed from the parents' home at that time.
The DHR social worker testified that in November 1984, DHR began making plans for permanent placement of these children and did not make any further attempts to work the children back into the home and that the parents have contacted DHR's office several times regarding visitation, but were allowed visitation (under supervision) with the children only three times between November 1984 and May 1986, when the petition to terminate parental rights was filed. There has been no visitation permitted since May 1986.
The DHR social worker testified that the home of Gerald and Martha Wilson, the paternal grandparents, had been investigated in August 1985, but the children were not placed with the paternal grandparents. DHR did not seriously consider the paternal grandparents' home as an alternative for placement. In fact, the witness stated that the decision for permanent placement had been made at the time the evaluation was conducted in August 1985. The paternal grandmother has died since the date of the home evaluation, but the paternal grandfather (who is sixty-five) continues to express a desire to adopt the children. The father stated at the hearing that he has two brothers and three sisters who are also willing to help with the children. There is no indication in the record that DHR has done any further evaluation of the Wilson home since August 1985 or has explored the possibility of placing the children with other family members.
In order to establish that termination of parental rights is the least drastic alternative, DHR should present evidence to the court of recent attempts to locate viable alternatives. Consequently, we must reverse the trial court's order terminating the parental rights of Gary and Linda Wilson, due to the fact that it was not established that all viable alternatives had been examined. Brand, 479 So.2d 66; Burnett, 469 So.2d 627.
The parents also raise several other issues regarding evidentiary matters which we feel compelled to comment upon. First, there was testimony by Mrs. Winsett, the homemaker who visited the Wilson home for a period of almost two years as part of a homemaker service provided to the Wilsons. Mrs. Winsett did not have her records with her in court and consulted a note that she had prepared that morning after obtaining the information from someone in the Birmingham office. While it appears that the use of the memorandum was present recollection revived, (see, C. Gamble, McElroy's Alabama Evidence § 116.01 (3d ed. 1977)), there was no verification that the copy that she was consulting...
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