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09/02/94 T.M.S. v. ELMORE COUNTY DEPARTMENT HUMAN

September 2, 1994

T.M.S.
v.
ELMORE COUNTY DEPARTMENT OF HUMAN RESOURCES (IN RE: R.T.S.)



Appeal from Elmore Juvenile Court. (JU-92-342.01). Thomas P. Stowe, Jr., Trial Judge.

Released for Publication December 6, 1994.

Thigpen, Robertson, Yates

The opinion of the court was delivered by: Thigpen

THIGPEN, Judge

This case involves the termination of parental rights.

On May 22, 1992, the Elmore County Department of Human Resources (DHR) filed a petition for the removal of R.T.S., an infant child, from the custody of his mother, to temporary custody, alleging that the mother was either unwilling or unable to properly care for the child. Following an ore tenus proceeding, the trial court granted DHR's request for temporary custody; it found that DHR had made all reasonable efforts to avoid the removal of the child from the mother's care, that DHR had properly determined that there were no appropriate relative resources available, and that DHR had properly determined that temporary placement in foster care was in the best interests of the child.

The record reveals that for more than a year, numerous attempts were made by DHR to assist the mother and other family members in providing a stable environment suitable to meet the needs of the child. DHR's case history, dated November 5, 1993, indicated that the mother paid little attention to the child when she attended scheduled visits, that she terminated some scheduled visits early, and that the mother simply failed to attend other scheduled visits. The mother and her family were informed in July 1993, that DHR would pursue the termination of parental rights for the purpose of adoption. The mother apparently made no contact with DHR after that time.

Ultimately, in November 1993, DHR filed a petition for the termination of the parental rights, stating that the mother, the alleged father, and extended family members who might have been potential relative resources, were unable to care for this child, who is a multiple-needs child with severe medical problems requiring constant and intensive care and supervision. Following ore tenus proceedings, the trial court found that the child was dependent, that no less drastic alternatives were available, and that it was in the child's best interests to terminate the parental rights. The custody of the child was awarded to DHR to pursue placement for adoption. Only the mother appeals.

On appeal, the mother contends that the trial court incorrectly applied Ala. Code 1975, §§ 26-18-1 to -10, in determining that her parental rights should be terminated.

A trial court may terminate parental rights:

"(a) If the court finds from clear and convincing evidence, competent, material and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider ... the following:

"....

"(2) Emotional illness, mental illness or mental deficiency of the parent ... of such duration or nature as to render the parent unable to care for needs of the child;

"(3) That the parent has tortured, abused, cruelly beaten or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat or otherwise maltreat the child, or the said child is in clear and present danger of being thus tortured, abused, cruelly beaten, ...


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