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09/23/94 M.S. v. STATE DEPARTMENT HUMAN RESOURCES

September 23, 1994

M.S.
v.
STATE DEPARTMENT OF HUMAN RESOURCES



Appeal from Cleburne Circuit court. (JU-91.09-01; JU-91-08.01; JU-91-10.01)). W. G. Sarrell, Jr., TRIAL JUDGE.

Rehearing Denied October 28, 1994. Released for Publication January 30, 1995.

Thigpen, Judge. Yates, J., concurs. Robertson, P.j., concurs in the result.

The opinion of the court was delivered by: Thigpen

THIGPEN, Judge

This case involves the termination of parental rights.

In December 1992, the Cleburne County Department of Human Resources (DHR) filed petitions seeking to terminate the parental rights of M.S. (father) and D.S. (mother) to their three minor children. The petitions alleged that the father was "unable or unwilling to comply with the requests of the Department of Human Resources for the return of said minor children to his care, custody and control," and that the mother was unable to care for the minor children. The petitions also alleged that parental, relative, or long-term foster care was not in the children's best interests. Following ore tenus proceedings, the trial court found that the children were dependent, terminated the parental rights of the parents, awarded permanent custody of all three children to DHR. Only the father appeals.

The record reveals that the children were removed from the custody of the parents in February 1991, and that the parents were divorced later that year. The father has since remarried, and, at the time of these proceedings, had two additional children. The father raises four issues on appeal: (1) whether the trial court erred in terminating his parental rights "without a finding of unfitness"; (2) whether there was clear and convincing evidence that there was no viable alternative to the termination of parental rights; (3) whether the trial court erred in failing to allow the father's attorney to view files maintained by DHR; and (4) whether the trial court erred in granting only a five-day continuance on the father's motion.

The termination of one's parental rights is an extreme matter that is not considered lightly, and, where the State seeks to terminate parental rights, the trial court must apply a two-pronged test. The trial court must find that the child is dependent; then, the trial court must find that there are no viable alternatives to the termination of parental rights. Ex parte Beasley, 564 So. 2d 950 (Ala. 1990); see also B.O. v. Department of Human Resources, 628 So. 2d 805 (Ala. Civ. App. 1993). A natural parent's prima facie right to the custody of his or her child can be overcome only by clear and convincing evidence that permanent removal from the parent's custody serves the best interests of the child. L.N. v. State Department of Human Resources, 619 So. 2d 928 (Ala. Civ. App. 1993). In determining the child's best interests, for purposes of termination of parental rights, the trial court must consider whether the parents are physically, financially, and mentally able to care for the child. J.L.B. v. State Department of Human Resources, 608 So. 2d 1367 (Ala. Civ. App. 1992).

To support his first issue, the father cites Ex parte Terry, 494 So. 2d 628 (Ala. 1986), and several other cases, for the proposition that a finding of unfitness is a prerequisite to the termination of his parental rights. Those cases involve custody disputes between parents and nonparents, and they do not involve the termination of parental rights. The father's reliance on those cases is misplaced, and his characterization of the posture of this case is simply incorrect.

A trial court may terminate parental rights

"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 condition is unlikely to change in the foreseeable future...."

Ala. Code 1975, § 26-18-7(a). Although a finding in that regard may be synonymous with a finding of unfitness, Anonymous v. Anonymous, 504 So. 2d 289 (Ala. Civ. App. 1986), there is no absolute requirement for a trial court to specifically find a parent to be unfit in these proceedings.

Next, the father argues that because he has remarried and he now has the responsibility of two additional children, there was a viable alternative to the termination of his parental rights.

A trial court may consider several factors determining whether a parent is unable to discharge responsibilities to and for the child, including whether reasonable efforts by DHR directed toward rehabilitation of the parent have failed. Ala. Code 1975, ยง 26-18-7(a)(6). In cases such as this, where the child is not in the physical custody of the parent, the trial court may also consider whether the parent has: 1) failed to provide for the material needs of the child or to pay a reasonable portion of the child's support; 2) failed to maintain regular visits pursuant to a plan with DHR; 3) failed to maintain consistent communication; or 4) demonstrated a lack of ...


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