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01/06/95 G. D. M. v. STATE ALABAMA AND W. C. C. AND

January 6, 1995

G. D. M.
v.
STATE OF ALABAMA AND W. C. C. AND W. E. C.



Appeal from Baldwin Juvenile Court. (JU-93-1361.01 and .02).

Yates, Judge, Robertson, P. J., and Thigpen, J., concur.

The opinion of the court was delivered by: Yates

YATES, Judge

On May 17, 1993, W. C. C. and W. E. C. filed in the probate court a petition to adopt a minor child. Attached to their petition were consents to adoption, signed March 12, 1993, by the parents, G. D. M., the father, and L. M. M., the mother. On August 11, 1993, the probate court entered an interlocutory order granting custody of the child to W. C. C. and W. E. C., setting a Dispositional hearing, and ordering a full post-placement investigation by the Department of Human Resources ("DHR").

On October 29, 1993, the parents filed an objection to the adoption proceedings and moved to transfer the case from the probate court to the juvenile court, alleging, among other things, that when they signed the consent document they did not realize that they were consenting to adoption and, further, that the father is a "legal incompetent" and, therefore, that the document purporting to indicate his consent was not invalid because it had not been signed by his guardian. Also on October 29, the parents filed in the juvenile court a petition for custody, alleging that they "did not nor have they ever knowingly consented to have their child adopted by [W. C. C. and W. E. C.]."

The case was transferred to the juvenile court, a guardian ad litem was appointed to represent the child, and a hearing was scheduled. On January 15, 1994, after a hearing, the juvenile court denied the parents' petition for custody, finding that: (1) the minor child was a dependent; (2) the consent to adoption signed by the mother "constituted a valid, voluntary relinquishment of her parental rights and consent to the adoption"; and (3) the consent to adoption signed by the father was invalid because he is incompetent and that "his parental rights can be extinguished only by a judicial termination of parental rights proceeding." The court further found that, pending a hearing, it was in the child's best interests to remain in the legal custody of W. C. C. and W. E. C.

On March 11, 1994, after an ore tenus hearing, the juvenile court terminated the parental rights of G. D. M., granting legal guardianship and permanent custody of the child to W. C. C. and W. E. C., and giving them "full power to proceed with adoption plans." G. D. M. appeals. He contends that the trial court (1) terminated his parental rights without clear and convincing evidence to support a termination; (2) failed to consider alternatives to termination; and (3) found the child dependent without sufficient evidence for such a finding.

The parents are residents of Tennessee. They divorced in December 1992; however, at the March 1994 hearing, they both testified that they were living together. We note that they have three other minor children, living in Tennessee, who are not subjects of this appeal. The maternal grandfather and his wife, who is the sister of G. D. M., were awarded legal custody of two of the children; another sister of G. D. M. and her husband were awarded legal custody of the other child. However, at the hearing, the parents both testified that they have physical custody of these three children.

The mother underwent a series of surgeries in 1992 and 1993. The father could not care for the children while the mother was hospitalized, because he suffers from paranoid schizophrenia caused by alcohol abuse. W. C. C. and W. E. C. received physical custody of the minor child at issue in September or October 1992. The mother testified that the child initially went to live with them while she recuperated from her surgeries. The arrangement was made by G. D. M.'s aunt. Since 1991, the father had spent 56 days in 4 different hospitals for rehabilitation. At the time of the hearing, he was under a doctor's supervision and was taking prescribed medication. Because G. D. M. cannot manage his own affairs, his father has power of attorney.

The court, in terminating the parental rights of G. D. M., found:

"1. [The child] is a child under the age of eighteen years and is a resident or actually within Baldwin County.

"2. That said child is dependent within the meaning of Section 12-15-10 in that [G. D. M.] is not in a position to properly care for or rear the said child.

"3. The Court finds that the non-support and virtually total lack of contact between [G. D. M.] and his daughter ... constitutes abandonment of said child and is grounds for termination of parental rights.

"4. The Court further finds that the natural father ... suffers from a mental defect or mental disease to the extent that it renders him incapable of exercising the duties and responsibilities of a ...


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