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03/24/95 J.V. v. STATE DEPARTMENT HUMAN RESOURCES

March 24, 1995

J.V.
v.
STATE DEPARTMENT OF HUMAN RESOURCES (IN THE MATTER OF D.V.)



Appeal from Etowah Juvenile Court. (JU-91-037).

L. Charles Wright, Retired Appellate Judge. All the Judges concur.

The opinion of the court was delivered by: Wright

WRIGHT, Retired Appellate Judge

The Etowah County Department of Human Resources filed a petition to terminate the parental rights of J.V. (mother) to her son, D.V. After oral proceedings, the trial court ordered the termination of all parental rights. The mother appeals.

In order to terminate parental rights based on the state's petition, a court must make several findings. First, the court must determine that the child is dependent, based on clear and convincing evidence. Second, the court must find that there exists no viable alternative to termination of the parent's custodial rights. Ex parte Beasley, 564 So. 2d 950 (Ala. 1990). The trial court was presented the evidence ore tenus; therefore, its judgment is presumed to be correct and will be set aside only if the record reveals the judgment to be plainly and palpably wrong. Varnadore v. State Dep't of Human Resources, 543 So. 2d 1194 (Ala. Civ. App. 1989).

Although a child's parents have a prima facie right to custody, the paramount concern in these proceedings is the child's best interests. Mitchell v. State Dep't of Human Resources, 513 So. 2d 647 (Ala. Civ. App. 1987). In determining the child's best interests, the court must examine whether the parents are physically, financially, and mentally able to provide for the child. Mitchell. If clear and convincing evidence reveals that the parents cannot, or are unwilling to, discharge these responsibilities, parental rights may be terminated. Mitchell ; § 26-18-7, Code 1975.

The mother asserts that the trial court erred in terminating her parental rights. She insists that the department failed to present clear and convincing evidence to support its petition.

The record reflects that the department first obtained legal custody of the child in December 1990, following a finding that the child had been truant. The child was eight years old at the time. Upon investigation the department determined that the mother was addicted to prescription narcotic drugs.

In February 1991 the mother entered counseling with Dr. Cleve Estis. He recommended that she enter a drug treatment program. The department arranged for her to enter a program on an outpatient basis. She was very cooperative, and the child was subsequently placed back in her care in March 1991.

In May 1991 the department was informed that the mother had not been attending her outpatient program and that the child had been missing school. There was testimony that at this time the child was acting socially withdrawn and was not doing well academically. The child was removed from his mother's care and placed in foster care.

The mother began to show signs of improvement in June 1991. The child was again returned to her care. During that month the mother learned that the child had been sexually molested by his father. There was testimony that the child was traumatized and depressed during this period. The father subsequently pleaded guilty to the offense and was incarcerated at the time of the hearing.

In August 1991, while still in the custody of his mother, the child had a bicycle accident and suffered a concussion. He was hospitalized for several days. His mother reported that he had amnesia. Personnel at the hospital contacted the department with several concerns. They stated that the child appeared very tense and fidgety around his mother and that he did not have amnesia. Neighbors and other collateral sources reported to the department that the mother was continuously encouraging the child to act as if he did not remember people or what had happened to him in the past. Later, she took him to the emergency room on several occasions, requesting he be given suppositories. The child's doctor was concerned that the mother was addicted to the suppositories herself and used the child as an excuse to obtain them.

The mother allegedly told the child that the doctor said he had brain damage and that he was going to die. She told school officials that he was only supposed to stay in school half a day. The department contacted the child's neurologist and learned that he had not restricted the child's school activities. In August 1991, the child was removed from his mother's custody and placed in foster care, where he has continuously remained.

The department and her counselor continued to work with the mother. Both recommended that she receive drug rehabilitation. The mother, however, denied that she had a drug problem. She continuously indicated that she only took medicine that was prescribed for her. The evidence indicated that she took approximately 350 tablets of Diazepam and/or Doxipen between May and July 1993, only two months before these proceedings began. The mother began attending a drug ...


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