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03/31/95 STATE ALABAMA EX REL. SANDRA JEAN MCDANIEL

March 31, 1995

STATE OF ALABAMA EX REL. SANDRA JEAN MCDANIEL
v.
RICKEY MILLER



Appeals from Franklin Circuit Court. (DR-90-089.01).

Thigpen, Judge, Robertson, P.j., and Yates, Monroe, and Crawley, JJ., concur.

The opinion of the court was delivered by: Thigpen

THIGPEN, Judge

These consolidated appeals are from a continuing case involving child support and the termination of the father's parental rights.

The parties divorced in July 1990, and, pursuant to the divorce judgment, Rickey Miller (father) was ordered to pay $52 per week in child support to Sandra Jean McDaniel (mother). Ultimately, the mother assigned her rights to support to the State of Alabama (State). In September 1993, the State, on behalf of the mother, filed a contempt petition, alleging nonpayment of child support and contending that the father was $363 in arrears. The State also sought to have the father's child support obligation increased, alleging that the needs of the child had increased and that there had been a material change in circumstances in that, the State alleged, the father's financial ability to respond to the child's needs had increased. The father answered and counterclaimed, alleging that the mother was in contempt for failing to comply with the ordered visitation schedule. He also requested that the trial court award him custody of the minor child.

In December 1993, after ore tenus proceedings, the trial court found that, after allowing the father certain credits, no arrearage existed. It ordered the father's child support obligation increased to $70.45 per week, and it denied the father's counterclaim for custody. Both parties filed post-judgment motions. In February 1994, the trial court denied those motions, but amended its order to change the method of paying child support from weekly to $305.28 monthly. The State appealed.

While that appeal was pending, and without notifying the State, on June 2, 1994, the mother and the father jointly filed another petition in the same court, seeking to again modify the divorce judgment by terminating the parental rights of the father. In consideration of the termination, the father was to be released from all present and future child support obligations. Accompanying the petition was the father's voluntary consent, indicating the father's desire to terminate his parental rights and acknowledging his understanding that if his rights were terminated the child could be adopted without further notice to him. Upon considering the parties' joint motion, the trial court entered an order that same date, granting their joint petition and terminating the parental rights of the father. The State filed a post-judgment motion, seeking to have the trial court's order vacated, or alternatively, to reopen the matter of the father's parental rights for an evidentiary hearing to allow the rights of the State and the child to be represented.

In denying the State's post-judgment motion, the trial court expressly found that the State had no interest in the termination of the father's parental rights and that a hearing was not necessary pursuant to the provisions of the Child Protection Act. The State again appealed. This court granted the State's motion to consolidate the two appeals from two separate orders in the same case. The father, as the appellee, has not provided this court with a brief.

The State presents three issues on appeal: (1) whether the trial court erred in granting the parents' joint petition to terminate the father's parental rights; (2) whether the trial court failed to comply with Rule 32, Ala.R.Jud.Admin., in its modification of the father's child support obligation; and (3) whether the trial court abused its discretion by finding that no arrearage existed on the father's child support obligation.

The State asserts that the issue concerning the termination of the father's parental rights is of primary importance because affirmance of that order could be dispositive of the issues regarding child support. Accordingly, we will address that issue first.

The State's contention that, pursuant to Ala. Code 1975, § 38-10-1 et seq., it is an interested party in this action, is well taken. Prior to the parties' joint motion, the State had begun its legal action to enforce the father's child support obligation and had, in fact, obtained a judgment in that regard. The mother had assigned her rights to support and had sought Aid to Families with Dependent Children (AFDC) for this child. Clearly, the State has an interest in protecting this child's right to continuing support from her father, and the State has an interest in protecting its right to be reimbursed for any support paid on behalf of the child. Ala. Code 1975, § 38-10-6. The State further argues that the termination of the father's parental rights, without a hearing and without appointing a guardian ad litem to represent the child's interest, was not in the best interest of the child.

The termination of one's parental rights "is an extremely drastic measure, and once done, we know of no means of reinstating these rights." East v. Meadows, 529 So. 2d 1010, 1012 (Ala. Civ. App. 1988). In acknowledging the solemnity and far-reaching impact of these cases, our Supreme Court stated that "inasmuch as the termination of parental rights strikes at the very heart of the family unit, a court should terminate parental rights only in the most egregious of circumstances." Ex parte Beasley, 564 So. 2d 950, 952 (Ala. 1990).

When a custodial parent brings an action to terminate the parental rights of the noncustodial parent, the trial court must first find that grounds for termination exist. Ex parte Beasley, 564 So. 2d 950 (Ala. 1990). Next, "the court must inquire as to whether all viable alternatives to a termination of parental rights have been considered." Beasley, 564 So. 2d at 954. Furthermore, the court must also determine whether the termination of parental rights is in the best interest of the child. Beasley, (supra) .

A case, factually similar to the case sub judice, Ex parte Brooks, 513 So. 2d 614 (Ala. 1987) (overruled on other grounds by Ex parte Beasley, 564 So. 2d 950), has been decided by our Supreme Court. In addressing the issue whether a parent's obligation to pay child support can be waived by a joint petition for a termination of parental rights, our Supreme Court stated that "allowing a parent to abandon his child and thereby to avoid his obligation to support the child through the termination of parental rights" was not intended by The Child Protection Act, and that Alabama courts "will not be used in the furtherance of such a purpose." ...


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