D.V.G. v. State Department of Human Resources
D.V.G. v. State Department of Human Resources
Opinion of the Court
This appeal arises out of the juvenile court’s decision to issue an order terminating the parental rights of the mother, D.Y.G. (hereinafter “the mother”), to her two minor children, S.V. and M.V. The sole issue raised on appeal is whether the trial court’s order terminating the mother’s parental rights is supported by clear and convincing evidence. We affirm the decision of the trial court.
In September 1997 the Madison County Department of Human Resources (hereinafter “DHR”) filed a petition with the juvenile court, alleging dependency of the mother’s two children. The petition alleged that the mother instituted bizarre and unusual punishment against the children. A shelter-care hearing was held before a referee, who recommended that shelter-care custody of both children be placed with DHR and that physical custody of S.V. be placed with her biological father, M.L. The juvenile court upheld these recommendations. In December 1997, amid allegations of physical abuse of S.V. by M.L., DHR filed a motion for a shelter-care hearing; the hearing was held before a referee, who recommended that physical custody of S.V. be removed from M.L. and transferred to DHR. The juvenile court upheld the referee’s recommendations. In April 1998 a hearing on temporary legal custody of both children was held, and both were declared by the juvenile court to be dependent. In July 1998, October 1998, and March 1999, dispositional hearings were held. Each time the juvenile court determined that the children should remain dependent. In February 2000, DHR filed a petition requesting termination of the mother’s parental rights to both children, and, in January 2001, the juvenile court issued an order terminating the parental rights of the mother and placing permanent custody of both children with DHR. The mother now appeals.
“The termination of parental rights is a drastic measure, and the courts gravely consider such action. Ex parte Beasley, 564 So.2d 950, 952 (Ala. 1990). A natural parent’s prima facie right to the custody of his or her child is outweighed only by clear and convincing evidence indicating that termination of parental rights is in the best interests of the child. L.N. v. State Dep’t of Human Resources, 619 So.2d 928, 929 (Ala.Civ.App. 1993). The juvenile court considers the parent’s physical, financial, and mental abilities to care for the child, to determine the child’s best interests. J.L.B. v. State Dep’t of Human Resources, 608 So.2d 1367, 1368 (Ala.Civ.App. 1992).
“The grounds upon which a court may terminate parental rights are set out in Ala.Code 1975, § 26-18-7(a):
“ ‘[T]he parents of [the] child are unable or unwilling to discharge their responsibilities to and for the child, or ... the conduct or condition of the parents is such as to render them unable to properly care for the child and ... such conduct or condition is*642 unlikely to change in the foreseeable future.... ’
“The juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) whether there are any viable alternatives to a termination of parental rights. Beasley, at 954.”
M.W. v. State Dep’t of Human Resources, 761 So.2d 246 (Ala.Civ.App.1999.) A trial court’s decision to terminate parental rights based on ore tenus evidence is presumed correct and will be reversed only if the record demonstrates that the decision is unsupported by the evidence and is plainly and palpably wrong. R.B. v. State Dep’t of Human Resources, 669 So.2d 187 (Ala.Civ.App. 1995).
As an initial matter we note that DHR properly points out in its brief on appeal that the mother is precluded from appealing the juvenile court’s determination of the children’s dependency because that determination was made in April 1998 when the juvenile court placed temporary legal custody of the children with DHR and no appeal was taken of that order. See M.C. v. K.M., 788 So.2d 166, 169 (Ala.Civ.App. 1999). Because no appeals from those orders were timely filed, we are precluded from reviewing on appeal the juvenile court’s determinations as to the dependency of the children. Thus, the only reviewable issue on appeal is whether the juvenile court erred in determining that there were no viable alternatives to a termination of parental rights. M.W., supra, quoting Beasley.
Our review of the record indicates that the juvenile court did not err in terminating the mother’s parental rights because the evidence presented reveals clear and convincing evidence indicating that termination of her rights is in the best interests of the children. See L.N., supra. Carolyn Harris, the DHR supervisor assigned to this case, testified on the basis of DHR records that both of the mother’s children are minors; S.V. was born in 1993 and M.V. was born in 1995. She stated that DHR was first notified of an allegation of inadequate supervision in the mother’s home in 1995, roughly two weeks after M.V. was born. Upon this report DHR offered and successfully provided homemaker services to the mother. In April 1997 DHR received another report of inadequate supervision occurring in the mother’s home. Harris testified that upon investigation DHR discovered the allegations to be true, and discovered bizarre and unusual punishment being inflicted on the children — the mother would leave the children locked, strapped, or tied down in car seats in the middle of the living room of her house for extended periods (i.e., while the children were watching television) and she would scream and curse at the children. Harris stated that when the mother was questioned by a social worker as to why she secured the children in the car seats in such a manner, the mother answered that she wanted to make sure that the children were learning something from the television programs (such as “Barney” and “Oscar”) that they were watching. The mother also told the social worker that she let them out of the car seats to go play in their playroom.
Harris testified that DHR offered the mother homemaker and protective services, assistance with mental health services, and family options. During a followup visit in September 1997 in which DHR again offered the mother these services, she refused, and DHR, concerned for the safety of the children, removed them from her custody. Harris stated that a shelter-care hearing was conducted and that the children were placed in the custody of DHR. S.V. was subsequently placed with her natural father, M.L. M.V.’s natural
Harris testified that although the mother attended individualized service plan (ISP) meetings conducted by DHR in regard to providing care and reviewing the cases of the children, who through the time of trial remained in DHR’s custody, the mother did not attend the last of these meetings. She stated that pursuant to the ISP, DHR offered services to the mother since 1997 with the intent to effectuate a reconciliation with the children. Harris stated that initially the mother visited with the children twice a week, but since the termination petition was filed and the children’s foster parents reported that the visits appeared to be upsetting the children, visits were decreased to once a week. However, she also stated that the mother had been diligent in attending the visitation sessions. When asked how the mother acted during these visits, Harris testified that “it [had been] reported” that the mother usually first checked the children for bruises and cuts to see if they have been harmed while in care of the foster parents; Harris also stated that the mother is usually “extremely critical” of the children, complains about their clothes and appearance, and often complains that S.V. exhibits “an attitude.” Harris testified that during these visits it appears that the mother has a good relationship with M.V., but S.V. appears confused and often does things to get the mother’s attention.
Harris also testified that the foster parents and officials from the children’s school have reported that the children exhibit behavioral problems after the visits. Harris elaborated that S.V. appears to be extremely hyperactive, exhibits disruptive behavior at school, constantly seeks reassurance from the foster mother that she is loved and that she-is pretty, while M.V. would sometimes vomit when it was time for him to visit with the mother. When Harris was asked if S.V.’s disruptive behavior was solely attributable to her visits with her mother, Harris answered that she believes that'the visits with the mother contribute to the problem. Harris also testified that although the children have been in good health since their placement with DHR, when they were first taken from the mother, S.V., four years old at the time, was not toilet-trained and was undergoing counseling from mental health authorities. Harris stated that although the mother expressed to DHR a concern with putting S.V. on Ritalin because she feared that S.V. would lose weight and die, the therapist at the mental health center stated that the mother had actually recommended that S.V. be prescribed Ritalin in order to calm her down. The therapist also told Harris that S.V. needed speech therapy, but that the mother had not sought such services, as had been recommended to her. Harris testified that she had been informed of incidents during visits where the mother was observed attempting to put M.V. in “time-out,” but that M.V. hit the mother, who responded by hitting M.V. When M.V. bit her, she bit him back, leaving an impression of her teeth in his arm and saying, “[t]his should stop him from biting.” On another occasion the mother “engaged in another hitting match” with M.V. and directed him to go hit a tree until he calmed down.
Harris testified that although the mother, at the time DHR became involved in this case, was already involved with mental health authorities,
Harris testified that to the best of her knowledge, the mother was not employed at the time of trial, nor had she been employed for a majority of her life. At the time of trial the mother was 29 years old. Harris stated that DHR gives some consideration to the caregiver’s financial ability to care for children and that the mother, in this case, receives Social Security benefits in the amount of $521 per month. Although the mother has not provided financial support to DHR while it maintained custody of the children, Harris stated that the mother has brought toys and clothes to the children. The natural fathers of the children have provided no financial or other support while the children have been in DHR’s custody, nor have they participated in visitation with the children. Harris testified that since being placed in a foster home, the children appear to be doing well and are both enrolled in school programs. Harris stated that despite DHR’s efforts to locate relatives with whom the children might be placed, she has located none. Harris stated that the mother also gave birth to another daughter (who is also subject to this petition for custody) who has been placed with her paternal grandparents in Tennessee. Harris testified that on the cumulative basis of the clinical assessments and reports offered by those who had observed the mother for three years, she recommends that her parental rights to S.V. and M.V. be terminated.
Gigi Todd, who provides homemaker services and counseling for DHR, testified that the mother first exhibited a spirit of cooperation with homemaker services, followed by a lack of cooperation. The mother cancelled some meetings, saying that she did not need DHR’s additional assistance. Todd also stated that the mother’s parenting skills had improved during the times when Todd would visit, but that she had also been told by other social workers who had observed the mother that she would not exhibit those same skills in their company. Todd testified that the mother was more interactive with M.V. than with S.V. She also stated that at times S.V. appeared to want to please the mother by dressing up for her visits, but when the mother expressed disapproval, it would sadden S.V. Todd testified that on occasion the mother would compliment her children, which showed some improvement in her ability to relate to them. She also testified that the mother has a clear idea of what is important to her and her children, as well as a clear idea of dangerous situations involving the children she should avoid. Todd stated that based on her observance
The mother testified that she once placed the children in their car seats when she was cleaning the floors of the house, but denied that she ever placed them in the car seats any other time. She also admitted to biting M.V. She testified that as of the time of trial she was married and living with her husband. Although he is employed, she is not,
Charlene Peace, the mother’s sister, testified that although she thought that the mother was adequately able to clean, cook, and raise the children, she contacted DHR because in caring for the children the mother was neglecting her own health. Peace stated that on occasion she had witnessed S.V. sitting herself in the car seat to watch cartoons. She also explained that S.V. knows how to strap herself into the car seat.
In consideration of the presumption we are to afford the trial court’s determination upon ore tenus testimony, we conclude that the record reveals that the trial court did not err in determining that there is clear and convincing evidence that termination of the mother’s parental rights is in
AFFIRMED.
. Harris testified that the mother, on her own accord, informed her that she had not attended her mental health counseling sessions for some time prior to trial.
. The mother testified that she was educated in special education classes and remained in school through the eighth grade.
. We note that the trial transcript contained in the record reflects that testimony was received that indicated that the mother was diagnosed with Attention Deficit Disorder and Attention Deficit Hyperactivity Disorder.
Concurring Opinion
concurring in the result.
Because I find in the record sufficient evidence of dependency to warrant deference to the trial court’s judgment that was based on evidence received ore tenus, I concur in the result.
Dissenting Opinion
dissenting.
I dissent from the affirmance of the trial court’s judgment terminating the parental rights of D.V.G. (the “mother”). I conclude that the record does not contain clear and convincing evidence supporting a finding that the children are dependent. See Ex parte Beasley, 564 So.2d 950, 952 (Ala. 1990); and L.N. v. State Dep’t of Human Res., 619 So.2d 928, 929 (Ala.Civ.App. 1998). My review of the record indicates that the worst parenting skills displayed by the mother are keeping the children in car restraints while she cleans the house and not cleaning the house well. My review of the evidence indicates that neither of these shortcomings has endangered the children’s health or safety. The mother’s housecleaning skills have not caused health problems to the children. The evidence indicates that the mother has been uncooperative with, and rude to, DHR representatives; however, that, without evidence of harm to the children, is not a reason to terminate the mother’s parental rights. Therefore, I must dissent.
YATES, P.J., concurs.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.