R.S. v. R.G.

995 So.2d 893

R.S. v. R.G. and M.G.

2061162.

Court of Civil Appeals of Alabama.

May 23, 2008.

Deborah L. Long, Madison, for appellant.

Allen R. Stoner, Decatur, for appellees.

THOMPSON, Presiding Judge.

R.S. ("the father") appeals from the termination of his parental rights to Z.I.S. ("the child"). We affirm.

On October 21, 2005, R.G. and M.G., the child's maternal grandparents (hereinafter collectively referred to as "the maternal grandparents"), filed an emergency petition alleging that the child was dependent and seeking temporary custody of the child. In their petition, the maternal grandparents alleged that the child, who was four years old at the time the petition was filed, had lived with them since July 2005 when D.S., the child's mother ("the mother"), and the child moved from Texas to Alabama. The mother died shortly after moving with the child to Alabama. The maternal grandparents alleged in their dependency petition that the father had not supported the child financially or emotionally, that he had maintained minimal contact with the child, and that he "had a history of alcohol and drug abuse for which he has not taken consistent actions to treat." Following a hearing on the maternal grandparents' petition, the trial court entered an order on August 29, 2006, finding the child dependent and awarding the maternal grandparents temporary custody of the child.¹

On May 1, 2007, the maternal grandparents filed a petition to terminate the father's parental rights to the child, alleging that the father had voluntarily and intentionally relinquished custody of the child, that the father had failed to provide for the material needs of the child, that the father had failed to maintain regular visitation with the child, that the father had failed to maintain regular contact or communication with the child, and that the father had failed to otherwise adjust his circumstances to meet the needs of the child.

Following an ore tenus hearing on August 16, 2007, the trial court entered a detailed judgment on August 29, 2007, terminating the father's parental rights. In its order, the trial court made the following pertinent findings of fact:

"The Court finds from clear and convincing evidence, competent, material and relevant in nature that [the child] is a dependent child whose parent, [the father], is unable or unwilling to discharge his responsibilities to and for the child and that the conduct or condition of the [father] is such as to render him unable or unwilling to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future.

"In determining that [the father] is unable or unwilling to discharge his responsibility to and for the child, the Court has considered the following:

"1. The father has abandoned the child as defined in § 26-18-3 and § 26-18-7, Code of Alabama, 1975. There has been a voluntary and intentional relinquishment of the custody of the child by his father, or a withholding from the child, without good cause or excuse, by the father, of his presence, care, love, protection, maintenance or the opportunity for the display of filial affection, or the failure to claim the rights of a parent, or a failure to perform the duties of a parent. This abandonment has continued for a period of more than four months next preceding the filing of this petition. The child and his sick mother moved to the [maternal grandparents'] home in July 2005. At that time, the mother and father were still married although there were frequent lengthy periods of separation during their marriage. When the child's mother died on October 19, 2005, [the maternal grandparents] did not know how to contact [the child's] father and filed a dependency petition on October 21, 2005 (JU-2005-312.01). The father appeared at an initial appearance hearing and was served with process and appointed counsel. Despite notice of court dates being sent to him, [the father] did not appear at the dependency hearing or later for dispositional hearing to try to regain custody of his child. No motions were filed by him to regain custody of his child. He has appeared once before this final termination hearing in the five other court settings that we have had regarding his child. [The father] has presented nothing to the Court to rebut the presumption that he has intentionally abandoned his child.

"....

"The Court also considered the following:

"1. [The father] has failed to provide for the material needs of [the child] or to pay a reasonable portion of his support where he is able to do so. Testimony is disputed concerning whether [the father] offered to give the [maternal grandparents] money for [the child] but the bottom line is that he has not paid anything. According to the evidence, [the father] earned approximately $35,000 per year for the last two years and had a company vehicle and gas card. He has lived with various friends and family. He testified that he set up a bank account for [the child] but it is not in the child's name and contains about six hundred dollars. The [maternal grandparents] have been caring for and maintaining [the child] for over two years.

"2. [The father] has failed to maintain regular visits with [the child]. In the order issued December 16, 2005, he was granted monthly visitation. The Court is cognizant that [the father] must travel eighteen hours each way to visit his son or attend court and that he works and can not take off a great deal of time. But according to testimony, [the father] has visited his son three times since October 2005. [The child's] mother died in October 2005 after a lengthy and debilitating illness. [The father] was separated from [the child's] mother. According to the testimony of his current wife, he was dating her during this time. Following the death of [the child's] mother, it appears that [the father] did nothing to help his son. The evidence reflects that the mother and her parents are the only stable family the child has ever had. This child has gone through having his mother die when he was not yet five years of age and his father visited with him only three times since his mother's death.

"3. [The father] has failed to maintain consistent contact or communication with the child. The last contact that he had with [the child] or the [maternal grandparents] was by telephone in April 2007. He could not tell the Court the name of his child's school last year. He did not tell the [maternal grandparents] or [the child] that he had gotten married and they are expecting a child. His telephone calls have been sporadic and infrequent. The [maternal grandparents] have not moved or changed their telephone number since [the child] has lived with them.

"4. There has been a lack of effort on the part of [the father] to adjust his circumstances to meet the needs of his child. He testified that he considered moving here but stayed in Texas because of his job with his aunt's former husband's company. Testimony revealed that he has not established stable housing for many years. He has lived in places owned by his family, his former uncle or with friends for quite some time. He and his pregnant wife plan to move into his former uncle's fiancee's home that the former uncle owns but now lives in the former uncle's home with his children and extended family. There was no evidence indicating that his current housing would be sufficient to meet his child's needs. He did not testify about any arrangements that he had made to enroll [the child] in school.

"The Court further finds that there are no viable alternatives to termination of parental rights of the father. [The child] lives with his maternal grandparents who have provided him with a safe, stable and loving home. The evidence reflects that he did not live with his father for frequent periods of his life when his parents were often separated. [The father] has not exercised visitation when he was given the opportunity to do so and failed to maintain regular contact with his son. Unfortunately, the Court has no information regarding his father's home since he did not live at the address provided for the home study and is living with his former uncle temporarily at this time and has a history of unstable housing. [The father] has another son that he has voluntarily abandoned. The families of the child's mother and father have no interaction. The Court does not find that it would be in the best interest of the child to search for viable alternatives to termination based upon the father's unsettled history especially in light of the child's untimely loss of his mother."

The father timely appealed.

The evidence presented to the trial court reveals the following pertinent facts. The father and the mother married in March 1998. The child was born on November 16, 2000, in Texas. The record indicates that the mother and the father separated at least two times during their marriage. In the summer of 2003, the mother and the child left Texas and moved to Alabama to live with the maternal grandparents; the father stayed in Texas. In November 2003, the mother, who had been diagnosed with Raynaud's disease and lupus, and the child moved back to Texas in order for the mother to receive necessary medical treatment from her doctors in Texas. In July 2005, the mother and the child moved back to Alabama to live with the maternal grandparents. The mother died on October 19, 2005. The mother and the father were still married at the time of the mother's death.

The father, who was 29 years old at the time of the final hearing in this matter, testified that he was not immediately notified of the mother's death. The father stated that he last spoke to the mother on the telephone in August or September 2005. The father testified that he learned of the mother's death one month after she had died.

The father testified that after the mother died in October 2005, he visited the child in Alabama on several...