The Alabama Court of Civil Appeals has affirmed a trial court’s ruling that his children should live with their maternal grandmother and that it wasn’t necessary to prove him “unfit” before doing so. Ruling in W.T.H. v. M.M.M., Case No. 2040147 (Ala. Civ. App. June 10, 2005), the Appeals Court said it’s not necessary to prove a parent unfit when the child has been found to be dependent.
As you’ve already read here, “dependency” is defined in Ala. Code Â§ 12-15-1(10). The Appeals Court said that the trial court had evidence before it that supported its finding that the children were dependent. In particular, the Court of Appeals emphasized evidence that the father lied about the extent to which he was addicted to alcohol, that he continued to drink, and that he drove with the children even though he had lost his driver’s license after seven DUI convictions).
Once the trial court determined that the children were dependent, there was no necessity of proving the father unfit (as would be required by Ex parte Terry, 494 So. 2d 628 (Ala. 1986)). In its opinion, the Appeals Court quoted from W.T. v. State Department of Human Resources, 707 So.2d 647 (Ala. Civ. App. 1997):
The requirement that a trial court find parental unfitness before it deprives a parent of his or her prima facie right to custody applies to a custody dispute between a parent and a nonparent. See, e.g., Ex parte Terry, 494 So. 2d 628 (Ala. 1986); Ex parte D.J., 645 So. 2d 303 (Ala. 1994). In Terry, our supreme court held that in a custody dispute between a parent and a nonparent, the trial court may not award the child to the nonparent unless it finds, by clear and convincing evidence, that the parent is unfit. Later, in D.J., the court made it clear that the same parental presumption applies to a custody dispute between the father of a child born out of wedlock and a nonparent.
The parental presumption set out in cases such as Terry and D.J. does not apply, however, in the dispositional phase of a dependency proceeding under Â§ 12-15-71(a), Ala. Code 1975. See, e.g., D.K.G. v. J.H., 627 So. 2d 937 (Ala. Civ. App. 1993); N.M. v. State, 625 So. 2d 448 (Ala. Civ. App. 1993); [*13] M.M. v. C.M., 600 So. 2d 316, 318 (Ala. Civ. App. 1992); Wallace v. Pollard, 532 So. 2d 632 (Ala. Civ. App. 1988); Jones v. Webb, 524 So. 2d 374, 374-75 (Ala. Civ. App. 1988); Minchew v. Mobile County Department of Human Resources, 504 So. 2d 310 (Ala. Civ. App. 1987); Martin v. State ex rel. Department of Human Resources, 502 So. 2d 769 (Ala. Civ. App. 1987); Anonymous v. Anonymous, 504 So. 2d 289, 291 (Ala. Civ. App. 1986), appeal dismissed sub nom. Brown v. Bailey, 484 U.S. 805, 108 S. Ct. 52, 98 L. Ed. 2d 16 (1987); Sanders v. Guthrie, 437 So. 2d 1313 (Ala. Civ. App. 1983); Matter of Stacks, 406 So. 2d 979 (Ala. Civ. App. 1981).