Dependency and Proving a Parent “Unfit”

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 § 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 § 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).

15 comments

  1. Arizonadad says:

    In my opinion this ruling is in violation of the federal constitution and subsequent ruling of the US supreme court. It is an intusion of guaranteed parental rights. Either the parent is unfit or the parent has first claim to the child/ren and the case must be decided on the proven evidence of fit or unfit parents. These justices have violated their oath of office to rule in this manner, they are not upholding the writen law but rather they are writing new law from the bench. The judges responsibility to the law is to uphold the written law no matter if they agree with it or not and can do nothing else until said law is changed by the proper authority, the legislature.

  2. vicki says:

    My child was taken from me on false allegations that I had a sleep disorder and was addicted to the internet. My ex-husband was awaiting criminal charges for assault in the 3rd degree. The judge stated it was a one time offense and totally dismissed the charges. A year later, my ex-husband came at me with his truck and was arrested a second time, this time for violating a Court Order of Protection. Needless to say, he still has our daughter. Do I believe in the Justice System? Absolutely not!!!

  3. tammy jones says:

    ive been fighting custdy for 4 n half years ive lost 2 of my children an still fighting 4
    my oldest ive been threw 3 attorney my 1st was ok then didnt help me out my 2nd was 4 the father the 3rd is inexperinced the judge granted me permented custdy 4 my oldest n now trying 2 take her away chil service has lied twisted the truth made false statements n court n they got my 2 youngest i have no reason as 2 y they were taken i have no idea y they wont give the back so many ? but no one giving answer n my 2 youngest r n foster care n i got my parental rights taken but no reason y n im going threw it again w my oldest same thing no answer so if you can help email me sugumo292006@yahoo.com

  4. michelle says:

    I just went to court to get my youngest daughter back from my ex she was just there for the summer(one month)and when i went to get her she refused to go home with me so the reason i went to the court house was to get an officer to go with me to get her and the judge sent us to court for cousdy and he gave my 3 kids to my ex. the kids where interviewd by the judge and i dont know what they said but he gave them to my ex because the best intrest of the kids. and ive never been in trouble and my husband now hasnt either but my ex and hes wife has been in trouble for drugs and she hasnt even got her two kids but she dose have her and hes kid but is always with his sister and ther wasnt even an ivestgation on them or us. what should i do

  5. Gail says:

    In late March or early April my daughter-in-law walked out on my son and their 3 children. For approx 2 1/2 years prior to that she had become addicted to prescription pain killers. She would come home from work and go to bed. My son basically raised and cared for the children during all this time. This inlcuded homework, feeding everything. She gave him no financial aid during this time to help care for the children. Just a a bit of information she is a school teacher. She did start occassionally getting the children for visits. She was living with her single brother and from what we heard from the children, there was parties all the time and they were made to stay in their mothers room during this time.
    My son lost his job and since I am a recent widow, he moved in with me and planned to bring the children. They stayed with me much of the time for several weeks and their mother finally agreed that the 2 oldest children (7 & 9) could live with their father and me. The children were so happy because they wanted to live with us. They said she didn’t take care of them and we did. My son took them back to their home to pack up what things they wanted to bring with them and then at the last minute she said they couldn’t come back with him. They as well as my son were devastated and the children ran after him when he drove off.
    They had agreed they would meet half way ever other weekend and then yesterday she called him and said they she couldn’t pick them up today and he would have to make a 3 hour one way trip to pick them up. He told her he couldn’t because without a job he has no money and couldn’t afford the gas. She told him that she was coming immediately to pick them up and again the children were devastated because they had another day to spend with their daddy.
    The children still want to live with their dad so desperately. They have told us that she make them go to bed at 7 pm right after dinner. (I say it’s because she don’t want to deal with them) Also she has a man spending the night with her. The children tell us this man sleeps with their mother. I feel this woman is commiting mental abuse against these children. They also tell us she doesn’t spend time with them that she is either with this man or on the computer. They cry to stay with their dad and his heart is breaking along with mine.
    There is more information but this is getting pretty lengthy. Please advise as to the information what grounds my son has. Here in North Carolina there is a year waiting period after separation that a divorce can be finalized so their’s is not final.
    I would appreciate any advise you can give.

  6. Lee Borden says:

    Sounds like it’s time for Dad to ask the judge to make a change in custody. I know it will be expensive, but if what you say is correct, that’s what the children need.

  7. Terri Onderdonck says:

    Document document document!!! Document everything she does. Make her write out papers saying when he has the kids and both sign them. Record telephone conversations but be sure to say I am recording this. Keep a calendar with dates and times that he calls the kids or sees the kids. Keep a record of all visits with their mother. If there are any bruises or anything like that take pictures and note date and time of discovery. When the children tell you what their mother did act like your barely listening and make sure their not just playing one parent against the other to see who does more for them. My son would tell both his father and me that he wanted to live with us and tell us the awful stuff the other one had done. He thought that he would get us to giving him more stuff and freedoms that way. Lots of kids play that. Pay attention to what they say but dont let them see that it bothers you. You will get more reliable information out of them that way. Also when she is on the phone ask her about bed times for the kids and about the man staying over. Record her answers. Just dont record without her knowledge. Privacy violation. Most of the time they are so confident that they have you where they want you that they will not mind being recorded. Then in the heat of the moment they forget that they are being recorded and let slip stuff that will incriminate theirselves. This can all be used as evidence in a court of law in most states. And it will help get custody. Just make sure your son makes an effort to find a job. And that he keeps it and while the kids are with him he makes an effort to send her money for child support. NO CASH!! Money orders or western union or money gram. checks. something that you can keep as evidence. and always be sure to write that it is for child support on whatever you send. Hope this helps.

  8. Donna says:

    My eldest daughter is eleven and has not had relations with her birth father since she was 3. EVen then it was sporadic because he is a heroine addict and cannot stay out of jail or rehabs. This has been going on since she was 7 months old. I met my current husband when she was 3 and he has taken on the father role. My ex has a court order to pay child support but has not. He does not call her -send cards-nothing.He is currently in jail again. My husband and I have obtained an attorney for him to legally adopt her. My ex was served papers in jail and wrote back to the court that he does not want to give up rights-he hopes to be the father he should be when he gets out. This has been his story for the last 10 years as we have asked him to give his rights up several times before and the same thing always happens-nothing.My daughter only knows daddy as her step-father. We have 2 other children and one on the way. Veronica knows her grandfather on her birth dad’s side and my ex used his father being in her life for his sake so when he gets right he can try and be a dad. The grandfather has never supported her financially contrary to his claims in the letter. He has done normal grandpa things like give gifts on holidays. He comes to see her almost every year. Will her involvement with the grandfather hurt our case for adoption? I have no plans of ending that relationship and my daughter knows the truth about her birth dad. We are meeting our attorney this week but would like some extra feedback. One of our main concerns is if something were to happen to me our daughter could be ripped from her other brothers and sisters and more importantly-her daddy. My ex is incarcerated in Philadelphiaand lives there when he is not in jail as well. We live in Florida. I have full custody of her and always have. Please respond with any input. Regards,
    Donna

  9. Lee Borden says:

    My understanding is that most states require some period (6-18 months) during which the parent has no contact with the child and provides no support. Unfortunately, there’s no way of predicting the way your state will interpret the grandfather’s involvement. Your attorney can help with that. Just know that judges will always bend over backward to protect the rights of natural parents, so Dad’s likely to get the benefit of every doubt.

  10. concerned grandma says:

    my son and daughter in law are currently fighting for custody in the great state of alabama…..my son is in th us navy and my daughter in law is a stay at home bum…she is on 3 types of meds for “depression” has attempted suicide off the record twice and on the record once (6mos ago)can anyone reccomend an attorney in dothan, al that actually FIGHTS for what is best for the child? would appreciate any help…

  11. NEED HELP! says:

    I’m a 20 year old stay at home Navy/now Army wife. My husband is in Training having just switched from Navy to Army, I’ve been begging for a seperation or divorce for over a month and he refuses. I’m finally going ahead with it, well last night my husband called MY MOTHER, FATHER, AND SISTER, and they came over and KIDNAPPED my son. Cops were called and after around 5 hours I got my 10 month old son back. Now My family is trying to say I am an unfit mother and telling me they are going to get custody of my son from me. They called CPS and Animal control and I had the cops over here last night on top of it. THEY ALL said the house looked like it had just been cleaned (I clean when upset, i’m always cleaning.) I’m on depression meds because I found out when I was 8 months pregnant that before we had gotten married, he slept with a HOOKER/PROSTITUE while on depolyment. This btw is grounds for a divorce. Well, some things MAY or may not have happened with a good friend’s buddy this past week, and my husband may have suspected but have no proof in the slightest. They are trying to take my little boy! I NEED HELP! I’m a good mother, I may not be perfect but I love my son to death and have never neglected him, will never. He is my world and I do everything I can for him. ANY advice welcomed!!!!!

  12. Kristina says:

    I recently left my daughter’s father after 3 1\2 years of emotional, mental and physical abuse. the first 2 years of my daughter’s life were spent with him and I feel that he has caused nothing but hurt to both of us. Now that I have left him, he wants to see her and I won’t allow it. The man has a serious drinking problem, is literally quite perverted and addicted to internet porn, does illegal drugs as well as already has 2 teenage children that he has had very little part in raising. Since I have kept my daughter from her father, he has failed to pay child support, harrasses me quite often, and moved in with another woman who has 2 children under 5 of her own. My ex does not work, has beaten me up in front of my daughter, taught her to use horrendous words against me such as the “F” word and the “C” word. I believe him to be a HUGE detriment to my daughter and do not know how to ensure he never comes around her again. Ive been told that until he takes me to court I do not have to allow visitation of any kind, but what do I do after that point? I would also like to change her last name to my own, but cannot get “permission” from my ex to do it. I would appreciate any advice you could offer.

  13. Lee Borden says:

    If you think he’s such a lowlife, then go after him for child support, aggressively. Faced with a claim for thousands of dollars in child support, he may freely give up parental rights to a new father if he thinks it will help him save some money.

  14. Shannon Thompson says:

    My husband received temporary emergency custody of his 2 children on Thursday in Alabama, and he finally got them home to Michigan this afternoon. Their mother had left them with their aunt in Alabama for aver 2 weeks to return to her abusive (this is documented by the police to have happened in front of the children) husband. She took the child she has with her husband with her. Over the past 3 years, the mother has moved the children between Alabama and Georgia at least ten times, and I am being very conservative with that number. The children have been absent from school over 20 times this year alone. When she moves the children, she does not notify my husband, which is a direct violation of the custody order, and there have been months that have gone by when we had no idea where the children were. When they are in Georgia with the mother’s husband, their phone number changes every time my husband finds out the number. When my husband leaves messages, the mother never returns the call and she does not have the children return the calls. We send mail and get no response. When my husband attempted to take custody of the kids (with police help) the children’s aunt would only turn over my husband’s son and stated that she did not know where his daughter was. My husband had to drive all over Alabama to finally get the help he needed to get his daughter- the aunt was told she would go to jail for interfering with a custody order if she did not turn over my husband’s daughter. We have a hearing set for late June and have no idea what to expect. We have done all this with no attorney so far and really we can’t afford to hire one, especially since my husband has to travel to Alabama from Michigan each time something has to be done in this case. I have a Facebook account and have received nasty messages and comments on my page from the aunt and her daughter, who is a minor. Can you please tell me what kind of evidence we will need to keep custody of the kids? We really do love them, and only want to do what is best for them. Honestly, if a judge decides they should be with their mother, we will accept that, but, we really believe a judge will agree that the mother’s actions have been detrimental to the children’s well-being, and has probably caused permanent harm already. Normally when we get the kids for summer vacation, they are so excited to be here, but they are in a depression right now, and we believe it is due to lies they have been told about me and their father when their father was trying to pick them up after he received emergency custody. What can we do to help them? Their mother has not even contacted my husband about any of this, and I find it hard to believe that her sister did not tell her what happened. I just know that if someone took my kids away from me, I would be on the phone with everyone I could think of to get things fixed. Of course, I have never abandoned my 5 childen, so I have never been put in the position she is in. Please, please, please give me any advice at all, and I will be SO APPRECIATIVE. Thank you so much.

  15. Lee Borden says:

    My short answer would be that Dad should be a good dad. Enroll the kids in school, attend their PTA meetings and teacher conferences, get them on a regular eating, sleeping, and studying schedule, get them into a church or synagogue, get their teeth checked and make sure their shots are up-to-date, all the things a judge in Alabama would interpret as signs that the children are being well cared-for.

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