Terminating Parental Rights When Mom is Mildly Retarded

This is another of  those cases where DHR is trying to defend a juvenile court’s decision to terminate the parental rights of a child, and again the appeals court reverses. Are juvenile court judges just not getting it, or is the appeals court setting too high a standard?

The case is C.S.B. v. State Department of Human Resources, Case No. 2071120 (Ala. Civ. App. April 3, 2009. Mom was mildly mentally retarded and had already had her parental rights terminated as to an older child, although the grounds for that termination were not available in the record. DHR responded to a report that Mom was abusing the child. DHR found no evidence of abuse but removed the child because it determined that the child’s safety was “questionable.” A later DHR report observed that the initial report came from the maternal grandmother, who had a conflict with the mother.

Mom cooperated with DHR and attended her visitation sessions with the child regularly. She missed one session amid some evidence she may have lied about her reasons for missing it, but basically she did about as well as can be expected for a mother in her position.

In its petition, DHR alleged that Mom was unable to care for the child because she was retarded, but when it attempted to introduce an expert who had interviewed Mom and who was prepared to testify about his report on her mental condition, Mom’s attorney objected on the basis of the psycotherapist-patient privilege. The juvenile court sustained the objection, and DHR failed to appeal the ruling.

The juvenile court’s ruling was in error under Ala. R. Evid. Rule 503, which provides: “There is no privilege under this rule for relevant communications offered in a child custody case in which the mental state of a party is clearly an issue and a proper resolution of the custody question requires disclosure.” But DHR didn’t appeal the court’s ruling, so the appeals court ruled that it could not consider any evidence in the expert’s report. The appeals court therefore found itself ruling on a record that contained little or no evidence of Mom’s limited mental capacity, and little or no evidence of problems caused for the child.

The standard for terminating parental rights begins with Ala. Code § 26-18-7, which says the court must find from clear and convincing evidence that the parent is unable or unwilling to discharge the responsibility to and for the child, or that the parent’s conduct or condition is such as to render him or her unable to care properly for the child and that such conduct or condition is unlikely to change in the foreseeable future. To this standard the courts have added an additional requirement, that the court consider and reject all available alternatives to terminating parental rights.

Mom’s argument on appeal was that the juvenile court terminated her rights without that clear and convincing evidence and that the juvenile court failed to consider all available alternatives. The appeals court agreed.

In this case we conclude that the juvenile court’s decision to terminate the mother’s parental rights was not supported by clear and convincing evidence. From the mother’s testimony, we can glean that her intellectual capabilities are undoubtedly below average. However, because no doctor who has evaluated the mother was allowed to testify about or submit reports regarding those evaluations, there is no evidence as to the extent of the mother’s limited mental capacity, whether the mother’s mental limitations prevent her from being able to fulfill her parental responsibilities to the child, and whether the mother’s condition is likely to change . . . We understand DHR’s concern for the child, especially in light of the child’s diagnosis of cerebral palsy and the mother’s apparent limited mental capacity. However, as this court has held, “[p]overty and limited mentality of a mother, in the absence of abuse or lack of caring, should not be the criteria for taking away a wanted child from the parents.” In re Hickman, 489 So. 2d 601, 602-03 (Ala. Civ. App. 1986). Based on the evidence in the record, we cannot say that the evidence supports a finding that the circumstances in this case are so egregious as to warrant the irrevocable termination of the mother’s parental rights as to the child. We conclude that the juvenile court’s findings are not supported by clear and convincing evidence.

The appeals court therefore reversed the juvenile court’s ruling.

In his special concurrence, Judge Moore agreed with the appeals court majority but said that expert testimony should not be required to prove the obvious mental incapacity of a parent. In her dissent, Judge Thomas said the juvenile court had already reached findings of fact that the mother was unable to care for the child. She said that the appeals court, in reversing the juvenile court, was reweighing the evidence. The juvenile court’s conclusion was not plainly and palpably wrong, she argued, and therefore the appeals court should have affirmed the juvenile court’s ruling on appeal.

3 comments

  1. Christina Snellgrove says:

    Am I obligated to turn my grand daughter over to her biological father during a DHR investigation that originally placed her in a safety plan with me? My daughter has sole custody and is under investigation because of alleged wrong doing on her boyfriends part. The father is not listed on her birth certificate and has never sought visitation rights (although we have allowed him visitation). We have had her since the day she was born but she did visit overnight with her mother at times. When her boyfriend allegedly touched her (the child) inappropriately, we contacted DHR and requested an investigation. A safety plan was put in place and has been the same since November of 2015.

    FYI there has been no change to the safety plan. I did verify that with the case worker. But they are saying that he is the other parent and therefore I had to turn her over to him. Yet, she has been in my care since birth and was placed in continued care with me in the safety plan. I should also add that after the initial investigation was complete, I did have the father added to the safety plan so that she could resume visitation with him. Probably wasn’t a good move given what had happened now but I was acting in the child’s best interest. Now they will not let me speak to her or visit with her as well as her siblings.

    Last week, DHR informed me that I had to turn the child over to the father; uprooting her from the home and her two siblings before we have even gone to court. Can they legally do that? And if not, can we demand the return of the child?

    • Lee Borden says:

      Wow. That’s quite an extreme reaction on DHR’s part. I’m so sorry. I’m also fearful that you will encounter a great deal of resistance here, because the odds are stacked against grandparents these days when it comes to child custody and visitation. I assume your funds are limited, as is the case for most of us these days. I suggest you follow this plan: (1) read this page – http://divorceinfo.com/childcustodyfight.htm – carefully; (2) take your time and prepare the strike sheets discussed there and compile them in a notebook, being careful to be as even-handed as you can about Dad’s parenting as well as your own; notice that you can do all of this without spending much money at all – just your time; (3) while you are compiling your strike sheets, be researching the lawyers in your area to learn which ones spend lots of time dealing with child custody issues and DHR; one way to do this is to attend hearings of your local juvenile court and just listen, noting which lawyers you see regularly and which ones seem to be most proficient and caring; then only after you have completed your strike sheets and compiled them and have decided on a short list of lawyers should you pick one or two of them and ask for the cost of a one-hour consultation; take your notebook of strike sheets and give the lawyer time to read them, then ask the lawyer for a frank appraisal of your chances if you mount a court challenge to this custody decision.

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