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.