Before Sullivan, P.j., Mills And Waller, JJ.
The opinion of the court was delivered by: Mills, Justice
DATE OF JUDGMENT: 07/08/96
TRIAL JUDGE: HON. FRANKLIN M. COLEMAN
COURT FROM WHICH APPEALED: LAUDERDALE COUNTY YOUTH COURT
NATURE OF THE CASE: CIVIL - CUSTODY
DISPOSITION: AFFIRMED - 12/17/98
¶1. G.R., the father and B.J.R., the mother of V.R., their minor daughter appeal a Lauderdale County Youth Court order initiating termination of parental rights proceedings. They assert the following issues:
I. WHETHER IT IS A VIOLATION OF CONSTITUTIONAL SEPARATION OF POWERS AND DUE PROCESS FOR THE JUDICIAL BRANCH TO DIRECT THE DHS TO INITIATE TPR PROCEEDINGS WITHOUT PRIOR APPLICATION FOR SUCH BY THE DHS AND WITHOUT PRIOR NOTICE TO THE PARENTS.
II. WHETHER PROBABLE CAUSE EXISTED TO BELIEVE THERE WERE GROUNDS FOR TERMINATION.
¶2. On February 18, 1994, V.R. the minor child was removed by the Lauderdale County Department of Human Services (DHS) from the home of her parents, G.R. and B.J.R. The DHS affidavit for custody alleged that V.R. was not receiving "proper care, supervision, attention, shelter, clothing, nourishment, medical attention and a stable environment." On March 8, 1994, a summons was issued ordering the parents to appear at a neglect/abuse hearing on March 10, 1994. A guardian ad litem was appointed for V.R. After the hearing, a consent judgment was entered which continued DHS' custody and granted G.R. and B.J.R. visitation rights. The parents agreed to submit to the jurisdiction of the court without an adjudication of neglect or abuse and to cooperate in any treatment programs or counseling in the best interest of the child and the parents. *fn1
¶3. At an August 16, 1994 review hearing the youth court noted that neither parent had entered into a service agreement with the DHS, the parents continued to exhibit an unstable home environment and the parents had failed to attend any parenting classes or family counseling. The parents were ordered to enter into a service agreement with the DHS within thirty days or their visitation privileges would cease.
¶4. On October 6, 1994, an order was issued granting continued custody to DHS and limiting parental visitation to the discretion of DHS. An additional order continuing DHS' custody was entered on March 9, 1995.
¶5. V.R. was returned to her parents on June 8, 1995. On August 4, 1995, two months later, DHS filed another affidavit for custody, alleging V.R.'s parents provided improper care and an unstable environment. Again, custody was granted to DHS and a guardian ad litem was appointed. A neglect and abuse hearing was set for August 31, 1995.
¶6. At the August hearing, the youth court Judge found V.R. was a victim of neglect. The court placed V.R. in the custody of DHS, set up supervised visitation with DHS, and ordered the parents to obtain psychological evaluations for the court to review. The review hearing was set for October 31, 1995 but was thereafter continued until November 9, 1995. V.R.'s parents did not attend the hearing. In its order following the review hearing, the court found: 1) the parents had not complied with prior orders of the court or the service agreement, 2) the parents had indicated a desire to relinquish parental rights which they withdrew before each review, 3) the parents appeared to be unable to provide permanency and stability which V.R. needed, 4) the parents failed on two occasions to appear for court-ordered psychological evaluations and 5) a termination of parental rights (TPR) should be pursued in the best interest of the child. The court discontinued the visitation rights of the parents at that time.
¶7. On December 14, 1995, the parents filed a motion to re-schedule their psychological evaluation and suspend the initiation of TPR proceedings. In their motion, the parents stated they did not attend the November 9 hearing because they were not aware that the court would be considering the initiation of TPR proceedings. The parents were directed by the court to make appointments with Dr. Jan Boggs, Ph.D. for additional psychological examinations, and DHS was ordered to hold in abeyance the directive to institute TPR proceedings. On January 31, 1996 the Judge amended the order upon the parents' request and the court directed the ...