author: CRAWLEY, Judge. MURDOCK, Judge,

text:
    Ex parte W.T.M. (In re The matter of A.M.A., a minor). W.T.M. v. S.P. V.T. and E.T. v. S.P.
    2001065, 2001064, and 2001069.
    Court of Civil Appeals of Alabama.
    May 17, 2002.
    Rehearing Applications Denied Sept. 13, 2002.
    Certiorari Denied Dec. 13, 2002 Alabama Supreme Court 1012370.

      Kathryn L. “Sunny” Lippert, Birmingham, for W.T.M.
    Joe Morgan III, Birmingham, for V.T.
    Douglas Rogers, Birmingham, for S.P.
    Ginette A. Dow, Bessemer, guardian ad litem.
   CRAWLEY, Judge.

The appeals in this case represent the third appeal of a judgment awarding physical custody of A.M.A., a dependent child now five and one-half years old, to her foster mother, S.P. See W.T.M. v. Department of Human Res., 736 So.2d 1120 (Ala.Civ.App.1999) ("W.T.M.I"); W.T.M. v. S.P., 802 So.2d 1091 (Ala.Civ.App.2001) (“W.T.M.II”). The father has also petitioned for a writ of mandamus directing the juvenile court to award custody to the paternal aunt and uncle. The facts and procedural history were set out in W.T.M. II as follows:

“The parents of A.M.A. are not, and have never been, married to each other. In 1997, [the Department of Human Resources (‘DHR’)] filed a dependency petition, alleging that A.M.A., who was then an infant, was dependent because, it said, she had been born a ‘crack baby’ and her mother, it claimed, was using cocaine and not providing adequate care for her. DHR obtained protective custody of A.M.A., and the child was placed in foster care.
“In February 1998, W.T.M., who had established a relationship with A.M.A. at birth, was judicially determined to be her father. In March 1998, W.T.M., along with his sister S.B., petitioned for joint custody of the child, alleging that W.T.M. had suffered a disabling stroke and was unable to care for the child without help. After a dispositional hearing in August 1998, the juvenile court ordered that the child remain in the custody of DHR, with foster-care placement. W.T.M. and S.B. appealed that order to this court, but the appeal was dismissed as untimely. See W.T.M. v. Department of Human Res., 736 So.2d 1120 (Ala.Civ.App.1999).
“In May 1999, V.T., another sister of W.T.M. and the child’s paternal aunt, moved to intervene and, along with her husband, petitioned for custody of A.M.A. In June 1999, S.P., the child’s foster mother, also moved to intervene and sought custody. The juvenile court granted both motions to intervene and, following a dispositional hearing, awarded custody to S.P. and granted specific rights of •visitation to the father as well as to V.T. and her husband.
“The judgment states, in part:
“ ‘After reviewing the law submitted by counsel for the parties, and hearing argument regarding the burden of proof required in this cause, this Court finds that said Petitions filed by child’s Paternal Aunt and Uncle, and by child’s Foster Parent should be considered as Petitions to Modify the child custody Order issued by this Court on August 7, 1998, granting custody of said child to [DHR]. In modification proceedings, the standard of proof is set out in [Ex parte McLendon, 455 So.2d 863 (Ala.1984)], whether a change in custody would materially promote the welfare of the child. The reason for this stricter standard is that uprooting children and moving them can be very traumatic.
“ ‘This Court finds that there have been no substantial changes in circumstances as presented by the paternal Aunt and Uncle that would materially promote the welfare of the child by changing custody from the Foster Parent to the Paternal Aunt and Uncle. This Court notes that said child has been in the custody of her Foster Parent during the past 2$ years where according to DHR reports said Foster Parent has provided child with a loving, nurturing environment and excellent care. Due to the fact that said child was found dependent by this Court on September 23, [1997], pursuant to Title 12-15-71 (a)(3)(c), Alabama Code 1975, a child found dependent may be awarded to a relative or other individual who, after study by [DHR], is found by the Court to be qualified to receive and care for the child. Therefore, the care, custody, and control of said minor child ... is hereby awarded to her Foster Parent [S.P.], with whom [DHR] placed said minor child approximately 2$ years ago.’”

802 So.2d at 1092-93. In W.T.M. II, this court held:

“[T]he trial court applied the McLendon standard, which was too stringent a burden of proof. Therefore, this cause must be remanded with instructions for the trial court to apply the correct standard, the ‘best interest’ standard. See Ex parte Perkins, 646 So.2d 46 (Ala.1994). In its determination of the child’s best interest, the juvenile court should keep in mind § 12-15-62(c), Ala. Code 1975 (mandating that ‘[i]f a permanent plan is not presented [by DHR] to the court [within 18 months of an order placing a child in foster care] there shall be a rebuttable presumption that the child shall be returned to the family’); the decision in R.C. v. Nachman, 969 F.Supp. 682 (M.D.Ala.1997), aff'd, 145 F.3d 363 (11th Cir.1998) (stating that DHR has the affirmative duty to facilitate family reunification whenever that goal is possible); and § 12-15-1.1, Ala. Code 1975 (stating the legislative goal of family reunification in juvenile dependency cases).
“The judgment of the juvenile court is reversed, and the cause is remanded with instructions to apply the ‘best interest’ standard to the disposition of this dependent child.”

802 So.2d at 1094.

Citing Ex parte Perkins, 646 So.2d 46 (Ala.1994), this court remanded the cause to the juvenile court to apply the “best-interest” standard. The rule of Perkins is that when the trial court uses an improper, higher standard to deny relief to a party requesting a modification of a prior custody order, the appellate court will not review the evidence under the correct lower standard and direct the award of custody. Instead, the appellate reverses the judgment and remands the cause for the trial court to make a custody determination, applying the correct standard. Ex parte Perkins, 646 So.2d at 46-47.

On remand in this case, the juvenile court entered the following order:

“In accordance with an Order issued by the Alabama Court of Civil Appeals, ... instructing this Court to apply the ‘best interest’ standard in this disposi-tional hearing of a dependent child, this Court finds that it is in the best interest of said minor child that her custody remain with [S.P., the foster mother] who has had physical custody of said minor child for the past 3-& years and has provided said child with a loving and nurturing environment, and excellent care. Child’s Paternal Aunt and Uncle shall have the standard rights of visitation with said minor child as previously Ordered by this Court on March 7, 2000.”

From the juvenile court’s order on remand, the father (case no. 2001064) and the paternal aunt and her husband (case no. 2001069) appealed to this court. The father also petitioned for a writ of mandamus, directing the juvenile court to award custody to the paternal aunt and uncle (case no. 2001065). We hold that the juvenile court erred by determining that it was in A.M.A.’s best interest to be placed in the custody of her foster mother, S.P.

The juvenile court’s factual findings — that S.P. had had physical custody of the child for 3$ years, that S.P. had provided the child with a loving and nurturing environment, and that S.P. had given the child excellent care — are fully supported by the record. However, those factual findings are insufficient, as a matter of law, to overcome the statutory policies and preferences expressed in § 12-15-1.1 and § 12-15-62(c), Ala.Code 1975.

Section 12-15-1.1 states, as a legislative goal for the juvenile court, that the court should “preserve and strengthen the child’s family whenever possible” and should maintain “a preference at all times for the preservation of the family.” See § 12-15-1.1(1) and (8). Section 12-15-62(c) states a preference for placing a dependent child who has been in long-term foster care with a relative over an unrelated caregiver.

Judge Murdock’s dissenting opinion cites our decision in W.T. v. State Department of Human Resources, 707 So.2d 647, 651 (Ala.Civ.App.1997), for the proposition that § 12-15-71 gives the juvenile court “ ‘the broadest possible range of placement options in the dispositional phase of a dependency proceeding.’ ” 851 So.2d at 67. It is true that, based on the law as it existed when W.T. was decided, the juvenile court was not required to give priority to placing a dependent child with a relative over an unrelated caregiver. After our decision in W.T., however, the Alabama statutes relating to the disposition of dependent children (§§ 12-15-62 and 12-15-65) were amended, effective April 22, 1998, to comply with two pieces of congressional legislation, namely: (1) the Adoption and Safe Families Act of 1997, Pub.L. No. 105-89, 111 Stat. 2115 (1997) (“the ASFA”) (codified at 42 U.S.C. §§ 671 and 675) and (2) the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub.L. 104-193, § 505(3), 110 Stat., 2104 (August 22,1996), now codified, in relevant part, at 42 U.S.C. § 671(a).

Most of the Alabama amendments appear at § 12-15-62(c) and § 12-15-65(a), (m), and (n). The 1998 amendments added three sentences to subsection (c) of § 12-15-62, the first two of which are pertinent here:

“The purpose of the permanency hearing shall be to determine the permanency plan for the child which may include whether, and, if applicable, when, the child shall be (i) returned to the parent, (ii) placed for adoption wherein the Department of Human Resources shall file a petition for termination of parental rights, or (iii) referred for legal custody. The permanency hearing shall determine whether the plan will include placement in another planned permanent living arrangement in cases where the department has documented to the court a compelling reason for determining that it would not be in the best interests of the child to return home, be referred for termination of parental rights, be placed for adoption, or be placed with a fit and willing relative, or with a legal custodian.”

(Emphasis added.) In W.T., we held that § 12-15-71 stated no preference for placing a dependent child with a parent, family member, or other relative. After the 1998 amendments to § 12-15-62(c), however, the “relative preference” does, as Judge Murdock’s dissenting opinion suggests, “override[] the Legislature’s express grant of broad discretion to the trial court in § 12-15-71(a).” 851 So.2d at 66.

The preference for placement of a dependent child with a “fit and willing relative” is derived' from 42 U.S.C. § 671(a). That section sets forth the requirements for states to obtain federal appropriations for “foster care and transitional independent living programs for children.” Subsection (19) of § 671(a) states:

“In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary [of Health & Human Services] which—
“(19) provides that the State shall consider giving preference to an adult relative over a non-related caregiver when determining a placement for a [dependent] child, provided that the relative caregiver meets all relevant State child protection standards.”

Other jurisdictions have recognized that, in their state statutes concerning permanency hearings for dependent children, there is a “relative-placement preference” corresponding to federal legislation. See, e.g., State ex rel. V.F.R., 815 So.2d 1035 (La.Ct.App.2002); State ex rel. K.A.M., 809 So.2d 206 (La.Ct.App.2001); Marylou L. v. Tenecha L., 182 Misc.2d 457, 458, 698 N.Y.S.2d 827, 829 (1999); In re L.S. and K.S., 172 Vt. 549, 549, 772 A.2d 1077, 1078 (2001).

In passing the ASFA, Congress emphasized two themes: that the primary goal of the child welfare system is to secure the safety of children who enter the system and that children should not languish for extended periods in foster care without a plan for their timely permanent placement. See, e.g., David J. Herring, The Adoption and Safe Families Act — Hope and its Subversion, 34 Fam. L.Q. 329, 329 (2000); Ernestine Steward Gray, The Adoption and Safe Families Act of 1997: Confront ing an American Tragedy, 46 La. B.J. 477, 478 (April 1999).

“ASFA introduces rather specific procedural measures and time lines designed to achieve timely permanent placements. First, ASFA requires a judicial hearing twelve months after the date on which the child entered foster care. This hearing is no longer labeled the ‘disposi-tional hearing,’ but is now termed the ‘permanency hearing.’ At this hearing, the judge is to determine whether the child will be returned to his or her parents, placed for adoption (following the termination of parental rights), referred for legal guardianship, or placed in another planned permanent living arrangement. ASFA allows the judge to order the latter permanency outcome only if the agency has documented compelling reasons as to why the other permanent outcomes would not be in the child’s best interests.”

Herring, 34 Fam. L.Q. at 338-39 (footnotes omitted).

The ASFA requires a State agency like DHR to petition for the termination of parental rights when any child has been in foster care for 15 of the last 22 months. See 42 U.S.C. § 675(5)(E). There are only three exceptions to this requirement: (1) if the child is being cared for by a relative; (2) if the State agency has documented in its case plan a compelling reason for determining that a petition to terminate parental rights is not in the best interest of the child; and (3) if the State has not provided the child’s family with “such services as the State deems necessary for the safe return of the child to the child’s home, if reasonable efforts ... are required to be made with respect to the child.” See 42 U.S.C. § 675(5)(E)(i)-(iii). See Herring, 34 Fam. L.Q. at 339-40 (stating that “[t]he agency can avoid the [termination-of-parental-rights-and-]adoption outcome if it has placed the child with a relative or has documented a compelling reason that termination of parental rights and adoption would not be in the best interests of the child”).

In the present case, DHR recommended, pursuant to § 12-15-62(c) — and consistent with the mandate of 42 U.S.C. § 675(5)(E)(i) — that the child be placed with Y.T. and E.T., her paternal aunt and uncle. The evidence demonstrates that V.T. and E.T., the father’s sister and brother-in-law, are willing and able to assume physical custody of the child, that the child has developed a relationship with them, and that they are fit and loving caregivers. The undisputed evidence indicates that the father has had a relationship with the child since her birth and that, but for the father’s debilitating stroke and the resulting physical limitations, he would himself be petitioning for custody of the child. Given the father’s limitations, awarding custody of the child to the paternal aunt and uncle is the nearest approximation to a real parent-child relationship possible for W.T.M. and A.M.A. The mere fact that the child has been in S.P.’s foster care for a long time is insufficient, as a matter of law, to prevail over the policies and preferences that support placing the child with her relatives.

Judge Murdock’s dissenting opinion states:

“If the evidence ... was insufficient as a matter of law to rebut some presumption favoring placement with a relative or to allow the trial court to use its discretion to determine that a permanent award of custody to S.P. was in the child’s best interests, we could have said so then. We did not. Instead, we remanded the case to the trial court to exercise its discretion and to determine the best interests of the child based on [the] record. The trial court did that.”

851 So.2d at 69-70. In W.T.M. II, we did not state that the evidence was insufficient as a matter of law to support the trial court’s judgment awarding custody to the foster mother; the trial court’s judgment was based on an incorrect standard and it was necessary to remand the case to the trial court with directions that it (1) conduct another review of the record applying the correct standard and then (2) redetermine the custody award. This court had no authority to redetermine custody. See Ex parte Perkins, supra. On return to remand, we could affirm the court’s rede-termination of custody if that redetermi-nation was supported by additional factual findings (based on the original record) indicating that the paternal aunt and uncle were either unfit or unwilling to have custody of the child. Here, the trial court made factual findings that were insufficient as a matter of law. Because of our disposition of the appeal, the father’s petition for the writ of mandamus is denied as moot.

The judgment of the juvenile court is reversed.

2001064 and 2001069 — REVERSED.

2001065 — PETITION DENIED.

PITTMAN, J., concurs.

YATES, P.J., and THOMPSON, J., concur in the result.

MURDOCK, J., dissents.

MURDOCK, Judge,

dissenting.

The lead opinion in the second appeal of this case, W.T.M. v. S.P., 802 So.2d 1091 (Ala.Civ.App.2001) (“W.T.M.IIconclud-ed that the judgment of the trial court was the result of a dispositional hearing in a dependency proceeding, not a change of custody under Ex parte McLendon, 455 So.2d 863 (Ala.1984). It therefore reasoned that the “material-promotion” standard of McLendon did not apply and that, as a result, the case should be remanded for the trial court to determine custody upon application of a “best-interests” standard. After reviewing the record and the trial court’s judgment on remand, I see no basis for concluding that the trial court did not follow the mandate of this court and the concomitant law of this case.

The record in this case reveals that the child, A.M.A., was born in September 1996. When A.M.A. was seven months old, DHR obtained protective custody of her. In June 1997, when A.M.A. was nine months old, S.P. became her foster mother. A.M.A. was approximately three and one-half years of age at the time of the March 2000 judgment at issue here. Of that three and one-half years, she had lived with S.P. almost three years. By the time the trial court issued its judgment on remand on June 22, 2001, based upon the “best-interests” standard that we mandated in W.T.M. II, A.M.A. was almost five years old and had lived with S.P. for approximately four years immediately preceding that judgment.

It was undisputed that S.P.’s home was suitable for A.M.A. and that S.P. and A.M.A. had a very close and loving relationship. Even V.T., A.M.A.’s paternal aunt, admitted that S.P. had “done a pretty good job of raising” the child and that the child was well-adjusted, outgoing, and vivacious. The record reflects that S.P. was 41 years old and had three other foster children (two boys and one girl, ages 8, 7, and 5, respectively), all of whom she had had custody of for over four years and was attempting to adopt. A representative of DHR testified that the four children, who had grown up together, were “very, very bonded.... They’re extremely close. The two boys ... that’s their sister and [A.M.A.] thinks of [the other foster children] as those are my brothers and [sister].”

The record reflects that S.P. and the children regularly attended church together and that the children likewise participated in Sunday school and in a missions program held at the church on Wednesday nights. S.P.’s sister, who lives in Georgia, testified that she and her three children visited S.P. “every two or three months,” that the sister’s family and S.P. and the four children S.P. cared for had spent Thanksgiving together each of the last three or four years and that the families had spent Christmas together along with S.P.’s mother and another sister. The record also reflects that S.P.’s mother regularly assisted S.P. in caring for the four children and that A.M.A. had formed a positive relationship with S.P.’s extended family.

S.P. testified that, although she had filed for a divorce from her husband, she could provide for all of the children financially; it was undisputed that the child had been well cared for physically, as well as emotionally. S.P. further testified:

“Q: And what was the reason that you filed — or asked to intervene in this case and filed for custody?
“A: I have just felt like in this amount of time it was not in her best interest to be placed. And [the DHR worker] had told me before that she had talked to [V.T.] and that she said she didn’t want any more children. And I in my mind started thinking that everybody was doing this together and that it really wasn’t for the best interest of her.
“Q: And, so, you have bonded with her as your child?
“A: Yes, I have.
“Q: And you don’t have any kind of ulterior motive or other motive other than the care of the child do you?
“A: No.
“Q: And the only reason that you’re in court today is that you think that it is in [the child’s] best interest that she stay where she is?
“A: I think at this point in her age and as long as she’s been where she is, it’s in her best interest to stay where she’s at.”

At the time of trial, V.T. and her husband, E.T., were both 54 years of age. Although DHR had approved of V.T. for placement of the child, the record reflects that V.T. and E.T. had not attempted to obtain custody in 1998. Further, the record reflects that E.T. had been arrested twice — once in March 1997 and again in September 1997 — for driving under the influence of alcohol, although he had not been convicted of either offense. E.T. admitted that he had continued to drive home on occasion after he had “had two or three beers at the Stadium Grill.... I mean, it’s kind of hard to stop at Apple-bee’s or wherever and not drive to get home whether you have one or twenty.”

A representative of DHR testified that, although DHR’s policy was to seek a relative for placement when an appropriate relative could be located, in the representative’s five and one-half years of experience with DHR she had never known DHR to remove a child from a home after the child had been placed in the home as an infant and had remained in the home for three years.

A.M.A. is now five and one-half years old. Every witness testified that the child is a happy, loving child. The trial court, in its discretion, awarded custody of A.M.A. to S.P., who has had physical custody of the child since she was an infant and who has provided the only home, and in a real sense, has been the only mother, the child has ever known.

Because the lead opinion in W.T.M. II considered this case to involve a dependency proceeding, our mandate that the trial court apply a “best-interests” standard on remand was consistent with Ala.Code 1975, § 12-15-71(a). That statute provides, in pertinent part:

“If a child is found to be dependent, the court may make any of the following orders of disposition to protect the welfare of the child:
“(1) Permit the child to remain with the parents, guardian, or other custodian of the child, subject to conditions and limitations as the court may prescribe.
“(2) Place the child under protective supervision as herein provided or under the supervision of the Department of Human Resources.
“(3) Transfer legal custody to any of the following:
“a. The Department of Human Resources; provided, that the department is equipped to care for the child.
“b. A local public child-placing agency or private organization or facility willing and able to assume the education, care, and maintenance of the child and which is licensed by the Department of Human Resources or otherwise authorized by law to receive and provide care for the child.
“c. A relative or other individual who, after study by the Department of Human Resources, is found by the court to be qualified to receive and care for the child.
“(4) Make any other order as the court in its discretion shall deem to be for the welfare and best interests of the child.”

(Emphasis added.)

Consistent with § 12-15-71(a), we have long stated in both child custody and dependency cases, that the primary concern is the best interests and welfare of the child. E.g., McKinney v. Alabama Dep’t of Pensions & Sec., 475 So.2d 568 (Ala.Civ.App.1985); Melton v. State Dep’t of Pensions & Sec., 448 So.2d 392 (Ala.Civ.App.1984); Price v. Price, 440 So.2d 1110 (Ala.Civ.App.1983). Even our law’s recognition of a presumption of custody in favor of a natural parent finds its genesis in the concern for the best interests of the child:

“The law devolves the custody of infant children upon their parents, not so much upon the ground of natural right in the latter, as because the interests of the children, and the good of the public, will, as a general rule, be thereby promoted. It is a fair presumption, that so long as children are under the control of their parents, they will be treated with affection, and their education and morals will be duly cared for.”

Striplin v. Ware, 36 Ala. 87, 89 (1860) (quoted with approval in Ex parte D.J., 645 So.2d 303 (Ala.1994)). See also Ex parte Mathews, 428 So.2d 58, 59 (Ala.1983) (“The prima facie right of a natural parent to the custody of his ... child, as against the right of custody in a nonparent, is grounded in the common law concept that this primary parental right ... is in the best interest and welfare of the child as a matter of law”).

Obviously, it is quite relevant to a determination of a child’s best interests and welfare “to consider ties of affection resulting from years of association between the child and its custodian.” Dale v. Dale, 54 Ala.App. 505, 507, 310 So.2d 225, 227 (1975) (custody determination in a divorce case). In Borsdorf v. Mills, 49 Ala.App. 658, 275 So.2d 338 (1973), this court explained:

“To tear [a child] from his home and those he knows as his parents and the source of love, safety and security merely to give sanction to a principle of priority of right is unconscionable. The principle of priority of right of a parent to custody is founded upon the premise that because of a blood relation and instinct, such parent will better love and care for a child than one not so related. Such premise may be theoretically correct but practical experience has often proved it incorrect. The bonds of love between parent and child are not dependent upon blood relation and instinct, but may be forged as strongly in the crucible of day to day living. Out of the actual relationship of parent and child love grows. It is not merely a product of the biological function of conception and giving birth. To give paramount consideration to the principle of parental priority or ownership in custody decisions would often be an anathema to the best interest of the child.”

49 Ala.App. at 661-662, 275 So.2d at 341. See generally Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983).

It would appear not only that the trial court acted consistently with this court’s mandate that it apply a “best-interests” standard, but that it did so entirely consistently with § 12-15-71(a) and the policy concerns explained in Striplin, Mathews, Borsdorf, and the other cases cited above. The lead opinion in W.T.M. II was a plurality opinion. It stated:

“In its determination of the child’s best interest, the juvenile court should keep in mind § 12-15-62(c), Ala.Code 1975 (mandating that ‘[i]f a permanent plan is not presented [by DHR] to the court [within 18 months of an order placing a child in foster care] there shall be a rebuttable presumption that the child shall be returned to the family’); the decision in R.C. v. Nachman, 969 F.Supp. 682 (M.D.Ala.1997), aff'd, 145 F.3d 363 (11th Cir.1998) (stating that DHR has the affirmative duty to facilitate family reunification whenever that goal is possible); and § 12-15-1.1, Ala. Code 1975 (stating the legislative goal of family reunification in juvenile dependency cases).”

802 So.2d at 1094. As with the trial court’s application of the mandated “best-interest” standard, I see no reason to conclude that the trial court did not “keep in mind” the foregoing items. None of these items individually, or collectively, foreclosed the trial court from reaching the judgment that it reached.

The first of the three items the lead opinion in W.T.M. II stated that the trial court “should keep in mind” is § 12-15-62(c), which provides, in pertinent part:

“Within 12 months of any court order placing a child in foster care the court shall hold a permanency hearing. [DHR] shall present to the court at such hearing a permanent plan for said child. If a permanent plan is not presented to the court at this hearing there shall be a rebuttable presumption that the child should be returned to the family. This provision is intended to insure that a permanent plan is prepared by [DHR] and presented to the court within 12 months of the placement of any child in foster care. The purpose of the permanency hearing shall be to determine the permanency plan for the child which may include whether, and, if applicable, when, the child shall be (i) returned to the parent, (ii) placed for adoption wherein [DHR] shall file a petition for termination of parental rights, or (iii) referred for legal custody. The permanency hearing shall determine whether the plan will include placement in another planned permanent living arrangement in cases where the department has documented to the court a compelling reason for determining that it would not be in the best interests of the child to return home, be referred for termination of parental rights, be placed for adoption, or be placed with a fit and willing relative, or with a legal custodian.”

(Emphasis added.)

In the present case, the trial court placed A.M.A. in the temporary custody of DHR on March 21, 1997. The trial court’s orders from hearings on May 1, 1997, September 23,1997, and November 6, 1997, all stated that the trial court concurred with the “plan for the child,” which appeared to be to return the child to the mother, if possible. The trial court held a permanency hearing for the child on February 18, 1998, less than 12 months after DHR had assumed custody. In the trial court’s order dated February 19, 1998, the court stated that it concurred with the plan for the child and that the “permanent plan” for the child was reunification with relatives. Based upon the foregoing, the trial court’s handling of this case has been consistent with § 12-15-62(c).

Moreover, I note that § 12-15-62(c) creates a rebuttable presumption, not a conclusive presumption. Even if DHR had not presented a permanent plan to the trial court within 12 months, under the facts of this case substantial evidence supports the trial court’s conclusion that the presumption was rebutted.

Finally, even if a timely permanency hearing had not been held, and even if the evidence had not been sufficient to support a judgment that the presumption of § 12-15 — 62(c) was rebutted, that presumption is that the child should be “returned to the family.” Even if § 12-15-62(c) somehow overrides the Legislature’s express grant of broad discretion to the trial court in § 12-15-71(a) and required the trial court in this case to order that the child be “returned to the family,” that is not possible in this case in the manner contemplated. The child was in her mother’s custody until March 1997, when DHR obtained temporary custody and placed the child with foster parents. In June 1997, DHR removed the child from those foster parents and placed her in the care of S.P.; the child has remained in S.P.’s care since that time. Neither the father nor any other “family” member other than the mother has ever had custody of the child, except for limited visitation in accordance with the trial court’s orders. Based upon the record, it appears that the mother has not attempted to regain custody of the child. V.T. has never had custody of the child; a “return” to V.T. is not possible.

The lead opinion in W.T.M. II also stated that the trial court should consider the United States District Court’s decision in R.C. v. Nachman, 969 F.Supp. 682 (M.D.Ala.1997), aff'd, 145 F.3d 363 (11th Cir.1998), and Ala.Code 1975, § 12-15-1.1, regarding the obligation to seek “family reunification” whenever that “goal” is possible. I first note that family reunification is a goal, not a strict requirement. Second, as noted above, there is no “reunification” at issue here.

Further, the main opinion in this case assumes that “family” as that word is used in § 12-15-62(c) and § 12-15-1.1(1) and (8), includes V.T. and E.T., a paternal aunt and uncle. The Alabama Juvenile Justice Act (Ala.Code 1975, § 12-15-1 et seq.) does not-define the term “family.” I am concerned about the main opinion’s extension of that term to include relatives other than a child’s parents, particularly when those relatives have never had custody, and the child, therefore, cannot be “returned” to them within the contemplation of the statute.

If the term “family” was not intended as a reference to an immediate family to which a child can be returned, it is not clear where the definitional line for a “family” is to be drawn. By going beyond the child’s parents and immediate family to draw this line, this court runs a risk of judicially defining all dependent children’s best interests as placement anywhere within some extended “family tree.” This is something the Legislature has not done, undoubtedly because it is something that, in many cases, will be at odds with the child’s best interests.

Further, the reunification with “family” referenced in W.T.M. II in relation to § 12-15-1.1 and § 12-15-62 must be considered in light of the actual wording of those statutes. Nowhere does either statute actually call for a “reunification” with “family.” Instead, § 12-15-1.1 provides, in pertinent part:

“In furtherance of [the] purpose [of this Act], the following goals have been established for the juvenile court:
“(1) To preserve and strengthen the child’s family whenever possible, including improvement of home environment.
“(2) To remove the child from the custody of his or her parents only when it is judicially determined to be in his or her best interest or for the safety and protection of the public.
“(3) To reunite a child with his or her parents as quickly and as safely as possible when the child has been removed from the custody of his or her parents.
“(4) To secure for any child removed from parental custody the necessary treatment, care, guidance, and discipline to assist him or her in becoming a responsible productive member of society.
“(8) To achieve the foregoing goals in the least restrictive setting necessary, with a preference at all times for the preservation of the family and the integration of parental accountability and participation in treatment and counseling programs.”

(Emphasis added.) Thus, the “reunification” goal expressed in § 12-15-1.1 is actually a goal for reunification with parents, § 12-15-1.1(3), not reunification with extended family generally. Similarly, § 12-15-62(c) contains references to a child’s being “returned to the parent” and “return[ed] home.” Considering the usage in these statutes of the term “family,” in relation to the use of the terms “home,” “parents,” and “parental,” I do not construe the term “family” in these statutes to mean extended family, particularly extended family with whom the child has never lived.

The main opinion in the present case essentially overlays onto the provisions of § 12-15-71 a requirement that if a viable relative placement is possible, the court has no choice but to favor that placement. The statute does not require this. To the contrary, as stated in the main opinion in W.T. v. State Department of Human Resources, 707 So.2d 647 (Ala.Civ.App.1997):

“The legislative intent underlying § 12-15-71 appears to be to give the juvenile court the broadest possible range of placement options in the dispo-sitional phase of a dependency proceeding. We find no evidence that the legislature intended to accord a parent (even a noncustodial parent who may not have contributed to the child’s becoming dependent) a presumption of fitness in the dispositional phase of a dependency case. The legislature is well aware of how to write a ‘parental preference’ presumption into a statute. See, e.g., § 12-15 — 71(a)(6) (‘There shall be a rebuttable presumption that children cannot be removed from custody of parents solely because of a need for emergency housing’); § 12-15-62(c) (Tf a permanent plan is not presented [by DHR] to the court [within 18 months of an order placing a child in foster care] there shall be a rebuttable presumption that the child shall be returned to the family’). The legislature could have directed the juvenile court to place a dependent child with a nonparent only if it first found the parent or parents unfit. However, ‘no alternative contained in [§ 12-15-71] has any priority over the other alternatives. The trial court may choose that alternative which it finds to be in the best interests of the [dependent child].’ Wallace v. Pollard, 532 So.2d [632,] 633 [(Ala.Civ.App.1988)].
“We cannot conclude that the legislature’s failure to incorporate the [Ex parte] Terry [, 494 So.2d 628 (Ala.1986),] presumption into the statute providing for the disposition of dependent children was an oversight that may be remedied by the judicial branch. The express references to a parental preference presumption elsewhere in the statute ‘establish that the Legislature knew how to so limit or restrict the provisions of the statute if that was the intent.’ Dannelley v. State, 397 So.2d 555, 569 (Ala.Crim.App.), cert. denied, 397 So.2d 577 (Ala.), cert. denied, 454 U.S. 856, 102 S.Ct. 305, 70 L.Ed.2d 151 (1981).
“The standard to be used in the dispo-sitional phase of a dependency proceeding is the ‘best interest’ of the child. ‘The paramount considerations [in the dispositional phase of a dependency proceeding] are the welfare and best interests of the child. The relationship of a blood relative is subsidiary to such welfare.’ D.K.G. v. J.H., 627 So.2d [937,] 938 [(Ala.Civ.App.1993) ].
“‘Section 12-15-71(a)(5) empowers the court which has found a child to be dependent to make such orders as the court in its discretion shall deem to be for the welfare and best interests of the child. This court has interpreted that power broadly to mean that its only parameter is the best interests and welfare of the child.’
“Minchew v. Mobile County Dep’t of Human Resources, 504 So.2d [310,] 311 [ (Ala.Civ.App.1987) ].”

707 So.2d at 651 (emphasis added).

The main opinion takes issue with the citation to W.T. in this dissent, noting that certain of our statutes relating to dependency of children were amended in 1998, after W.T. was decided. The main opinion then proceeds to discuss the portion of those amendments embodied in Ala.Code 1975, § 12-15-62(c). It is the amended version of § 12-15-62(c) that this dissenting opinion discusses at length. The main opinion, however, also quotes the following two sentences from amended § 12-15-62(c):

“ ‘The purpose of the permanency hearing shall be to determine the permanency plan for the child which may include whether, and, if applicable, when, the child shall be (i) returned to the parent, (ii) placed for adoption wherein the Department of Human Resources shall file a petition for termination of parental rights, or (iii) referred for legal custody. The permanency hearing shall determine whether the plan will include placement in another planned permanent living arrangement in cases where the department has documented to the court a compelling reason for determining that it would not be in the best interests of the child to return home, be referred for termination of parental rights, be placed for adoption, or be placed with a fit and willing relative, or with a legal custodian.’

851 So.2d at 59 (emphasis added).

I note two things regarding this language. First, as previously noted, the “return” of children referenced in the provisions is a return “to the parent,” and a “return home,” and not a return to some more broadly defined “family.” Again, this is consistent with the manner in which the terms “family,” “parents,” “home,” and “reunite” are used in § 12-15-1.1.

Second, and more importantly, I cannot see how the quoted passage overrides the discretion given to trial courts in Ala.Code 1975, § 12-15-71, or how it grants a “preference” to relatives over other options made available to trial courts in § 12-15-71. To the contrary, the quoted passage references placement “with a fit and willing relative” in the same list of options as it does placement “with a legal custodian.” Syntactically, the two are placed on par with one another; there is no express preference for one over the other.

The main opinion also relies upon 42 U.S.C. §§ 671(a) and 675, part of the federal Adoption and Safe Families Act of 1997. These federal statutes do not purport to prescribe rules of decision for state courts in dependency cases. Clearly, the rules of decision in our dependency cases are stated in Alabama statutes and in our precedents. Nowhere does 42 U.S.C. § 671(a) or 42 U.S.C. § 675 or any other federal statute of which I am aware, state that the courts of Alabama must always select a relative over a nonrelative in a custody determination. I do not believe Congress intended to dictate to the states that they must always place a child with a nonparent relative, even when such a placement is not in the best interests of the child. I certainly find no authority requiring that a federally imposed “relative” preference must override a state court’s determination of a child’s best interests. It is my conclusion that the decisions of this court, and those of Alabama trial courts, remain governed by the best interests of the children, which has always been the polestar for our decisions in this area.

Nothing in the record or the trial court’s judgment in this case indicates that that court did not make the mandated “best-interests” determination or that in doing so it did not “keep in mind” the rebuttable presumption of § 12-15-62(c) and the “goals” stated in R.C. and § 12-15-1.1. When we remanded this case in W.T.M. II, this court was well aware of the record before the trial court, as it was of § 12-15-62(c), the Adoption and Safe Families Act of 1997, R.C., and § 12-15-1.1. If the evidence in that record was insufficient as a matter of law to rebut some presumption favoring placement with a relative or to allow the trial court to use its discretion to determine that a permanent award of custody to S.P. was in the child’s best interests, we could have said so then. We did not. Instead, we remanded the case to the trial court to exercise its discretion and to determine the best interests of the child based on that record. The trial court did that.

As the main opinion now notes, “[t]he juvenile court’s factual findings — that S.P. had had physical custody of the child for 3/6 years, that S.P. had provided the child with a loving and nurturing environment, and that S.P. had given the child excellent care — are fully supported by the record.” 851 So.2d at 58. There is no indication in the record that, in making the mandated determination of best interests, the trial court did not keep in mind the other factors referenced in this court’s opinion in W.T.M. II. In other words, nothing in the record indicates that the trial court did not follow this court’s mandate and the law of this case.

When evidence is received ore tenus, a judgment based on findings of fact by the trial court will not be reversed unless that judgment is shown to be plainly and palpably wrong; we are not allowed to reweigh the evidence, nor may we substitute our own judgment if the trial court’s judgment is supported by reasonable inferences from the evidence. Ex parte Pielach, 681 So.2d 154 (Ala.1996). This deferential standard applies to both explicit and implicit findings of fact. See Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375 (Ala.1992).

As our Supreme Court recently stated in Ex parte H.H., 830 So.2d 21 (Ala.2002):

“ ‘Neither the Court of Civil Appeals nor this Court is allowed to reweigh the evidence in this case. This case, like all disputed custody cases, turns on the trial court’s perception of the evidence. The trial court is in the better position to evaluate the credibility of the witnesses ... and the trial court is in the better position to consider all of the evidence, as well as the many inferences that may be drawn from that evidence, and to decide the issue of custody.’”

830 So.2d at 25 (quoting Ex parte Bryowsky, 676 So.2d 1322, 1326 (Ala.1996)); see also Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994) (“Only where the findings are not supported by the evidence and are clearly erroneous should an appellate court decide that the facts are not as the trial court found them to be.”).

I believe that in order to reverse the judgment of the trial court, the majority must reweigh the evidence and substitute its judgment for that of the trial court. I therefore respectfully dissent from that reversal.

      . In Perkins, the trial court applied the standard established in Ex parte Terry, 494 So.2d 628 (Ala.1986), to deny a father’s request for a custody modification. This court held that the trial court had erred by using the Terry standard when it should have used the standard established in Ex parte McLendon, 455 So.2d 863 (Ala.1984). This court then reviewed the evidence and determined that the father had met the McLendon standard; we remanded the case with directions for the trial court to award custody to the father. The Alabama Supreme Court reversed our judgment, holding that this court had no authority to direct an award of custody, but had the authority only to remand for the trial court to apply the correct standard.

      . No petition was filed seeking certiorari review by the Supreme Court of the mandate in W.T.M. II that the trial court apply a best-interests standard. That mandate therefore is the law of this case. See, e.g., Ex parte Jones, 774 So.2d 607 (Ala.Civ.App.2000).

      . V.T. testified that, at the time, she thought her sister would be approved for custody and that her sister would have been a better caregiver for the child at that time. See W.T.M. v. Department of Human Res., 736 So.2d 1120 (Ala.Civ.App.1999).

      . The lead opinion in W.T.M. II actually quoted § 12-15~62(c) as it read before it was amended, effective April 22, 1998, to change the applicable period for holding the permanency hearing from 18 months to 12 months. Regardless of whether a 12-month or an 18-month period is considered, however, the trial court in this case acted in a manner consistent with § 12-15-62(c).

      . I note that the father, whose paternity had been established in February 1998, and a sister other than V.T. filed a joint petition for custody of the child in March 1998. After questions arose as to the suitability of the sister and her husband to receive custody of the child, the trial court denied the joint petition for custody in an order dated August 7, 1998, and stated that custody of the child would remain with DHR. The father unsuccessfully appealed to this court; no petition for certiorari review was filed with the Supreme Court.

      . The intent expressed in § 12-15-62(c) is to ensure that DHR develops and proposes a timely permanent plan for a child who is placed in foster care, not to establish a presumption that restricts the trial court's broad discretion in actually reaching a final judgment regarding that child. See Ala.Code 1975, § 12-15-62(c) (“This provision is intended to insure that a permanent plan is prepared by [DHR] and presented to the court within 12 months of the placement of any child in foster care.”). In neither § 12 — 15— 62(c) (assuming a permanent plan is presented to DHR within 12 months) nor § 12 — 15— 71(a) does the Legislature dictate a preference for a dependent child's placement as between a parent, other relative, or other custodian.
      Further, by handling this case in a manner consistent with § 12-15-62(c), the trial court also has satisfied the policy concerns of the Adoption and Safe Families Act of 1997, 42 U.S.C. § 675(5), upon which the main opinion also seeks to rely. A permanency hearing was held within the applicable time and the child will no longer be in “foster care,” but with a legal custodian the child knows as its "mother,” subject to visitation rights with the father and V.T. and her husband.

      . I further note that, in the present case, not only has the trial court deemed continued custody with S.P. to be in the best interests of the child, the court has never found V.T. to be a suitable alternative primary custodian.

      . In R.C., the court refused DHR’s request to modify or vacate a consent judgment entered in a civil action brought by a defined class of children who were in foster care or under DHR’s care. R.C., supra. We are not presented in this case with the need to address the scope of the R.C. consent decree or whether A.M.A. falls within the class of children defined therein.

      . There is no argument before us that placement with V.T. is required by the United States Constitution because it would arguably be less restrictive of the father’s residual parental rights. I also note that this case does not involve a termination of the father’s parental rights, but only a custody placement, and that the father, as well as V.T. and her husband, will continue to have visitation with the child under the court’s order, and with the agreement of S.P.
      Further, because a "permanent” placement has been made and DHR has been relieved of any further obligation to supervise the child, the main opinion's statements regarding the termination of parental rights appear to be misplaced. Because the child is no longer in foster care under the supervision of DHR, DHR no longer has an obligation to petition for termination of parental rights under Ala. Code 1975, § 26-18-5(b).

      . The main opinion concludes that "we could affirm the [trial] court’s redetermination of custody if that redetermination was supported by additional factual findings (based on the original record) indicating that the paternal aunt and uncle were either unfit or unwitting to have custody of the child.” 851 So.2d at 61 (emphasis in original omitted; emphasis added).

      . Even if a "preference" were to be given to "relatives” over all other options, this would appear to me to be the sort of case — i.e., where a child has lived with a nonrelative parent figure for most of her life — where the fact that such a preference is only that, i.e., a preference, and not a conclusive presumption, would allow for placement with someone who is not a relative.

      . Even if § 671(a) did purport to alter the rule of decision for state courts, it would require only that a fit and willing relative be "considered" for preference.

      .Nor do I read the four cases from Louisiana, Vermont, and New York, cited by the majority for the proposition that "their state statutes ... [contain] a 'relative-placement preference' corresponding to federal legislation,” to recognize such a proposition. 851 So.2d at 59. See State ex rel. V.F.R., 815 So.2d 1035 (La.Ct.App.2002); State ex rel. K.A.M., 809 So.2d 206 (La.Ct.App.2001); Marylou L. v. Tenecha L., 182 Misc.2d 457, 458, 698 N.Y.S.2d 827, 829 (1999); In re L.S. and K.S., 172 Vt. 549, 549, 772 A.2d 1077, 1078 (2001).

      . Citing Ex parte Perkins, 646 So.2d 46 (Ala.1994), the main opinion states that "the trial court’s judgment was based on an incorrect standard and it was necessary [in W.T.M. II ] to remand the case to the trial court with directions that it (1) conduct another review of the record applying the correct standard and then (2) redetermine the custody award,” and that "[t]his court had no authority to redetermine custody.” 851 So.2d at 61. The rule recognized in Ex parte Perkins, however, is that deference is to be given a trial court's custody determination and that we will not reverse the determination, " 'unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court's discretion is shown.' ” 646 So.2d at 47 (quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993)) (emphasis added). If the evidence of record in the present case "so fails to support” an award of custody to S.P. that, if such an award is made, we necessarily must on appeal reverse it as a matter of law, there would have been no need for this court to have remanded this case to the trial court for it to consider that issue. Ex parte Perkins recognizes that an appellate court may "decide that the facts are not as the trial court found them to be” if those "findings are not supported by the evidence and are clearly erroneous.” Id. at 47. See also P.A.T v. K.T.G., 749 So.2d 454, 458 (Ala.Civ.App.1999) (notwithstanding the presumption in favor of a trial court's custody determination, "when the evidence contained in the record does not support the judgment, we have no alternative; we must reverse it”). Ex parte Perkins, however, was not such a case; there was sufficient evidence in Perkins to support a custody finding in favor of either party.

        Ex parte Perkins stands for the proposition that where a trial court has imposed on a losing party a more difficult burden of proof as to an essential issue than it should have imposed (or imposed on a prevailing party an easier burden, than it should have imposed), and there is in the record sufficient evidence from which the trial court, under the correct standard, reasonably could find in favor of either party as to that issue, the only appropriate course is to remand the case and allow the trial court to perform its role as the fact-finder. In the present case, there is substantial evidence on both sides of the best-interests issue, which is why this court was obligated in W.T.M. II to remand this case to the trial court and allow it to function as the fact-finder. On remand, the trial court performed that function.


source: Caselaw Access Project

author: CRAWLEY, Judge. YATES, Presiding Judge,

license: Public Domain

text:
    WestPOINT STEVENS, INC. v. Betty Fae HILL.
    2000403.
    Court of Civil Appeals of Alabama.
    May 17, 2002.
    Certiorari Denied Dec. 13, 2002 Alabama Supreme Court 1011644.

      Amy K. Myers of Bradley, Arant, Rose & White, L.L.P., Birmingham, for appellant.
    Jack W. Torbert, Jr., of Torbert & Tor-bert, P.A., Gadsden, for appellee.
   On Application for Rehearing

CRAWLEY, Judge.

The opinion of this court issued on February 15, 2002, is withdrawn, and the following is substituted therefor.

Betty Fae Hill (the “worker”) was employed by WestPoint Stevens, Inc. (the “company”), as a weaver. While working her normal 12-hour shift on September 8, 1995, the worker stooped to repair some broken ends on the warp and, upon standing up, felt a shooting pain in her back. As she attempted to walk around the loom, her legs “just quit.” She reported to her supervisor, Phil Johnson, that her back hurt and that she needed to go home; he walked her to her car.

The worker sought treatment from Dr. W.J. Dailey, who had treated her for pain associated with back, neck, and left-shoulder injuries that the worker had sustained in a 1989 motor-vehicle accident. Dr. Daily diagnosed the worker with chronic neck and shoulder pain of a muscular nature, lumbar disc disease, cervical disc disease, and facet joint sclerosis. After several months of conservative treatment with pain medication and an orthopedic consultation that ruled out the need for surgery, the worker and Dr. Dailey concluded that she should not return to work.

The worker sued for worker’s compensation benefits, arguing that she suffered either an accidental injury or, in the alternative, a cumulative-stress injury, resulting in her disability. The trial court awarded the worker benefits, stating in its judgment that the worker had suffered an accidental injury on September 8, 1995. The company appeals, arguing that the evidence does not support the trial court’s conclusion that the worker suffered an accidental injury. The company specifically argues that the worker’s injury is a “non-accidental” cumulative-stress injury, and, therefore, that the worker was required to prove, by clear and convincing evidence, see Ala.Code 1975, § 25-5-81(c), that her employment “ ‘expose[d] [her] to a danger or risk materially in excess of that to which people not so employed are exposed [ordinarily in their everyday lives].’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 266 (Ala.1996) (quoting City of Tuscaloosa v. Howard, 55 Ala.App. 701, 705, 318 So.2d 729, 732 (Civ.1975)).

Our review of this case is governed by the Workers’ Compensation Act, which states in pertinent part: “In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.” Ala.Code 1975, § 25-5-81(e)(2). Therefore, this court “will view the facts in the light most favorable to the findings of the trial court.” Whitsett v. BAMSI, Inc., 652 So.2d 287, 290 (Ala.Civ.App.1994), overruled on other grounds, Ex parte Trinity Indus., Inc., 680 So.2d 262, 269 (Ala.1996). Further, the trial court’s finding of fact is supported by substantial evidence if it is “supported by ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., 680 So.2d at 269 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989), and Ala.Code 1975, § 12 — 21—12(d)). Our review of legal issues is without a presumption of correctness. Ala.Code 1975, § 25-5 — 81(e)(1); see also Ex parte Trinity Indus., 680 So.2d at 268.

The worker testified that she was injured when she stood up from a stooping position and felt a shooting pain in her back. She further described how her legs “just quit” as she walked around the loom and how she had to catch herself on the rack that holds the filling to keep from falling. She admitted that she had had continuing back pain since a 1989 motor-vehicle accident; however, she explained that she could work despite her pain until the night she was injured at work and that the pain from the 1995 work incident was different than the pain associated with the 1989 motor-vehicle accident. She testified that on September 8 she was assigned to supervise 20-plus looms. She stated that her job required a “lot of walking, stooping, bending, stretching, reaching, a lot of physical [activity].” She admitted that she had experienced increased back pain in the days before September 8 and that she had already asked her supervisor about the possibility of being relieved by another weaver on September 8 because she was experiencing back pain. She testified that she reported the incident to her supervisor, Phil Johnson, but said that she told him she did not know if her pain was because of something she had done at work or because of the 1989 motor-vehicle accident.

Johnson testified that the worker had not reported a specific incident concerning her back, and, in fact, he said that she denied that she had done anything on the job to injure herself when he specifically questioned her. He further testified that a supervisor must fill out an accident report if a worker is injured on the job. He said that, based on what the worker had reported to him, he did not believe he needed to complete an accident report on September 8.

Terri Hattaway, a former coworker of the worker, testified about the job duties of a weaver. Hattaway testified that the job involved a lot of “bending, bending over, propping up on the loom, leaning over, constantly pacing back and forth in front of the looms.” She stated that the job strained the back and that it put pressure on the lower back. She explained that, if the job was not running well, “you are constantly bending.” She said that the job required a worker to assume awkward body positions and that the work was, in her opinion, repetitive.

The company offered the records of several doctors as evidence. However, the records of Drs. Richard A. Nyako, R.M. Sabet, R.E. Rydell, and William E. Adams were not properly authenticated and were not admitted into evidence. The office notes of Dr. R.M. Huberdeau were contained in the certified copies of the records on file at the Clark-Holder Clinic.

Dr. R.M. Huberdeau first saw the worker in February 1995. He ordered an arth-rogram of the worker’s left shoulder; the results were normal. He also ordered an MRI of her cervical spine, which revealed a herniated disc at the C5-C6 level; the disc was compressing the cervical cord slightly. He referred the worker to Dr. William E. Adams at this time. Dr. Hu-berdeau saw the worker again in October and November 1995. His records indicated that the worker had a severe narrowing of disc space L5-S1 and sclerosis of facet joints L5-S1.

The worker presented the deposition testimony of her treating physician, Dr. W.J. Dailey, a specialist in internal medicine. Dr. Dailey testified that he had diagnosed the worker as suffering from chronic neck and shoulder pain of a muscular nature, lumbar degenerative disc disease, cervical degenerative disc disease, and facet joint sclerosis, all of which he opined were worsened by prolonged standing, reaching, and lifting.

He testified that he first saw the worker on November 24, 1993. He said that she reported that her symptoms, which included lower-back pain, neck pain, and shoulder pain, resulted from a motor-vehicle accident in 1989. Dr. Dailey testified that he had reviewed the worker’s medical records and that she had been diagnosed with cervical disc disease, lumbar disc disease, and lumbar spondylolisthesis. According to Dr. Dailey, the worker’s physical condition was unlikely to change, but, he said, he believed that her pain could be reduced. He reported that he saw her again on March 11, 1994, and that her condition at that time was basically unchanged.

The worker next saw Dr. Dailey on October 4, 1994, for complaints associated with pain in her neck and left shoulder. The worker returned to Dr. Dailey on November 4, and, upon the worker’s request, Dr. Dailey prescribed a transcuta-neous electrical nerve stimulator (“TENS”) unit. On December 7, the worker again saw Dr. Dailey, complaining of pain radiating down her left thigh. At that time, according to the records, she reported continued neck and shoulder pain; however, she related achieving pain relief in her neck and shoulder with the TENS unit.

The worker saw Dr. Dailey in February 1995, again reporting pain in her neck and shoulder. The records from a follow-up appointment in August 1995 do not reflect any particular reports of pain. Dr. Dailey testified, however, that the worker had reported to him at that August visit that work had been aggravating her symptoms; he testified that he modified her restrictions to prohibit lifting anything that weighed more than 21 pounds. The worker saw Dr. Dailey again on September 12, 1995, after she experienced the sharp, stabbing pains in her back and the weakness in her legs at work on September 8.

According to Dr. Dailey, the worker did not report that a specific event at work had triggered her increased pain, but rather, he said, she told him that work had aggravated her existing symptoms. His opinion was that the worker’s condition had worsened more quickly than he would have expected because of her work at the company. He also opined that the worker’s condition would worsen if she returned to work at the company.

Dr. Peter Casten, who specializes in occupational medicine, testified for the company. He examined the worker on November 30, 1998, after reviewing her medical records. He specifically testified that he had compared her two MRI scans; he testified that the worker’s physical condition as reflected on the 1989 MRI was unchanged on the 1995 MRI. He opined, based on his physical examination coupled with his review of her medical records, that the worker suffered from intermittent pinching of the left nerve root at L5-S1 and that she had a restriction in the range of motion of her neck and back. Based on his review of a videotape of a weaver performing the same job the worker performed, Dr.' Cas-ten stated that the job of weaver was not a job that would typically produce a back injury.

Jerry Woods, a physical therapist and a “certified ergonomics associate,” performed an analysis of the worker’s job as a weaver. He observed a man working on the same type machine as the worker worked on and he videotaped the man for later study. He explained that back injuries are related, in most instances, to jobs involving heavy lifting or repeated bending, twisting, and squatting. Although the job of weaver, according to Woods, involved infrequent stooping and squatting and occasional reaching, he opined that the job was in the light category of jobs and that it was not a job that posed a considerable risk for back injury.

The worker’s evidence tended to prove that her work was physically demanding and that it could cause back pain, that she suffered from a preexisting back injury that caused her pain but did not prevent her from working, and that Dr. Dailey had concluded that the deterioration of the worker’s condition between May 1995 and August 1995 was caused by her work at the company. However, the company’s evidence contradicted the worker’s assertions that her job was such that a back injury was likely to result from it. In addition, the company rebutted the worker’s testimony that an accident occurred on September 8; the worker admitted that she had been experiencing worsened back pain in the months, and even in the hours, before the accident.

We agree with the company’s argument that the worker did not suffer an “accident” as that term is used in workers’ compensation law. See Ala.Code 1975 § 25-5-1(7) (defining the word “accident” as “an unexpected or unforeseen event, happening suddenly and violently”); Ex parte Trinity Indus., Inc., 680 So.2d 262, 266 n. 3 (Ala.1996) (explaining that an accident is a “sudden and traumatic external event”). Instead, the worker appears to have suffered a “nonaccidental,” cumulative-stress injury. As the company correctly argues, the worker, to succeed in her action for benefits, must establish causation — both medical and legal' — by clear and convincing evidence. See Ala.Code 1975, § 25-5-81(c) (stating that cases involving a gradual deterioration or cumulative-physical-stress disorders require clear and convincing proof). To establish legal causation, because she suffered an “nonac-cidental” injury, the worker must present clear and convincing evidence that she was exposed to a “ ‘danger or risk materially in excess’ of that danger to which all persons are ordinarily exposed in their everyday lives.” Ex parte Trinity Indus., 680 So.2d at 269 (quoting City of Tuscaloosa v. Howard, 318 So.2d at 732). She must also establish medical causation by presenting clear and convincing evidence that such exposure “ ‘was in fact [a] contributing cause of the injury1 for which benefits are sought.” Id. Because the trial court did not consider whether the worker presented clear and convincing evidence of exposure to a risk “materially in excess” or whether such exposure was a contributing cause of her injury, we must reverse the judgment in this case and remand the cause to the trial court for it to make those necessary findings based upon the evidence presented at trial. See Aliceville Cotton Mills, Inc. v. Manning, 752 So.2d 520, 521 (Ala.Civ.App.1999) (reversing and remanding for the trial court to make the necessary findings in an “nonaceidental” injury case).

OPINION OF FEBRUARY 15, 2002, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, PITTMAN, and MURDOCK, JJ., concur.

YATES, P.J., dissents.

YATES, Presiding Judge,

dissenting.

As the main opinion points out, Hill contends that she suffered an accidental injury, or, in the alternative, a cumulative-stress injury, resulting in disability. The trial court stated in its judgment that Hill had suffered an accidental injury on September 8, 1995. Implicit in the trial court’s finding of an accidental injury is, I believe, the finding that Hill did not suffer a cumulative-stress type injury. I further believe that the trial court’s finding of an accidental injury is supported by substantial evidence; therefore, I must respectfully dissent. See Ex parte Trinity Indus., Inc., 680 So.2d 262, 269 (Ala.1996).


author: THOMPSON, Judge.

text:
    J.E.J. v. W.I. and L.I. (In the Matter of R.J., Z.J., and T.J., minor children).
    2010151.
    Court of Civil Appeals of Alabama.
    Nov. 8, 2002.

      H. Walter Logan, Pell City, for appellant.
    Frank W. Myers, Birmingham, for ap-pellees.
   THOMPSON, Judge.

J.E.J. (“the mother”) appeals the termination of her parental rights to her children, R.J. (“the daughter”) and twin boys Z.J. and T.J. (all three children are hereinafter together referred to as “the children”).

The family first came to the attention of the Department of Human Resources (“DHR”) in 1994, when DHR received an indicated report that the children were at risk of injury and that the children’s hygiene was inadequate. At that time, DHR also became concerned about the truancy of J.J., the children’s older half brother. In 1994, the mother moved the family to Kentucky for two years; Kentucky’s social services agencies provided services to the family during that time.

The mother moved the family back to Alabama in November 1996, but she failed to enroll any of her children, who were all school-age, in school. In May 1997, DHR removed the children from the mother’s home because of an indicated report of inadequate shelter and inadequate hygiene, and also because of the mother’s failure to enroll the children in school.

When the children were taken into protective custody in May 1997, the mother agreed to allow W.I. and L.I., friends of the mother’s sister, to have temporary custody of the children. The trial court entered a temporary-custody order incorporating the terms of that agreement. The trial court also ordered DHR to provide services to the family. The children were returned to the mother’s custody in August 1997, but remained in her home for only three weeks; the record does not indicate the reason the children were again taken into protective custody.

The mother filed three petitions seeking the return of the children. The trial court conducted hearings on each petition, and it entered judgments denying each petition. Except for the three-week period in August 1997 when they were returned to their mother, the children have been in the custody of W.I. and L.I. since May 1997.

On February 12, 2001, W.I. and L.I. filed a petition seeking to terminate the mother’s parental rights. DHR was not a party to that action to terminate the mother’s parental rights, and it is not a party to this appeal. The trial court heard ore tenus evidence over the course of a two-day hearing.

During the termination hearing, Hope Skelton, a DHR social worker assigned to the case, testified that since May 1997, the children had been — except for a three-week period — in the custody of W.I and L.I., not in. DHR’s custody. Therefore, Skelton testified, W.I. and L.I., and not DHR, made decisions regarding the children. However, pursuant to orders of the trial court, from May 1997 until early 2001, DHR provided counseling services for the children and also offered various services to the mother. Skelton testified that it was unusual for DHR to provide services for such a long period when the children involved were not in DHR’s custody.

Each of the children testified during the termination hearing. The daughter, who was 13 years old at the time of the hearing, testified that when the children lived with the mother, the mother did not feed them properly or attend to their hygiene. The daughter testified that although she loved the mother, she did not believe the mother was capable of taking care of her two brothers and her. The testimony of Z.J. and T.J. was similar to the daughter’s testimony. All three children wanted W.I. and L.I. to adopt them.

L.I. testified that when she first obtained custody of the children in May 1997, they were suffering from malnutrition and their teeth were rotten. L.I. testified that R.J. was nine years old, and the twin boys were seven years old when she first obtained custody of them in May 1997. At that time, the children did not know their ABC’s or know how to count. L.I. testified that she had seen positive changes in the children in the four and one-half years she and her husband had had custody of them.

Glenn McGargy, a licensed professional counselor, testified that she counseled the children from May 1997 until nine months before the hearing in this matter. McGar-gy testified that when the children first went to live with W.I. and L.I., they were behind in their schooling, they were in poor health, and they were fearful of people. McGargy testified that she observed a significant improvement in the children, and that, when she last saw them nine months before the termination hearing, they were normal, bright, healthy children who made good grades and were active in extracurricular activities.

The mother testified that during the time the children were out of her custody, she was willing to do anything to ensure that they were returned to her. However, Skelton testified that when she informed the mother that she needed to attend mental-health counseling to regain custody of the children, the mother ignored her. Skel-ton testified that DHR paid for counseling for the mother at two different times, but that, on both occasions, the mother terminated the counseling sessions.

McGargy counseled the children, the mother, and J.J., the children’s half brother, in 1997. McGargy testified that counseling for the mother and J. J. was sporadic and lasted a little over one year. McGar-gy believed that the mother was incapable of adequately taking care of the children because, McGargy testified, the mother’s thinking was “bizarre and distorted.” McGargy also testified that the mother had strange parenting ideas. As examples of the mother’s strange parenting ideas, McGargy testified that the mother had-told her that she refused to feed the children green vegetables for fear they would be poisoned and that she had given the children chocolate milk daily because she believed it would prevent learning disabilities.

McGargy testified that the mother thinks her reasoning and parenting are perfectly acceptable and that that belief hindered any treatment of the mother. Although McGargy testified that she does not make psychological diagnoses, on questioning by the mother’s attorney, McGargy testified that she believed the mother was “at the edge of being schizophrenic.”

During supervised visitation with the children, the mother frequently behaved inappropriately. The mother encouraged the children to say that they wanted to go home with her. Also, the mother was often verbally abusive to the DHR workers or became loud and yelled at the workers and the children. DHR decided to move the visits to public places in order to discourage the mother’s disruptive behavior, but, although that practice worked for a short time, the disruptive behavior soon resumed. Because of the mother’s behavior during the supervised visits, the DHR social workers and the mother entered into a written agreement specifically detailing the conduct from which the mother was to refrain during visitation. However, the mother did not comply with that agreement, and in December 1999, DHR refused to supervise any further visitation between the mother and the children. The mother has not visited with the children since that time.

The mother does not know the identities of the children’s fathers. J.J., who was 20 years old at the time of the termination hearing, lived with the mother in the mother’s two-bedroom house. Neither J.J. nor the mother is employed. The- mother and J.J. receive a total of $550 per month in food stamps and Supplemental Security Income (“SSI”) benefits. The mother has been unemployed since November 2000. The mother testified that she lost her job because her car broke down, and she did not have transportation to work. The mother stated that she intended to look for employment if the children were returned to her custody.

The mother testified that she had made some improvements to the house in compliance with DHR’s requests. The mother also testified that before May 1997, when the mother agreed to allow W.I. and L.I. to have custody of the children, she had provided proper medical treatment for the children and had fed them appropriately. The mother repeatedly testified that she loved the children and that she wanted them returned to her custody.

During her testimony before the trial court, the mother often refused to answer questions that were pertinent to the question of her ability to care for the children. Also, the mother testified that DHR had attempted to kill the children, that DHR had blackmailed her into seeing a psychologist, and that DHR was involved in a conspiracy to sabotage her ability to regain or maintain custody of her children.

D.V.B., the mother’s sister, testified that the conditions in the mother’s home were sometimes deplorable and that she had observed occasions when the children’s hygiene was not adequate and there was not enough food in the mother’s home. Also, D.V.B. testified that she had asked the mother to seek counseling, but that the mother had denied that she needed counseling. D.V.B. testified that neither she nor the mother’s brother could take custody of the children and serve as alternate relative resources.

Based on the evidence before it, the trial court concluded that the children were dependent and that their best interests would be served by terminating the mother’s parental rights. Section 26-18-7, Ala. Code 1975, which sets forth the statutory authority for the termination of parental rights, provides:

“(a) If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:
“(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.
“(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for [the] needs of the child.
“(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat, or otherwise maltreat the child, or the child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by such treatment of a sibling.
“(4) Conviction of and imprisonment for a felony.
“(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent.
“(6) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.
“(7) That the parent has been convicted by a court of competent jurisdiction of any of the following:
“[Listing offenses.]
“(8) That parental rights to a sibling of the child have been involuntarily terminated.
“(b) Where a child is not in the physical custody of its parent or parents appointed by the court, the court, in addition to the foregoing, shall also consider, but is not limited to the following:
“(1) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of its support, where the parent is able to do so.
“(2) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the department, or any public or licensed private child care agency, and agreed to by the parent.
“(3) Failure by the parents to maintain consistent contact or communication with the child.
“(4) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.”
This court has stated:
“Every parent has a prima facie right to custody of his or her child and that right can only be overcome by a showing of clear and convincing evidence that removing the child from the parent’s custody would be in the best interests of the child. M.H.S. v. State Dep’t of Hu man Resources, 636 So.2d 419 (Ala.Civ.App.1994).
“ ‘The trial court is given the authority to terminate parental rights if it finds from clear and convincing evidence that the parents are unable or unwilling to discharge their responsibilities to and for the children. § 26-18-7, Ala.Code 1975. The trial court shall consider whether the parents have abandoned their children, whether the parents have problems with drugs or alcohol, and whether reasonable efforts to rehabilitate the parents have failed. § 26-18-7(a), Ala.Code 1975. If the children are not in the physical custody of their parent or parents, the trial court shall also consider such circumstances as whether the parents have provided material needs for the children, whether the parents have maintained regular, scheduled visits with the children, and whether the parents have adjusted their circumstances to meet the needs of the children according to agreements reached administratively or judicially. § 26-18-7(b), Ala.Code 1975.’
“M.H.S. v. State Dep’t of Human Resources, 636 So.2d at 421.
“Where a nonparent petitions to terminate a parent’s parental rights, the trial court must apply a two-pronged test. Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990). The trial court must first determine that the child is dependent. Id. After finding the child dependent, the court must examine viable alternatives to the termination of parental rights. Id. On appeal, the trial court’s determination is presumed to be correct, and it will not be reversed absent a showing that the decision is so unsupported by the evidence as to be plainly and palpably wrong. M.H.S. v. State Dep’t of Human Resources, supra. In a proceeding to terminate parental rights, the paramount consideration of the trial court, and of this court, is the best interests of the children involved. Id.”

A.R.E. v. E.S.W., 702 So.2d 138, 139-40 (Ala.Civ.App.1997).

On appeal, the mother argues that the trial court erred in “allowing DHR to withdraw” from this matter after it awarded custody of the children to W.I. and L.I. In making this argument, the mother contends that DHR filed a motion seeking to withdraw from the action and that the trial court granted that motion. However, neither a motion to withdraw nor any purported ruling on that motion is contained in the record on appeal. It is the appellant’s responsibility to ensure that the record on appeal contains sufficient evidence to justify a reversal. State ex rel. Gibson v. Gibson, 555 So.2d 1092 (Ala.Civ.App.1989). Further, the mother should have challenged the ruling allowing DHR to withdraw as a party at the time the trial court entered its order.

Out of an abundance of caution, however, we note that the record indicates that the mother agreed to place the children in the temporary custody of W.I. and L.I., rather than in DHR’s custody. The trial court then entered a judgment awarding custody to W.I. and L.I. and incorporating the terms of that agreement. DHR did not have custody of the children, and it had no legal interest in the custody of the children. Thus, DHR was not a proper party to the action before the trial court once custody had been awarded to W.I. and L.I. See Doremus v. Business Council of Alabama Workers’ Comp. Self-Insurers Fund, 686 So.2d 252, 253 (Ala.1996) (“To be a proper party, the person [or entity] must have a real, tangible legal interest in the subject matter of the lawsuit.”); Eagerton v. Williams, 433 So.2d 436, 447 (Ala.1983) (a proper party must have “an interest in the right to be protected” in order to be a proper party); Bagley v. City of Mobile, 352 So.2d 1115, 1118 (Ala.1977) (in order to be a proper party to an action, “[the party] must have, either individually or in a representative capacity, an interest in the right to be protected”). We note that although DHR was not a party to this matter, it remained involved with the parties because the trial court ordered it to provide services designed to attempt to reunify the family.

The mother also argues that the trial court erred in terminating her parental rights because, she said, it did not set a specific time by which she was to have completed all requirements necessary to regain custody of her children. We note that the mother has impermissibly raised this issue for the first time on appeal. See Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992) (an appellant may not raise an issue for the first time on appeal). Further, there is no statutory requirement that a specific time be set for a parent to reach the goals for regaining custody that are set forth in an individualized service plan (“ISP”). Also, the record indicates that the primary goals of the ISP’s for the family in this case were for the mother to attend counseling and to obtain employment. At the time of the hearing, the mother had been unemployed for almost one year. Further, during almost the entire four and one-half years the children were in the custody of W.I. and L.I., the mother refused to attend counseling sessions. The mother does not argue how setting a time limit for her to reach those goals would have assisted her in regaining custody of the children, especially given the fact that she refused to meet those goals in the four and one-half years the children were in the custody of W.I. and L.I.

The mother’s primary argument on appeal is that the evidence does not support the trial court’s decision to terminate her parental rights. In its judgment terminating the mother’s parental rights, the trial court detailed many of the facts of this case. It then concluded:

“It is the opinion of this Court that the Department of Human Resources has made all reasonable efforts to reunify the minor children with the natural mother. However, the natural mother has completely spurned all efforts. She has refused to cooperate, change her lifestyle, or do anything that would benefit the minor children. The natural mother [is] delusional. She sees life as if it is all a big conspiracy to get her and that everyone is against her. The Court has observed these children now since 1997. The difference in these children today [from] 1997 is remarkable. This is due almost entirely [to] the efforts of [W.I. and L.I.], who have made these children normal, healthy and happy children.”

The mother maintains that DHR could have done more to assist her in reuniting with the children. However, the evidence indicates that the mother refused mental-health counseling and that she did not seek employment. The evidence in the record on appeal supports the trial court’s determination that DHR attempted to assist the mother but that she refused that assistance.

The mother asserts that the record does not support a conclusion that she is unwilling to properly parent the children. The mother repeatedly stated that she loves the children and that she wants them to be returned to her custody. However, the mother’s actions and her failure to even attempt to alter her circumstances to better meet the needs of the children belie that assertion. See § 26-18-7(b)(4), Ala. Code 1975. Even assuming that the mother is willing to care for the children properly, we must also conclude that evidence supports a conclusion that she is unable to do so. The record clearly indicates that the mother has suffered from some sort of mental illness, that she refuses to or is unable to recognize that fact, and that she has refused mental-health counseling. The record indicates that there are no relatives willing or able to take the children. Given the foregoing, together with the evidence pertaining to the change in the children since they have been in the custody of W.I. and L.I., we must conclude that the trial court did not abuse its discretion in terminating the mother’s parental rights to her children.

AFFIRMED.

YATES, P.J., and CRAWLEY, PITTMAN, and MURDOCK, JJ., concur.

      . The name of this witness was also spelled “Lynn Magagree” in the record; in this opinion, we use the spelling the trial court used in its judgment.