author: MURDOCK, Judge. CRAWLEY, Judge,

text:
    J.B. v.JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES. S.C. v. Jefferson County Department of Human Resources.
    2010469 and 2010506.
    Court of Civil Appeals of Alabama.
    June 30, 2003.

      Casandra D. Velarde, Bessemer, for appellant J.B.
    Thomas J. Huseman, Bessemer, for appellant S.C.
    William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and Lynn S. Merrill, asst. atty. gen., Department of Human Resources.
   MURDOCK, Judge.

J.B., the father, and S.C., the mother, appeal from a judgment of the Jefferson Juvenile Court terminating their parental rights to their son, B.C.C., and awarding permanent custody of B.C.C. to the Department of Human Resources (“DHR”) for adoptive placement. The parents argue that DHR did not present clear and convincing evidence that it made reasonable efforts to rehabilitate them and that there were no viable alternatives to termination of their parental rights. The mother also argues that the trial court erred when it allowed a police detective to testify regarding a taped confession that was used against the mother in a criminal case arising out of the death of the mother’s two-year-old daughter, B.C.C.’s sister. The criminal case resulted in the mother’s conviction for manslaughter.

The mother and the father were never married to each other; they lived together until a few months before the birth of their second child, B.C.C., in June 1998. In March 1999, Jefferson County DHR filed a petition in the trial court alleging that B.C.C.’s two-year-old sister had died under suspicious circumstances and requesting that it be awarded temporary custody of B.C.C. The trial court granted DHR’s petition, and, shortly thereafter, the mother was charged with capital murder in the death of B.C.C.’s sister. B.C.C. was approximately nine months old at the time of his sister’s death. He had never seen his father.

A few weeks after temporary custody of B.C.C. was granted to DHR, a paternal great-aunt and great-uncle of B.C.C., who were Alabama residents, filed a petition in the trial court alleging that J.B. was the father of B.C.C. and requesting that the court order him to submit to a blood test for purposes of establishing his paternity. The paternal great-aunt and great-uncle also filed a petition requesting that they be granted temporary custody of B.C.C. The trial court ordered J.B. to submit to a blood test, and, after the blood-test results were submitted to the trial court, it adjudicated J.B. to be the father of B.C.C. in September 1999.

Notwithstanding the adjudication of paternity, J.B. did not seek custody of B.C.C. or visitation with B.C.C. When the trial court asked J.B. at the paternity hearing if he wanted custody of B.C.C., J.B. responded that he was “not stable” and that he could not financially provide for B.C.C. Thereafter, the trial court ordered that the paternal great-aunt and great-uncle be granted visitation with B.C.C., but it left B.C.C. in the temporary custody of DHR. The paternal great-aunt and great-uncle subsequently withdrew their petition for temporary custody of B.C.C.

In the spring of 2000, the trial court entered an order postponing consideration of a permanency plan for B.C.C. until the disposition of the mother’s criminal case. In September 2000, the mother was convicted of manslaughter in the death of B.C.C.’s sister and was sentenced to 20 years’ incarceration. A few weeks later, in November 2000, Jefferson County DHR filed a petition to terminate the parental rights of the mother and a petition to terminate the parental rights of the father. By that time, B.C.C. was two years and four months old; the father had never made any effort to see B.C.C., and B.C.C. had not, in fact, ever seen the father.

The cases were tried in May 2001. By the time of trial, B.C.C. was almost three years old and had been in the custody of the same foster parents for over two years. The foster mother testified that she and her husband desired to adopt B.C.C. Two days before trial, however, L.G., a paternal great-aunt, who lived in California and had never seen B.C.C., wrote a letter to the trial court stating that she and her husband, R.G., were also interested in adopting B.C.C. The trial court decided to treat L.G.’s request as a motion to intervene in the termination proceeding. However, rather than delay the trial of the termination case, the trial court allowed DHR to proceed with its case and entered an order stating that it would not render its decision on the termination ' of the parents’ parental rights until after a home study was 'conducted on L.G. and R.G.

Approximately six months after trial, the San Diego County Health and Human Services Agency filed a favorable home evaluation on L.G. and R.G., stating that L.G. and R.G. were interested in adopting B.C.C. Thereafter, the trial court entered a judgment stating, in pertinent part:

“[TJhis Court finds that the child’s natural parents ... are unable or -unwilling to discharge their responsibilities to or for the child- and such conduct or condition is unlikely to change in the foreseeable future and there .exist no viable alternatives to termination of the parents’ custodial rights. This Court notes that [the] natural mother of said child has been convicted of the offense of manslaughter in the death of said child’s sibling and is presently in the custody of the Alabama Department of Corrections. This Court further notes that the child’s natural father-was incarcerated for various felony convictions at the time of this hearing and has never seen said minor child. This Court notes that DHR has made reasonable efforts toward reunification to no avail. That no family members of either parent were interested in gaining custody of said minor child until the child’s paternal great-aunt filed a request to adopt [the] child two days before this trial was set after said child had been in the custody of [DHR] since March of 1999. This Court finds that it is in the child's best interest that all parental rights that [the parents] have in and to said child are hereby terminated and permanent custody of said child is awarded to [DHR] for the purpose of adoption.”

The father and the mother filed separate appeals and we entered an order consolidating the cases for purposes of appeal. The mother and the father argue that DHR failed to make reasonable efforts to rehabilitate them, that it failed to present evidence of recent attempts to locate a viable alternative to termination of their parental rights, and that custody of B.C.C. should have been granted to L.G. and R.G. instead of terminating the mother’s and the father’s parental rights. The mother also argues that the trial court erred when it allowed a detective from the Jefferson County Sheriffs Department to testify regarding a tape-recorded statement that the mother made during the investigation of B.C.C.’s- sister’s death. The mother argues that she was represented by legal counsel in the dependency proceeding at the time that she gave -the recorded statement to the detective, that the detective knew that she was represented by legal counsel, and that the detective failed to notify or refused to notify her attorney that the statement was being taken.

We will first address the mother’s argument that the trial court erred by allowing the detective who had interrogated the mother during the criminal investigation of B.C.C.’s sister’s death to testify regarding her recorded confession. DHR filed a dependency petition on March 22, 1999, and, based upon the mother’s request, the trial court appointed counsel to represent her in the dependency proceeding on that date. Two days later, a detective from the Jefferson County Sheriffs Department interrogated the mother and recorded a statement from her in connection with the police investigation of B.C.C.’s sister’s death. In the statement, a recording of which was played at trial and accepted into evidence over the mother’s objection, the mother admitted that on the date of her daughter’s death she had struck her daughter “pretty hard” in the abdomen with a coke bottle that had approximately two inches of M & M candies in the bottom. She stated that she believed that the blow had something to do with her daughter’s death and that it was the only way that the child could have been injured. In the taped conversation, the mother also acknowledged that she had been “Mirandized” and that she had read and executed a waiver of her “Miranda rights.”

At trial, the detective testified that he was a member of the State’s death-review team, that the Bessemer police department had requested that he interview the mother and conduct a polygraph examination of her, and that he had interviewed the mother at the Jefferson County Sheriffs Department office. The detective also stated that the mother had executed a waiver of her Miranda rights, that she had not informed him that she had an attorney, that he had no knowledge that she had an attorney when he interviewed her, and that the taped interview had been admitted into evidence in the criminal case that resulted in her manslaughter conviction.

The only authority cited by the mother in support of her argument that the trial court erred when it permitted the detective to testify regarding ■ her' taped confession is Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). In Massiah, police investigators convinced a codefendant to plant a radio transmitter in Massiah’s automobile and to obtain a confession from him; at that time, Massiah had already been indicted on the criminal offense at issue and was represented by- legal counsel. The United States Supreme Court held that the use of the confession against Massiah in the criminal proceeding violated his right to the assistance of counsel under the Sixth Amendment to the United States Constitution. See Massiah, 377 U.S. at 205-06, 84 S.Ct. 1199. The mother has cited no authority in support of her argument that a confession that has been admitted in a criminal proceeding may not be used in a civil proceeding if the accused had retained legal counsel in the civil proceeding and that counsel was not informed of an interrogation that occurred as part of the criminal investigation. Further, the mother admitted in her testimony at trial that she had been convicted of manslaughter in the death of her daughter and that she had struck her daughter with the bottle containing M & M candies. Therefore, any error that the trial court might have made in allowing the detective to testify regarding the mother’s confession was harmless. See Pfingstl v. Solomon, 240 Ala. 58, 64, 197 So. 12, 16 (1940). In regard to the substantive issues raised by the mother and the father, when a trial court’s decision to terminate parental rights is based on evidence presented ore tenus, we will presume that the judgment is factually correct and will reverse the trial court only if the record demonstrates that the decision is unsupported by the evidence and is plainly and palpably wrong. M.H.J. v. State Dep’t of Human Res., 785 So.2d 372 (Ala.Civ.App.2000).

“A parent has a prima facie right to custody of his or her child and this right can be overcome only by clear and convincing evidence that the child’s best interests would be served by permanently terminating the parent’s custody.... The best interest of the child is the primary concern in a proceeding to terminate parental rights.”

Ex parte State Dep’t of Human Res., 624 So.2d 589, 591 (Ala.1993) (emphasis added).

In Ex parte Beasley, 564 So.2d 950 (Ala. 1990), our Supreme Court stated:

“The two-prong test that a court must apply in a parental rights termination case brought by a custodial parent consists of the following: First, the court must find that there are grounds for the termination of parental rights, including, but not limited to, those specifically set forth in [Ala.Code 1975,] § 26-18-7. Second, after the court has found that there exist grounds to order the termination of parental rights, the court must inquire as to whether all viable alternatives to a termination of parental rights have been considered. ([In addition], if a nonparent, including the State, is the petitioner, then such a petitioner must meet the further threshold proof of dependency.)”

Ex parte Beasley, 564 So.2d at 954. See Ex parte State Dep’t of Human Res., 624 So.2d at 592-93 (applying Ex parte Beasley)-, see also Ala.Code 1975, § 12-15-71(a).

The 1984 Child Protection Act, Ala.Code 1975, § 26-18-1 et seq. (“the CPA”), provides, in pertinent part, that a court may terminate parental rights

“[i]f 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.”

Ala.Code 1975, § 26-18-7(a). The Alabama Juvenile Justice Act, Ala.Code 1975, § 12-15-1 et seq., which governed the termination of parental rights before the enactment of the CPA, contains a complimentary provision. See Ala.Code 1975, § 12-15-65(f) (“If the court finds ... from clear and convincing evidence, competent, relevant, and material in nature that parental rights should be terminated, the court may proceed immediately, in the absence of objection showing good cause or at a postponed hearing, to make proper disposition of the case.”).

In determining whether DHR has proven by clear and convincing evidence that a parent is unable or unwilling to discharge his or her responsibilities, the CPA requires that the court consider several factors, including, but not 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 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.
“(7) That the parent has been convicted by a court of competent jurisdiction of any of the following:
“a. Murder or voluntary manslaughter of another child of that parent.”

Ala.Code 1975, § 26-18-7(a). See also Ala.Code 1975, § 12-15-65(m).

The mother and the father argue that DHR failed to make reasonable efforts to rehabilitate them before it attempted to terminate their parental rights. The trial court did not make a specific finding regarding DHR’s efforts to rehabilitate the parents, but it did determine that DHR had “made reasonable efforts toward reunification to no avail.” (Emphasis added.) Thus posited, we must consider the relationship between “reasonable efforts to rehabilitate” a parent, see Ala.Code 1975, § 26-18-7(a)(6), and “reasonable efforts to reunite” a parent and a child, see Ala.Code 1975, § 12-15-65(m) and § 26-18-7(a)(l).

The father and the mother argue that this court has stated that § 26-18-7(a)(6) requires DHR to make reasonable efforts to rehabilitate a parent before seeking to terminate the parent’s parental rights. See D.S.S. v. Clay County Dep’t of Human Res., 755 So.2d 584, 589 (Ala.Civ.App. 1999). Prior to D.S.S., however, this court also stated that “DHR has the duty to make reasonable efforts to rehabilitate [a parent] so that family reunification might be attainable.” C.B. v. State Dep’t of Human Res., 782 So.2d 781, 785 (Ala. Civ.App.1998) (emphasis added); see generally Miller v. Alabama Dep’t of Pensions and Sec., 374 So.2d 1370, 1374 (Ala. Civ.App.1979) (“It cannot be seriously contended by the appellant in this case that every effort was not made by the state to rehabilitate her family so that it could again exercise familial rights and responsibilities toward the child in question.”). In other words, reunification of the parent and the child is the overarching purpose for which “reasonable efforts to rehabilitate” must be made. It would be illogical to require DHR to make reasonable efforts to rehabilitate a parent in a case where DHR has no concomitant duty to attempt to reunite the parent and the child, or where reunification is not praeti-cable. (For example, DHR has no statutory obligation to assist a parent in overcoming a drug addiction if that parent has been convicted of murdering the child’s sibling and the best interests of the child would be served by termination of the parent’s parental- rights. See generally Ala.Code 1975, § 12-15-65(m) (stating that DHR is required to make reasonable efforts to “make it possible for a child to return safely to the child’s home,” but also stating that reasonable efforts to reunite the parent and the child are not required if the parent has been convicted of murdering .the child’s, sibling).)

We also note that, assuming that DHR has some duty to reunite a parent and a child in a particular case, what constitutes “reasonable efforts” is a fact-dependent inquiry. There is no one set of efforts that is reasonable, and thus required, under all circumstances. See generally Ala.Code 1975, § 12-15-65(m) (“In determining the reasonable efforts to be made with respect to a child, and in making such reasonable efforts, the child’s health and safety shall be the paramount concern.”). Instead, the efforts actually required by DHR in each case, whether the court is considering rehabilitation or reunification, depend on the particular facts of that case, the statutory obligations regarding family reunification, and the best interests of the child.

As noted above, the trial court did not make a specific 'finding regarding DHR’s efforts to rehabilitate the parents, but instead determined “that DHR has made reasonable efforts toward reunification to no avail.” (Emphasis added.) Before making this finding, the trial court noted that the mother had been convicted of manslaughter in the death of B.C.C.’s sibling and that she was incarcerated, that the father was incarcerated for various felony convictions at the time of trial, and that the father had never seen B.C.C. We also note that the record would clearly support findings that the father knew of B.C.C.’s birth, but did not seek to see the child before the father was incarcerated again (approximately five months later); that the father did not seek to visit B.C.C. during an extended period of time when he was not incarcerated, even though he knew of B.C.C.’s whereabouts; that the father did not seek custody of B.C.C. when he was specifically asked about it at the initial dependency proceeding, at which he was represented by counsel; that the father failed to seek visitation with B.C.C. at any time before the trial regarding the termination of his parental rights; and that DHR had made efforts to locate the father’s whereabouts during the pendency of B.C.C.’s case to no avail. The evidence indicated that even the father’s relatives generally did not know his whereabouts during the pendency of B.C.C.’s case. There was also evidence that both the mother and the father had used crack cocaine on a regular basis during the mother’s pregnancies, that the father had continued to use crack cocaine until his incarceration, and that his only attempt at rehabilitation had failed. Further, even the maternal grandmother testified that it would be in B.C.C.’s best interest to be adopted by his foster parents, whom he had resided with for two years and whom he called “mama” and. “daddy.”

The Alabama Legislature has stated that it is not necessary to make reasonable efforts to reunite a parent and a child if the parent has been convicted of voluntary manslaughter in the death of the child’s sibling, see Ala.Code 1975, § 12-15-65(m)(2), or if the parent has abandoned his child, see Ala.Code 1975, § 12-15-65(m)(l) and § 26-18-7(a)(l). The CPA defines “abandonment” to include

“a withholding from the child, without good cause or excuse, by the parent, of his presence, care, love, protection;

maintenance or the opportunity for the display of. filial affection, or the failure to claim the rights of a parent, or failure to perform the duties of a parent.”

Ala.Code 1975, § 26-18-8(1). The CPA further provides a rebuttable presumption that a parent is unable or unwilling to discharge his parental responsibilities if the parent has abandoned his child for a period of four months preceding the filing of the petition to terminate parental rights. See Ala.Code 1975, § 26-18-7(c).

Based upon the language of Ala.Code 1975, § 12-15-65(m) and § 26-18-7 and the aforementioned evidence, and in light of the presumption that the trial court’s judgment is factually correct, DHR had no duty to attempt to reunite the mother and the child. Likewise, DHR had no duty to attempt to “reunite” the father with a child whom the father had never even seen and in whom the father had shown no interest, but instead had abandoned. Accordingly, we cannot conclude, under the facts 'of this case, that the parents’ argument that DHR failed to exert reasonable efforts to rehabilitate them provides any ground for reversal.:

The father and the mother next argue that DHR failed to present evidence of recent attempts to locate a viable alternative to termination of. their parental rights, specifically asserting that DHR purported to shift the burden of investigating alternative-placement resources to the father’s family. They also argue that custody of B.C.C. should have been granted to L.G. and R.G., who had forwarded a letter to the trial court requesting to adopt B.C.C. a few days before trial. .

-We note that the record supports the conclusion that DHR attempted to no avail to locate maternal relatives who were willing to assume custody of B.C.C. In regard to paternal relatives, Harriétte White, a social worker with Jefferson County DHR who worked on B.C.C.’s custody case from March 1999 through January 2001, testified that at a hearing in February 2000 the father was asked whether he would like to obtain custody of B.C.C. and he responded that he was not financially able to provide for B.C.C. and that he was “not stable.” Instead, as noted above, he supported a petition by a paternal great-aunt and great-uncle who resided in Alabama to obtain temporary custody of B.C.C.;. a petition that the paternal great-auñt and great-uncle subsequently withdrew. Although the father stated that he and the paternal great-aunt and great-uncle were represented by the same legal counsel, at no time .after the withdrawal .of the temporary-custody petition did the father suggest any alternative relative placement.

White testified that after the February 2000 hearing she had discussed potential relative placements with the paternal grandmother, who resided in California, and with the father’s sister. White stated that the paternal grandmother had initially indicated that she was interested in obtaining custody of B.C.C., but the grandmother did not provide additional contact information because she was in the process of moving. Instead, she told White that she should contact the attorney who had represented the Alabama paternal great-aunt and great-uncle and the father at the February hearing. According to White, the attorney, informed her that he did not get a further response from the paternal grandmother and White never heard from the , paternal grandmother again. Further, the father testified that the paternal grandmother was not a suitable placement resource for B.C.C.

The evidence indicates that the only other paternal relatives who had visited B.C.C. were JJB.’s sister, who had visited with B.C.C. on a few occasions but was unable to assume custody; the Alabama paternal great-aunt and great-uncle, who no longer desired custody of B.C.C.; and J.B.’s father, who at one point stated that he desired to adopt B.C.C., but then failed to provide DHR with additional requested information. In regard to L.G. and R.G., the paternal great-aunt and great-uncle who resided in California, the trial court determined that they filed a request to adopt B.C.C. only- days before trial and after B.C.C. had been in DHR’s custody for two years. L.G.’s request stated that they “first learned of [B.C.C.’s] existence two years ago when I was informed of his sister’s sad and tragic death.... I hadn’t followed up until recently.” In the intervening two years, B.C.C. had formed a de facto parent-child relationship with his foster parents, who desired to adopt him and who he knew as his “mama” and “daddy.” The foster parents had allowed the maternal grandparents to visit with B.C.C. on a regular basis. They indicated that they planned to continue to allow the maternal grandparents to visit with B.C.C. and that they would not prevent visitation with the father and the mother if it was in the child’s interest. ,

Based on the foregoing, we cannot conclude that DHR failed to fulfill its obligation to investigate all viable alternatives to the termination of the father’s and the mother’s parental rights or that the trial court failed to consider and reject all viable alternatives to termination of the father’s and the mother’s parental rights, including L.G. and R.G. See Ex parte State Dep’t of Human Res., supra; Ex parte Beasley, supra.

The judgment of the trial court is due to be affirmed.

AFFIRMED.

PITTMAN, J., concurs.

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

CRAWLEY, Judge,

concurring in the result.

I concur in the result; however, I write specially to address some concerns raised by issues addressed in notes 6, 7, and 8 of the main opinion.

I find no relevance to the reference in note 6 to the Putative Father Registry because the trial court had adjudicated J.B. to be B.C.C.’s father. Similarly, I question the relevance of note 7 because I find it without dispute that J.B. abandoned B.C.C. J.B. lost any fundamental right he had because of his abandonment of B.C.C., and, therefore, a discussion of cases involving fathers who have shown a commitment toward their children is not warranted.

I conclude that the reference in note 8 to B.C.C.’s best interest is not the proper test to be applied in this case, and I further conclude that the comparison between B.C.C.’s foster parents (I do not support the characterization of them in the main opinion as “de facto parents”) and the paternal relatives who lived in California is similarly misplaced. In addressing a New York statutory procedure similar to that employed in this state, the U.S. Supreme Court observed:

“The factfinding does not purport — and is not intended — to balance the child’s interest in a normal family home against the parents’ interest in raising the child. Nor does it purport to determine whether the natural parents or the foster parents would provide the better home. Rather, the factfinding hearing pits the State directly against the parents. The State alleges that the natural parents are at fault.... The questions disputed and decided are what the State did ... and what the natural parents did not do
“... [A]t the factfinding, the interests of the child and his natural parents coincide to favor use of error-reducing procedures.
“However substantial the foster parents’ interests may be ..., they are not implicated directly in the factfinding stage of a state-initiated permanent neglect proceeding against the natural parents.”

Santosky v. Kramer, 455 U.S. 745, 759-61, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

      . The assistant coroner for Jefferson County testified that S.C.'s daughter died of blunt-force injuries to her head and abdomen, including a ruptured liver. According to the assistant coroner, the daughter had “at least twenty different bruises ... on the front of the chest and abdomen” in addition to bruises on her back and abrasions on her head and her back.

      . S.C. later attempted to blame her daughter’s death on her paramour, who pleaded guilty to charges of felony child abuse and was sentenced to 10 years' incarceration.

      . The Sixth Amendment to the United States Constitution provides, in pertinent part: "In all criminal prosecutions, the accused shall ... have the assistance of counsel for his defense.” (Emphasis added.) The Alabama Supreme Court has recently stated, "The Sixth Amendment right to counsel is at issue only where adversary judicial criminal proceedings have been initiated against the defendant.” Ex parte Stewart, 853 So.2d 901, 903 (Ala.2002) (emphasis added); see generally McNeese v. State ex rel. Cramer, 592 So.2d 615, 617 (Ala.Civ.App. 1992) (noting that the rules applicable to the admissibility of a confession in a criminal action are generally not applicable when the confession is offered in a civil action).

      . Section 26-18-7(a) states that ‘‘[i]n determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider ... (6) [whether] reasonable efforts by [DHR] ... leading toward the rehabilitation of the parents have failed,” and also lists other factors to be considered. Ala.Code 1975, § 26-18-7(a).

      . As noted, by the time of trial, the child was approximately three years old. Further, the record indicates that, because of his incarceration, the father could not even be a candidate for custodian of the child for between one and three years beyond the date of the trial (depending on his behavior in prison), at which time the child would be between four and six years old.

      . We also find it instructive that in the area of adoption and "relinquishment for adoption to [DHR],” our Legislature has adopted a policy requiring biological fathers to claim paternity in a timely manner. . See Ala.Code 1975, § 26-10C-l(i). There is no evidence that the father filed a notice' of paternity with the Putative Father Registry. Cf. Ala.Code 1975, § 26-10A-7(a) (providing, among other things, that "relinquishment for adoption to [DHR]” is not required of a putative father who has failed to file an appropriate notice in the Putative Father Registry).

      . The policy considerations underlying § 12-, 15-65(m)(1) and § 26-18-7(a)(1) would appear to be particularly strong in a case such ■ as this where the father has never had a substantial relationship with his child. See generally Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983); R.K. v. R.J., 843 So.2d 774 (Ala.Civ.App.2002). In addressing a custody dispute in R.K.; we stated:
      " ‘When an unwed father demonstrates a full commitment to the responsibilities of parenthood by "comfing] forward to participate in the rearing of his child,” Caban [v. Mohammed], 441 U.S. [380,] 392, 99 S.Ct. 1760, 60 L.Ed.2d 297 [(1979)], his interest in personal contact with his child acqidres substantial protection under the Due Process Clause. At that point it may be said that he "actfs] as a father toward his children." Id., at 389, n. 7, 99 S.Ct. 1760. But the mere ■ existence of a biological link does not merit equivalent constitutional protection. The actions of judges neither create nor sever genetic bonds. “[T]he importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in 'promoting] a way of life’ through the instruction of children ... as well as from the fact of blood relationship. ” Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 844, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) (quoting Wisconsin v. Yoder, 406 U.S. 205, 231-233, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972)).”'

        R.R., 843 So.2d at 781 (quoting Lehr, 463 U.S. at 261, 103 S.Ct. 2985). Similarly, in an adoption case, this court has spoken to certain fundamental principles that define the significance of a father’s biological connection to a child:
      " 'The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and . make uniquely valuable contributions to the child’s development.’ ”

        M.V.S. v. V.M.D., 776 So.2d 142, 146 (Ala.Civ. App.1999) (quoting Lehr, 463 U.S. at 262, 103 S.Ct. 2985) (holding that "the natural father must have established a substantial relationship with the child to merit constitutional protection").

      . The father would apparently have us conclude that it would be in the best interest of B.C.C. to be removed from his de facto parents, and from regular contact with maternal relatives who have continued to show an interest in his welfare, in favor of California relatives who have never seen B.C.C. and who have failed to express an interest in obtaining custody for over two years.

      . A parental-rights-termination case is composed of two phases — an adjudicatory phase and a dispositional phase. See § 12 — 15—65(f) and (h), Ala.Code 1975; Y.M. v. Jefferson County Dep’t of Human Res., [Ms. 2010755, Jan. 24, 2003] - So.2d - (Ala.Civ.App. 2003); and Rule 25, Ala. R. Juv. P.


source: Caselaw Access Project

author: MURDOCK, Judge.

license: Public Domain

text:
    Daniel W. FELL, Sr. v. Michele Ann FELL.
    2010636.
    Court of Civil Appeals of Alabama.
    June 30, 2003.

      L. Daniel Mims, Mobile, for appellant.
    J. Jeffrey Perloff, Mobile, for appellee.
   MURDOCK, Judge.

In August 2001, Daniel W. Fell, Sr., the husband, filed a complaint for a divorce against Michele Ann Fell, the wife; at that time, the parties had been married for over nine and a half years. In his complaint, the husband sought, among other things, custody of the only child born of the marriage, a daughter. The wife answered the complaint and counterclaimed, also seeking, among other things, custody of the daughter. The husband filed an amended complaint, alleging that the wife had committed acts -of domestic violence during the course of the marriage and that, therefore, he should be awarded custody of the daughter.

After an ore tenus proceeding, the Mobile Circuit Court entered a judgment divorcing the parties. The divorce judgment contained a property division (most of which the parties had been agreed to) awarding the wife, among other things, two vehicles, certain items of personal property, and her retirement accounts. The husband was awarded, among other things, one vehicle, certain items of personal property, and his retirement accounts. The divorce judgment further ordered that the marital home be sold and the net proceeds of the sale split equally between the parties (the parties estimated the equity in the marital home to be between $20,000 and $21,000), and each party was ordered to pay specified debts (which basically represented a “50/50” split of the marital debt). The husband was further ordered to pay the wife $3,000 as alimony in gross.

The parties were awarded joint legal custody of the daughter; the wife was awarded primary physical custody. The husband was ordered to pay child support in the amount of $500 per month. He was granted visitation rights that included alternating weekends, a month in the summer, a week at Christmas, specified days during alternating Thanksgiving holidays, specified days during alternating spring school holidays, Father’s Day weekend, and other times as agreed on by the parties. The husband was also granted an additional midweek overnight visitation, beginning after school on Wednesdays and ending the following morning by “returning] the [daughter] to school.”

The record reveals the following facts. The parties began living together during the summer of 1991 and were married in December 1991. At the time of the parties’ marriage, the wife had custody of her one-year-old son from a previous marriage, M.H. The husband had a five-year-old son from a previous marriage, D.F.; the husband’s former wife had custody of D.F. The parties’ daughter was born in July 1993. At the time of the trial (in December 2001), the husband was 40 years old; the wife was almost 36 years old; the daughter was 8 years old; M.H. was almost 12 years old; and D.F. was 16 years old.

At the time of their marriage, the parties were living in the Mobile area in a mobile home owned by the husband. In 1993 or 1994, D.F. began living with the parties and continued living with the parties for approximately 18 months (D.F. then moved to North Carolina to live with his mother).

In 1995 or 1996, the parties moved into a house in Mobile. In November 2000, D.F. returned to live with the parties. In late October/early November 2001 (less than two months before the trial), D.F. moved in with the husband’s mother (who also lived in Mobile) on a temporary basis until after the divorce proceedings were concluded, at which time D.F. was to return to live with the husband.

At the time of the trial, both parties continued to live in the marital home. The parties agreed that the party who was awarded custody of the daughter would continue living in the marital home until it was sold.

Both parties presented evidence of domestic violence. The husband and the wife offered conflicting testimony regarding the extent of, and the nature of, violent behavior on the part of the wife. The wife admitted that she had committed between three and five acts of domestic violence against the husband over the course of the marriage. The wife admitted that she had shoved, hit, slapped, kicked (aiming for the groin area), and clawed the husband. The wife testified that she did not recall engaging in any violent behavior before D.F. came to live with the parties in 1994; however, the wife admitted that some of the incidents of violent behavior had occurred when D.F. was not living with them, and that some of the incidents had occurred in front of the children. The wife also admitted that she had slapped the husband across the face on one occasion. Although the husband claimed that the wife had broken his nose on that occasion, he did not have any proof that she had actually broken his nose and the wife denied that she broke his nose. (It appears that this incident occurred sometime after D.F. returned to live with his mother in North Carolina.)

The husband testified as to several other acts of violent behavior on the part of the wife. In addition, the wife admitted that she had pulled a gun on the husband in early 1995, in the presence of D.F. (who was approximately nine years old at the time) and their daughter (who was approximately seven or eight months old at the time). The husband and the wife offered conflicting testimony regarding this incident. The wife testified that the husband and D.F. were arguing while the husband was holding the daughter. The wife testified that she got the gun after the husband refused to give her their daughter. The wife testified that she did not point the gun at the husband and that she voluntarily put the gun down. The wife testified that the gun was not loaded; however, she admitted that she did not advise the husband and D.F! as to whether the gun was loaded. The husband, on the other hand, testified that he and the wife (not he and D.F.) were arguing and that the wife got the gun after he threatened to leave with the daughter. The husband testified that the wife pointed the gun at him, but that ultimately he was able to take the gun away from the wife. D.F.’s testimony regarding that incident was substantially the same as the husband’s.

Theresa Ryland, a friend of the parties who had known the parties for approximately eight to nine years, testified that she had observed two incidents where the wife had engaged in violent behavior. Both of the incidents occurred approximately three to four years before the trial. On one occasion while she was in the parties’ home, Ryland saw the wife knock a drink out of the husband’s hand as the husband was attempting to take a sip of the drink. The wife did not recall that incident. Ryland explained that the wife became upset because the husband, who had just returned from a Mardis Gras function, had lipstick on his cheek. On the second occasion, Ryland saw the wife swing at the husband during an argument in the football parking lot at the Senior Bowl football game. On that occasion, Ry-land’s husband was also present; Ryland admitted that all of them had been drinking alcoholic beverages on that occasion. The wife denied that she had swung at the husband, but she admitted that she had shoved the husband and Ryland’s husband as well.

The wife testified that. the husband drank alcoholic beverages and that sometimes he drank to excess. The wife testified that on one occasion the husband had had a drink in the car with him while he was driving with the family in the car. The wife testified that on another occasion the husband had D.F. (who at the time had a learner’s driving permit) drive the husband, M.H., and the daughter home from a function because the husband had had a “few beers.” The husband admitted that he drank alcoholic beverages and that if he felt like it was inappropriate for him to drive, he had someone else drive, generally the wife. The wife admitted that she drank alcoholic beverages as well.

The wife testified that she stopped engaging in violent behavior after an incident between the parties during an argument in the spring of 2000. The wife testified that after she shoved the husband, the husband grabbed her arms and pushed her against the wall and told her that he had had enough and that if she were a man he would defend himself and fight her. The husband’s testimony regarding that incident was substantially the same as the wife’s.

The wife also testified that the husband had pushed her out of D.F.’s bedroom in the summer of 2001 when she had gone into D.F.’s room to remove the stereo equipment after D.F. refused to turn the volume down. (The husband pushed her and told her to leave D.F.’s stereo equipment alone.) The husband’s testimony regarding that incident was substantially the same as the wife’s.

Both of the parties presented evidence that D.F. had, at times, been a difficult child. The wife testified that D.F. did not respect her and that the relationship between the husband and D.F., as well as the relationship between her and D.F., was a source of frustration for her. The husband testified that when D.F. came to five with the parties the first time, D.F. was having trouble getting along with his mother and he was also having trouble in school. The husband testified that D.F. came to live with them again in November 2000 for the same reasons. At the time of the trial, the husband had obtained physical custody of D.F.; D.F.’s behavior had improved; and D.F. was taking medications (Concerta and Ritalin) to treat his attention deficit disorder and hyperactivity-

The wife testified that the husband had tried to choke D.F. when she, the husband, the daughter, D.F., and M.H. were visiting the wife’s mother. The husband testified that this incident occurred when D.F. was visiting; D.F. testified that he was approximately 14 years old at the time. The husband testified that he had pinned D.F. down on the sofa in an effort to discipline him (after D.F. had been disrespectful to the wife and the wife’s mother); the husband denied that he was trying to choke D.F. (D.F.’s testimony regarding this incident was substantially the same as the husband’s.)

The wife testified that the husband and D.F. had also gotten into a physical altercation at church in May 2001; however, the wife admitted that she had not witnessed the incident. The husband testified that he was attempting to discipline D.F. for being disrespectful. The husband denied an allegation that he had choked DiF. during this incident. D.F.’s testimony regarding this incident was substantially the same as the husband’s. After the altercation, the husband had D.F. committed to the Strickland Youth Facility. (Apparently, D.F. completed some type of disciplinary program in an attempt to add structure to his life.)

D.F. testified that the wife had slapped him a lot when he lived with the parties the first time and that the wife had hit, pushed, shoved, and kicked him on several' occasions since he had come to live with the parties the second time. The wife denied that she had slapped D.F. when D.F. lived with them the first time. The wife admitted that after D.F. came to live with them the second time, she had “popped” D.F. in the mouth one or two. times for “back-talking” her. D.F. testified that the wife placed M.H.’s face in urine when M.H. was four or five years old because M.H. had wet the bed. The wife denied that she had placed M.H.’s face in urine, but admitted that she had made him sleep on the wet spot. D.F. testified that he had seen the wife slap M.H. and the daughter in the face as well. The wife denied that she had slapped M.H. and the daughter in the face; the husband testified the wife had slapped M.H. in the face in a disciplinary matter for “mouthing-off.”

D.F. admitted that he had “whipped” the daughter one time in an effort to discipline her before he was told that it was inappropriate for him' to do this. Although the wife admitted that D.F. and the daughter had a good relationship, the wife testified that she was concerned that D.F. might be a negative influence on the daughter. The wife also claimed that D.F. had exhibited aggressive behavior toward the husband and M.H., and that D.F. had threatened the wife’s life in front of the daughter.

The wife testified that the husband was involved in a lot of outside activities, which she says, contributed to her frustration. The husband was involved in softball, volleyball, and church activities. (The wife was involved in church activities as well.) The wife testified that because of the husband’s work schedule and outside activities, she was left with the responsibility of caring for the children most.of the time.

Both of the parties had character witnesses testify on their behalf. The character testimony revealed that both parties are good parents and that no one had ever observed either of the parties acting inappropriately with any of the children. One of the character witnesses testified that the wife had been attending counseling sessions the last year to address her anger problem. The wife testified that she was attending counseling sessions at the time of the trial.

The wife admitted that the husband was a good father and that he and the daughter had a good relationship. The husband admitted that the wife was a good mother. Both parties admitted that they spanked the daughter on the buttocks as a form of discipline.

The wife testified that she believed she should be awarded custody of the daughter because, she claimed, among other things, she was more patient with the daughter, her work schedule (discussed below) was more conducive to caring for the daughter, and she had stopped engaging in acts of domestic violence in the spring of 2000.

The husband testified that he should be awarded custody of the daughter, among other reasons, because of the wife’s propensity for violence and because, he claimed, he had not committed any acts of domestic violence. Although he trusted the wife enough to leave the daughter alone with her while he had an “everyday presence” in the home, he was concerned for the daughter’s safety once that “everyday presence” was removed as a result of the divorce. However, the husband admitted that he would not have been leaving the daughter with the “wife every morning if [he] thought [the daughter] was not perfectly safe in her hands.”

Both of the parties had family support to help care for the daughter. The wife’s father lived with her. (At the time of the trial, the wife’s father had been living with the parties for approximately two years.) The husband’s mother, his two sisters, and his two brothers also lived in Mobile.

The husband was working as a “team leader of mechanics” for Goodrich Air Structures, earning a base salary of approximately $56,000. In addition to his base salary, the husband also received “vacation pay,” “flex dollars” (to be used to cover a portion of insurance premiums), and “gain share” (an annual profit-sharing distribution). A copy of the husband’s pay stub was introduced into evidence. The pay stub reflects that, as of October 7, 2001, the husband had received $43,117.12 in regular pay; $1,484.24 in vacation pay; $5,990.04 in flex dollars; and $3,433.10 in “gain share” (which the husband did not expect to receive for 2001 because of the September 11, 2001, terrorist attacks). The husband worked from 6:00 a.m. until 2:30 p.m. five days a week. The husband testified that Goodrich had a company policy that would allow him to modify his work schedule if he was awarded custody of the child.

At the time of the trial, the wife was working as a registered nurse at the Children’s Medical Group earning approximately $29,600 per year. The wife worked from 8:45 a.m. until 5:15 p.m. four days a week.

Both parties submitted “CS-42, Child Support Guidelines” forms to the trial court. The forms reflect, among other things, that the husband’s monthly income was $5,869 and the wife’s monthly income was $2,467, and that the husband paid monthly health, dental, and vision insurance premiums for family/dependent coverage in the amount of $728. The husband’s form reflects a recommended child-support order of $423 per month ($1,151 total child-support obligation, adjusted by subtracting $728 for the cost of the insurance premiums) if the wife were to be awarded custody of the daughter. The wife’s form reflects a recommended child-support order of $493 (her total child-support obligation) if the husband were to be awarded custody of the daughter.

In its judgment, the trial court found, in part:

“10. The [wife] shall complete the Parenting Skills Class at the Exchange Club within 60 days. Since the [wife] admits to an anger problem the Court conditions her having primary physical [custody] of the minor child on her completing this course in the time frame set out.
“11. Although the Court is mindful of the [wife’s] admission of anger problems, the Court is also mindful that D.F. has admitted problems and the husband has had problems with D.F. The Court is of the opinion that the child will be better off in the wife’s care with [M.H.] present and the husband seeing [the daughter] every Wednesday and the other standard visitation than the child being with the husband in his home. The court believes the [husband] to be an excellent father but believes that [D.F.] will require a great deal of the husband’s attention to keep him on the right path and that the child will be in good hands with the wife.
“12. However, the Court does put the parties on notice that' if there is any concern of any harm being caused to the children, they should immediately notify the Court so the proper hearing and orders may be issued.
“17. The husband shall pay the to the wife as -child support the sum of $500.00 per month beginning December, 2001, which is a little more than what the guidelines call for, but in light of the insurancé covering a child from his previous marriage, this is fair and reasonable in light of the totality of expenses.”

The husband filed a motion to alter, amend, or vacate the judgment, alleging that the trial court had erred, in failing to award him primary physical custody of the daughter, in deviating from the child-support guidelines, and in awarding the wife $8,000 as alimony in gross. The trial court held a hearing on the postjudgment motion; no additional evidence was submitted at the hearing. The trial court denied the husband’s postjudgment motion. The husband appeals.

The husband first contends.that the trial court erred in granting the parties joint custody of their daughter and, particularly, in granting the wife primary physical custody of the daughter, because, he says, the wife committed acts of domestic violence during the marriage and the wife failed to rebut the presumption under § 30-3-131, Ala.Code 1975, that a perpetrator of domestic violence is not the proper party to whom to award custody of a child.

The wife acknowledges in her brief to this court that “[d]uring the trial of the case, [the wife] admitted to three to five incidences of domestic violence over the course of the [almost] ten-year marriage.” The wife also claims that “there were several other incidents over the course of the marriage where she was the victim of domestic violence at the hands of [the husband]” and that she had witnessed episodes of domestic violence perpetrated by the husband against [D.F.].”

“When this Court reviews a trial court’s child-custody determination that was based upon evidence presented ore tenus, we presume the trial court’s decision is correct: ‘ “A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong ....”’ Ex parte Perkins, 646 So.2d 46, 47 (Ala. 1994), quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993) (citations omitted). This presumption is based on the trial court’s unique position to directly observe the witnesses and to assess their demeanor and credibility. This opportunity to observe witnesses is especially important in child-custody cases. ‘In child custody cases especially, the perception of an attentive trial judge is of great importance.’ Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ. App.1981). In regard to custody determinations, this Court has also stated: ‘It is also well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.’ Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996).”

Ex parte Fann, 810 So.2d 631, 632-33 (Ala.2001).

In a divorce action between two fit parents, where there has been no prior custody determination and neither parent has voluntarily relinquished custody of the child, the “best interest” of the child is controlling; the parties stand on “equal footing” and no presumption inures to either parent. “ ‘ “The trial court’s overriding consideration is the children’s best interest and welfare.” ’ ” Smith v. Smith, 727 So.2d 113, 114 (Ala.Civ.App.1998) (quoting Collier v. Collier, 698 So.2d 150, 151 (Ala.Civ.App.1997), quoting in turn Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994)).

In considering the best interests and welfare of the child, the court must consider the individual facts of each case:

“The sex and age of the children are indeed very important considerations; however, the court must go beyond these to consider the characteristics and needs of each child, including their emotional, social, moral, material and educational needs; the respective home environments offered by the parties; the characteristics of those seeking custody, including age, character, stability, mental and physical health; the capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the children; the interpersonal relationship between each child and each parent; the interpersonal relationship between the children; the effect on the child of disrupting or continuing an existing custodial status; the preference of each child, if the child is of sufficient age and maturity; the report and recommendation of any expert witnesses or other independent investigator; available alternatives; and any other relevant matter the evidence may disclose.”

Ex parte Devine, 398 So.2d 686, 697 (Ala. 1981).

An exception to the “equal-footing” principle applies where domestic or family violence has occurred, pursuant to the Custody and Domestic or Family Abuse Act (“the Act”), codified at § 30-3-130 et seq., Ala.Code 1975. Pursuant to § 30-3-131, a finding that a parent has committed domestic violence “raises a rebuttable presumption ... that it is detrimental to the child and not in the best interest of the child to be placed in the sole custody, joint legal custody, or joint -physical custody with the perpetrator of domestic or family violence.” Section 30-3-132, Ala.Code 1975, provides additional factors for a trial court to consider in child-custody cases involving domestic violence. Section.30-3-132 provides, in part:

“(a) In addition to other factors that a court is required to consider in a proceeding in which the custody of a child or visitation by a parent is at issue and in which the court has made a finding of domestic or family violence the court shall consider each of the following:
“(1) The safety and well-being of the child and of the parent who is the victim of family or domestic violence.
“(2) The perpetrator’s history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault, to another person.”

In Ex parte Fann, our Supreme Court held that the Act does not require a trial court to make a specific finding in its judgment as to whether domestic violence has in fact occurred, nor does it require that the trial court state in its judgment the reasons and findings supporting a conclusion that a parent has perpetrated do--mestic violence. 810 So.2d .at 633-36.

In the case before us,, the trial court did not make a specific finding that the wife had committed acts of domestic violence. However, we conclude that there is evidence in the record that would support a finding that the trial court' applied the rebuttable presumption under § 30-3-131 against the wife. ' The trial court specifically found that the wife had “anger problems,” and the court required the wife to complete a parenting-skills class as a condition of her having primary physical custody of the daughter and warned the parties to immediately notify the court of any concern of harm to the children.

We also conclude that there is evidence in . the record from which the trial court reasonably could find that the wife had rebutted the presumption against her and that the trial court reasonably could have determined- that granting the wife joint legal custody, with primary physical custody of the daughter, was in the best inter--ests of the daughter based on the totality of the evidence presented in the case. See generally Jackson v. Jackson, 709 So.2d 46 (Ala.Civ.App.1997) (recognizing that the presumption under § 30-3-131 can be rebutted).

The evidence is undisputed that after the incident in the spring of 2000, the wife never again committed an act of domestic violence against .the husband. The wife testified that she changed her behavior, not because of that incident, but because “[she] knew in [her] heart that it was the wrong thing to do and [she] needed to be a better person.” The husband admitted that the wife was a good mother. The evidence in the record supports a finding that the wife had never physically struck the daughter (except for disciplinary purposes) and that the daughter was safe with the wife. Further, the trial court specifically found that D.F. had problems and that the husband needed to focus his attention on D.F. to keep him on the “right path.”

Section 30-3-131 also states that notwithstanding the rebuttable presumption, “the judge, must also take into account, what, if any, impact the domestic violence had on the child.” In this case, there was a general consensus among the witnesses’ testimony that it was not' good for the daughter (or any child) to be exposed to domestic violence. Although the daughter had been present during some of the wife’s acts of domestic violence against the husband, there is no evidence in the record that the daughter had been damaged by, or suffered any long-term adverse effects from, the wife’s violent behavior towards the husband.

The extent of conflicting evidence in this case is noteworthy and exemplifies the reason for the ore tenus presumption:

“ ‘The trial court is in the ... position of discerning the demeanor and other like intangibles which do not transfer so readily in a transcript.’ Shepherd v. Shepherd, 531 So.2d 668, 671 (Ala.Civ. App.1988). Stated another way, ‘the deference given to the trial court by the ore tenus rule is, in part, due to the trial court’s unique position to see and/or hear something that may not be apparent on the face of the written record.’ Willing v. Willing, 655 So.2d 1064, 1068 (Ala.Civ.App.1995). See Dobbins v. Dobbins, 602 So.2d 900, 901 (Ala.Civ.App.1992) (‘The reason for the ore tenus rule is [well established], i.e., that the trial court had the opportunity to observe the witnesses as they testified, to judge their credibility and demeanor, and to observe what this court cannot perceive from a written record.’).”

Ex parte Fann, 810 So.2d at 638. We cannot conclude based on the totality of the evidence that the trial court was plainly and palpably wrong in awarding the wife primary physical custody of the daughter.

The husband next contends that the trial court abused its discretion in awarding the wife $3,000 as alimony in gross. In Ingram v. Ingram, 602 So.2d 418, 420 (Ala. Civ.App.1992), this court stated:

“We first note that the division of marital property in a divorce action is a matter committed to the sound discretion of the trial court. Lucero v. Luce-ro, 485 So.2d 347 (Ala.Civ.App.1986). The trial court’s decision following the presentation of ore tenus evidence is presumed to be correct, and this court will not reverse that decision absent a gross abuse of discretion. Thomas v. Thomas, 394 So.2d 372 (Ala.Civ.App. 1980). Further, property divisions in a divorce case do not have to be equal, only equitable. Montgomery v. Montgomery, 519 So.2d 525 (Ala.Civ.App. 1987).”

A property division that favors one party over another does not necessarily indicate an abuse of discretion by the trial court. Dobbs v. Dobbs, 534 So.2d 621 (Ala.Civ.App.1988). “ ‘[Property divisions are not required to be equal, but must be equitable in light of the evidence, and the determination as to what is equitable rests within the sound discretion of the trial court.’ ” Ex parte Drummond, 785 So.2d 358, 361 (Ala.2000) (citations omitted). “Factors to be considered by the trial court in a division of property include the earnings ability of the parties; their future prospects, ages, and health; the duration of the marriage; the source, value, and the type of property; and the conduct of the parties.” Corl v. Corl, 560 So.2d 774, 775 (Ala.Civ.App.1990); accord Covington v. Covington, 675 So.2d 436, 438 (Ala.Civ. App.1996) (reciting factors for the trial court to consider in dividing marital property). “The weight or importance assigned to any one of these factors is primarily left to the trial court’s discretion when apportioning property.” Antepenko v. Antepenko, 549 So.2d 1357, 1359 (Ala. Civ.App.1989).

In this case, the parties agreed to most of the terms of the property division and left only a few items for the trial court’s consideration. The parties were married for almost 10 years. The record is clear that the husband’s annual income exceeds the wife’s annual income by a minimum of $16,000. In light of the totality of the evidence, we cannot hold that the trial court abused its discretion in awarding the wife $3,000 as alimony in gross.

Finally, the husband contends that the trial court erred in ordering him to pay $500 per month in child support because, he says, the trial court deviated from the child-support guidelines without making a finding that the application of the guidelines would be “manifestly unjust or inequitable.” Rule 32, Ala. R. Jud. Admin., provides, in part:

“(A) ... There shall be a rebuttable presumption, in any judicial or administrative proceeding for the establishment or modification of child support, that the amount of the award which would result from the application of these guidelines is the correct amount of child support to be awarded. A written finding on the record indicating that the application of the guidelines would be unjust or inappropriate shall be sufficient to rebut the presumption if the finding is based upon:
“(ii) A determination by the court, based upon evidence presented in court and stating the reasons therefor, that application of the guidelines would be manifestly unjust or inequitable.
“(2) Stipulations. Stipulations presented to the court shall be reviewed by the court before approval. No hearing shall be required; however, the court shall use the guidelines in reviewing the adequacy of child support orders negotiated by the parties and shall review income statements that fully disclose the financial status of the parties.
“(B)....
“(7) Health insurance premiums.
“(a) The. actual cost of a premium to provide health insurance benefits for the children shall be added to the ‘basic child support obligation’ and shall be divided between the parents in proportion to their adjusted gross income in the percentages indicated on the Child Support Guidelines form (Form, CS-42). ■ ■ .
“(b) The amount to be added to the ‘basic child support obligation’ shall be the actual amount of the total insurance premium for family/dependent coverage, regardless of whether all children covered are in the same family.
“(c) After the ‘total child support obligation’ is calculated and divided between the parents in proportion to their ‘monthly adjusted gross income,’ the amount added pursuant to subsection (b) shall be deducted from the obligor’s share of the total child support obligation, provided the obligor actually pays said premium. If the obligee-is actually paying the premium, no further adjustment is necessary.”

(Emphasis added.)

As previously stated, the parties in this case submitted “CS-42, Child Support Guidelines” forms to the trial court reflecting that the husband’s child-support obligation would be $423, based on his paying monthly health, dental, and vision insurance premiums for family/dependent coverage totaling $728. Moreover, in Brown v. Brown, 719 So.2d 228 (Ala.Civ.App. 1998), this court held that, pursuant to Rule 32(B)(7)(b), the total cost of the health-insurance premium for family/dependent coverage was to be included in the calculation of the child-support obligation. In Brown, this court found that the husband’s argument — that only the portion of the cost attributable to the parties’ daughter should be included in the calculation— to be without merit. 719 So.2d at 231.

Consistent with our holding in Brown, we note that Rule 32(B)(7)(b) specifically takes into consideration the fact that a portion of a spouse’s insurance premium for family/dependent coverage may also cover children from another marriage. The rule does not provide for an adjustment relating thereto, stating instead that “[t]he amount to be added to the ‘basic child support obligation’ shall be the actual amount of the total insurance premium for family/dependent coverage, regardless of whether all children covered are in the same family.” We therefore conclude that the trial court erred in deviating from the child-support guidelines (and in increasing the husband’s child-support obligation) based on a finding that “the insurance covers a child from his previous marriage.”

That portion of the trial court’s judgment regarding child support is reversed, and the cause is remanded for the trial court to recalculate the husband’s child-support obligation in accordance with Rule 32, Ala. R. Jud. Admin., consistent with this opinion. The remainder of the trial court’s judgment is due to be affirmed.

The wife’s request for the award of an attorney fee is denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . The husband testified that he moved D.F. out of the marital home and into the husband’s mother’s home because of the animosity between D.F. and the wife, and additionally because the wife had alleged, in front of D.F. and M.H., that D.F. had molested M.H. Although the wife did not testify regarding this allegation, the husband testified that the wife admitted during a deposition that she did not have any evidence to support the allegation. The husband further testified that when he asked the wife, " 'Why would you say that? Why would you even say that especially around the kids? Why would you want to bring that up?' ” the wife responded, " 'Because I know what it takes to pull both of y’all's triggers.’ ”

      . At some point during D.F.'s 18-month stay with the parties, D.F. attended counseling. Because D.F. was attending counseling, the parties decided to attend marriage counseling as well. During the parties’ marriage counseling sessions, the "anger issues” in the parties’ marriage were addressed.

      . The wife also testified that after D.F. had come to live with the parties the second time, the husband, from time to time, would punch D.F. in the arm to discipline him, resulting in a "punching match” between the husband and D.F. The husband admitted that sometimes he punched D.F. in the arm to discipline D.F., but explained that the "punching matches” were just "tussling around:” D.F.'s testimony regarding the "punching matches” was substantially the same as the husband’s.

      . The wife admitted that she had kicked the husband's car in anger on one occasion when he was leaving the marital home to participate in a sporting activity. The wife could not recall if that incident occurred before or after the incident in May 2000. .

      . Section 30-3-131 provides:
      "In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that domestic violence has occurred raises a rebuttable presumption by the court that it is detrimental to the child and not in the best interest of thé child to be placed in the sole custody, joint legal custody, or joint physical custody with the perpetrator of domestic or family violence. Notwithstanding the provisions regarding the rebuttable presumption, the judge must also take into account, what, if any, impact the domestic ■violence had on the child.’’
      Section 30-3-133, Ala.Code 1975, provides:
      "In- every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that domestic or family violence has occurred raises a rebuttable presumption by the court that it is in the best interest of the child to reside with the parent who is not a perpetrator of domestic or family violence in the location of that parent’s choice, within or outside the state.”

      . Although the wife argues that the trial court reasonably could have concluded that the husband also engaged in acts of domestic violence and applied the § 30-3-131 presumption to him, we do not believe that a reasonable view of the evidence would support that finding.

      . From our review of the record, we note that it appears to us that $728 represents the husband's cost for four weeks of family/dependent coverage — not his monthly cost. The husband's actual monthly cost for family/dependent coverage would appear to be $789 ($364 biweekly x 26 pay periods, divided by 12 months).


author:
      MURDOCK, Judge.
      YATES, Presiding Judge,

text:
    In the MATTER of ANONYMOUS, a minor.
    2020908.
    Court of Civil Appeals of Alabama.
    July 9, 2003.
   MURDOCK, Judge.

This case involves a petition by an un-emancipated minor seeking a judicial waiver of parental consent for an abortion, pursuant to § 26-21-1 et seq., Ala.Code 1975. The minor, who will be 17 years old in less than 30 days, testified at the hearing on her petition that she was then nine weeks pregnant and that she had just completed her junior year in high school. The minor testified that she 'played softball as an extracurricular activity, that she was a “B” or “C” student, and that she planned to attend college and obtain a nursing degree. She testified that she had discussed the pregnancy and her alternatives with her boyfriend, who will be 17 years old in a few weeks and who is the father; with her boyfriend’s mother; and with “the-people” at the facility at which she planned to have the abortion. She also testified that her 21-year-old sister had given birth to a child out of wedlock when the sister was 19 years old, that her sister had been unable to care for that child, and that her parents had adopted that child. She stated that she did not think that her parents could care for another child, that her parents would not allow her to have an abortion or allow her to place her child for adoption, and that her mother had physically abused her in the past.

Following a hearing on the minor’s petition, the trial court entered a judgment denying the petition. The trial court found that the minor was approximately nine weeks pregnant. In the judgment, the trial court also stated:

“Child testified that she would kill herself if she were not allowed to have an abortion. That she is too selfish to care for another child, as she is one of the primary caretakers of her niece. The Court does not believe that [the] child has considered the emotional trauma that an abortion would have on her. After observing the child’s demeanor this Court does not believe it to be in the child’s best interest to have an abortion without further counseling and/or discussion with family members.”

The judgment further stated, in preprinted language, that “the minor is not mature and well informed enough to make the abortion decision and the performance of the abortion is not in the best interest of the minor.” The minor appeals.

In Ex parte Anonymous, 803 So.2d 542 (Ala.2001), our Supreme Court explained that the ore tenus rule applies in cases of this type and that,

“[i]n such a case — where the trial court has had the opportunity to observe the witness and where assessments of the level of the minor’s maturity are crucial — the trial court’s findings should be afforded considerable deference. Here, the trial judge had the responsibility of determining the facts. In particular, it was the. trial judge’s responsibility to determine whether the petitioner is mature enough and well-informed enough about the abortion procedure to make an independent decision whether to undergo an abortion without parental consent. See § 26-21-4(f), Ala.Code 1975. In addition to hearing the testimony, the trial judge could observe the minor and could consider her demeanor as she testified. That aspect of the evidence is denied an appellate court by a cold record. The trial judge was in a far better position than are we to determine, as a matter of fact, the minor’s maturity and level of knowledge.”

803 So.2d at 546. See also Ex parte Anonymous, 812 So.2d 1234 (Ala.2001). The ore tenus rule also places responsibility on the trial court for determining the weight and credibility to be assigned to the testimony of witnesses. Thus, as the Supreme Court stated in Ex parte Anonymous, 803 So.2d 542, “ ‘[t]he ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.’” 803 So.2d at 546 (quoting Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986)). We also note that “the burden of proof with respect to both the maturity/well-informed prong and the best-interest prong of § 26 — 21—4(f) lies with the minor.” In re Anonymous, 833 So.2d 75, 78 (Ala.Civ.App.2002) (per cu-riam opinion, with two judges concurring and one judge concurring in the result). Based on the issue presented and the application of the ore tenus rule, we must affirm the trial court’s judgment unless its factual findings are plainly erroneous or manifestly unjust. Ex parte Anonymous, 803 So.2d at 546.

The minor argues that the trial court’s findings that she was not mature enough and not well-informed enough about the abortion decision were unsupported by the evidence. We first note, however, that during direct examination, the minor offered only a conclusory affirmation (“Yes ma’am”) when questioned about whether she was aware of the risks of having an abortion. She gave the same response when asked whether she was willing to assume those risks. The minor’s counsel did not question, her as to her knowledge or awareness of any specific physical, psychological, or emotional risks that might be associated with the abortion procedure, and the minor volunteered no explanations or details as to her. understanding of those risks. When asked by the trial court what she had been told at the abortion clinic regarding the procedure itself, the minor stated that “[t]hey told me all about the dilation and the, you know, the anesthesia and stuff that I would go under. And the different plans I could choose.”

The trial court also asked the minor whether anyone at the clinic had “go[ne] over anything about any thoughts you might have after the procedure is done.” In response, the minor explained that she would be counseled by the abortion clinic prior to the abortion, after which there would be a 24-hour waiting period. When the trial court returned to this issue by asking whether the clinic had “go[ne] over ... the normal feelings of a young lady when she has an abortion,” the minor responded: “That, you know, you’re always going to be telling yourself are you sure and, you know — you know what’s in your heart and you go with that because nobody else can tell you what you feel is right.” When the trial court pressed the minor as to what “the clinic” had advised her regarding possible post-abortion emotional problems, the minor finally responded:

“A. Well, you know, they just kept telling me that it’s your choice. You don’t have.to feel guilty about it if you feel that that’s what you want to do then, you know, that’s what you want to do. And you shouldn’t let your parents or anybody influence the things that are going through your head. And if you truly think that’s what needs to be done then you need to do it.
“Q. I’m not talking about ... them informing you of your choice. I’m talk- ' ing about them informing you of what most ladies experience after they’ve had abortions as far as emotionally?
“A. Well, yes. They say, you know, most people don’t look at babies the same way. Most people, you know, they always think, you know, what if. You have all these different kinds of thoughts going through your head.”

When the trial court questioned the minor about whether she had thought about committing suicide, the following colloquy ensued:

“Q. Have you ever had any thoughts about harming yourself or committing suicide?
“A. Yes, sir.
“Q. When was that?
“A. If I couldn’t get rid of the kid.
“Q. If what?
“A. If I couldn’t get rid of the kid.
“Q. And why do you think you would harm yourself?
“A. Because I can’t have it.
“Q. And how often do you have these thoughts? . ,
“A. Just when, you know, I think about if I can’t rid of it, I can’t have an abortion or, you know, if I don’t have a miscarriage or something, then that’s the only choice.
“Q. So, you’re telling this Court that if you can’t have an abortion you would kill yourself?
' “A. Yes, sir.”

When the court later questioned the minor again regarding whether she would kill herself if she could not have an abortion, she stated:

“A. Pretty much. That’s my only other choice.
“Q. Do you think that is a mature decision to make?
“A. I mean, it’s the only other choice I have. I can’t have it. I’m not saying I want to kill myself. But I’m saying that I think it would literally drive me that crazy because right now my niece — you know, the kid that my parents adopted is pretty much like mine. I mean, I have a car seat in my car for her. She’s pretty much my daughter and everybody thinks it. I mean, it’s already hard naturally as it is with her.
“I' just — I couldn’t take a kid. I mean, I know that I’m not — I couldn’t raise it., I can’t even support myself. My parents still support me. I know that, you know, I’m too selfish to support a kid or anything.”

The minor argues on appeal that the trial- court incorrectly concluded that she was not mature enough and well-informed enough about the abortion decision to make the decision on her own. However, the trial court was uniquely positioned to evaluate the minor’s demeanor, upon which the trial court commented in its judgment. The trial court also made specific mention in its judgment of its concern that the minor had not adequately considered emotional-trauma issues relating to having an abortion. ■ Based on those findings, and upon our review of the entirety of the minor’s testimony, we must conclude that the trial court’s finding that the minor is not mature enough and the trial court’s finding that'the minor is not well-informed enough to make the abortion decision are both supported by the record, and are not plainly erroneous or manifestly unjust.

The minor also appears to argue that the trial court’s finding as to the issue of the minor’s “best interest” is not supported by the evidence. We begin our discussion of this issue by examining the minor’s testimony regarding her relationship with her niece, including the following:

“A. My parents decided to take the kid.
“Q. Okay. So, did your parents legally adopt the baby?
“A. Yes, ma’am.
“Q. So, are they raising this baby as their own child?
“A. Yes, ma’am.”

The minor also testified that the rearing of her sister’s child by her parents was causing some financial difficulties for her parents. In its judgment, the trial court made reference to the minor’s testimony, indicating that the minor had testified to the effect that, in the trial court’s words, she was “one of the primary caretakers of her niece.” As noted above, the minor’s testimony in this regard includes the following:

“I’m not saying I want to kill myself. But I’m saying that I think it would literally drive me that crazy because right now my niece — you know, 'the kid that my parents adopted is pretty much like mine. I mean, I have a car seat in my car for her. She’s pretty much my daughter and everybody thinks it.”

As previously noted, the trial court’s responsibility in an ore tenus proceeding of this nature is not only to make determinations regarding the maturity of the minor, but also to make credibility determinations regarding her testimony. In light of the minor’s previous testimony regarding her parents’ adoption of and assumption of responsibility for the daughter of the minor’s sister, and in light of the trial court’s opportunity to listen to and observe the minor during her testimony, the trial court could have decided to assign little weight, or credibility, to the minor’s testimony regarding the primacy of her role in rearing her niece.

The minor also argues on appeal that “she did not have a good relationship with her parents. In fact, her mother had been verbally and physically abusive towards her.” The minor testified that she was afraid to tell her parents about her pregnancy. The record, however, contains no evidence of specific reasons for such a fear as it relates to the minor’s father.

With respect to her mother, the minor stated:

“[M]y mother freaks out about a lot of things and she has physically abused me ... [for] no reasons really. Like one night I just came home and she was just going crazy and beating on me and my sister. I’m just' — I’m afraid to tell them because of the discipline that they would — you know.”

The trial court later questioned the minor again regarding this matter:

“Q. You had mentioned that your parents had been previously abusive to you. Can you tell me exactly what happened?
“A. Just my mother. I mean, she would flip out about weird' things. I mean, you don’t really have to do anything to start it. You never know when it’s coming. One day I came home at 12:00 like in the afternoon and my mom had told me to go to the mall. When I came home and she had just' started getting mad about something saying that we never do anything to help out around the house. And that [my sister] gave her. all these problems with the baby, having the baby and all this stuff. She feels that, you know, she had-to take her on and all this, you know, gives her financial problems. So, she takes * some shoe with her heel and hits me in the eye. I had a black eye for a week.”

As previously noted,’ the trial court had the responsibility for assigning weight and making credibility determinations as to testimony of this nature. Given the trial court’s findings regarding the immaturity of the minor, we cannot say that the trial court plainly erred in not assigning greater weight to her anecdotal descriptions of her mother’s outbursts.

The record does contain testimony from the minor as to how her parents have responded to her sister’s pregnancy and how the birth of her sister’s child has affected their family. . This court does not have the benefit, as did the trial court, however, of seeing and hearing the minor and, as indicated in the trial court’s judgment, evaluating her demeanor. This court-is therefore not in a position to assign weight or make credibility determinations as to the minor’s testimony, as was the trial court. It is apparent even from the written record, however, that in many instances the testimony of the minor in this case was not clear. Further, while the minor did testify that she thought, based on her sister’s experiences and her understanding of her parents’ finances, that her parents would force her to keep the child and to drop out of high school and that she would not be able to attend college, the minor also testified that her parents had not actually made her sister rear her child, but that her parents had adopted the child and that the sister was already “back in college.”

Our Legislature has expressly stated that its purpose in adopting Alabama’s parental-consent statute included “fostering the family structure and preserving it as a viable social unit,” and “protecting the rights of parents to rear [their] children.” § 26-21-l(a), Ala.Code 1975. The Legislature also noted that “parents ordinarily possess information essential to a physician’s exercise of his best medical judgment concerning the child” and that “parents ... may better insure that [their minor daughter] receives adequate medical attention.” § 26 — 21—1 (b), Ala.Code 1975. Accordingly, the Legislature concluded that “parental consultation is usually desirable and in the best interests of the minor.” Id.

As previously noted, the minor had the burden of proving that the relief she requested was in her best interest. The testimony of the minor in this particular case was, in many respects, relatively limited and often conclusory. Further, the trial court was uniquely positioned to evaluate the minor and her testimony, including her maturity, credibility, and the extent of her knowledge regarding the abortion procedure and its risks. Based on the record before us, we cannot say that the trial court’s conclusion that the minor failed to satisfy her burden of proof was plainly erroneous or manifestly unjust.

AFFIRMED.

CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

YATES, P.J., dissents.

YATES, Presiding Judge,

dissenting.

I dissent from the majority’s affirmance in this case. The trial court entered a “Denial of Waiver of Consent Order” on a preprinted form provided for such denials. The trial court filled in the blanks regarding the minor’s age and the length of her pregnancy. In a large blank space on the form (preceded by the phrase “The Court further finds that”), the trial court wrote:

“Child testified that she would kill herself if she. were not allowed to have abortion. That she is too selfish to care for another child, as she is one of primary caretakers of her niece. The Court does not believe that child has considered the emotional trauma that an abortion would have on her. After- observing child’s demeanor this Court does not believe it to be in the child’s best interest to have an abortion without further counseling and or discussion with family members.”

Section 26 — 21—4(f), Ala.Code 1975, provides that parental consent shall be waived if the court finds either that the minor is mature enough and well-informed enough to make the abortion decision or that an abortion would be in the minor’s best interest. Section 26-21-4(g) provides that the trial court must “issue written and specific findings and legal conclusions supporting its decision.”

I recognize that pursuant to Ex parte Anonymous, 803 So.2d 542 (Ala.2001), the ore tenus rule now applies to a trial court’s-findings of fact in a waiver-of-parental-consent case; however, under the particular facts of this case, I believe that the trial court’s judgment is plainly erroneous and manifestly unjust.

The minor, who will be 17 years old in less than 30 days, testified that her parents are opposed to abortion and that she was afraid of her parents’ reaction to her pregnancy. Specifically, she testified that she has gone through the experience of her older sister’s • becoming pregnant and her parents’ forcing her sister to keep the child and that, as a result, “everyone was miserable.” Her parents would not let her sister put the child up for adoption. Her sister had to drop out of college while trying to care for the child. According to the minor, her sister would “just break down” and the parents subsequently adopted the child themselves. The minor testified that the child is now a toddler and that she spends a great deal of her time caring for this baby, even keeping a car seat in her car so that she can transport the child. The sister is moving put of the parents’ home in two months, leaving the baby behind for the minor to continue to help rear. In discussing the financial problems her family faced after her parents had adopted her sister’s child, the minor said that, on one occasion, her mother reacted to those financial problems by hitting the minor with the heel of her shoe, giving the minor a black eye. The minor also has a much younger brother that her parents are caring for.

The minor testified that, if she has the baby, she will have to dr.op out of high school. She testified that she had discussed the pregnancy with her boyfriend, who will be 17 years old in a few weeks, and his mother and that they supported her decision because, she stated, they believe the couple is too yoqng to have a child. In response .to the trial court’s questioning, the minor testified that she is healthy, that she never drinks alcohol or uses illegal drugs, and that she participates in sports at her school. She stated that she discussed the abortion procedure with counselors at a clinic and that, if she had an abortion, her older sister would be going with her. She stated that she had waited 24 hours after the counseling session before seeking a waiver of parental consent. The minor testified that she feared her mother would physically abuse her if she had to tell her about the pregnancy. She stated that her mother had physically assaulted her and her sister in the past for no apparent reason.

It is clear from the record that the minor’s parents have previously encountered an unplanned pregnancy, what their reaction was to that pregnancy, and how the decision not to abort the pregnancy has affected their family. “Whether a minor is mature and sufficiently well-informed is a difficult, yet delicate and important, decision that a trial court must necessarily make, not only in light of the testimony of the minor, but also in the context of the minor’s demeanor, background, and sundry other circumstances.” Ex parte Anonymous, 806 So.2d 1269, 1274 (Ala.2001). The minor testified that she already has the burden of caring for her sister’s child and that she would have to drop out of high school and abandon her plans for college in order to care for a baby. She testified clearly as to the impact of forcing her to go through with the pregnancy.

“A: I mean, it’s the only other choice I have. I can’t have it. I’m not saying I want to kill myself. But I’m saying that I think it would literally drive me that crazy because right now my niece — you know, the kid that my parents adopted is pretty much like mine. I mean, I have a car seat in my car for her. She’s pretty much my daughter and everybody thinks it. I mean, it’s already hard naturally as it is with her.
“I just — I couldn’t take a kid. I mean, I know that I’m not — I couldn’t raise it. I can’t even support myself. My parents still support me. I know that, you know, I’m too selfish to support a kid or anything. I couldn’t do it.
“[The Court]: That’s why I was asking if you had considered other alternatives.
“A: I have. But if my parents knew that I was, then they would make me keep it. I would have no other choice.”

The court concluded the hearing by stating, in part, “Whatever I do though you’ve got to think of two things. You’ve got to think of yourself and you still have to think of the baby.”

“The ‘best interests of a child is a matter or question of ultimate fact reviewable under the clearly erroneous standard of review.’ ” Ex parte Anonymous, 806 So.2d at 1274, quoting In re Doe, 89 Haw. 477, 487, 974 P.2d 1067, 1077 (Ct.App.1999). The minor has experienced firsthand the impact of rearing a child born as a result of an unplanned pregnancy. She knows that her parents would force her to keep the baby. She does not have the option of carrying to term and then placing the baby for adoption. Given her testimony and the totality of the circumstances in this case, the record clearly reflects that it would be in the best interest of the minor to grant the waiver of parental consent.

      . Our Legislature has expressed its concern that there be "fully informed choices that take account of both immediate and long range consequences” and that "the medical, emotional and psychological consequences of • abortion are serious and can be lasting.” See § 26-21-1(b), Ala.Code 1975. See also Planned Parenthood v. Casey, 505 U.S. 833, 882, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (recognizing that "in attempting to ensure that a woman apprehendfs] the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed”). The minor in this case failed to demonstrate a knowledge of any specific immediate or long-term physical, emotional, or psychological risks of having an abortion. Except for conclusory statements, the record contains relatively little evidence that the minor was aware of, appreciated, or had seriously considered such risks.

      . In Ex parte Anonymous, 806 So.2d 1269, 1274 (Ala.2001), our Supreme Court noted that a trial court's findings concerning a minor's demeanor, i.e., her "composure, analytic ability, appearance, thoughtfulness, tone of voice, expressions, and her ability to articulate her reasoning and conclusions,” were due the presumption of correctness afforded 'by the ore tenus rule.

      . Even if we assume the trial court accepted the minor's testimony indicating that an adverse decision by the trial court would mean that the minor would be forced to give birth to the child, this does not automatically mean that a court-ordered waiver of parental consent must be considered as being in the minor’s best interest. See Bellotti v. Baird, 443 U.S. 622, 642, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (noting that “[t]he circumstances in which this issue arises will vary widely” and that ."an abortion may not be the best choice for the minor”).

      . See also Bellotti v. Baird, 443 U.S. 622, 648, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (noting that “[tjhere is, however, an important state interest in encouraging a family rather than a judicial resolution of a minor's abortion decision. Also, as we have observed above, parents naturally take an interest in the welfare of their children — an interest that is particularly strong where a normal family relationship exists and where the child is living with one or both parents. These factors properly may be taken into account by a court called upon to determine whether an abortion in fact is in a minor's best interests. If, all things considered, the court determines that an abortion' is in the minor's best interests, she is entitled to court authorization without any parental involvement. On the other hand, the court may deny the abortion request of an immature minor in the absence of parental consultation if it concludes that her best interests would be served thereby, or the court may in such a case defer decision until there is parental consultation in which the court may participate.”).

      . The minor is apparently referring to § 26-23A-4, Ala.Code 1975, which provides that at least 24 hours before an abortion is performed, a woman must be provided certain information so as to give voluntaiy and informed consent to the abortion.