text:
    Laurie McCLELLAND v. Bryan A. McCLELLAND.
    2001125.
    Court of Civil Appeals of Alabama.
    July 19, 2002.

      Wendy Brooks Crew of Crew & Associates, Birmingham, for appellant.
    G.R. Fernambucq and Charles H. Dunn of Boyd, Fernambucq & Vincent, P.C., Birmingham, for appellee.
   CRAWLEY, Judge.

On March 29, 2001, the circuit court divorced Laurie McClelland (“the wife”) and Bryan A. McClelland (“the husband”). The court awarded custody of the parties’ two children to the husband, divided the marital property, and ordered the husband to pay the wife $1,200 per month in periodic alimony. The wife appeals, arguing that the child-custody award was clearly erroneous and that the property-division and periodic-alimony awards were inequitable. She also argues that the trial court erred by failing to appoint a guardian ad litem to represent the children, by failing to award her unpaid pendente lite support, and by failing to award her an attorney fee.

The parties began dating in 1986 while the wife was the operations manager for Advanced Medical Computer Systems and the husband, a physician in Canada, was in the midst of divorce proceedings. In the summer of 1988, the parties, who were then living together, moved to Birmingham, Alabama, with 4 children: the husband’s 2 children by his previous marriage — a 5-year-old boy and a 3-year-old girl; and the husband’s 11-year-old nephew and 8-year-old niece. The parties married in December 1988. Two children were born of the marriage: sons who were 11 years old and 8 years old at the time of trial. The husband’s nephew and niece lived with the parties for three years; they returned to Canada in 1992.

The husband is 49 years old; he has been a family practice physician for 23 years. He is the sole shareholder in Alabama Family Medicine, P.C., a subchap-ter-S corporation. His annual income in the seven years preceding the divorce ranged between $120,000 and $187,000. At trial, he estimated that his current income is $12,000 per month. The wife is 44 years old; she has a diploma from a Canadian high school and she has taken some college courses. Aside from two brief periods of employment — as a part-time receptionist in the husband’s medical office and as a clerk in a Hallmark greeting card store — the wife has not been employed outside the home since the parties moved to Birmingham. During the parties’ 12-year marriage, the wife had most of the domestic responsibilities; she was the primary caregiver for the parties’ two children, the husband’s two children by a prior marriage, and for three years, the husband’s nephew and niece. The wife is a gourmet cook. She has been involved in the children’s school activities as a room mother and reading volunteer, and she has participated in their scouting and athletic activities.

The evidence indicates that the parties’ marital difficulties were precipitated by their constant disagreements (and frequently violent confrontations) over financial matters. The husband presented evidence tending to show that when the wife was handling the family finances, the checking account was routinely overdrawn, sometimes by as much as $600 per month. The husband testified that in 1998 the parties agreed that the wife would write out the checks for the household bills, and that he would then sign them. At the end of the year, the husband discovered that a number of creditors for whom he had signed checks had not been paid, yet the funds had been removed from the checking account. The husband testified that he signed one check in the amount of $6,000 for his son’s tuition at Birmingham-Southern College, but that the college notified him that it had never received payment.

The parties had an equity fine of credit on the marital home from which, the husband claimed, the wife obtained $140,000 by telephone transfers; he testified that he had no idea how that money had been spent. The husband testified that when the wife was employed in his office, she handled the accounts payable. He said that the wife failed to pay some of the office bills and failed to make any contributions to the husband’s retirement account, despite the parties’ agreement that 10 percent of the husband’s monthly income would be deposited into the account. After the husband discovered that the wife had signed his name to a check written to herself on the medical-practice account, the husband restricted her access to the office accounts.

The wife denied any wrongdoing in connection with the husband’s office accounts, but she conceded that the parties’ personal checking account was frequently overdrawn. She attributed that state of affairs to the fact that the husband was not making enough money, that both parties were “terrible” money managers, and that neither party could adhere to a budget. The evidence indicates that the parties entertained frequently and spent large amounts on household furnishings and decorative items for two homes — their primary residence in the Cahaba Heights section of Birmingham, and a house on Logan Martin Lake in St. Clair County. The parties acquired several pieces of expensive artwork, including one painting valued at $30,000. They owned two boats, a canoe, and a hang glider.

The wife filed the complaint for divorce in August 1999, after the husband had transferred most of the funds from the parties’ joint checking account to a separate account in his name only, and had told the wife that there was “someone significant” in his life. The husband’s paramour was the first witness to testify at the trial. She said that she had known the husband for years but stated that they had not been sexually intimate until the parties had separated and the wife had filed for a divorce. The trial court made no express finding of fault concerning either party.

I. The Child-Custody Award

The wife argues that the trial court erred by awarding custody of the parties’ two children to the husband because, she claims, the court apparently disregarded the Custody and Domestic or Family Abuse Act, see § 30-3-130 et seq., Ala. Code 1975. She also claims that the court abused its discretion by failing to appoint a guardian ad litem for the children once it became aware that domestic violence was an issue in the case.

At trial, each party accused the other of perpetrating domestic violence upon the other and upon a child or children in the household. The wife testified that the husband had choked her, pushed her, spat upon her, poured a glass of wine on her head, and forced her to sleep on the floor. She also presented evidence indicating that the husband had picked up the parties’ eight-year-old son by the neck, had thrown him on the sofa, and had left marks on him.

The husband testified that the wife had hit him, bitten him, and injured his daughter and son. He said that the wife had injured the hand of one of the parties’ sons by forcefully closing a drawer on the boy’s hand. The husband described the wife as “physically dangerous and emotionally manipulative.” He presented evidence indicating that the wife had slapped his daughter in the face and had pushed his daughter’s head into a counter, causing an injury to the child’s forehead that necessitated 12 sutures to close. The wife admitted that she had twice slapped the daughter across the face to discipline her, but she maintained that the forehead injury was the daughter’s fault. The wife testified that the husband’s daughter had attacked her while she was driving and the daughter was a passenger in the wife’s car. The wife introduced a photograph showing her injuries; the photograph depicts a black eye and extensive bruising on the wife’s upper body. The husband characterized his daughter’s behavior on the occasion described by the wife as “out of control.” He said that he had taken his daughter for counseling and had kept the daughter and the wife apart for several weeks after the incident.

The husband testified that the parties’ older son had told him that he (the son) was afraid of the wife. The older son testified in camera but, at the end of his testimony, the trial court disqualified the witness, finding that the boy’s testimony had been influenced by the mother. The trial court’s judgment specifically states:

“This court heard testimony from both parties that indicated socially unacceptable conduct on both of their parts and brought into the case those issues contemplated by Fesmire [v. Fesmire, 738 So.2d 1284 (Ala.Civ.App.1999)]. The Court finds that some of the evidence is credible and some of it is not. The Court also notes that the parties have already been to counseling regarding this type of conduct and sees no reason to send them back to counseling. The Court, in making its custodial decision, has taken into consideration all of those issues encompassed in Fesmire and the statutes dealt with in Fesmire.”

Fesmire v. Fesmire, 738 So.2d 1284 (Ala.Civ.App.1999), which had required the trial court to make an express finding on the record as to whether domestic abuse had occurred and, if so, which party was the perpetrator, was overruled in Ex parte Fann, 810 So.2d 631 (Ala.2001). In Fann, our supreme court reiterated the following well-established principles of Alabama law:

“ ‘[W]here a trial court does not make specific findings of fact concerning an issue, this Court will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.’ Moreover, ‘[b]ecause the trial court has the advantage of observing the witnesses’ demeanor and has a superior opportunity to assess their credibility, this Court cannot alter the trial court’s judgment unless it is so unsupported by the evidence as to be clearly and palpably wrong.’ ”

810 So.2d at 636 (citations omitted). The statements quoted above from the trial court’s judgment demonstrate that the court did not disregard the relevant statutes dealing with domestic and family abuse. Instead, the statements indicate that the trial court made a custody decision based, in part, upon credibility determinations as to the allegations of domestic abuse. This court assumes that the trial court found either that the acts alleged by the wife did not occur, that the husband’s acts did not constitute domestic abuse, or that both parties were guilty of abusive behavior. See J.H.F. v. P.S.F., 835 So.2d 1024, 1029 (Ala.Civ.App.2002). The record demonstrates that any of the foregoing findings would be supported by the evidence, depending on whose testimony the trial court determined was worthy of belief.

The wife cites no authority, aside from a dissenting opinion in Kent v. Green, 701 So.2d 4 (Ala.Civ.App.1996), for her argument that the trial court abused its discretion by failing to appoint a guardian ad litem for the children. The dissent in Kent obviously does not state the currently prevailing law in Alabama. Moreover, Kent involved undisputed proof of family violence much more serious than the abuse alleged in the present case. We, therefore, find no abuse of discretion in the trial court’s failure to appoint a guardian ad litem for the children.

In an initial award of custody, the trial court must decide the custody issue based on the best-interest-of-the-children standard. See Ex parte Couch, 521 So.2d 987 (Ala.1988). The parties stand on equal footing; neither party enjoys a favorable presumption. See Smith v. Smith, 727 So.2d 113 (Ala.Civ.App.1998).

“When this Court reviews a trial court’s child-custody determination that was based upon evidence presented ore ten-us, 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 at 633.

The wife has been a stay-at-home mother and the primary caregiver for the children. Nevertheless, the evidence indicates that, although the husband has a demanding career, he has not been an absentee father but has been involved in the children’s lives and activities. The husband testified that, because he has his own medical practice, his hours are flexible and he can arrange to be home when the children need him. The record demonstrates that either party would be a suitable custodian for the children. Therefore, we conclude that the trial court’s custody determination is due to be affirmed.

II. The Unpaid Pendente Lite Support

On November 24, 1999, the trial court ordered the husband to pay the wife $3,500 per month, pendente lite, for the support and maintenance of herself and the children. At trial, the husband admitted that he had not paid the full amount ordered. The wife testified that the husband was in arrears in pendente lite support in the amount of $26,030. The trial court’s judgment states:

“The Court notes that there is some claim to unpaid child support and/or alimony pursuant to this Court’s Pendente Lite Order. However, there was no conclusive evidence presented at trial as to what this exact amount may have been. Therefore, the Court is unable to reach a decision regarding this issue.”

The wife argues that the trial court erred by failing to enter judgment for her for unpaid and past due pendente lite support. We agree. See Slater v. Slater, 587 So.2d 376 (Ala.Civ.App.1991). In Slater, as in this case, the husband was ordered to pay pendente lite support, “there was uncon-troverted testimony that the husband had not made all of these payments,” and the wife testified that the arrearage amounted to a sum certain. 587 So.2d at 380. Citing Ex parte Morgan, 440 So.2d 1069 (Ala.1983), for the well-settled proposition that “past-due installments for such support create a final money judgment,” this court remanded the matter to the trial court “so that it may calculate the arrearage and enter a monetary judgment for the amount due the wife.” 587 So.2d at 380. We direct the trial court to make such a calculation in this case and to enter a judgment for the wife.

III. The Periodic-Alimony and Property-Division Awards

The parties own two parcels of real estate: the marital residence in Cahaba Heights, purchased in 1988 for $240,000 and encumbered by a home-equity mortgage of $304,000; and a lake house, purchased in 1996 for $180,000, that is unencumbered. When the parties moved into the Cahaba Heights house, construction was not yet complete and the husband finished the house himself. Inside, he hung sheetrock, painted, wallpapered, installed tile in three rooms, added a kitchen island, and did the plumbing in all of the bathrooms. Outside, he cut down 64 trees, built fieldstone walls, stairs, and a swimming-pool surround, and constructed decks and an arbor.

Pursuant to a pendente lite order, both houses were, at the time of trial, listed for sale. The husband testified that the Caha-ba Heights house was listed at $380,000, but the realtor had suggested that the parties reduce the asking price to $270,000. Up to and including the time of trial, the wife had not consented to reducing the price. The husband presented evidence indicating that the house needed $40,000 to $45,000 worth of repairs before it could be sold, but that the wife had refused to allow him or a contractor access to the house to make the repairs. The lake house was, at the time of trial, listed for sale at $280,000. The final judgment of divorce ordered that both parcels of real property be sold, that the proceeds be applied to the indebtedness on the marital home, and that the balance, if any, be divided equally between the parties.

Each party was awarded the vehicle in his or her possession. The wife was awarded a 1998 Oldsmobile Achieva, which the husband had purchased for her in October 1999, for $16,000 and for which the monthly payments are between $200 and $250. The wife was ordered to make the payments on this vehicle; the record does not reveal the outstanding balance on the vehicle. The husband was awarded a 1997 Cadillac DeVille with a $10,000 indebtedness for which the husband pays $1,000 per month. The husband was awarded two boats, a canoe, and a hang glider.

The husband was awarded his A.G. Edwards individual retirement account valued at $234,846.79. The evidence indicates that, with the exception of a $6,000 contribution to the account made in 1991, all of the contributions to this retirement account were made before the marriage and that no withdrawals were made during the marriage. The wife does not contend that she should have been awarded a portion of the husband’s A.G. Edwards retirement account. The trial court awarded each of the parties one-half of the husband’s 401(k) account, which was established and funded during the parties’ marriage, and which had, at the time of trial, a balance of $30,648.31. The husband was awarded his Alexander Hamilton universal insurance account, from which he was paying his son’s college tuition; that account had a balance of $9,041. The husband was awarded his stock in Alabama Family Medicine, P.C.

Each party was awarded his or her clothing, personal effects, jewelry, and various items of furniture, furnishings, equipment and artwork. The wife was ordered to be responsible for all the debts she had incurred in her name, including approximately $1,500 of credit-card indebtedness and a $19,000 loan from her parents. The husband was ordered to be responsible for a $20,000 federal tax liability. Each party was made responsible for his or her own attorney fee.

“It is wéll settled that trial judges enjoy broad discretion in fashioning divorce judgments.” Ex parte Bland, 796 So.2d 340, 343 (Ala.2000).

“ ‘In reviewing the trial court’s judgment in a divorce case presented ore tenus, we will presume the judgment to be correct until it is shown to be plainly and palpably wrong or unjust. Brannon v. Brannon, 477 So.2d 445 (Ala.Civ.App.1985).’ ”

Id. (quoting Ex parte Jackson, 567 So.2d 867, 868 (Ala.1990)). Issues concerning alimony and the division of marital property rest within the trial court’s discretion, and rulings on those matters will not be disturbed in the absence of a plain and palpable abuse of discretion. Welch v. Welch, 636 So.2d 464 (Ala.Civ.App.1994). Matters of alimony and property division are interrelated, and a reviewing court must consider the entire judgment in determining whether the trial court abused its discretion on either issue. Willing v. Willing, 655 So.2d 1064 (Ala.Civ.App.1995).

“Each case is decided on its own peculiar facts and circumstances. Criteria which should be considered by the trial court when awarding alimony and dividing property include the length of the parties’ marriage, their ages, health, station in life, and future prospects; the source, value, and type of property owned; the standard of living to which the parties have become accustomed during the marriage and the potential for maintaining that standard; and, in appropriate situations, the conduct of the parties with reference to the cause of divorce.”

Currie v. Currie, 550 So.2d 423, 425 (Ala.Civ.App.1989).

Applying the foregoing criteria, we conclude that the parties, who were married for 12 years, are still relatively young and in good health. The future employment prospects of the wife, who has had little work experience and who has few marketable skills, are not particularly bright, especially when compared with those of the husband who has many productive years in which to practice medicine. The wife may not, without further training, be able to find employment that pays her more than the minimum wage. In the immediate future, she cannot expect to enjoy a standard of living like the one to which she has been accustomed for the past 12 years. However, assuming that the trial court believed the evidence presented by the husband — ■ that the wife was guilty of massive overspending, financially irresponsible conduct, and deception, if not forgery and theft— then it is apparent that the standard of living the wife enjoyed during the marriage was an artificial one that had no relation to the parties’ actual income. The trial court could have concluded that the wife’s refusal to live within the parties’ means affected both the family’s financial and emotional stability. It could have determined that because of the wife’s financial misconduct, the parties had more debt than equity subject to division upon a divorce. Accordingly, the trial court could have decided that the wife should bear the consequences of her misconduct in any allocation of property'and debt upon a dissolution of the marriage.

The trial court’s division of the marital property does not leave the wife destitute, however. Even if the lake house, which is listed for $280,000, sells for only $200,000, and the Cahaba Heights house sells for only $240,000, the wife will realize $68,000 after the proceeds of those sales are used to pay off the home-equity mortgage on the Cahaba Heights residence. At trial, the wife testified that she would like to pursue further educational opportunities. With $68,000 in liquid assets, she will be able to make a down payment on a home or enroll in some kind of training or educational preparation, as well as establish her independent-living and budgeting skills. The wife’s previous employment as the operations manager for a medical computer systems company and her experience in a physician’s office may be qualifications that she can update with minimal expense.

We conclude that the trial court’s division of the marital property, its allocation of the debts, and its award of periodic alimony were not inequitable. See Ex parte Wallace, 795 So.2d 719 (Ala.2000).

III.. Attorney Fee

The wife argues that the trial court abused its discretion by failing to order the husband to pay her attorney fee. The wife’s lawyer testified that, before the trial, she had expended 161 hours, billed at $150 per hour, on the case ($24,150). She also had expenses of $854.40. The wife had paid her lawyer an $8,000 retainer and had given her two rings. The wife testified that during the year leading up to the trial, she had borrowed $19,000 from her parents in Canada. She used $8,000 of that amount to pay the retainer; she used the remainder for living expenses.

It is well settled that the award of attorney fees in a divorce action is a matter within the sound discretion of the trial court. See Slater v. Slater, 587 So.2d 376 (Ala.Civ.App.1991); Holmes v. Holmes, 487 So.2d 950 (Ala.Civ.App.1986). In determining whether to award an attorney fee, the trial court should consider the conduct of the parties, the financial circumstances of the parties, and the outcome of the litigation. Murphree v. Murphree, 579 So.2d 634, 637 (Ala.Civ.App.1991). Considering the culpable conduct of the wife and the outcome of the litigation, we cannot say that the trial court abused its discretion in failing to assess an attorney fee against the husband.

IV. Conclusion

Those portions of the judgment awarding custody of the parties’ two children to the husband, dividing the marital property, awarding the wife periodic alimony, and ordering the wife to be responsible for paying her own attorney fee are affirmed. That portion of the judgment declining to enter a judgment for the wife for the husband’s undisputed arrearage in pen-dente lite support is reversed. The trial court is instructed to calculate the arrear-age in pendente lite support and to enter a judgment for the wife concerning unpaid pendente lite support.

Both parties’ requests for an attorney fee on appeal are denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

PITTMAN, J., concurs.

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


source: Caselaw Access Project

author: THOMPSON, Judge.

license: Public Domain

text:
    Ex parte Sandra Faye DIXON. (In re Sandra Faye Dixon v. Personnel Board of Jefferson County et al.)
    2010269.
    Court of Civil Appeals of Alabama.
    Aug. 16, 2002.

      David A. Sullivan, Birmingham, for petitioner.
    Charlie D. Waldrep and V. Michelle Obradovie of Gorham & Waldrep, P.C., Birmingham, for respondents.
   THOMPSON, Judge.

On April 20, 2000, the City of Birmingham (“the City”) terminated the employment of Sandra Faye Dixon. Dixon appealed the termination to the Personnel Board of Jefferson County (“the Board”). The Board upheld the City’s termination of Dixon’s employment, and Dixon appealed to a three-judge panel in the trial court. On November 19, 2001, the trial court entered a judgment that, among other things, affirmed the Board’s decision to terminate Dixon. Dixon filed a petition for a writ of certiorari in this court.

The record indicates that Dixon was employed by the City for more than 25 years. Dixon worked for a number of years for the City’s community development department as a community resource officer (“CRO”), and she was then promoted to senior community resource officer (“Senior CRO”). After serving as the Senior CRO for four years, Dixon was promoted to the position of principal community resource officer (“Principal CRO”), a position she held from 1985 until January 2001.

The community development department (hereinafter “the CDD”) administers a number of community and neighborhood programs. The CDD receives funding from, among other sources, the taxes imposed by the City on its residents and from the Department of Housing and Urban Development (“HUD”), which regularly awards the City community development block grants (hereinafter “the block grants”). The income standards to determine a person’s or a household’s eligibility for a program funded through the City’s receipt of block funds from HUD are set forth at 24 C.F.R. § 570.3 (2000). Those regulations define such terms as “household,” “low- and moderate-income household,” and “low-income household.” Dixon, in her positions with the City, oversaw the implementation of many of the City’s programs that were funded by HUD.

One program administered by the CDD is the “Paint for Pride Program” (hereinafter “the PFPP”). The PFPP is designed to provide qualifying low-to-moderate-income families with free paint with which to paint the exteriors of their homes; the program is designed to improve the appearance of neighborhoods within the City. The City originally funded the PFPP, but since the early 1990s, the PFPP has been funded by block grants from HUD. In its applications for those HUD block funds to fund the PFPP, the City specified that the PFPP was a program for low-income families.

Applications for free paint under the PFPP are first submitted to a neighborhood resident who is not a City employee but who is designated by the City as a neighborhood paint coordinator. The neighborhood paint coordinators verify the information in the application and then forward the application to a CRO. The CRO, and later the Senior CRO, review and approve the applications, and then they submit the applications to the CDD’s housing division, which finalizes the processing of the application.

Dixon did not work in the housing division of the CDD, and, therefore, she did not have final approval authority over PFPP applications. However, two of the CROs who consider and process the PFPP applications before they are forwarded for final approval to the housing division worked in Dixon’s division and were Dixon’s subordinates.

Dixon has lived with her mother, Lula Mae Taylor, for the last 25 years. In 1995, Dixon completed and signed, in her mother’s name, an application for free paint under the PFPP. In 1999, Taylor completed another application for free paint under the PFPP, but Dixon signed Taylor’s name to the application. It is undisputed that Taylor gave Dixon permission to complete each application on her behalf. Rather than giving the applications to a neighborhood paint coordinator, Dixon handed the applications to Sandra Jones, a CRO and one of Dixon’s subordinates. Jones and Senior CRO Melvin J. McCarroll approved and processed the applications, and Taylor received paint under the PFPP in both 1995 and in 1999.

It is undisputed that in submitting the 1995 application form, and also in the 1999 application form, Dixon included only her mother’s income, and not her income. The 1995 PFPP application completed by Dixon contained the following information: “GROSS INCOME $8,551.20 NUMBER IN HOUSEHOLD 1.” The 1999 application contained the following information: “GROSS INCOME $801 — monthly NUMBER IN HOUSEHOLD 1.” Both Jones and McCarroll admitted that they each knew that Dixon lived with her mother during the times Taylor’s applications for free paint under the PFPP were under submission. It is undisputed that in the mid- to late 1990s, Dixon’s salary was approximately $50,000.

In late fall of 2000, Dixon disciplined a CDD employee named Wanda Alexander for failing to attend two required meetings. Alexander sent Dixon a letter contesting the fairness of that disciplinary action and accusing Dixon of misconduct. Alexander accused Dixon of using her position to gain a financial advantage to which she was not entitled; Alexander attached the PFPP applications to her letter to Dixon. Dixon forwarded Alexander’s letter to her supervisor, Dick Lindsay, and requested that Alexander’s allegations be investigated.

Bill Pate and Mike Melton, both with the City’s legal department, investigated the allegations against Dixon. Pate testified that he concluded that there were no clear federal regulations governing the PFPP. Pate and Melton concluded that Dixon had not violated any ethics rules.

In January 2001, while the investigation of Dixon’s actions with regard to the PFPP was being conducted, Etta Dunning was hired as the director of the CDD. Dunning concluded that Dixon had used her office for personal gain. Therefore, in spite of Pate and Melton’s conclusion, Dunning initiated disciplinary action against those CDD employees involved in approving Taylor’s applications for the PFPP. Dunning suspended Sandra Jones for three days without pay, and she suspended Melvin McCarroll for five days without pay. Dunning terminated Dixon’s employment. Dixon appealed that termination to the Board.

The Board scheduled a termination-appeal hearing, and it appointed Patricia Clotfelter as the hearing officer. Clotfel-ter presided over a two-day hearing. Before Clotfelter completed her report and recommendation to the Board, Dixon filed a motion seeking to have Clotfelter recuse herself from this matter. Dixon cited as the basis for that motion the fact that Clotfelter was employed by Berkowitz, Lefkovitz, Isom & Kushner, a law firm that had represented the Board in an matter unrelated to this case. Out of an abundance of caution, the Board granted Dixon’s motion; returned Clotfelter’s report, which it had not opened; and ordered that a new hearing officer be appointed and a new hearing be conducted.

Dixon then filed with the Board a motion seeking to have Clotfelter’s report and recommendation released; the Board denied that motion. John Falkenberry was appointed as the hearing officer, and Dixon filed a motion seeking his recusal. The Board denied that recusal motion. Dixon then filed a request for a subpoena duces tecum, again seeking the release of Clotfel-ter’s report and recommendation. In response to that request, the Board entered a detailed order in which it denied Dixon’s request, noted that it had not received Clotfelter’s report or admitted it into the record, and found that the report would be inadmissible evidence. We note that the trial court affirmed the Board’s refusal to issue a subpoena duces tecum for the release of Clotfelter’s report to the Board; the trial court found that because the Board did not receive or consider that report, it was not a part of the proceeding before the Board and should not be included in the official record of the proceedings before the Board.

The hearing before hearing officer Falk-enberry lasted two days. At the hearing, Dixon testified that the guidelines formulated by the City to guide the CROs in implementing the PFPP did not contain any requirement that an applicant for free paint under the PFPP include income other than that of the owner of the home to be painted. When asked whether she understood that the PFPP was a federally funded program for low- to moderate-income families, Dixon’s testimony was evasive. Dixon eventually admitted that she understood that the funding for the PFPP came from federal block grants and that all such federal grants had certain income restrictions.

Dixon also testified that the City’s guidelines setting forth the manner in which eligibility for the PFPP was to be calculated did not specify that the incomes of any member of the household who contributed to household expenses should be included in determining eligibility for the program. Dixon denied that she was familiar with the HUD regulations regarding the determination of income eligibility for programs for low-income families.

It is undisputed that sometime in the year 2000, the application for the PFPP was changed to reflect that the “gross income” requested on the PFPP application form included the income of all members of a household. Dixon and McCarroll characterized the change in the 2000 application for the PFPP as a change in the PFPP program itself. However, the City maintained that the change was merely a change to the application form and that the change merely clarified the HUD regulations for income eligibility. The City maintained that the change in the form did not reflect a change in the HUD regulations themselves or in the income eligibility for the PFPP.

Dixon and McCarroll also each testified that the ODD had never defined “gross income” for the PFPP as including the incomes of all members of a household. However, both Alexander and Jones testified that the income eligibility requirements for the PFPP were discussed at annual workshops regarding the program. Alexander and Jones each testified that at those PFPP workshops they were informed that the income of all members of a household was to be included in determining a household’s eligibility for the PFPP. Jones testified that Dixon coordinated and attended the PFPP workshops. Dixon admitted coordinating and scheduling the workshops, but she testified that she was only “in and out” of the workshops.

Much of McCarroll’s testimony supported Dixon’s testimony and the position Dixon took in this matter. McCarroll testified that he actually coordinated the PFPP, but that he was not aware that eligibility for the program was dictated by federal regulations. McCarroll had worked for the City for approximately 11 years; he denied ever seeing the HUD regulations before this dispute arose. We note that McCarroll later testified that in coordinating the PFPP he follows the HUD regulations and that he knew that the PFPP was a HUD program. McCar-roll first denied realizing when he reviewed Taylor’s application that the Taylor completing the application was the Taylor who was Dixon’s mother; some of his later testimony called that assertion into question. McCarroll also testified that he had known Dixon for 25 to 30 years. He testified that Dixon did not contribute financially to her mother’s household, but he stated that Dixon had given her mother “gifts” on occasion. At the close of McCarroll’s testimony, the hearing officer stated that he found McCarroll’s testimony to lack credibility.

In his report to the Board, the hearing officer made detailed findings of fact. He found that McCarroll’s testimony was “evasive and deceptive.” The hearing officer also found Dixon’s testimony to lack credibility, and he cited several instances in which he found Dixon’s testimony to lack “forthrightness.” We also note that Dixon’s explanation of her conduct with regard to the PFPP application changed during the course of the City’s investigation. In his report to the Board, the hearing officer concluded that the testimony of Jones and Alexander that the workshops included specific instructions on calculating total household income for the purposes of qualification for the PFPP was credible. The hearing officer concluded that “Dixon knowingly and wilfully misrepresented essential facts on both the 1995 and 1999 [PFPP] applications, and that she used her official position unlawfully to obtain a personal benefit.” The hearing officer recommended that the decision to terminate Dixon’s employment not be overruled. The Board accepted the recommendation of the hearing officer, and it sustained the termination of Dixon’s employment. Dixon appealed to the trial court, which, among other things, affirmed the decision of the Board.

Act No. 679, Ala. Acts 1977, which governs the manner in which the Board operates, provides, in part, that “[t]he opinion of a majority of three judges to whom such case is assigned shall be determinative of the case and there shall be no appeal to any appellate court of Alabama.” However, Dixon is not without remedy in the appellate courts; Dixon may file a petition for a writ of certiorari in this court. § 12-3-11, Ala.Code 1975; Evans v. City of Huntsville, 580 So.2d 1323 (Ala. 1991); Ex parte Jackson, 733 So.2d 456 (Ala.Civ.App.1999); Ex parte Personnel Bd. of Jefferson County, 440 So.2d 1106 (Ala.Civ.App.1983); Ex parte Smith, 394 So.2d 45 (Ala.Civ.App.1981). “Under the appropriate standard of review for cases before this court on certiorari, this court is limited to a review of whether the circuit court properly applied the law and whether the decision is supported by any legal evidence.” Ex parte Jackson, 733 So.2d at 457. Our supreme court has also held that in addition to the foregoing, the trial court must review the record to ensure that there had been no violation of a party’s fundamental rights. Evans v. City of Huntsville, supra. The scope of appellate review of administrative actions is narrow; therefore, “[t]he determination of the weight and credibility of the evidence presented is solely within the province of the Board.” Ex parte Personnel Bd. of Jefferson County, 440 So.2d at 1109.

Dixon first argues that the trial court applied an improper standard in reviewing this matter because, she alleges, it failed to ensure that her fundamental rights, particularly her due process rights, were not violated. See Evans v. City of Huntsville, supra. Dixon briefly states that the trial court’s judgment should be reversed because, she says, the trial court “limited” its review and did not consider whether her fundamental rights were violated during the course of the proceedings below. This court’s review of the transcript and the trial court’s judgment does not, however, support her contention. In her brief submitted to this court, Dixon does not specify how the trial court “limited” its consideration of whether her fundamental rights were violated. It is not the function of this court to create an argument for an appellant. McLemore v. Fleming, 604 So.2d 353 (Ala.1992).

In her brief on appeal, Dixon asserts four issues related to purported violations of her constitutional rights. Dixon argues that her termination violated her due process rights because, she alleges, there were “no clear rules” determining income eligibility for the PFPP. She also contends that the City’s legal department had exclusive authority to determine whether she had violated certain ethics laws, and that because the members of the legal department concluded she had violated no ethics laws, the City, by disregarding those opinions, violated her due process rights. Dixon also argues that because she did not have final approving authority over the PFPP applications, the Board violated her due process rights by punishing her “for conduct attributable to others.” Dixon did not raise these due-process issues before the trial court. This court may not consider issues raised for the first time on appeal. Abbott v. Hurst, 643 So.2d 589 (Ala.1994).

Dixon did, however, raise before the trial court the issue whether the City imper-missibly and retroactively applied a “new” rule against her. Dixon alleged that the City only formally “implemented” the HUD guidelines for income eligibility for the PFPP in 2000, and that that purported implementation constituted a change from the manner in which the PFPP had been implemented in prior years. However, both the Board and the trial court resolved this issue against Dixon, and we conclude that the record supports that determination. Dixon’s testimony indicates that Dixon was aware that the PFPP was a federally funded program and that the federal regulations would dictate income eligibility for programs such as the PFPP, which were designed for low-to-moderate-income families. It is undisputed that the federal regulations, which require that the incomes of all members of a household be included in determining income eligibility for a program, have not changed. Rather, the City’s guidelines for the CCD’s implementation of the PFPP, which are apparently derived from the applicable federal regulations, were changed in 2000 to specifically state that income of all household members is to be considered in determining a family’s eligibility for the PFPP. Further, Dixon worked in a supervisory capacity; her job duties included overseeing the implementation of many federally funded programs such as the PFPP. The evidence presented to the hearing officer would support a conclusion that Dixon knew or should have known that because she was a member of Taylor’s household, she was required to include her own income in her mother’s application for free paint under the PFPP.

After considering all of the evidence, the hearing officer found that Dixon knew or should have known that the federal regulations governed the PFPP and that those regulations required the inclusion of the incomes of all members of a household in determining income eligibility for the PFPP. The trial court reviewed all of the evidence before the hearing officer and heard the arguments of counsel; it found that there was “substantial and legal evidence” to support the Board’s determination. Likewise, we conclude that the trial court’s determination is supported by the evidence. Dixon has failed to demonstrate that the rules that govern the PFPP changed. Therefore, Dixon’s argument that she was terminated as a result of a retroactive rule change is without merit.

Similarly, we reject Dixon’s argument that “there was no clear rule” regarding the eligibility criteria for the PFPP, and, therefore, that she should not have been terminated for violating that rule. The evidence in the record supports a conclusion that Dixon knew, as a function of her job, that the PFPP was a federally funded program for low-income households, and that federal regulations defined income eligibility for programs such as the PFPP. The hearing officer found that Dixon knew or should have known that HUD regulations set forth at 24 C.F.R. § 570.3 (2000), governed the income eligibility for the PFPP. Given the evidence in the record, particularly with regard to Dixon’s job duties, we cannot say that the trial court’s judgment is unsupported by the legal evidence. See Ex parte Jackson, supra.

Dixon also contends that the City’s “Standard of Conduct” provides that only the City’s legal department could determine whether an employee had violated an ethics rule. The Standard of Conduct is an executive order issued by the City’s mayor. Dixon cites a provision of that Standard of Conduct that provides that if a violation is not resolved to the satisfaction of one of the legal department’s staff, that staff member must report the violation to the employee’s supervisor. Dixon apparently contends that because members of the legal department concluded that she had not violated “a clear rule,” that determination should have ended the matter. However, nothing in the Standard of Conduct provides that members of the City’s legal department have the sole decision-making authority regarding whether to terminate an employee’s employment. Further, Dixon has cited no supporting legal authority for her argument on this issue. We cannot say that Dixon’s argument as to this issue has merit or that the trial court misapplied the law in rejecting this argument. See Ex parte Jackson, supra.

Dixon contends that the HUD regulations were not provided to her, and that those regulations did not clearly indicate that the incomes of all members of a household must be considered in determining whether a family or household qualified for programs designed for low-income families. In her brief on this issue, Dixon quotes only portions of those federal regulations; in her brief on appeal, Dixon omits the definition of “low- and moderate-income household,” as distinguished from “low- and moderate-income person,” as those terms are defined and set forth in the federal regulations. See 24 C.F.R. § 570.3 (2000). Those regulations clearly define “low-income household” as “a household having an income equal to or less than the Section 8 very low-income limit established by HUD.” Further, during the hearing in this matter, Dixon testified that she was familiar with the definitions in the federal regulations of low-and-moderate-income households, but that she did not “understand” that those definitions applied to determine income eligibility for the PFPP.

We also note that, as a part of this issue, Dixon argues that the same federal regulations she initially contended did not apply during the times she submitted the 1995 and 1999 PFPP. applications provide that “not less than 60% of the [federal block grant] funds” are to be used for low-to-moderate income households. She does not specifically make the argument, but apparently Dixon is contending that the remaining federal block funds may be used for non-low-income households. However, the undisputed evidence presented at the hearing indicated that the City’s application for those block funds designated the City’s use of those funds only for low-income households. Thus, the City’s own operation of its PFPP limited the program to low-income families. We conclude that Dixon has failed to demonstrate error with regard to this issue.

Dixon also argues that the hearing officer was possibly biased against her and that the Board and the trial court erred in not requiring him to recuse himself from this matter. Dixon alleges that the hearing officer was biased against her because he had testified “against” her attorney in a previous litigation matter, and because her attorney, during the course of that litigation, had criticized the hearing officer. We note that Dixon filed her motion to recuse the hearing officer with the Board, and the Board denied that motion. During the course of the proceedings before the hearing officer, Dixon did not mention the issue of recusal, and she did not argue this issue before the trial court. Other than the allegations in Dixon’s motion to recuse, there is no evidence in the record with regard to the previous interaction between Dixon’s attorney and the hearing officer. Out of an abundance of caution, however, we briefly address this issue.

The party seeking the recusal of a judge has the burden of presenting evidence indicating that the judge is biased. Henderson v. G & G Corp., 582 So.2d 529 (Ala.1991). The presumption is that a judge is not biased. Id.; Rikard v. Rikard, 590 So.2d 300 (Ala.Civ.App.1991). “[R]eeusal is not required by a mere accusation of bias unsupported by substantial fact.” Acromag-Viking, Inc. v. Blalock, 420 So.2d 60, 61 (Ala.1982).

In Henderson v. G & G Corp., supra, the plaintiff filed a motion seeking the recusal of the trial judge; the plaintiff alleged that the trial judge was biased because he had testified against the plaintiffs attorney in another litigation matter. In that case, the plaintiffs attorney submitted an affidavit contradicting another attorney’s affidavit regarding a discovery issue; the trial court resolved the dispute against the plaintiffs attorney. The supreme court affirmed the denial of the motion to recuse, holding that adverse rulings alone were not sufficient to establish bias or prejudice on the part of the trial court. Henderson v. G & G Corp., 582 So.2d at 530-31.

In this case, Dixon merely alleges that because the hearing officer had, at some point in time, testified as a witness in a proceeding involving her attorney, he was biased. However, there is no evidence in the record to support her assertion that the hearing officer “has a personal ax to grind” against her attorney. This court has reviewed the entire, lengthy transcript of the proceedings before the hearing officer, and that transcript does not indicate any instance of bias or prejudice on the part of the hearing officer against Dixon or her attorney. Dixon herself has not identified any instance in which she contends the hearing officer’s conduct during the proceedings before him indicated any type of prejudice or bias against her. We cannot say that Dixon’s mere allegation that the hearing officer “had a personal ax to grind” against her attorney amounted to a showing of bias or prejudice. See Henderson v. G & G Corp., supra.

Dixon has failed to demonstrate that the trial court erred in affirming the Board’s termination decision; therefore, the trial court’s judgment is affirmed.

AFFIRMED.

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


text:
    C.H. and T.H. v. STATE DEPARTMENT OF HUMAN RESOURCES.
    2010474.
    Court of Civil Appeals of Alabama.
    Aug. 16, 2002.
    Robert C. Davis, Gadsden, for appellants.
    Bill Pryor, atty. gen., and J. Coleman Campbell, deputy atty. gen., and D. John Harrison and Lynn S. Merrill, asst, attys. gen., Department of Human Resources, for appellee.
   THOMPSON, Judge.

B.S.H., C.L.H., and T.L.H., the children of C.H. (“the mother”) and T.H. (“the father”), were found dependent by January 12, 2001, orders of the trial court. On November 20, 2001, the Etowah County-Department of Human Resources (“DHR”) filed petitions seeking to terminate the parental rights of the father and the mother to B.S.H., C.L.H., and T.L.H. (hereinafter collectively referred to as “the children”). On January 80, 2002, the trial court conducted a hearing at which ore tenus evidence was presented. On February 11, 2002, the trial court entered an order terminating the mother and the father’s parental rights to the children. The mother and the father appealed.

The mother was 40 years old and the father was 47 years old at the time of the hearing in this matter. The mother and father had never married, and both parents were unemployed. The record indicates that the mother has six children. The mother had three children, R.H., A.H., and W.H., with her former husband, and three children, B.S.H., C.L.H., and T.L.H., the three children involved in this ease, with the father. At the time of the January 30, 2002, hearing in this matter, B.S.H. and C.L.H., twin girls, were seven years old, and T.L.H., a boy, was six years old. The record indicates that DHR became involved with the parents in April 1995, when it received reports that the parents were using drugs and that the children were being neglected and abused.

Beverly Bankston, a social worker with DHR, testified that she worked with the family from January 2000 until July 2001. Bankston testified that the first meeting to develop an Individualized Service Plan (“ISP”) was held with the parents on February 15, 2000; at that time, the children were still in the custody of the parents. Bankston testified that the February 15, 2000, ISP required the parents to meet the children’s health needs, to refrain from using drugs, and to submit to random drug tests. According to Bankston, DHR also arranged for the family to receive counseling through Gadsden Psychological Services, a family counseling service used by DHR. Bankston testified that in April 2000, the father tested positive for drug use. Bankston stated that the parents had also failed to address some the children’s medical needs; the record indicates that many of the children’s teeth were rotten. According to Bankston, on April 21, 2000, because of the father’s positive drug screen and the parents’ neglect of the children’s dental health, DHR placed the children in the custody of the maternal grandmother. Bankston testified that at the time the children were placed in the maternal grandmother’s custody, the mother had not submitted to a drug test. The record indicates that the mother was asked to submit to a drug test in April 2000, but that she refused to do so.

Bankston testified that on April 28, 2000, the father tested positive for drug use and on May 1, 2000, both parents tested positive for drug use. The record indicates that, during the same time frame, the maternal grandmother returned the children to the parents on two occasions. Bankston testified that because of the maternal grandmother’s failure to abide by the custody arrangement, DHR placed the children in the custody of C.P., the father’s stepdaughter from a previous marriage. The record indicates that DHR received reports that C.P. was also failing to abide by the custody arrangement. According to Bankston, on June 13, 2000, which was a Tuesday, C.P. informed DHR that the mother had taken the children from her home for the weekend and that she had not returned them. Bankston testified that during the summer and fall of 2000, DHR held several meetings with the parents stressing the necessity to comply with the requirements of the ISP, that the parents failed to show up at meetings with DHR and at counseling sessions, that DHR continued to receive reports that the parents were using drugs, and that the parents continued frequently to test positive for drug use.

On October 3, 2000, Bankston testified that she received a report from Brantley Bishop, a narcotics task force officer, that the task force had raided the parents’ mobile home and that, during the raid, he had found drug paraphernalia inside the home. Bankston testified that Bishop stated that the parents’ home was “filthy,” and that there were many roaches in the house. According to Bankston, she inquired about the condition of the home during a subsequent visit with the children. Bankston testified that the children informed her that they were sleeping on a mattress on the living room floor and that they did not like living with roaches in their home. Bankston testified that she arranged for the health department to inspect the parents’ home. According to Bankston, she notified the parents of the inspection and informed them that they had two weeks to clean their home before the inspection.

James Kelly from the Etowah County Health Department inspected the parents’ mobile home on November 30, 2000. Kelly’s report regarding that inspection is contained in the record on appeal. That report stated that the windows of the home were broken and covered with cardboard, that the only source of electricity for the home was provided by a generator, that the home had no source of hot water, that the carpet in the home was black with filth, that the surfaces in the kitchen had accumulations of food waste, that a large number of roaches were in the kitchen, and that garbage was piled around the outside of the home. Kelly stated that he found the mobile home “to be in a deplorable state of filth” and that it was “unfit for human habitation.” The record indicates that the mobile home was condemned in July 2001.

Bankston testified that all three children’s teeth were rotten, and that DHR had consistently informed the parents that the children needed to be taken to the dentist. Bankston testified that she asked the mother about the children’s dental treatment at a meeting regarding the ISP in November 2000. Bankston testified that the mother informed her that the children had seen Dr. Day, a dentist in Gadsden. Bankston stated that when she attempted to confirm that the children had seen Dr. Day, an employee with Dr. Day’s office stated that the office had no record of the children ever having been treated by Dr. Day. According to Bankston, she confronted the mother with the information and the mother informed her that the children saw a dental hygienist at Dr. Day’s office and that they did not see Dr. Day. Bankston testified that she again contacted Dr. Day’s office and that an employee from Dr. Day’s office stated that if the children had seen a hygienist in Dr. Day’s office they would also have seen Dr. Day and that Dr. Day’s office would have records on the children; the employee from Dr. Day’s office continued to assert that the children had not visited the office and that the office did not have records on the children.

In January 2001, DHR petitioned for and obtained custody of the children. Bankston testified that when she went to the parents’ home to retrieve the children, the mother and the children hid inside the home and would not come out and that the father eventually convinced the mother to allow DHR to take the children. The children were placed in foster care. Bankston testified that the children’s grades in school improved after they were placed in foster care. Bankston testified that after the children were placed in foster care, DHR arranged for the children to receive dental treatment. The record indicates that the children were eventually treated by an oral surgeon. Bankston testified that T.L.H. had 15 of his teeth removed and that B.S.H. and C.L.H. each had 10 to 11 teeth removed. Bankston testified that a fellow DHR employee informed her that following a visit with her mother, B.S.H. told the worker that the mother had told the child that the reason the children were in foster care was because B.S.H. talked too much.

Bankston testified that another ISP meeting was held with the parents on January 15, 2001. According to Bankston, the ISP developed at that meeting required the parents to clean their home, establish garbage service, participate in a counseling program, and submit to random drug tests. Bankston testified that the parents established garbage service in February 2001, but that they failed to pay for the service in April, May, and June 2001 and that the service was then discontinued. Bankston testified that she had contacted Alabama Power Company, an electric utility, about reestablishing electric service for the family, but that Alabama Power would not reestablish service because the parents had overdue electric bills in excess of $700 and the father had tried to “jump” Alabama Power’s power lines, i.e., bypass the electric meter, on several occasions. Bankston testified that on February 8, 2001, the father once again tested positive for drug use.

Bankston testified that in June 2000 DHR referred the family to academic and personal support services (hereinafter APSS), an agency that provides in-home support to families referred by DHR. Del Rainey, the director of APSS, testified that APSS provided counseling in parenting skills to the mother and the father, provided family support services, and assisted the mother and father in budgeting. Rai-ney testified that APSS also provided the parents with cleaning supplies and instructed the parents in how to improve the conditions of their home. The parents submitted to drug screens through APSS. Rainey testified that the parents did not consistently show up at the times scheduled for the drug screens. Rainey testified that on one occasion, before DHR obtained custody of the children in January 2001, the mother informed him that she had made dental appointments for the children. Rainey testified that he attempted to confirm the appointments, but that an employee from the dentist’s office stated that no appointments had been made. Rainey testified that APSS stopped providing in-home service to the family in July 2001 because the parents continued to have positive drug screens, because APSS staff members reported that they did not feel safe in the family’s residence, because the parents refused to cooperate with APSS, and because of the parents’ lack of progress. Rainey stated that although APSS discontinued in-home service, APSS continued to provide drug screening to the parents.

Bankston testified that DHR met with the family on July 2, 2001, and that at that meeting, DHR informed them that because of their failure to comply with the ISP and because of their lack of progress, DHR was turning the family’s case over to DHR’s permanency unit. Bankston testified that she explained to the mother and the father that DHR was working on a concurrent plan in which it would work toward reunifying the children with the parents while making preparations for the termination of the parents’ parental rights in the event such reunification was not possible.

Carrie Ayers, a DHR permanency unit caseworker, testified that she took over the family’s case in July 2001. Ayers testified that after she received the case, the parents moved frequently and failed to notify her of their new addresses. Ayers testified that since she began working with the family, the parents visited the children twice per month during the summer of 2001 and once per month when the children began school in the fall of 2001. According to Ayers, the children’s behavior became erratic and aggressive following visits with and telephone calls from the parents. Ayers testified that the children informed her that they did not want to visit with the mother and the father. Ayers testified that the DHR employee who transports the children to and from visits with the parents stated that on one occasion when she was returning the children from visiting the parents, the children informed her that the parents were planning to kidnap them from the children’s foster home and that the parents had told the children to run away from the foster home on a particular day and to go to a particular location where the parents would pick them up. Ayers testified that the children’s foster mother informed her that she had been contacted by the police because the parents had used a stolen telephone calling card to telephone the children at the foster parents’ home.

Ayers stated that from the time she began working with the family in July 2001 until the time of the hearing in this matter, the parents missed numerous drug-screen appointments and frequently tested positive for drug use. Ayers testified that she spoke with the mother in person and mailed the mother a letter suggesting that the mother seek treatment for her drug addiction. Ayers testified that she also suggested that the mother apply for Medicaid at the local Social Security office in order to obtain health insurance that would pay for her to enter a drug-treatment facility. Ayers testified that there were also free drug-rehabilitation treatment options available. According to Ayers, the mother did not seek treatment, and the mother continued to deny that she had a drug problem.

Ayers testified that she made efforts to obtain additional services for the parents after she was assigned to the case, but that she had difficulty because of the parents’ past noncompliance. Ayers testified that she contacted Gadsden Psychological Services to inquire about renewing the parents’ counseling sessions, but that an employee there informed her that because of the parents’ numerous missed appointments and their failure to follow through with recommendations of their counselor, Gadsden Psychological Services was not willing to reestablish a relationship with the parents. Ayers stated that she also contacted APSS, but that that agency was not willing to reestablish in-home service because the parents frequently moved without notifying DHR or APSS of their new address, and because of the parents’ history of noncompliance with recommendations made by APSS.

Ayers testified that the children’s foster mother informed her that B.S.H. had shown her how to roll a dollar bill and use it to snort cocaine. Ayers stated that the foster mother informed her that the child had stated that she learned how to use the dollar bill in such a manner while she was with her parents. Ayers testified that the children’s counselor informed her that B.S.H. had also given the counselor explicit details on how to have sex and how to please your sexual partner.

Ayers testified that DHR considered several relative placements for the children, but that those relatives were either unwilling to care for the children or DHR determined that the individual was not a suitable relative resource. Ayers testified that she was aware that the parents had obtained a new residence a few weeks before the hearing, but that DHR had not had time to inspect the home before the hearing. Ayers stated that she recommended that the parents’ parental rights be terminated.

The mother testified that her husband died in 1991; that she currently receives $1,196 per month in insurance benefits from his death; and that she had been unemployed since his death. At the beginning of her testimony, the mother stated that she was diagnosed with cervical cancer in 1991, that her doctor told her that she would not die from the cancer, and that she had not sought employment since 1991 because of her illness. The mother also stated that she had not sought employment because she had borne three children since 1991. The mother later testified that she had not sought employment because she suffers from epileptic seizures, which, the mother stated, she began having in 2000.

The mother admitted that she had tested positive for drug use during the period DHR was involved with the family. At the beginning of her testimony, the mother asserted that she did not have a problem with drugs. The mother testified that she had not smoked marijuana in three months and that she had not used methamphet-amines since December 2001, the month before the January 30, 2002, hearing in this matter. Toward the end of her testimony, the mother testified that she had had a drug problem until six weeks before the hearing in this matter, but that she had gotten herself off drugs. When questioned as to why she continually denied having a drug-use problem during the two years DHR was involved with the family, the mother stated that most people who are addicted to drugs deny their addiction. At the time of the hearing, the mother also stated that she would like DHR to send her to a drug-treatment facility. The mother denied receiving a letter from Ayers with names and contact numbers for drug-treatment facilities. The mother testified that the father received paperwork from DHR in February 2000 about entering a state-sponsored drug-rehabilitation program, but that he had not sought treatment. The mother testified that the father had used illegal and prescription drugs but had stopped using drugs six months before the January 30, 2002, hearing. The record indicates that the parents lived in five residences in the six months before the hearing. The mother testified that she and the father had separated in October 2001, but that they had resumed their relationship at the time of the hearing. The mother testified that she and the father moved into their current residence on January 4, 2002. The mother testified that the family moved frequently in an effort to “stay off drugs.”

The mother testified that at the time of the hearing she was aware of only one outstanding warrant for her arrest. The mother stated that the warrant had been issued in Boaz; that she had been arrested there for possession of drug paraphernalia; that a hearing on that charge was scheduled in December 2001; and that she had failed to appear at the hearing. The mother testified that the charge with regard to that case was still pending at the time of the January 30, 2002 hearing. Upon further questioning, the mother testified that she had also been arrested for writing checks for which there were insufficient funds and that she had failed to show up for two scheduled hearings related to that arrest; the record indicated that the mother also had an outstanding warrant for her arrest in Blount County related to the worthless-check charge at the time of the hearing in this matter.

The mother testified that for the one and one-half years that APSS provided services to the family, Rainey would come to the family’s house once every two weeks and that “Vic”, a counselor from APSS, came to the parents’ home every week. The mother testified that Rainey and Vic would just sit and talk with the family and that Rainey and Vic did not provide any services to the family. The mother- testified that she was not provided cleaning supplies until January 2001; however, the mother also testified that she had the funds available to purchase cleaning supplies. The mother testified that she had sought assistance from DHR in paying the electric bill.

The mother admitted that relatives who were supposed to be caring for the children had returned the children to her and the father in violation of the DHR ISPs on several occasions. The mother testified that she threatened to kill Bankston when Bankston came to her home to take custody of A.H.’s second child, the mother’s grandchild. The mother testified that she asked DHR to assign the family a new caseworker.

The record indicates that R.H., A.H., and W.H., the mother’s three children with her deceased husband, had been involved with the Alabama Department of Youth Services (“DYS”). The mother testified that both W.H. and A.H. had used illegal drugs, but that neither child had used drugs in her home. The mother testified that she did not feel that the older children’s behavior problems were a reflection of her ability to parent. The mother stated that she believed A.H. and W.H. were a bad influence on her children and that the family had moved often to stay away from A.H. The mother testified that W.H. was in the custody of DYS at the time of the hearing in this matter.

The father testified that he had been unemployed since 1992 when he suffered a back injury in a motorcycle accident. The father testified that he received $548 per month in Social Security disability payments as a result of that accident. The father testified that in July 2001, he had stopped taking pain medication that had been prescribed for him. The father testified that he had not used methamphet-amines since September 2001. The father testified that since September 2001 he “may” have taken “pain pills.” The father admitted that he had “jumped” the power from one of Alabama Power’s power lines to the mobile home to avoid paying for electricity. The father testified that at the time of the hearing in this matter he had criminal charges pending against him for writing cheeks for which there were insufficient funds.

A.H., the mother’s child from her former marriage, testified that she currently lived with the mother and the father. A.H. stated that she had a ninth-grade education; that she was not enrolled in school; and that she did not work. According to A.H., she received a check in the amount of $277 per month; the record indicates that the amount is related to the death of her father. A.H. testified that she used the funds to assist with the parents’ utility and grocery bills. A.H. testified that she had two children and that the father of her youngest child was in prison. A.H. stated that she and the youngest child’s father are no longer involved in a relationship. According to A.H., the child’s father sold drugs before his incarceration, but she was unsure that he would resume selling drugs when he was released from prison. A.H. stated that the father of her youngest child had informed her that he intended to seek custody of that child upon his release from prison and that she felt the child would be better off with his father. A.H. testified that she had not used illegal drugs since December 2001, the month before the January 30, 2002, hearing in this matter.

Carla Handy, the guardian ad litem for the children, testified that she recommended that the parents’ parental rights be terminated.

In addition to the facts stated above, the trial court made the following specific findings of fact in its February 11, 2002, order:

“B.S.H., C.L.H., and T.L.H., are the children of C.H. and T.H. These children have been in the temporary custody of [DHR] since on or about January 11, 2001, and have resided in foster care continuously since being placed in [DHR]’s custody. [DHR] worked with this family approximately one year prior to January of 2001 in an effort to prevent the removal of the children from the home. During the year prior to the children’s removal from their home, [DHR] arranged several different safety plans with various extended family members to care for the children because of reports received by [DHR] alleging abuse/neglect of the children by the parents. These safety plans failed when the people who were supposed to be caring for the children returned the children to the parents without notifying [DHR], [DHR] offered the family assistance in the form of individual counseling (both in home and out of home), family counseling, drug screening, drug counseling, and transportation.
“Despite all of these services offered by [DHR], the parents’ situation did not improve. The parents continued to receive positive drug screens and did not cooperate in obtaining dental treatment for the children. An Inspector from the Health Department determined that the parents’ home was unfit for human habitation and posed immediate danger to the health of the occupants. [DHR] petitioned for and obtained temporary custody of the children in January of 2001. The children were placed in foster care.
“Since January 2001, the parents have made little or no progress under the terms of their Individualized Service Plan (ISP). They moved several times and did not keep [DHR] informed of their whereabouts. Both parents have been arrested and incarcerated on more than one occasion since January of 2001 and have unresolved criminal charges pending against them at this time. Both parents continued to test positive for drugs. After the children were placed in foster care, [DHR] arranged for them to be treated by a dentist. All three children ultimately had numerous baby teeth removed due to their poor condition. Neither parent is working at this time, although the father receives Social Security Disability.
“There are no relatives who are suitable, appropriate and viable placement resources for these children. [DHR] conducted a home study of the children’s paternal aunt, [F.M.]; however, [F.M.]’s home was not approved. Prior to the children being placed in foster care, safety plans were attempted with the maternal grandmother, [J.M.], and the children’s older half sister, [C.P.]. As noted above, those plans failed when the children were sent back to the parents without [DHR]’s knowledge. C.H.’s older daughter, [R.H.], informed [DHR] that she could not be a resource for these children because of having to care for her own children. [DHR] also contacted T.H.’s brother and sister-in-law, [B.He. and C.He.]. [B.He. and C.He.] advised [DHR] that they would not be able to care for these children in their home.
“After consideration of the evidence herein, and after a hearing thereon, the court finds by clear and convincing evidence as follows:
“1. B.S.H., C.L.H., and T.L.H., are children under sixteen (16) years of age and are residents of or physically located in Etowah County, Alabama;
“2. The mother ... and the father ... are unable or unwilling to discharge their responsibilities to and for these children;
“3. The conduct or condition of the mother ... and the father ... is such as to render them unable to properly care for these children and such conduct or condition is unlikely to change in the foreseeable future; and,
“4. These children are dependent, there are no viable relative resources, and there is no viable alternative other than termination of parental rights.”

On appeal, the mother and the father assert that the trial court erred in terminating their parental rights. A trial court’s determination of factual issues following the presentation of ore tenus evidence is presumed correct and will not be disturbed on appeal absent a showing of palpable error. F.L.L. v. State Dep’t of Human Res., 612 So.2d 501 (Ala.Civ.App.1992). In addition, this court has stated:

“Every parent has a prima facie right to custody of his or her child and that right can only be overcome by a showing of clear and convincing evidence that removing the child from the parent’s custody would be in the best interests of the child. M.H.S. v. State Dep’t of Human Resources, 636 So.2d 419 (Ala.Civ.App.1994).
“ ‘The trial court is given the authority to terminate parental rights if it finds from clear and convincing evidence that the parents are unable or unwilling to discharge their responsibilities to and for the children. § 26-18-7, Ala.Code 1975. The trial court shall consider whether the parents have abandoned their children, whether the parents have problems with drugs or alcohol, and whether reasonable efforts to rehabilitate the parents have failed. § 26-18-7(a), Ala.Code 1975. If the children are not in the physical custody of their parent or parents, the trial court shall also consider such circumstances as whether the parents have provided material needs for the children, whether the parents have maintained regular, scheduled visits with the children, and whether the parents have adjusted their circumstances to meet the needs of the children according to agreements reached administratively or judicially. § 26 — 18—7(b), Ala.Code 1975.’
“M.H.S. v. State Dep’t of Human Resources, 636 So.2d at 421.
“Where a nonparent petitions to terminate a parent’s parental rights, the trial court must apply a two-pronged test. Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990). The trial court must first determine that the child is dependent. Id. After finding the child dependent, the court must examine viable alternatives to the termination of parental rights. Id. On appeal, the 'trial court’s determination is presumed to be correct, and it will not be reversed absent a showing that the decision is so unsupported by the evidence as to be plainly and palpably wrong. M.H.S. v. State Dep’t of Human Resources, supra. In a proceeding to terminate parental rights, the paramount consideration of the trial court, and of this court, is the best interests of the children involved. Id.”

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

Both parents admitted to using illegal drugs within the few months preceding the January 30, 2002, hearing. The record indicates that although both the mother and the father frequently tested positive for drug use during the two years DHR has been involved with the family, both parents have failed to seek treatment for their use of illegal drugs. The mother testified that R.H., A.H., and W.H., the mother’s three other children, had been or are currently involved with the Department of Youth Services. A.H. testified that she was living with the parents at the time of the hearing and that she had used drugs as recently as the month before the hearing. The record indicates that the parents were consistently unwilling or unable to meet the requirements, including the requirement that they seek treatment for the children’s dental needs, of the numerous ISPs developed in their case. In addition, the record indicates that DHR was unable to find a suitable relative resource placement for the children. Therefore, given the overwhelming evidence in the record on appeal, this court concludes that the trial court did not err in terminating the mother’s and the father’s parental rights to the children. See A.R.E. v. E.S.W., supra.

AFFIRMED.

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

      . The record indicates that the mother failed to appear at the first hearing related to her arrest for writing worthless checks; that the trial court issued a warrant for the mother's arrest; that the mother was arrested; that the trial court gave the mother a second chance and set another hearing on the charge; and that the mother failed to appear at the second hearing. The current warrant in that matter is related to the mother's failure appear at the second hearing.

      . At the time of the hearing, A.H. was 17 years old and had two children.