author: PER CURIAM. MURDOCK, Judge, CRAWLEY, Judge,

text:
    B.S. v. CULLMAN COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2010977.
    Court of Civil Appeals of Alabama.
    March 7, 2003.
    Certiorari Denied May 16, 2003 Alabama Supreme Court 1021017.

      G. Edward Coey, Hanceville, for appellant.
    William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and Lynn S. Merrill, asst. atty. gen., Department of Human Resources, for appellee.
   PER CURIAM.

B.S. (“the mother”) appeals the termination of her parental rights to K.M.R. (“the child”).

The mother was known to the Department of Human Resources as an infant, when she was removed from the home of her biological parents and placed in foster care. The mother was later adopted. The mother has two children other than the child as to whom her parental rights were terminated; none of the mother’s children lives with her. The mother’s oldest child, L.M.R., a daughter, lives with her father. The mother’s other child, A.R., a son, lives with J.R., the mother’s biological sister, with whom he was placed shortly after his birth.

In May 1994, the adult-protective-services division of the Cullman County Department of Human Resources (hereinafter “DHR”) was informed that the mother, who is mildly mentally retarded, was living in a home unfit for habitation with a boyfriend, J.T.; the mother had been supporting herself and J.T. with her Social Security disability benefits. DHR investigated and found the home to bé filthy; windows were missing and dogs penned inside. Although the mother was informed that J.T. was mismanaging her monéy and was told that she could have a conservator appointed for her, she indicated a desire to remain with J.T.

In October 1996, the mother gave birth to the child. Based on a report from a nurse at the hospital at which the child was born, and also based on discussions with J.M.T., the mother’s biological mother, and J.R., her sister, DHR filed a dependency petition and was awarded legal custody of the child. DHR first investigated placing the child with T.W., another sister of the mother’s with whom the mother was living at the time. However, T.W.’s husband, W.W., had been found guilty of sexual misconduct. Therefore, DHR refused to place the child in T.W.’s home.

DHR placed the child with J.R.; that placement continued for nine months, after which time J.R. requested that the child be removed from her home. The child was then placed with the mother’s cousin, J.G. However, the child was removed from J.G.’s home after approximately six months, when the Morgan County Department of Human Resources, which was supervising the placement, discovered that the cousin had misreported her income and was financially unable to assume responsibility for the child. DHR then placed the child in a foster home for a time; the foster parents requested that she be removed from their home. Finally, the child was placed with her current foster family. She had resided with that family for over two years at the time of the termination hearing. Although test results for the child were not available at the time of the termination hearing, the child suffers from developmental delays, and she exhibits some behavioral problems.

Judy Sandlin, a DHR caseworker, testified on behalf of DHR. Sandlin testified that she had been assigned to this case in May 2001, after DHR had decided to petition to terminate the mother’s parental rights. Sandlin testified that she had never seen or spoken with the mother before the termination hearing. According to Sandlin’s testimony, which was based upon a court report she prepared that summarized the records in DHR’s file on the child, the mother visited the child only sporadically during the five years the child was in DHR’s custody, in spite of the fact that DHR urged the mother to visit the child and had offered to provide her transportation to those visits. The mother never requested transportation to visit her child. In the 12 months before the termination hearing, the mother neither visited nor contacted the child.

At the time of the termination hearing, the mother had been married to S.S. for five years. S.S. testified that he had not been supportive of the mother’s visitation with the child because, he said, he did not want either the mother’s or the child’s “heart broken” if they were not ultimately reunited.

Sandlin testified that the mother’s sporadic visitations with the child were observed by DHR caseworkers and that the caseworkers had made notes concerning their observations of those visitations. Sandlin specifically noted that at the visitations, the mother’s behavior was reported to be “child-like,” and that S.S. often slept during the visits. In a visit Sandlin specifically described, the mother failed to intervene when the child colored the furniture with markers.

Sandlin testified that the observations of the mother’s visitations with the child, coupled with the mother’s failure to visit the child regularly, contributed to DHR’s decision to seek to terminate the mother’s parental rights. Another basis for DHR’s decision was the opinion of two professionals that the mother was not capable of independently caring for herself or a child.

The mother has an IQ of either 58 or 61, depending on which evaluation is consulted; those scores place her in the mildly mentally retarded range. The mother was first evaluated in 1995 by Kenneth P. Sullivan, a psychologist, in connection with her son’s custody determination. Dr. Sullivan’s testing indicated that the mother had a full-scale IQ of 61. Dr. Sullivan commented that persons like the mother could participate in their own care — and even the care of children — provided they were given a structured environment and close supervision. Dr. Sullivan opined that the mother in this case was unable to care for herself or for a child without constant supervision. Dr. Sullivan noted that persons like the mother are incapable of managing their own finances or other aspects of self-care like food preparation, cleaning, and arranging transportation. Dr. Sullivan noted that the mother could likely assist in taking care of her infant son if she were placed in a structured environment “in which skilled individuals maintained primary responsibility for the [son], while permitting [the mother] to share in care-taking tasks.” However, Dr. Sullivan’s assessment was that the mother could not independently provide adequate care for a child and that, in fact, being left alone with the mother would place an infant in peril.

In 1999, the mother’s intelligence was evaluated in connection with this action; Patrick Dunne, a licensed professional counselor, performed that evaluation. Dunne determined that the mother had a full-scale IQ of 58, and that she was mildly mentally retarded. Dunne opined that the mother was unable to effectively parent a child, citing the fact that the mother depended on others for her own care and that she had difficulty understanding that her limited mental capacity was the reason her children had been removed from her custody. Dunne commented that the mother’s insight and judgment were limited and that she did not fully understand her children’s needs. He also noted that the mother appeared to have feelings for the child, but he stated that “[h]er bond with her other two children appeared to be quite shallow.” Dunne noted that there is no treatment for mental retardation, and he stated that the mother’s limitations were unlikely to ever improve. Dunne also believed that neither individual nor family counseling was likely to benefit the mother.

The mother, who was 40 years old at the time of the termination hearing, testified that she wanted the opportunity to raise her child. The mother testified that she had raised her first child, a daughter, until she and her first husband divorced when the daughter was eight years old. The mother said that she knew how to change diapers, how to cook for her family, and how to keep a house neat and clean. The mother has never worked, and she receives Supplemental Security Income (“SSI”) benefits.

The mother said that she had not visited the child in the year before the termination hearing, and she indicated that she did not know why she had not visited the child. The mother also admitted that she had not sent the child cards or gifts, but she stated that she planned to start doing so.

The mother stated that S.S., whose driver’s license had been suspended, expected to have that license reinstated soon. The mother explained that she could not call DHR to arrange for transportation to visitation, which she admitted DHR had offered, because, she said, she had no telephone. The mother testified that she uses her neighbor’s telephone when necessary, but that the neighbor does not have long-distance service.

S.S., the mother’s husband, testified that he and the mother married in July 1997. S.S.testified that the mother cooked meals and cleaned the home in which the couple lived; he said that the mother was a good cook and a fairly good housekeeper. S.S. explained that he was the driver in the household, and that he had had his driver’s license suspended for one year after he was convicted of driving under the influence. S.S. also stated that the mother was a loving person and that he believed the child would be well-cared for by her.

S.S.commented on the relationship between the mother and her eldest daughter; he said that the two got along fairly well during their bimonthly visitation weekends, in light of the fact that the daughter is a teenager. When specifically questioned about his readiness to have a preschool child in his home, S.S., who was 60 years old, admitted that he had not always been supportive of the mother’s regaining custody of the child, and that at one time, he had been against the idea because he thought he was too old to have a young child around. However, S.S. testified that he was, at the time of the termination hearing, committed to helping the mother regain custody of the child; S.S. believed that he could handle the stress and the financial strain that would inevitably result from such a change in his and the mother’s lives.

S.S.also testified that he had been diagnosed as a schizophrenic 30 years before the termination hearing. S.S. stated that he was taking antipsychotic and antidepressant medication, and that he also took medication for high blood pressure and arthritis.

B.A.S., S.S.’s sister, also testified at the termination hearing. B.A.S. holds a bachelor’s degree in business administration and is retired after serving 20 years in the Air Force as a human-resources manager. B.A.S. testified that the mother is a warm and loving person and that she considered the mother more of a sister than a sister-in-law. B.A.S. said that she lives near the mother and that she would be available to help the mother should the need arise. B.A.S. has assisted the mother and S.S. with transportation since S.S.’s driver’s license was suspended.

At the termination hearing, the mother’s attorney asked B.A.S. whether she had ever considered the possibility of taking the child, and she responded “not until this second.” In her later testimony, B.A.S. indicated that she was willing to take the child if the mother approved. B.A.S. testified that she has known about the child since almost the beginning of the mother’s marriage to S.S., five years before the termination hearing. B.A.S. testified that she had met the child on only one occasion during a visitation with the mother. B.A.S. could not provide any information regarding how long before the termination hearing her only meeting with the child occurred, how long that visitation was, or who was present during the visitation. The only details of her meeting the child to which B.A.S. could testify was her impression that the child was “cute,” and her recollection that the child was already walking at the time of the visitation. The child was almost six years old at the time of the termination hearing.

Sandlin testified that she had not known about B.A.S. and that DHR had not investigated B.A.S. as a possible placement for the child. Sandlin testified that the fact that B.A.S. was not related to the child by blood did not preclude her from being considered as a possible placement resource for the child. Sandlin explained where a possible placement alternative is unrelated to the child by a blood relation, the determination whether to place the child with that person depended upon the facts of the particular situation.

In its judgment, the trial court found the child to be dependent, and it concluded that there were no viable alternatives to the termination of the mother’s parental rights. The court specifically found that placement of the child with relatives was not a viable alternative and that there were no other less restrictive alternatives to the termination of the mother’s parental rights.

Section 26-18-7, Ala.Code 1975, sets forth the statutory authority for the termination of a parent’s parental rights; it provides:

“(a) If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:
“(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.
“(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for the needs of the child.
“(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat, or otherwise maltreat the child, or the child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by such treatment of a sibling.
“(4) Conviction of and imprisonment for a felony.
“(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent.
“(6) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.
“(7) That the parent has been convicted by a court of competent jurisdiction of any of the following:
“(8) That parental rights to a sibling of the child have been involuntarily terminated.
“(b) Where a child is not in the physical custody of its parent or parents appointed by the court, the court, in addition to the foregoing, shall also consider, but is not limited to the following:
“(1) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of its support, where the parent is able to do so.
“(2) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the department, or any public or licensed private child care agency, and agreed to by the parent.
“(3) Failure by the parents to maintain consistent contact or communication with the child.
“(4) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.”

(Emphasis added.)

This court has stated that:

“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).

On appeal, the mother argues that the trial court erred in terminating her parental rights. Among the factors the trial court considers in making the difficult decision to terminate a parent’s parental rights are the parent’s mental deficiency, if applicable, whether reasonable efforts to rehabilitate the parent have failed, and whether the parent has failed to visit or maintain consistent contact with the child. See § 28-18-7, Ala.Code 1975. The record clearly reflects that the mother suffers from a mental deficiency that two professionals have determined precludes her from being capable of adequately assuming the role of a parent. The record also indicates that the mother had visited the child only sporadically until a year before the termination hearing and that she had failed to visit or maintain any contact with the child during the year before the termination hearing.

We are not unswayed by the mother’s argument that a mentally retarded person is not, for that reason alone, an unfit parent. Indeed, Sandlin admitted that mentally retarded individuals can rear children successfully. However, as Sandlin noted, DHR had the opinions of two experts that had concluded that this mother, because of her limited mental capacity, could not successfully maintain an independent lifestyle for herself, much less care for her own needs and the needs of a child who is dependent upon her for her care. Although, as the mother points out in her brief on appeal, Dr. Sullivan focused on the mother’s inability to care for the needs of an infant who is totally dependent on the care of others, Dunne indicated that, in his opinion, the mother could not rear “an adolescent, let alone a preschool child.”

DHR must, in its effort to reunite families, provide services to parents whose children have been removed from their custody. § 26-18-7(a)(6); D.S.S. v. Clay County Dep’t of Human Res., 755 So.2d 584, 589 (Ala.Civ.App.1999). The mother argues that simply because she is mentally retarded, DHR failed to provide her appropriate services such as parenting classes or in-home assistance to determine whether she could develop the necessary parenting skills. However, we cannot hold that DHR must provide services that an expert has determined will not benefit the parent. Requiring DHR to provide parenting classes and in-home assistance to a mother who, based on two professional opinions, will not be able to master the necessary skills to successfully parent on her own, would place an undue burden on an agency already struggling with its duty to rehabilitate those parents and reunite those families who can be aided by its assistance.

The record clearly supports the trial court’s determination that the child is dependent. The evidence also supports the trial court’s finding that the mother is currently, and will be for the foreseeable future, unable to discharge her responsibilities as a parent. See § 26-18-7(a), Ala. Code 1975.

The mother argues that DHR has impropei'ly failed to consider placing the child with her sister-in-law, B.A.S., as a viable alternative to the termination of her parental rights. The mother contends that DHR is required to demonstrate that it has made “recent attempts to locate viable alternatives,” and that in failing to consider B.A.S., DHR has failed to do so. See V.M. v. State Dep’t of Human Res., 710 So.2d 915 (Ala.Civ.App.1998) (holding that DHR must present evidence of recent attempts to locate alternatives to the termination of the parent’s parental rights). However, for the reasons discussed below, we conclude that the evidence does not demonstrate that the trial court abused its discretion in rejecting B.A.S. as a viable placement for the child and in concluding that DHR had demonstrated that there were no alternatives to the termination of the mother’s parental rights.

B.A.S. is not related by blood to the child, nor is she married to one of the child’s biological or adoptive relatives. B.A.S. is the sister of S.S., the mother’s second husband; S.S. is not the child’s biological father. In the vast majority of cases involving the termination of a parent’s parental rights, relatives of the child are examined as possible placement alternatives. There does not seem to be a requirement that an alternative placement resource be related to the child in a degree closer than that of a stepfamily relationship. In fact, Sandlin testified that the fact that a person is not related to a child by blood does not necessarily prevent that person from serving as an alternative placement for the child, but she stated that the appropriateness of such a placement depended upon the particular facts of each situation.

This court is not imposing a rule that would prevent, in all cases, a person unrelated to a child by blood from serving as an alternative placement resource for the child. In many situations, stepfamily relationships are as close or closer than family relationships between those related by blood. For example, in a situation in which a child shares a close relationship with her stepfather and his family, it might be appropriate to investigate members of the stepfamily as possible placement resources for the child. A determination of whether a stepfamily member should serve as a placement alternative should initially be made by DHR social workers, and later by the trial court. Such a determination should depend upon the relationships involved and the unique facts of each case.

The facts of this case, however, do not support the placement of the child with B.A.S. The child was almost six years old at the time of the termination hearing. DHR had gone to extensive lengths to place the child, who has some developmental delays and behavioral problems, before the termination petition was filed. The child has been in a total of five homes in the almost six years since her birth, when she was removed from the mother’s custody.

The child has never lived with the mother’s husband, S.S., and she is acquainted with him only from his accompanying the mother during her visitation with the child; that visitation was infrequent and the evidence indicated that S.S. had slept during at least some of those visitations. The child is also unfamiliar with B.A.S. and the other members of S.S.’s family. According to B.A.S.’s testimony, the child met B.A.S. on only one occasion during a visitation with the mother. There is no evidence that the child remembers B.A.S, and B.A.S. does not have any true recollection of that meeting.

B.A.S. testified that she had not had any contact with DHR, other than during the three months when she had custody of a nephew. Therefore, the record demonstrates that B.A.S. was aware of the possibility of serving as an alternative placement for a child.

The mother had been married to B.A.S.’s brother for almost five years at the time of the termination hearing. B.A.S. has known for years that the child has been in relative placements and foster care since her birth. The mother was also aware of the possibility of alternate placements for the child; two unsuccessful placements had been with members of the mother’s family. In spite of that knowledge, neither B.A.S. nor the mother made any effort to ask DHR to consider B.A.S. as a possible placement for the child. In fact, B.A.S. testified at the termination hearing that until she was asked whether she would consider taking the child, she had never even considered the possibility of taking the child into her home.

Although DHR has a responsibility to investigate alternate relative placements for a child, that obligation does not entirely alleviate the responsibility of the parent who purports to oppose the termination of his or her parental rights of making DHR social workers aware of alternative placement possibilities. In order to prevent the termination of his or her parental rights or regain custody of a child, a parent is often required to demonstrate his or her willingness and ability to meet the needs of the child by, among other things, attending parenting classes, seeking counseling, paying child support, or visiting with the child. Expecting a parent to assist in identifying alternative placements that might be willing to take the child is no more a burdensome obligation that those already listed, especially where those possible alternatives are unrelated to the child.

B.A.S. was first mentioned by the mother as a possible alternative to the termination of her parental rights at the termination hearing itself. The evidence would support a conclusion that the mother’s last-minute questioning of B.A.S. to determine whether B.A.S. would be willing to serve as an alternate placement for the child, even where B.A.S. responded in the affirmative, was not sufficient to constitute a truly viable alternative to the termination of the mother’s parental rights.

This court is “required to apply a presumption of correctness to the trial court’s finding that placement of the [child] with [B.A.S.] was not a suitable alternative to termination [of the mother’s parental rights].” Ex parte State Dep’t of Human Res., 834 So.2d 117, 122 (Ala.2002). Given the facts of this case, we cannot say that the trial court abused its discretion in determining that placing the child with B.A.S. was not a viable alternative to the termination of the mother’s parental rights. The mother has not demonstrated that the trial court erred in terminating her parental rights. Therefore, we affirm.

AFFIRMED.

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

MURDOCK, J., concurs in the result.

CRAWLEY, J., dissents.

MURDOCK, Judge,

concurring in the result.

While I generally agree with the majority’s analysis as to why B.A.S. should not be considered a “viable alternative” in this case, I write separately to note the following.

The first sentence of § 26-18-7, Ala. Code 1975, states:

“(a) If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents.”

In essence, the majority concludes that the mother is unfit and is incapable of being made fit, i.e., that the standard articulated in the first sentence of § 26-18-7 is met, primarily because of the mother’s mental retardation. I agree.

In my view, however, the evidence in this case compels the conclusion not only that the termination of parental rights is warranted because of the mother’s mental retardation, but also because she has abandoned her child by failing to exercise such visitation rights as she had been granted. See R.K. v. R.J., 843 So.2d 774 (Ala.Civ.App.2002) (concluding that a father who did not have custody of his child had nonetheless abandoned the child by failing to fulfill his parental role to the extent circumstances allowed). Such abandonment constitutes a separate reason for termination independent of the mother’s mental retardation. See § 26—18—7(a)(1) and (c), Ala.Code 1975. Furthermore, it means that no proof was required “of reasonable efforts to prevent removal or reunite the child” with the mother. See § 26-18-7(a)(1).

In addition, I take note of the statement in the majority opinion that “[w]e are not unswayed by the mother’s argument that a mentally retarded person is not, for that reason alone, an unfit parent.” 865 So.2d at 1195. I take this statement to mean that mentally retarded persons are not always, for that reason alone, unfit parents. So understood, I agree with this statement.

CRAWLEY, Judge,

dissenting.

I must respectfully dissent. The mother argues that DHR failed to consider whether there were alternatives other than termination. I see no time limitation in the requirement that DHR prove that there are no viable alternatives to termination, other than the requirement that DHR “present evidence to the court of recent attempts to locate viable alternatives.” Wilson v. State Dep’t of Human Res., 527 So.2d 1322, 1324 (Ala.Civ.App.1988). Ms. Sandlin testified that, had DHR known about the sister-in-law, it would possibly have considered her as a relative placement resource. As I have said before, “[t]he mother is receiving SSI checks for her mental limitations and is not in a position to conceive of alternatives.” L.A.G. v. State Dep’t of Human Res., 681 So.2d 596, 601 (Ala.Civ.App.1996) (Crawley, J., concurring specially). To require DHR to investigate the mother’s family, including her in-laws, before terminating her rights to her child forever would seem, in my opinion, to be well within the description of the agency’s duties, which are based on the mandate that it attempt to reunite families. I would reverse the trial court’s judgment terminating the mother’s parental rights and remand the case to the trial court for it to order DHR to consider and investigate B.A.S. as a potential relative resource. Therefore, I must dissent.

      . The unknown biological father of the child was served with notice of the termination proceeding by publication and did not appear at the termination hearing. The trial court terminated the father's parental rights. However, for the purposes of this opinion, we address the facts and the trial court’s judgment only as they pertain to the appellant mother.

      . The mother did not object to that testimony or evidence on hearsay grounds. See Y.M. v. Jefferson County Dep't of Human Res., [Ms. 2010755, Jan. 24, 2003] - So.2d - (Ala.Civ.App.2003) (holding that the trial court erred in admitting certain hearsay evidence during a termination hearing).

      . The record does not indicate whether long-distance telephone service was necessary for the mother to contact DHR social workers.

      . The majority also notes the mother’s failure to visit or maintain consistent custody with the child. See § 26-18-7(b)(2) and (3), Ala. Code 1975.

      . See also State Dep't of Human Res. v. A.K., 851 So.2d 1 (Ala.Civ.App.2002) (Murdock, J., dissenting and citing Ex parte F.P., [Ms. 1002146, Feb. 22, 2002  ] (Ala.2002) (Stuart, J., dissenting)).


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    ALABAMA DEPARTMENT OF PUBLIC SAFETY and Charles Andrews, in his official capacity as Director of the Alabama Department of Public Safety v. Ira Matthew CLARK.
    2020221.
    Court of Civil Appeals of Alabama.
    May 16, 2003.

      Jack M. Curtis, Department of Public Safety, for appellants.
    David A. Ludder, Tallahassee, Florida, for appellee.
   PITTMAN, Judge.

On October 23, 1998, Ira Matthew Clark was issued a Uniform Traffic Ticket and Complaint (“the UTTC”) by a law-enforcement officer for allegedly violating § 32-5A-191(a)(2), Ala.Code 1975, by operating a motor vehicle while under the influence of alcohol. The UTTC indicated that Clark’s blood-alcohol level at the time the UTTC was issued was 0.17%. Under Alabama law, no person may lawfully drive or physically control a motor vehicle when “[tjhere is 0.08 percent or more by weight of alcohol in his or her blood” or when that person is otherwise “[ujnder the influence of alcohol.” Ala.Code 1975, § 32-5A-191(a)(1) and (a)(2).

On the same day the UTTC was issued to Clark, the director of the Department of Public Safety (or an agent thereof) issued an order administratively suspending Clark’s driving privileges pursuant to Act No. 96-322,1996 Ala. Acts. That act is now codified at § 32-5A-300 et seq., Ala.Code 1975. Under § 32-5A-300(a), Ala.Code 1975, the director of the Department must suspend a person’s driving privileges “upon a determination that the person drove or was in actual physical control of a motor vehicle while the amount of alcohol in the blood of the person was above the legal limit.” Because Clark’s driving record reflected “one prior alcohol or drug-related enforcement contact during the immediately preceding five years,” § 32-5A-304(b)(2) required that his driving privileges be suspended for one year.

In February 1999, the criminal proceedings against Clark arising from the October 23, 1998, incident, were dismissed by the Calhoun District Court on the conditions that Clark pay the court costs and enroll in a program recommended by a court-referral officer. However, the administrative suspension imposed by the Department continued in effect, and an entry remains on Clark’s driving record concerning that suspension.

In June 1999, the legislature enacted Act No. 99-598, 1999 Ala. Acts (“the Act”), entitled:

“An Act Relating to the proceedings for suspensions and revocation of driving motor vehicles for alcohol related offenses; to further provide for more specific language for suspension and revocation proceedings and administrative review and judicial review; to amend Sections 32-5A-301, 32-5A-302, 32-5A-303, 32-5A-304, 32-5A-305, 32-5A-306, 32-5A-307, and 32-5A-308, Code of Alabama of 1975.”

That Act became effective on September 1, 1999; section 1 of the Act, among other things, amended § 32-5A-304, Ala.Code 1975, so that the final sentence of § 32-5A-304(c) now reads:

“If a license is suspended under this section for having .08 or more by weight of alcohol in the blood of the person and the criminal charge against the person for violation of Section 32-5A-191 is dismissed, nolle prossed, or the person is acquitted of the charge, the director shall rescind the suspension order and remove the administrative suspension from the person’s driving record.”

In March 2002, pursuant to § 41-22-11, Ala.Code 1975 (a portion of the Alabama Administrative Procedure Act (“AAPA”)), Clark filed with the Department a petition for a declaratory ruling and other relief, seeking a declaration that the Act, and particularly the portion quoted above, was a remedial statute that applied retroactively so as to require the rescission of the suspension of his driving privileges and the removal of that suspension from his driving record. The Department did not issue the requested ruling within 45 days of the request; under the AAPA, that inaction amounted to a denial of Clark’s petition. Ala.Code 1975, § 41 — 22—11 (b). Pursuant to §§ 41-22-ll(b) and 41-22-20, Ala.Code 1975, Clark then timely sought judicial review in the Montgomery Circuit Court of the Department’s denial of his petition, naming the Department and its director as defendants. Both the defendants and Clark filed motions for a summary judgment, pursuant to Rule 56(c), Ala. R. Civ. P., concerning the retroactive effect, if any, of the 1999 amendment to § 32-5A-304(c) requiring the rescission of the suspension of his driver’s license and the removal of that suspension from his driving record. The trial court entered a summary judgment in favor of Clark, opining that § 32-5A-304(c), as amended by the Act, “should be applied retroactively,” and directing the defendants to remove from Clark’s driving record the administrative suspension of Clark’s driving privileges arising from the October 23, 1998, incident. The defendants appealed.

The pertinent facts are undisputed, and only a legal issue is presented: does the 1999 amendment to § 32-5A-304(c) appearing in Act No. 99-598 apply retroactively to the suspension of Clark’s driving privileges arising from the October 23, 1998, incident? “The facts in this case are undisputed; therefore, we will review the trial court’s application of the law to those facts to determine whether [Clark was] entitled to a judgment as a matter of law.” Carpenter v. Davis, 688 So.2d 256, 258 (Ala.1997).

Our Supreme Court has stated that under Alabama law, “retrospective application of a statute is generally not favored, absent an express statutory provision or clear legislative intent that the enactment apply retroactively as well as prospectively.” Jones v. Casey, 445 So.2d 873, 875 (Ala.1983). The parties do not contend that the Act contains an express statement either mandating or barring retroactive application of its provisions, and we have found no such statement. However, the Supreme Court has also noted that “remedial” statutes, i.e., “ ‘those which do not create, enlarge, diminish, or destroy vested rights,’ ” do operate retroactively in the absence of clear language to the contrary. Ex parte Burks, 487 So.2d 905, 907 (Ala.1985) (quoting Barrington v. Barrington, 200 Ala. 315, 316, 76 So. 81, 82 (1917)). Thus, we must consider whether Act No. 99-598 is a “remedial” statute.

As we have noted, the title of the Act states that it “relat[es] to the proceedings for suspensions and revocation of driving motor vehicles for alcohol related offenses” and states that the Act provides for more specific language “for suspension and revocation proceedings and administrative review and judicial review” of such proceedings (emphasis added). The provisions of the Act not at issue in this case generally pertain to procedures and schedules to be followed by law-enforcement officers in forwarding documents regarding alleged driving-under-the influence offenses to the Department, to the Department’s handling of unsworn or untimely reports, to the effective date of license suspensions, to the number of law-enforcement contacts on any one arrest that may be considered in determining a period of suspension, and to the procedures to be followed in seeking and conducting an administrative review of an intended suspension. Similarly, the provision of the Act under review provides for the termination and nullification of administrative suspension proceedings in the event that the criminal driving-under-the-influence case against a person is dismissed, ends with the entry of a nolle prosequi, or terminates in the acquittal of the accused.

The defendants contend that the provision under review is not “remedial” because, they argue, its mandate that the director expunge the administrative suspension from the record of an accused driver impacts the driver’s substantial rights. Although it has been held that a statute, to be considered “remedial,” must deal only with procedure, see Ex parte State Department of Revenue, 792 So.2d 380, 382 (Ala.1999), a remedial statute may have certain incidental effects on substantial rights resulting from the procedural changes mandated. See Ex parte Burks, 487 So.2d at 907. In Ex parte Burks, a statute governing the procedures of the State Personnel Board had been amended to provide for the ability of that board to impose punishments other than termination should it determine that termination was unwarranted for a particular state merit-system employee. The Supreme Court held that the amendment should be applied retroactively to a judicial-review proceeding in the circuit court because the amendment had expanded the administrative remedies available in State Personnel Board proceedings without impairing substantial rights, although the Supreme Court acknowledged that substantial rights might be affected by application of the statutory change. 487 So.2d at 906. As further support for its holding, the Supreme Court noted that the title of the act amending the pertinent statute referred to “procedures ” to be utilized in disciplining and dismissing state merit-system employees. 487 So.2d at 908 (emphasis in original).

In this case, the Act, although mandating certain conduct on the part of the director that could affect Clark’s substantial rights, is remedial because its effect as a whole is to make changes in administrative procedures to be followed by the Department and by law-enforcement officers when a motorist is arrested and cited for driving under the influence of alcohol. We conclude that the trial court properly interpreted the Act as remedial and correctly required the director to remove from Clark’s driving record the suspension of Clark’s driving privileges arising out of the October 23, 1998, incident. Its judgment is due to be affirmed.

AFFIRMED.

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

MURDOCK, J., concurs in the result.


text:
    Roy Dean HUNT v. Melissa Ann GARCIA.
    2011102.
    Court of Civil Appeals of Alabama.
    May 16, 2003.

      Connie Cooper, Phenix City, for appellant.
   PITTMAN, Judge.

This appeal concerns custody and child-support issues arising from the dissolution of a common-law marriage.

The proceedings giving rise to this appeal began in December 2001, when Roy Dean Hunt (“the father”) filed a complaint for a divorce in which he alleged that he and Melissa Ann Garcia (“the mother”) had entered into a common-law marriage resulting in the birth of one child. The father requested that the trial court award him custody of the parties’ minor child and direct the mother to pay child support. In May 2002, the trial court entered a divorce judgment awarding the mother primary custody and awarding the father liberal visitation; the father was directed to pay $616 per month in child support.

On June 14, 2002, the father filed a motion for a new trial challenging, among other things, the trial court’s custody and support awards. The father alleged in that motion that he had been directed by a Florida court to pay $1,500 per month as a child-support obligation with respect to two of his children from a previous marriage, and he contended that the trial court had erred in failing to consider that preexisting child-support obligation in computing the child support he owed to the mother. The father’s postjudgment motion was denied on June 18, 2002, and he appealed to this court.

On appeal, the father first contends that the trial court erred in awarding the mother primary physical custody of the parties’ child. Specifically, the father argues that the mother exhibited a “lack of parenting ability” by failing to timely immunize the child; he further argues that he could provide the best environment for the child.

Alabama law affords priority to neither parent in an initial judicial custody determination. Williams v. Williams, 602 So.2d 425 (Ala.Civ.App.1992). The controlling consideration in such cases is the best interest of the child. Id. Our standard of review is limited when a trial court enters a custody judgment based on evidence presented ore tenus; we presume that the trial court’s custody judgment based on that court’s findings of fact is correct, and we will reverse it only if it is plainly and palpably wrong. Gamble v. Gamble, 562 So.2d 1343 (Ala.Civ.App.1990).

The mother testified that she and the father had worked together at a Pizza Hut restaurant and that they had moved in together following an automobile collision in 1998 that caused two of the mother’s older children (i.e., children not born of the parties’ common-law marriage) to be hospitalized; the expenses of her children’s hospitalization prevented the mother from making her rental payments with respect to her residence. The mother stated that, after six to eight months of cohabitation, she and the father had become “committed” to each other. The parties’ daughter was born in February 2000. The parties separated in 2001.

The mother testified that she wanted the father to continue to see their child, noting that the father had provided overnight care for the child on several occasions during the parties’ separation; she had allowed the overnight visits until the father telephoned her to tell her that he would not return the child to her. However, the mother also testified that the father had engaged in harassing conduct toward her and that, because of the father’s harassment, she had felt compelled to telephone police officers on one occasion. The mother testified that the father’s harassing behavior included driving a motor vehicle during early morning hours without its headlights on down the street where she was living. The mother added that the father tended to visit her unannounced, that he was at her house “all the time,” and that she would prefer that he telephone her before visiting.

The mother admitted that neither she nor the father had taken the child to receive the immunization injections she should have received at the age of 6 months and that those injections were not administered until the father took the child to the doctor when the child was 20 months old. A representative of the Department of Human Resources (“DHR”) conducted a home study as to 'both parties; that representative testified that both homes were approved and that she saw no reason to remove the child from the mother’s care. The DHR representative did express concern about what she termed the father’s “obsessive” nature, and she stated that she could find nothing to substantiate certain allegations the father had made against the mother in correspondence with DHR, such as his claim that the child had been sleeping on the floor of the mother’s home. Rather, the DHR representative stated that the child had been sleeping on a “pallet” and that the mother’s home was “very nice.” .

The father testified that he would like to reconcile with the mother. He described himself as having acted as a “dad” to the mother’s two older children and stated that he “got a little teed off’ when he found out he was not invited to a birthday party for one of those children. The father also stated that he had become upset when he saw a list of “emergency” telephone numbers posted on the mother’s refrigerator that did not include his name or number. He was further upset because he did not personally know one of the persons listed as an emergency contact.

The father admitted that on one particular Christmas Eve, he picked up the parties’ child and took her to Florida to visit his two children from a previous marriage. He admitted that the only notice he had given the mother of his intentions was a casual reference in a conversation two weeks beforehand that he wanted to go to Florida on Christmas Eve. The father asserted that it would be in the child’s best interest for him to have primary custody because his highest priority is his family. The father’s former wife (i.e., his wife before his common-law marriage to the mother) testified that the father had been very loving and attentive to the child and that he had been very supportive of their two children.

In this case, the trial court saw and heard the parties and several other witnesses testify, and it decided to award primary custody of the child to the mother. Although neither parent is perfect, the record indicates that both parties are caring and loving parents who are committed to their child. Given the strong presumption of correctness afforded a trial court’s determination when it is based on evidence received ore tenus, we cannot say that the trial court’s decision to award primary custody of the child to the mother is plainly and palpably wrong.

Next, the father argues that the trial court erred in failing to allow a certain witness to testify regarding her observations of the mother’s parenting ability with respect to the mother’s older children. The following pertinent exchange occurred during the trial:

“[Counsel for the father]: And during the time that [the mother] lived there at the trailer park, did you have an opportunity to observe her two children?
“THE COURT: Hold on. This is before a relationship with [the father]?
“[Counsel for the father]: Yes, sir, it is.
“THE COURT: I’m not going to allow this.
“[Counsel for the father]: — I think it goes to [the mother’s] parenting ability.
“THE COURT: It has no relevance to a child that wasn’t born. I’m not going to allow it.”

We note that the “trial court has wide discretion to determine whether evidence is relevant, material, or remote and has wide discretion to exclude or to admit evidence.” Gober v. Khalaf, 628 So.2d 416, 417 (Ala.1993). A trial court’s ruling regarding the admissibility of evidence will not be reversed absent a clear abuse of the court’s discretion. T.G.S. v. D.L.S., 608 So.2d 743 (Ala.Civ.App.1992). It appears that the trial court determined that any testimony regarding conduct that occurred before the parties met and before the child in question was bom was remote and immaterial and that the primary issue was the parties’ current abilities to care for the child. Our review of the record fails to disclose any abuse of the trial court’s discretion in excluding this testimony.

The father also contends that the trial court erred in calculating his child-support obligation; he claims that the trial court failed to comply with Rule 32(B)(6), Ala. R. Jud. Admin., by failing to deduct his preexisting child-support obligation from his gross income when calculating the child support to be paid to the mother.

The record reflects that during the trial, the father testified that he paid $1,500 in child support to his former wife and that he would provide the court with a copy of that divorce judgment. The father’s former wife testified that the father had been ordered to pay $1,500 in “support,” but that that amount had been reduced to $1,200 a month. When questioned directly by the court regarding the father’s preexisting child-support obligation, the father’s former wife stated that the court had awarded $900 in child support and that the remainder (i.e., $600) was for spousal support; she also stated that she and the father had agreed to reduce the figure from the court-ordered $1,500 to $1,200.

Although the father and his former wife testified as to the father’s preexisting child-support obligation and although the trial court indicated at trial that the father’s preexisting child-support obligation was “part of the equation” used to determine his gross income for purposes of calculating his child-support obligation in this action, the Child Support Guidelines form (Form CS^42) filed in the record contains no entry in the blank provided to indicate the father’s preexisting child-support obligation, and the trial court’s $616 child-support award is based upon the father’s reported monthly gross income of $8,425, without any adjustments for preexisting child support. Moreover, the trial court denied the father’s postjudgment motion even though the father attached to that motion a copy of the Florida divorce judgment that directs the father to pay $900 per month in child support.

Rule 32(B)(6), Ala. R. Jud. Admin., states: “The amount of child support actually being paid by a parent pursuant to an order for support of other children shall be deducted from that parent’s ‘gross income.’ ” The rule allows a deduction from a parent’s gross income for a preexisting court-ordered support obligation. The rule also affords a deduction from a party’s gross income in cases where support is being provided other than pursuant to a court order; Rule 32(B)(6) further states: “If a parent is legally responsible for and is actually providing support for other children, but not pursuant to an order of support, a deduction for an ‘imputed preexisting child support obligation’ may be made from that parent’s gross income.”

In this case, the testimony indicated that the father was paying $900 per month in child support to the mother of his two children from a previous marriage, pursuant to a Florida judgment of divorce. That judgment specifying the father’s legal obligation of support for those children, which corroborated the testimony concerning the father’s preexisting child-support obligations, was provided to the trial court with the father’s postjudgment motion. We conclude that the trial court, in its computation of the father’s child-support obligation, should have allowed a deduction for the father’s preexisting child-support obligation and that that court erred in failing to do so.

The trial court’s judgment is reversed as to the issue of child support, and the cause is remanded for the trial court to recalculate the father’s child-support obligation after allowing a deduction from the father’s income based upon the father’s preexisting child-support obligation. As to all other issues presented, the judgment is affirmed.

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

YATES, P.J., and CRAWLEY, THOMPSON, and MURDOCK, JJ„ concur.

      . We note that the mother was not represented by counsel at trial or on appeal.

      . Although the trial court's judgment provides that the “defendant'' (i.e., the mother) shall pay child support, that reference appears to be a clerical error; the judgment is more properly read, in its entirety, as requiring the "plaintiff” (i.e., the father, who is not the primary custodial parent) to pay child support.


author: THOMPSON, Judge. MURDOCK, Judge,

text:
    Heather SMITH v. Brian SMITH.
    2020103.
    Court of Civil Appeals of Alabama.
    May 23, 2003.

      Yvonne Gabrielson, Dothan, for appellant.
    Douglas M. Bates, Dothan, for appellee.
   THOMPSON, Judge.

Heather Smith (“the mother”) and Brian Smith (“the father”) were divorced by a November 1, 1999, judgment of the trial court. One child was born of the parties’ marriage. Pursuant to the terms of the divorce judgment, the mother was awarded primary physical custody of the parties’ minor child, and the father was awarded standard visitation. The father petitioned to modify the divorce judgment, and on April 12, 2001, the trial court modified the judgment to allow the father visitation with the child that accommodated the father’s work schedule; the father worked four days and then was off for four days. In addition, the modified judgment required that the father give the mother one week’s notice prior to exercising his visitation.

On March 28, 2002, the father petitioned for a modification of custody, alleging a material change in circumstances. The father requested that he and the mother share joint custody of the child, with each parent having physical custody of the child for four consecutive days. The wife answered on April 25, 2002, and filed a “counterclaim” seeking to modify the father’s visitation. Specifically, the wife requested that the trial court award the father visitation consistent with the trial court’s original divorce judgment. In addition to his modification request, the father filed a motion for immediate relief on March 28, 2002, requesting that the trial court enter an order directing the wife to allow him his one-week spring-break visitation with the child as provided for in the trial court’s previous orders. The trial court granted the father’s motion.

The trial court conducted an ore tenus hearing on the father’s petition to modify custody on July 11, 2002, and on that same day entered a judgment in which it awarded the parties joint custody of the child. The trial court also awarded the parties joint physical custody of the child, “alternating in four-day intervals.” In addition, the trial court reduced the father’s child-support obligation to reflect the new joint-custody arrangement. The mother filed a motion to alter, amend, or vacate the judgment, and a motion seeking to hold the father in contempt; the trial court denied those motions on September 27, • 2002. The mother appealed.

It is well settled that when a trial court receives ore tenus evidence in a child-custody-modification proceeding and bases its judgment on its findings of fact, that judgment will not be reversed absent an abuse of discretion or a showing that the findings are plainly and palpably wrong. West v. Rambo, 786 So.2d 1138 (Ala.Civ.App.2000); E.M.C. v. K.C.Y., 735 So.2d 1225 (Ala.Civ.App.1999). A judgment based on ore tenus evidence is presumed correct and will be affirmed if supported by competent evidence. N.G. v. L.A., 790 So.2d 262 (Ala.Civ.App.2001).

As was previously mentioned, the parties divorced in November 1999 and the mother was awarded custody of the child. The husband was awarded standard visitation. After petitioning to modify his visitation with the child in April 2001, the trial court amended the father’s visitation as follows:

“Due to the [father’s] work schedule that requires him to work four days and be off four days ... the parties shall agree for the [father] to have visitation with said child during the time that he is not working, the duration of such visitation shall be at least comparable with that time he would have were the visitation exercised every other weekend. The [father] shall notify [the mother] of his work schedule no less than a week in advance of the time he could exercise visitation.”

The parties’ child was three years old at the time of the hearing in this matter. The father is a criminal investigator with the Dothan police department and has worked in this capacity for two years. The father testified that his work schedule has changed so that he now works on the weekdays from 8 a.m. until 4 p.m. He lives in a mobile home that at the time of the hearing he shared with his fiancée.

The mother is employed by Eagle Adjustment, where she had worked for one month at the time of the hearing. Before working for Eagle Adjustment, the mother had worked for Alltel and Mia’s restaurant. The mother resided with her fiancé at the time of the hearing. Both parties testified that they would cease cohabiting until they are married.

The parties’ divorce judgment awarded the father one week of visitation with the child during spring break. The father testified that he had tried to exercise his spring-break visitation during the week beginning March 30, 2002, but that the mother had denied him his visitation with the child. The mother testified that the husband had not given her notice of his desire to visit the child in accordance with the divorce judgment and that she had already made plans for the child. According to the father, the one-week-notice requirement to exercise his visitation with the child is a burden. He also stated that he brought the instant action against the mother because she denied him spring-break visitation with the child.

The father testified that he wanted the trial court to award the parties joint physical custody of the child. According to the father, joint custody of the child, with custody alternating between the parties every four days, would give each of the parties an opportunity to have the child on weekends as well as weekdays. The mother testified that the child has a set schedule and routine that would be adversely affected if the parties shared joint custody.

Before the hearing, the child and the mother had lived at the same residence for one year. The child attended Kiddie College daycare during the week, and, the mother testified, she had discipline problems when she was not following a routine. The child had attended Kiddie College daycare since she was four weeks old. The father testified that he does not have a set routine or schedule when he has the child; however, he stated that he does believe stability and consistency are important to the child. According to the father, alternating custody every four days would offer the stability the child needs.

On appeal, the mother contends that the evidence does not support a modification of custody under the applicable standard of review. Specifically, the mother avers that the father failed to establish a material change in circumstances that justified the modification of custody of the child under the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984).

At the outset we note that, pursuant to the original divorce judgment, the mother was awarded physical custody of the child, and, therefore, she was the custodial parent. See Hays v. Elmore, 585 So.2d 40 (Ala.Civ.App.1990). Based on the trial court’s prior award to the mother of primary physical custody, we are governed by the standard set forth in Ex parte McLendon in reviewing the trial court’s modification of custody. Pursuant to Ex parte McLendon, a parent seeking to modify custody must demonstrate that the change in custody would materially promote the child’s welfare and that the disruption caused by the change in custody would be offset by the advantages of that custody change. Ex parte McLendon, supra. The evidence in support of a modification of custody must be substantial, and it must demonstrate an overwhelming necessity for a change. Klapal v. Brannon, 610 So.2d 1167 (Ala.Civ.App.1992).

In the instant case, we cannot say, based on the record before us on appeal, that there was substantial evidence of the existence of a material change in circumstances warranting a change in the custody of the child. The father testified that the mother’s denial of his visitation privileges, specifically the denial of a week-long spring-break visitation, constituted a material change in circumstances warranting a change in custody. Besides that incident, the father failed to demonstrate how a change in custody would materially promote the best interests of the child and how the benefits of that change would offset the inherently disruptive effect caused by a change in custody. See Ex parte McLendon, supra. Without the father’s meeting the stringent standard set out in Ex parte McLendon, the trial court erred in its custody determination.

It is important to note that the father received his desired week of visitation with the child following the trial court’s order granting his motion for immediate relief. The father’s initial petition, filed simultaneously with his motion for immediate relief, was brought in an attempt to cure visitation problems between the parties. The father testified that he brought the instant action against the mother because the mother had denied him one week of spring-break visitation. However, this court has held that “[cjustody of children should not be modified due solely to problems of visitation.” Hays v. Elmore, 585 So.2d at 42; see also Ward v. Rodenbaugh, 509 So.2d 910 (Ala.Civ.App.1987). While the record demonstrates the father’s difficulty in dealing with the mother regarding matters of visitation, a change in custody is not proper in such instances. The trial court’s contempt powers are a sufficient method of regulating the mother’s conduct in a manner that will enforce the visitation provisions of the trial court’s judgments and best protect and serve the child’s best interests.

Based on the foregoing, we conclude that the trial court erred in modifying custody of the child. For this reason, we must reverse the judgment of the trial court and remand this cause. The judgment of the trial court is reversed.

REVERSED AND REMANDED.

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

MURDOCK, J., concurs in the result.

MURDOCK, Judge,

concurring in the result.

Undoubtedly, the most oft-repeated maxim in our cases dealing with child custody is that our “polestar” is the child’s best interests. See, e.g., McConnell v. McConnell, 718 So.2d 78, 79 (Ala.Civ.App.1998) (quoting Smith v. Smith, 448 So.2d 881, 383 (Ala.Civ.App.1984)). If, indeed, we mean this, then I believe we must reexamine our occasional reliance on the standard articulated in Klapal v. Brannon, 610 So.2d 1167 (Ala.Civ.App.1992), namely, that before a court may order a change of custody, “[t]he evidence must be so substantial as to disclose an obvious and overwhelming necessity for a change.” Id. at 1169. In my view, this “overwhelming-necessity” standard is inconsistent with the standard articulated in Ex parte McLendon, 455 So.2d 863 (Ala.1984), and, as such, sets the “bar” too high in many cases where the proposed custody change truly would be in the child’s best interests.

The overwhelming-necessity standard is traceable to the pre-Ex parte McLendon case of Gray v. Gray, 45 Ala.App. 331, 230 So.2d 243 (Civ.1970). In Gray, however, the standard was articulated merely as the appellate-review standard that must be met to overcome the “ore tenus presumption” in favor of a trial court’s judgment where the evidence is presented orally. Gray, 45 Ala.App. at 332, 230 So.2d 243 (relying upon Skipper v. Skipper, 280 Ala. 506, 195 So.2d 797 (1967), Snead v. Snead, 279 Ala. 344, 185 So.2d 135 (1966), and Bianco v. Graham, 268 Ala. 385, 106 So.2d 655 (1958)). None of the cases upon which Gray relied articulates the overwhelming-necessity standard or lends support for its usage as a substantive standard for a trial court in determining whether a change in custody is warranted.

In 1984, our Supreme Court decided Ex parte McLendon. The substantive legal standard expressed in Ex parte McLendon was the result of a desire by our Supreme Court to articulate a “formula,” if you will, that would lead courts to a custody decision, in each case, that was in the child’s best interests. The expression of this formula was accomplished in the context of concern that our courts should always factor into the “equation” the disruption to the child that would be caused' by the proposed change. The “correct standard” according to the Supreme Court in Ex parte McLendon is:

“ ‘Where a parent has transferred to another [whether it be a non-parent or the other parent], the custody of h[er] infant child by fair agreement, which has been acted upon by such other person to the manifest interest and welfare of the child, the parent will not be permitted to reclaim the custody of the child, unless [s]he can show that a change of the custody will materially promote h[er] child’s welfare.’
“Greene v. Greene, 249 Ala. 155, 157, 80 So.2d 444, 445 (1947), quoting the Supreme Court of Virginia, Stringfellow v. Somerville, 95 Va. 701, 29 S.E. 685, 687, 40 L.R.A. 623 (1898).
“Furthermore,
‘[This] is a rule of repose, allowing the child, whose welfare is paramount, the valuable benefit of-stability and the right to put down into its environment those roots necessary for the child’s healthy growth into adolescence and adulthood. The doctrine requires that the party seeking modification prove to the court’s satisfaction that material changes affecting the child’s welfare since the most recent decree demonstrate that custody should be disturbed to promote the child’s best interests. The positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child. Frequent disruptions are to be condemned.’
“Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976).”

455 So.2d at 865-66 (emphasis added). In Ex parte J.M.F., 730 So.2d 1190 (Ala.1998), our Supreme Court stated:

“It is, of course, well established that a noncustodial parent seeking a change of custody must show not only that he or she is fit to have custody, but that the change would materially promote the child’s best interests. Ex parte McLendon, 455 So .2d 863 (Ala.1984). This requires a showing that the positive good brought about by the modification would more than offset the inherently disruptive effect caused by uprooting the child. McLendon.”

730 So.2d at 1194 (emphasis added) (quoted with approval in Riley v. Riley, [Ms. 2010707, November 15, 2002] - So.2d - (Ala.Civ.App.2002)). See also Grant v. Grant, 820 So.2d 824 (Ala.Civ.App.2001) (Murdock, J., dissenting); Pickett v. Pickett, 792 So.2d 1124 (Ala.Civ.App.2001) (Murdock, J., concurring in the result); Woodham v. Woodham, 539 So.2d 293, 295 (Ala.Civ.App.1988) (“[The party seeking to modify custody] has failed to prove that a change in custody would materially promote her children’s welfare above and beyond the disruptive effect it would cause.”).

Despite the articulation of this standard in Ex parte McLendon, this court has, during the 19 years since Ex parte McLendon, continued on occasion to give voice to the overwhelming-necessity standard of Gray v. Gray, sometimes citing the case of Klapal v. Brannon, 610 So.2d 1167 (Ala.Civ.App.1992), as does the majority opinion in the present case. During this same 19-year span, our Supreme Court has cited to this standard in only one case. See Ex parte Peppers, 703 So.2d 299 (Ala.1997). The Supreme Court did so in a case in which, for all that appears from the opinion, the degree of disruption that would have been occasioned by a transfer of the child’s physical custody would have been great, thus lending itself to requiring proof of an “overwhelming necessity” for change. Id. at 300-02.

My review of the standard articulated in Ex parte McLendon and the reasons for that standard impel me to conclude that the overwhelming-necessity standard of Klapal is inconsistent with the Ex parte McLendon standard and that it “sets the bar” for changes of custody at a level higher than does Ex parte McLendon—a level that sometimes will be too high if we are truly serious about pursuing each child’s best interests.

Notwithstanding the main opinion’s inclusion of the Klapal overwhelming-necessity standard in its analysis, I conclude from the record in this case that the well-established standard for a change of custody as articulated in Ex parte McLendon was not satisfied in the present case. I therefore concur in the result reached by the main opinion.

      . In Ex parte Peppers, 703 So.2d 299 (Ala.1997), the Supreme Court relied on one of the decisions of this court, Glover v. Singleton, 598 So.2d 995 (Ala.Civ.App.1992), in which the overwhelming-necessity standard was expressed. Glover v. Singleton, in turn, relied upon Whitfield v. Whitfield, 570 So.2d 700 (Ala.Civ.App.1990), which is a 1990 case. Though it was decided six years after Ex parte McLendon, Whitfield utilized the overwhelming-necessity standard without any reference to Ex parte McLendon, relying instead on Braswell v. Braswell, 460 So.2d 1339 (Ala.Civ.App.1984). Braswell was the first opinion issued by this court that employed the overwhelming-necessity standard as a substantive legal standard for determining whether a change in custody is warranted. In Braswell, this court stated:
      "Our law is clear that one bringing a petition for modification of a prior order as to child custody has the burden of proving that a material change in circumstances affecting the child’s best interest has occurred since the prior order. In order to overcome the rule of repose accompanying the prior order, the evidence of a change in circumstances must be so substantial as to disclose an obvious and overwhelming necessity for change of custody. Munchus v. Munchus, 412 So.2d 794 (Ala.Civ.App.1982); Alford v. Alford, 368 So.2d 295 (Ala.Civ.App.1979). Put another way, in order to overcome the inherently disruptive effect of uprooting the child, there must be evidence to show that the child’s best interests are promoted by the change in custody. McLendon v. McLendon, 455 So.2d 861 (Ala.Civ.App.1984); rev’d, 455 So.2d 863 (Ala.1984).”
      460 So.2d at 1340-41. Thus, this court in Braswell relied upon two decisions of this court, Munchus v. Munchus, 412 So.2d 794 (Ala.Civ.App.1982), and Alford v. Alford, 368 So.2d 295 (Ala.Civ.App.1979), both of which were decided before the Supreme Court’s decision in Ex parte McLendon. Neither of those earlier decisions articulated the overwhelming-necessity standard as anything other than the appellate-review standard that must be met to overcome the ore tenus presumption. The court then proceeded to articulate a truncated version of the standard explained in more detail in Ex parte McLendon, asserting something that was not stated in Ex parte McLendon, namely, that the Ex parte McLendon standard was merely the "overwhelming-necessity” standard "[p]ut another way.” Braswell, 460 So.2d at 1341. In so doing, this court for the first time incorrectly treated the overwhelming-necessity standard as a substantive legal standard, incorrectly characterized it as synonymous with the Ex parte McLendon standard, and laid the foundation for its misuse in future cases as an extra-Ex parte McLendon gloss on the Ex parte McLendon standard.


author: THOMPSON, Judge.

text:
    S.B.L. v. E.S. and C.S.
    2020004.
    Court of Civil Appeals of Alabama.
    May 23, 2003.
    Trudie Anne Phillips of Phillips & Phillips, Anniston, for appellant.
    Peggy P. Miller of Caldwell & Miller, Anniston, for appellees.
   THOMPSON, Judge.

This is an appeal from a judgment denying a custody modification.

On October 30, 1994, S.B.L. (“the mother”) gave birth to D.R. (“the child”). Shortly thereafter, the mother expressed her desire to place the child for adoption. On May 9,1995, the trial court conducted a shelter-care hearing, and, that same day, it entered an order placing the child in the custody of the Calhoun County Department of Human Resources (“DHR”). In its order, the trial court found that, based on an agreement between the parties, the child had “no parent, guardian, custodian, or other suitable person who [was] willing and able to provide supervision and control for [the] child.”

J.R. (“the father”) objected to placing the child for adoption and petitioned for custody of the child. On October 23, 1995, the trial court entered an order finding the child dependent and placing the child in the father’s custody. The trial court further ordered that DHR have protective supervision over the child. That protective supervision by DHR was continued for six months by the trial court following a review hearing on April 29, 1996; the trial court also continued the custody of the child with the father.

An action to modify custody was brought after allegations of abuse against the father arose. The trial court conducted a hearing on the matter on June 10 and 13, and July 8, 1997; on September 3, 1997, the trial court entered an order removing the child from the father’s custody, finding the child dependent for a second time, and placing the child in the custody of E.S. and C.S., who had intervened in the action. As best we are able to determine from the record, E.S. and C.S. were the child’s foster parents while the child was in DHR’s custody and before the child was placed in the father’s custody. In its September 1997 order awarding custody to E.S. and C.S., the trial court found, in pertinent part:

“5) That the father’s treatment of this child is abhorrent and detrimental to the physical and mental well being of the child.
“6) That the child’s mother had for all purposes abandoned the child until brought back into his life by [E.S. and C.S.] at about the time of the filing of the petition for modification of custody.
“7) That throughout this child’s life the only stabilizing factor has been [E.S. and C.S.]
“8) That the natural parents of this child are by their actions unfit to maintain custody of this child and custody should be placed with [E.S. and C.S.]”

The trial court awarded the father and the mother limited visitation with the child. The maternal grandmother, S.B., petitioned for grandparent visitation; by agreement of the parties, she was awarded limited visitation with the child on October 27, 1998.

The parties again went before the trial court in May 1999, after the mother filed a petition for modification of custody. Following a hearing, the trial court entered an order on July 28, 1999, in which it dismissed the mother’s motion based on her failure to prove facts that warranted a modification of custody. However, the trial court found that the parties should begin working on a transition of custody to the mother. In its order of dismissal, the trial court stated that

“a change in custody at the present time is not in the best interest of the child, however; the goal both immediate and long term is to return custody to [the child’s] mother and all of the parties in this action should begin working toward attaining that goal.”

The trial court ordered the child to attend counseling and also ordered the parties to participate in counseling in order to facilitate the custody transition. The mother did not appeal the custody orders entered on September 3, 1997, and July 28, 1999.

On July 13, 2001, the mother filed a second petition to modify custody in which she alleged that there had been a material change in circumstances since the disposition of her last petition to modify custody and that the best interests of the child would be promoted by a change in custody. E.S. and C.S. filed an answer. On October 25, 2001, the trial court transferred the case to the administrative docket pending the child’s transition into the mother’s home.

On July 29, 2002, Michael Stuckey, the child’s court-appointed counselor, recommended that the child be returned to the mother’s custody on August 2, 2002. E.S. and C.S. filed a motion to stay implementation of the counselor’s recommendation; on August 1, 2002, the trial court issued an order staying the transfer of the child to the mother’s custody. On August 29 and 30, 2002, the trial court held a final hearing; on September 3, 2002, the trial court entered a judgment that denied the mother’s second petition to modify custody. The trial court did, however, modify the mother’s visitation privileges with the child. In its September 3, 2002, judgment, the trial court stated its reasons for denying the mother’s petition to modify custody of the child:

“[E.S. and C.S.] stepped in for this child when the mother had elected to place him up for adoption. The court understood her decision at that time and most certainly does not hold that against her. However, after the child’s father objected and was given custody, the mother had no contact with the child until [E.S. and C.S.] contacted her after allegations of abuse by the father came to light. The mother then filed for custody, [E.S. and C.S.] intervened and they were eventually awarded custody. The child has been in their custody and care for almost all of his eight years and he thinks of them as his ‘parents’ although he is aware that they are not his biological parents.
“The mother is now out of the Army, lives in the home with her mother and her daughter from a prior marriage and is employed full time. She now desires that custody be restored to her. However, after considering the evidence and speaking with the child, it is my opinion that it is in the [child’s] best interest that his custody remain with [E.S. and C.S.] with his mother having specific access times.”

The mother filed a postjudgment motion on September 16, 2002, and on September 22, 2002, the trial court denied that motion. On September 22, 2002, the trial court also clarified its judgment by terminating the maternal grandmother’s separate visitation rights with the child. The mother timely appealed.

At the time of the final hearing in this matter, the child was seven years old. After giving birth to the child, the mother attempted to place the child for adoption. The mother enlisted in the military, and, at some point, she was stationed in Germany. The mother returned to the United States on August 29, 2001, when her tour of duty ended. At the time of the hearing, the mother was serving in the Army Reserves, and she testified that that service obligation requires a commitment of one weekend per month and two weeks per year.

At the time of the hearing, the mother had lived in Shreveport, Louisiana, for 10 months. The mother resides with the maternal grandmother, the maternal grandmother’s boyfriend, and C.L., the mother’s daughter from a previous marriage. C.L. is 12 years old and is the child’s half-sister. The child has his own room at the house that the mother shares with the maternal grandmother. The mother testified that she has been married three times; two of her marriages ended in divorce and one marriage was annulled. The mother did not marry the child’s father. The mother stated that she is currently not “involved” with anyone.

The mother works as a deputy sheriff at the Catto Parish sheriffs office. The mother’s work shift is 3:00 p.m. until midnight, and the mother is off on Tuesdays and Wednesdays. The mother earns $10.48 per hour and works 40 hours per week. The mother testified that when she is at work the maternal grandmother cares for C.L. and the child, when the child is visiting the mother. The mother stated that she has not applied for other employment with better hours, but she testified that she intends to return to school to get her nursing degree.

The mother testified that she has been investigated twice for child abuse and neglect. One of the charges involved C.L. and occurred when that child was five years old. According to the mother, that charge was “founded.” The second instance involved the mother’s stepson, and, according to the mother, that charge was “unfounded.” The mother also testified that she was molested by her father as a young girl and that her father is still in her life.

According to the mother, the child has a good relationship with C.L., the maternal grandmother, and the maternal grandmother’s boyfriend. C.L. was initially jealous of the child, but, the mother testified, she is no longer jealous. The mother testified that the child sometimes cries at night when he is visiting her in Louisiana. The mother testified that she will do whatever is in the best interests of the child, even if the child does not wish to live with her in Louisiana. The mother further testified that she believed it was in the child’s best interests to live with her.

E.S. and C.S. have been married for 38 years; E.S. is 58 years old and C.S. is 55 years old. The couple have two children, ages 31 and 27. The child has been in the couple’s care since he was 3 weeks old, with the exception of the 18-month period in which the child was in the custody of the father. E.S. is employed and C.S. stays at home with the child.

C.S. testified that the child views her as his “mamma” and E.S. as his “daddy.” C.S. further testified that the child has excelled while living in the couple’s home. The child played “t-ball” for the two years preceding the hearing, and, C.S. stated, he ■ had just finished his first year of basketball. C.S. testified that she is able to keep up with the child’s practices and games and that she attends them all. The child has numerous friends and is very close to E.S. and C.S.’s extended family. C.S. testified that the child receives $100 in child support from the mother each month, and nothing more.

When the trial court initially ordered the child’s transition into the mother’s home in July 1999, C.S. questioned the transition plan because, she testified, the trial court had already decided to place the child in the mother’s home without considering the child’s feelings. C.S. testified that she objected to Stuckey’s recommendation that custody of the child be returned to the mother because, she stated, the child had attended the counseling sessions without knowing that the purpose of the counseling was to assist in restoring custody of the child to the mother in Louisiana. According to C.S., the child always thought that he would remain in the custody of E.S. and C.S.

Stuckey testified that he has practiced counseling for 28 years and that in the last 15 years he has concentrated on reunification of children and families. The trial court issued its order mandating counseling for the parties on July 28,1999; Stuck-ey testified that he first became involved in this case in August 1999. Stuckey testified that E.S. and C.S. rarely attended the counseling sessions ordered by the trial court. Although the order of the trial court did not specify how often the couple should attend, Stuckey testified that he assumed the couple would attend monthly counseling sessions. C.S. testified that she attended counseling sessions and took the child to his counseling sessions. It was during the child’s counseling sessions that, according to C.S., Stuckey told her that he did not need to see her for counseling at that particular time. C.S. testified that E.S.’s job prevented him from attending counseling sessions. According to Stuck-ey, E.S. and C.S. were initially very angry about the possibility of losing custody of the child; however, he stated that as the child’s counseling sessions progressed the couple’s anger subsided.

Stuckey testified that, in order to make the transition successful for the child, E.S. and C.S. would have to cooperate with the transition plan, be positive about the child’s visits with the mother, and not become emotional when the child was gone. According to Stuckey, E:S. and C.S. tried hard to do those things. C.S. testified that she tried to make the child’s visits with the mother positive and that she sent small gifts with the child to give to C.L.

Stuckey testified that the mother complied with his recommendations in the transition plan and attended counseling sessions in Louisiana. Stuckey stated that, after returning from Germany, the mother spent as much time with the child as possible. Stuckey observed the mother and the child together and noted that the child seemed to be very comfortable with her. Over the course of the child’s visits with the mother, Stuckey observed a positive change in the child’s attitude and an improvement in the child’s relationship with the mother. Stuckey testified that the transition plan was in the child’s best interests and that the more time the child spends with the mother, the more the two will bond. Stuckey testified that it is his opinion that the child would benefit from being with his biological parent and from being with a youthful and energetic mother. According to Stuckey, reunification with the mother is in the child’s best interests.

Stuckey testified that, although the child enjoys visiting the mother, the child has consistently stated that he wants to continue living with E.S. and C.S. in Alabama. Stuckey does not believe that the child will ever affirmatively state that he is ready to live with the mother in Louisiana. Stuck-ey testified that the child perceives E.S. and C.S. as his “psychological” parents and has a very strong relationship with the couple.

Stuckey further testified that he does not believe the transition plan will be detrimental to the child, but he stated that the negative effects on the child of the transition to Louisiana could include depression, inattention at school, and a drop in his academic performance. In addition, Stuckey testified that he is not sure how losing E.S. as a father figure will affect the child. Stuckey testified that the child will suffer a total disruption to his life by moving from one environment to another; the child will be in a different state and school and will lose his Mends. According to Stuckey, he cannot be certain of the child’s future and how the transition will ultimately affect the child.

Stuckey testified that most transitions involve children who are transitioning back into a home in which they had previously lived; however, in this case the transition involves placing the child in a home that is new to the child and with a parent with whom the child has never resided. Besides the new home, Stuckey expressed concern regarding the mother’s living arrangements with the maternal grandmother and the maternal grandmother’s boy-Mend. Stuckey noted that, at first, he was informed by the mother that her housing situation was temporary but that he-has since learned that it is a permanent arrangement.

Glenda Pritchett, a professional counsel- or in Louisiana, testified that she first counseled the child in March 2001 and that she has met with the child nine times. Pritchett testified that the child has clearly stated that he wants to live in Alabama with E.S. and C.S. Pritchett testified that the child missed E.S. and C.S. while he was in Louisiana and that he complained about missing ball games when he visited with the mother. Pritchett noted that the child appeared to be easygoing and flexible, both of which are characteristics that she believes would ease the child’s transition. Pritchett could not predict how a possible reunification with the mother would affect the child in the future.

On appeal, the mother contends that the trial court abused its discretion when it denied the mother’s petition to modify custody of the child. In support of her argument on appeal, the mother asserts that the child’s interests would best be served if the child were in her custody and that the evidence presented to the trial court indicated that the transition plan instituted by the trial court in its July 28,1999, order had been successful.

The determination of an award of child custody is within the sound discretion of the trial court. Pierce v. Helka, 634 So.2d 1031 (Ala.Civ.App.1994). A trial court’s custody determination following a presentation of ore tenus evidence is presumed correct and that judgment will not be set aside on appeal absent a finding that the trial court abused its discretion or that its determination is so unsupported by the evidence as to be plainly and palpably wrong. Pierce v. Helka, supra.

The law in Alabama is well settled that a natural parent has a prima facie right to the custody of her child. Gurley v. Kennemore, 668 So.2d 1 (Ala.Civ.App.1993); Ex parte Terry, 494 So.2d 628 (Ala.1986). This presumption, however, does not apply after a voluntary forfeiture of custody or where a prior judgment removes custody from the. natural parent and awards it to a nonparent. Ex parte McLendon, 455 So.2d 863 (Ala.1984). When there is a prior custody judgment, the party seeking a change in custody must show that the change in custody will materially promote the child’s best interests and that the benefits of the requested change will more than offset the inherently disruptive effect caused by the uprooting of the child. McLendon, supra.

In the instant case, the trial court’s September 3, 1997, order found both parents to be unfit and removed the child from the father’s custody and placed the child in the custody of E.S. and C.S. The trial court also denied the mother’s first petition to modify custody and again awarded custody to E.S. and C.S. Thus, the trial court’s orders removing the child from the custody of his parents and placing him in the custody of E.S. and C.S. implicate the Ex parte McLendon standard in any subsequent custody action regarding the child. Accordingly, the mother was required to demonstrate to the trial court that a change of custody of the child would materially promote the child’s best interest and that the benefit of that change would overcome the “ ‘inherently disruptive effect caused by uprooting the child.’ ” Ex parte McLendon, 455 So.2d at 866, quoting Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976).

The mother’s conduct reveals that she voluntary forfeited custody of the child. The child was placed in DHR’s custody, at which time it appears that DHR placed the child with E.S. and C.S. At that time, the child was three weeks old. The child was one year old when he was placed in the custody of his father; 18 months later, the child was removed from his father’s custody, and the trial court awarded custody of the child to E.S. and C.S. after the couple intervened in the custody action. The record reveals that the mother helped E.S. and C.S. bring the action to remove the child from the father’s custody but that the mother did not seek custody at that time. In 1999, the trial court denied the mother’s first petition to modify custody; approximately two years later, the mother sought custody of the child in this action.

The evidence presented before the trial court indicates that E.S. and C.S. have cared for the child for six years of his life. The child participates and excels in “t-ball” and basketball. C.S. stays at home with the child and supports all of the child’s extracurricular activities. Testimony revealed that the child has made numerous friends and is very close with E.S. and C.S.’s extended family. The child views E.S. and C.S. as his “psychological” parents, and, throughout the counseling process, the child has consistently voiced his desire to live with E.S. and C.S. Indeed, both the mother and E.S. and C.S. agreed at trial that the child wants to reside with E.S. and C.S. in Alabama.

The mother is employed as a deputy sheriff and works the second shift from 3:00 p.m. until midnight. When the mother is at work while the child is visiting, the maternal grandmother is the primary caregiver to the child. The mother shares a home with the maternal grandmother, the maternal grandmother’s boyfriend, and the mother’s daughter from a prior marriage. The mother indicated that she was not looking for another home, and was not looking for a different job offering hours that would better accommodate taking care of the child.

Both Stuckey and Pritchett testified that the transition plan was in the child’s best interests; however, both admitted that it was difficult to determine if the transition would be successful. If returned to the custody of the mother, the child would possibly suffer from depression and inattention at school and would suffer a total disruption to his life by losing his friends and the only family he has known.

The evidence presented to the trial court by the mother fails to illustrate how a change of custody will materially promote the best interests and welfare of the child so as to outweigh the disruption caused by such a change of custody. See Ex parte McLendon, supra. The mother testified that she believed it would be in the child’s best interests to live with her in Louisiana, but she failed to present evidence supporting her claim that a change of custody would outweigh the disruption that would certainly be caused if the child was removed from the custody of E.S. and C.S. We note that the mother waited almost five years before petitioning the trial court for custody of the child. For most of his life, the child has been primarily in the custody of E.S. and C.S. Given the evidence before us for review, we cannot say that the trial court erred in dismissing the mother’s petition to modify custody of the child.

AFFIRMED.

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

CRAWLEY, J., concurs in the result.

      . The record is devoid of any information regarding the exact time the mother enlisted in the military and the date on which she moved to Germany.

      . The record indicates that, with the agreement of the parlies, the trial court held an in camera interview with the child during the final hearing. The record does not indicate whether any statements made by the child during the interview affected the judgment of the trial court.