text:
    I.S.T. v. R.W.B.
    2090585.
    Court of Civil Appeals of Alabama.
    July 23, 2010.

      Leonard F. Mikul, Bay Minette, for appellant.
   THOMPSON, Presiding Judge.

An earlier opinion of this court set forth the procedural history of this case as follows:

“In March 2008, R.W.B. (‘the father’) filed a complaint seeking to terminate the parental rights of his former wife, I.S.T. (‘the mother’), to the parties’ minor child, J.B. (‘the child’). References in the record indicate that, at approximately the same time, the father also filed a separate action seeking to modify the visitation provisions of the judgments pertaining to the parties’ divorce and their postdivorce litigation. The transcript of the ore tenus hearing in this matter indicates that the juvenile court considered the actions together and that it treated the modification-of-visitation claim to be moot after it reached its decision to terminate the mother’s parental rights. On June 15, 2009, the juvenile court entered a judgment terminating the mother’s parental rights to the child. The mother timely appealed.”

I.S.T. v. R.W.B., 42 So.3d 128, 128 (Ala.Civ.App.2010) (“I.S.T. I”).

In I.S.T. I, supra, this court reversed the termination judgment because the juvenile court had applied an incorrect standard. This court explained:

“Our legislature has specified that parental rights may be terminated only if the trial court receives ‘clear and convincing evidence’ supporting the termination. Specifically, the 1984 Child Protection Act, § 26-18-1 et seq., Ala.Code 1975, which governed actions pertaining to the termination of parental rights, specified, in part:
“ ‘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.’
“§ 26-18-7(a), Ala.Code 1975. See also D.O. v. Calhoun County Dep’t of Human Res., 859 So.2d 439, 443 (Ala.Civ.App.2003) (‘A nonparent who seeks to terminate a parent’s parental rights must prove by clear and convincing evidence that the children are dependent and that there are no viable alternatives to the termination of parental rights.’); and Ex parte Beasley, 564 So.2d 950 (Ala.1990) (same).”

I.S.T. I, 42 So.3d at 128-29 (footnote omitted).

On February 6, 2010, the juvenile court entered a judgment identical to the original termination judgment except for a statement indicating that it had found, by clear and convincing evidence, that the mother’s parental rights should be terminated. The mother timely appealed.

The record indicates that the parties are divorced; the date of that divorce judgment is not contained in the record on appeal. The record indicates that the same judge who entered the divorce judgment presided over this matter as a juvenile court judge.

At the time of the June 3, 2009, termination hearing, the child had recently completed the second grade, and he turned eight years of age in the month after the termination hearing. The father testified that he has been the primary physical custodian for the child since 2004 or 2005.

The father alleged that the mother used illegal drugs, but his testimony provided no details regarding that allegation. The father also stated that the mother had been arrested numerous times since he had obtained custody of the child. The father alleged that those arrests included charges of possession of drug paraphernalia. The record contains no other evidence pertaining to those alleged charges.

The mother denied that she currently uses illegal drugs, and she stated that she goes to a methadone clinic. According to the mother, the terms of the parties’ divorce judgment provided that each would submit to the other’s request for a drug-screen test but that the requesting party had to pay for the test; the mother stated that the father had never requested that she submit to a drug-screen test.

The mother admitted to having been arrested eight times since 2005. The mother explained that those recent arrests were for outstanding warrants or tickets; she insisted that none of the arrests was drug-related and that, with respect to drugs, she had “remained out of trouble for over two years.”

It is undisputed that in the three to four years before the termination hearing the mother had not maintained her own residence; rather, the mother had lived with men with whom she was in a relationship or had lived with her father when she was between relationships. In 2005, the mother was involved with a man and the court ordered that the mother not allow the child to have any involvement with that man. The mother then lived with a second man and then, until shortly before the termination hearing, with another man named Boyington.

The record does not set forth a clear picture of the frequency and nature of the mother’s visitation with the child before the spring of 2008. The father testified that the mother’s visitation with the child had been intermittent. He explained that when the mother was released after an arrest, she typically asked for visitation with the child and attempted a more appropriate lifestyle for a period of time. However, there is no evidence in the record pertaining to the length of the intervals between the mother’s visitation with the child.

The father testified that since 2005 the mother has violated the terms of the parties’ divorce judgment by visiting the child in the presence of the man with whom she was living at that time. The mother stated that she usually spent time alone with the child during at least some of the visitation, and she testified that the father had never objected to the presence of any of her boyfriends during visitation.

According to the father, in March 2008, when the child was in first grade, the mother began enforcing the visitation rights afforded her under the parties’ divorce judgment; we note that the father’s termination complaint was also filed in March 2008. The record is not clear as to whether the mother sought visitation in response to the father’s March 19, 2008, termination complaint or whether that complaint was filed in response to the mother’s seeking visitation with the child. Regardless, the father testified that law-enforcement officials had forced him to allow visitation at that time. The father stated that that was the most recent period during which the mother had spent any substantial time with the child.

The father stated that difficulties with visitation began immediately upon the resumption of the mother’s visitation. According to the father, the mother returned the child to his custody progressively later after each visit. The mother testified that the visitation occurred between March and June 2008, and that it went well. She stated that she exercised her alternating weekend visitation during that time and spoke on the telephone with the child every night.

The father testified that the mother was to have some extended visitation -with the child during the summer after he completed first grade. The father described the child as being reluctant to visit the mother at that time. Shortly after the child began visiting the mother, the mother became involved in a violent altercation with Boyington, the man with whom she was then living. The record does not clearly explain the sequence of events, but it is clear that the child was quickly returned to the father’s custody and has not visited the mother since that time. The father testified that the child had witnessed the confrontation between the mother and Boyington and that the child had been frightened by it.

The mother stated that the father has denied her visitation with the child since June 2008. The mother testified that she had attempted to visit the child at his school in November 2008 but that she had not been allowed to do so. The mother explained that although she requested assistance from law enforcement at that time, the officer refused to assist her in enforcing her visitation rights. At that point in the mother’s testimony, the juvenile court judge indicated that she recalled that incident; the juvenile court judge stated that, on that occasion, the law-enforcement officer had contacted her and had stated that he was unwilling to enforce visitation because the mother appeared to be under the influence of something. The juvenile court judge further stated that she had instructed the law-enforcement officer to use his judgment in determining whether to assist the mother in obtaining visitation. The mother testified that she had not attempted to obtain visitation with the child after that November 2008 incident because, she stated, she wanted to wait for the scheduled court hearing on the father’s termination complaint.

The mother acknowledged that she had been involved in a pattern of continued domestic violence. The mother attempted to minimize that pattern by stating that she had been the victim in each of those incidents. The mother testified that she had ended her relationship with Boyington a week before the termination hearing.

The father alleged that the mother has bipolar disorder. The mother, however, stated that she has a “borderline personality disorder” for which she does not seek mental-health treatment; the mother contends that she does not need medication for that condition. The mother testified that, at the time of the termination hearing, she was taking Lortab for carpal tunnel syndrome. As explained, infra, the mother had not been employed for several years at that time.

The father alleged that the mother has not contributed to the support of the child and that she did not bring the child gifts on holidays or on his birthday. The mother stated that she had given the father $100 toward the child’s support, and she explained that the father had not let her be with the child on holidays or his birthday. The mother was not employed at the time of the termination hearing, and she admitted that she had last been employed, for a period of one month, in 2006. The mother stated that she had applied for Social Security disability benefits for some unspecified physical disability.

The father testified that the mother’s intermittent visitations and appearances in the child’s life have been stressful for the child. According to the father, he and the child never know when the mother might appear for visitation. The father alleged that the child’s school work declined after visitation with the mother resumed when he was in first grade but that his grades have improved in the time since the mother stopped visiting him. The mother testified, however, that she has a good relationship with the child and that the child is interested in being around her and “getting” to know her. According to the mother, at the time of the termination hearing she was living in her father’s home, but she intended to exercise visitation with the child in the home of her aunt.

At the conclusion of the termination hearing, the juvenile court stated:

“I’ve had this case before for the divorce-type and post-divorce-type matters. I do recall having to enter a rather structured order because there were concerns. That there were concerns on mom’s end of things that something wasn’t quite right. And that — with mom something wasn’t quite right, and with dad, there was an allegation that dad was trying to alienate the child, even back then. And as time has rocked on, it appears that for whatever reason mom has not seen the child, but I can’t be completely convinced that it is simply due to her just walking away; however, having said that, I do think that there is clear, convincing evidence that she suffers from some sort of emotional or mental illness such that she cannot care for the needs of this child. And that that is unlikely to change because that was the same concern that I had years ago as to why she didn’t have custody of this child. I think that it has continued on. And that I think that burden has been met on those grounds and I will grant the petition on those grounds.... I am not going to say it makes me happy to enter an order like that, but I think that it is something that I have to do considering the evidence that has been presented today.”

In its February 6, 2010, judgment terminating the mother’s parental rights, the juvenile court found, among other things, “that the emotional illness, mental illness, mental deficiency of the mother, and excessive use of alcohol and controlled substances, [are] of such duration or nature as to render the mother unable to care for the needs of the child.” The juvenile court also determined that there were no alternatives to, and that the child’s best interests would be served by, the termination of the mother’s parental rights.

The father filed his petition seeking to terminate the mother’s parental rights on March 19, 2008, before the January 1, 2009, effective date of the Alabama Juvenile Justice Act, § 12-15-101 et seq., Ala. Code 1975. Therefore, this case is governed by the former Child Protection Act (“the former CPA”), § 26-18-1 et seq., Ala.Code 1975 (repealed). The former CPA specified that a juvenile court could terminate parental rights under the following circumstances:

“(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 ... leading toward the rehabilitation of the parents have failed.
“(7) That the parent has been convicted by a court of competent jurisdiction of [certain enumerated crimes.]
“(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 ..., 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 ... 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.”

Former § 26-18-7.

When a custodial parent seeks to terminate the parental rights of the noncustodial parent, our supreme court has stated:

“The two-prong test that a court must apply in a parental rights termination case brought by a custodial parent consists of the following: First, the court must find that there are grounds for the termination of parental rights, including, but not limited to, those specifically set forth in § 26-18-7. Second, after the court has found that there exist grounds to order the termination of parental rights, the court must inquire as to whether all viable alternatives to a termination of parental rights have been considered....
“Once the court has complied with this two-prong test — that is, once it has determined that the petitioner has met the statutory burden of proof and that, having considered and rejected other alternatives, a termination of parental rights is in the best interest of the child — it can order the termination of parental rights. Such a construction of the Uniform 1984 Child Protection Act [now revised, reorganized, and replaced by the Alabama Juvenile Justice Act, § 12-15-101 et seq., Ala.Code 1975, effective January 1, 2009,] clearly comports with the stated purpose for the Act.”

Ex parte Beasley, 564 So.2d 950, 954-55 (Ala.1990).

On appeal, the mother asserts several arguments in support of her general contention that the juvenile court erred in terminating her parental rights. She contends that the evidence in the record on appeal is not sufficient to warrant the termination of her parental rights, and she maintains that there exist viable alternatives to the termination of her parental rights.

Specifically, the mother challenges the juvenile court’s finding that she suffered from a mental illness or that she used controlled substances or alcohol to the extent to render her unable to care for the child; the mother argues that the evidence in the record does not support that determination. The evidence in the record pertaining to the mother’s mental condition is the father’s statement that the mother suffers from bipolar disorder and the mother’s testimony that she has a borderline personality disorder. The record contains no other evidence pertaining to any mental condition of the mother or to how that condition has affected her ability to respond to the needs of the child. As indicated earlier, the juvenile court found that “something wasn’t quite right” with the mother. We acknowledge that the juvenile court was in the best position to observe the mother as she testified and to evaluate her demeanor. J.S.M. v. P.J., 902 So.2d 89, 96 (Ala.Civ.App.2004). However, we cannot agree that mere allegations of a diagnosed mental-health condition and the trier of fact’s determination that “something [is not] quite right” with a parent are sufficient grounds on which to base a termination of that parent’s parental rights. The record simply does not contain sufficient evidence on the issue of the mother’s mental condition.

The evidence in the record pertaining to the mother’s use of alcohol or illegal drugs is similarly vague. The record indicates that the mother has abused some substance at some point in the past. The evidence, however, does not address when the mother last abused that substance or her history of substance abuse. The father alleged that the mother had been arrested numerous times and that he thought those charges were related to drug offenses; the mother stated, however, that the arrests were related to tickets and other activity not involving drugs. The other references to drug or alcohol use contained in the record were that the mother was suspected to be under the influence as recently as November 2008, when her attempt at enforcing visitation was refused by the law-enforcement officer, the mother’s seeking assistance at the methadone clinic, and the mother’s taking Lortab for pain at the time of the termination hearing.

A review of the transcript and the juvenile court’s comments at the conclusion of the termination hearing indicate that the parties have presented evidence to the juvenile court judge on several different occasions; some of those occasions occurred when the juvenile court judge was serving in her capacity as the circuit court judge presiding over the parties’ divorce and postdivorce litigation. It appears from references by the parties and the manner in which they presented evidence that the juvenile court was very familiar with the history and underlying facts of this case. However, the record on appeal, which is all that this court has to review, does not contain those facts and underlying history.

We acknowledge that the juvenile court might have knowledge of facts, other than those submitted into evidence at the termination hearing, that are sufficient to warrant the termination of the mother’s parental rights. However, it was the burden of the father, as the party seeking to terminate the mother’s parental rights, to present clear and convincing evidence in support of termination. Former § 26-18-7(a), Ala.Code 1975; I.S.T. I, supra. “Clear and convincing evidence” is “ ‘Evidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.’ ” L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002) (quoting § 6-11-20(b)(4), Ala.Code 1975). Our review of the record on appeal leads us to conclude that the father did not, at the termination hearing transcribed in the record on appeal, present clear and convincing evidence warranting the termination of the mother’s parental rights. Accordingly, based on the record presented to this court, we must reverse the juvenile court’s termination judgment.

We note that some of the evidence the father presented pertained to difficulties with or incidents during visitation and the distress that visitation caused the child. It is clear that the mother is not a model parent. However, many of the concerns regarding visitation may be addressed through a proceeding seeking to modify visitation.

REVERSED AND REMANDED.

PITTMAN and THOMAS, JJ., concur.

BRYAN and MOORE, JJ., concur in the result, without writings.

      . It is not clear from the record whether the 2005 proceeding was the parties' original divorce action or a modification action.


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    W.A. KENDALL & COMPANY, INC. v. Ryan MADISON, a minor, by and through his paternal grandmother and next friend, Linda Locke Madison.
    2080806.
    Court of Civil Appeals of Alabama.
    July 23, 2010.

      Anthony N. Fox and Robert M. Ronn-lund of Scott, Sullivan, Streetman & Fox, P.C., Birmingham, for appellant.
    Bernard D. Nomberg and David P. Nomberg of The Cochran Firm, Birmingham, for appellee.
   BRYAN, Judge.

W.A. Kendall & Company, Inc. (“W.A. Kendall”), appeals from a judgment awarding Benjamin Dean Madison workers’ compensation benefits. We reverse and remand.

In its judgment, the trial court made extensive findings of fact, some of which we now recite:

“[W.A. Kendall hired Madison] as a bucket operator and tree climber.
“... [Madison’s] job duties with [W.A. Kendall] required him to climb, cut and clear trees and brush at job sites where [W.A. Kendall] was hired to work. [Madison] testified that it was very common to get scratches, cuts and[ ] scrapes on his arms while doing this type of work.
“.... Beginning in September, 2005, Madison worked for [W.A. Kendall] in ... Texas cleaning up fallen trees [after Hurricane Katrina had made landfall]. [Madison] testified that the living conditions for this job were often primitive, camping out in two-man tents at an abandoned schoolhouse while bathing in creeks and ponds as there was no electricity or running water for several weeks. ...
“.... [Madison] testified that not long after he started work in Texas, while still living in tents, he became ill and noticed he had two boils under his left arm[, ie., in the area of his left armpit]. He informed a supervisor named Billy McCollum. On September 26, 2005, Madison was taken by Mr. McCollum to Memorial Hermann Baptist Hospital in Beaumont, Texas for treatment. The boils were lanced, he was given a shot[,] and [he] then returned to work. [W.A. Kendall] did not pay for this medical care to [Madison].”

Madison testified that, after the left-armpit boils were lanced, he did not experience a recurrence of boils in that area. Madison continued to work his normal job in Texas during the fall of 2005. In early December 2005, Madison returned to Alabama, where he continued to work for W.A. Kendall. Madison’s mother, Linda Locke Madison, testified at trial that Madison had a persistent wound on his right wrist when he returned to Alabama. In its judgment, the trial court found that Madison had sustained the right-wrist wound “while working in Texas.”

In mid-December 2005, Madison developed a fever while at work one day. Madison notified his supervisor that he had a fever and that he needed to see a doctor. However, Madison sat in his automobile the remainder of the work day; he did not return to work the following day. Shortly thereafter, on December 15, 2005, Madison’s mother found Madison unconscious. Ms. Madison took Madison to Northwest Medical Center (“NMC”) in Winfield, Alabama, where he was admitted. It was determined that Madison, who was diabetic, was suffering from diabetic ketoacidosis. On December 18, 2005, while at NMC, Madison was diagnosed as having a staph infection in his bloodstream. The trial court found:

“Ms. Madison ... testified that after her son was first admitted to [NMC], she called [W.A. Kendall’s] place of business and notified them that her son was in the hospital and very ill. She spoke with a[n unidentified] female. ... This phone call was on or about December 19, 2005. Ms. Madison testified that neither she nor her son ever heard back from anyone in management or supervisors at [W.A.] Kendall in response to this call.”

During his stay at NMC, Madison continued to have a “nonhealing” wound on his right wrist. The wrist wound was red, swollen, and appeared to be infected. On December 23, 2005, Madison was released from NMC, but he was readmitted to that hospital on December 27, 2005, after experiencing shortness of breath.

Soon after returning to NMC, Madison was diagnosed as having endocarditis of the mitral valve in his heart. On December 28, 2005, Madison was transferred to the University of Alabama at Birmingham Hospital (“UAB Hospital”). On January 10, 2006, while at UAB Hospital, Madison underwent surgery to replace his infected mitral valve. The trial court found that, while he was “at UAB [Hospital,] ... Madison learned that the staph infection [had led] to [his] endocarditis.” Also while he was at UAB Hospital, Madison had surgery to repair a hole in his esophagus. The trial court noted that Madison later suffered from blurred vision, permanent vision loss, headaches, “mini strokes” occurring in his eyes, congestive heart failure, and kidney damage.

On September 18, 2006, Madison sued W.A. Kendall, seeking workers’ compensation benefits. The complaint alleged that Madison had contracted his staph infection as a result of his employment with W.A. Kendall and that the staph infection had subsequently caused injuries to Madison’s heart, kidneys, and esophagus. W.A. Kendall answered and denied liability. The trial court held a trial on December 9, 2008. At trial, the parties disputed, among other things, whether Madison had given proper notice of his allegedly work-related injuries. On May 26, 2009, the trial court entered a judgment determining that Madison was permanently and totally disabled and awarding him accrued and future permanent-total-disability benefits and accrued and future medical expenses. In its judgment, the trial court indicated that both Madison’s right-wrist injury and the two boils that had been lanced in Texas were “factors of causation” regarding his staph infection. The trial court then found that Madison’s staph infection in turn led to his endocarditis and “several related and permanent medical conditions.” The trial court determined that W.A. Kendall had received proper notice because, the trial court found, W.A. Kendall had received notice of Madison’s boils in September 2005. The trial court found: “[Madison] suffered an on-the-job injury and ... he notified [W.A. Kendall] by verbally informing his supervisors of the boils on his left arm. The Court therefore finds that the notice provisions have been met.” The trial court did not address whether W.A. Kendall received proper notice of Madison’s right-wrist injury. W.A. Kendall timely appealed.

Section 25-5-81(e), Ala.Code 1975, provides the standard of review in workers’ compensation cases:

“(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.
“(2) In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.”

Substantial evidence is “ ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).

Because Madison sought benefits for injuries allegedly caused by a work-related accident, at trial he bore the burden of establishing the necessary elements of his claim by a preponderance of the evidence. § 25-5-81 (c), Ala.Code 1975.

“ ‘Although “substantial evidence” must be found by the appellate court in order to sustain the trial court’s findings in any workers’ compensation case, it is necessary to take into consideration the nature qf the finding that must be made by the trial court in order to determine what qualifies as “substantial evidence” to support that finding. In a case in which, in order to find for the plaintiff, the trial court is required to find that a given fact has been established by a “preponderance” of the evidence, the evidence is not sufficient to allow appellate affirmance of a judgment based on that finding unless the record contains evidence from which the fact-finder reasonably could have determined that the fact was proven by a preponderance of the evidence.’ ”

Ex parte McInish, 47 So.3d 767, 774 (Ala.2008) (quoting KGS Steel, Inc. v. McInish, 47 So.3d 749, 759 (Ala.Civ.App.2006) (Murdock, J., concurring in the result)).

On appeal, W.A. Kendall argues (1) that Madison’s staph infection and resulting complications were not medically caused by his boils but, rather, by his right-wrist wound; and (2) that Madison did not provide W.A. Kendall notice of his right-wrist wound. We first address the medical-causation issue.

“In determining medical causation, the trial court must consider the totality of the evidence, including the circumstantial evidence, lay testimony, and medical records. Ex parte Price, 555 So.2d 1060 (Ala.1989). ‘It is in the. overall substance and effect of the whole of the evidence, when viewed in the full context of all the lay and expert evidence, and not in the witness’s use of any magical words or phrases, that the test finds its application.’ Price, 555 So.2d at 1063.”

Waters Bros. Contractors, Inc. v. Wimberley, 20 So.3d 125, 133 (Ala.Civ.App.2009). To establish medical causation in cases based on an accident, an employee must show that the accident caused or was a contributing cause of the injury. Page v. Cox & Cox, Inc., 892 So.2d 413, 417 (Ala.Civ.App.2004).

W.A. Kendall contends that Madison’s staph infection and resulting complications did not originate with the boils that were lanced while Madison was working in Texas. Therefore, W.A. Kendall argues, whether Madison gave notice of those boils is immaterial to a determination of the compensability of the staph infection and the resulting complications. Medical evidence in the record indicates that a staph infection typically is caused when staph bacteria existing on the skin enters the body through a break in the skin. As noted, Madison’s staph infection was detected on December 18, 2005, while he was at NMC. Dr. James Hatfield treated Madison during his stay at NMC. The trial court cited the following deposition testimony by Dr. Hatfield as evidence that Madison’s boils caused his staph infection:

“Q- [By counsel for Madison:] ... [Madison has] testified while he was in Texas doing this cleanup, some boils appeared on his body.
“A. Okay.
“Q. And that while he was out there, he had to go get medical treatment to have them lanced....
“A. Okay.
“Q. ... With all of that said, do you have an opinion as to how [Madison] acquired the Staph infection that eventually le[d] to these serious medical conditions he was treated for ... ?
“A. [T]his story that you’re telling me and this quarantine from ... ‘scabies’ [related by Madison’s] mother may have been ... lost in translation ... from [Madison] to his mother.[] At any rate, if that’s the infection that he’s talking about, these lances, these abscesses or boils, very well could have been Staph infections at that time. We do. know that we all have Staph infections that live on our skin. Well, abscesses or boils, the risk factors for developing boils or abscesses are poor hygiene, contusions, abrasions, close contact with other patients with Staph[,] such[] as football teams [and] prisoners. So he certainty has a lot of risk factors for developing Staph infections.”

Dr. Hatfield’s testimony is somewhat ambiguous. For one, he prefaced his answer with a reference to “scabies,” a condition that apparently has no relevance in this case, and he further prefaced his answer with the conditional statement “if that’s the infection that he’s talking about.” Dr. Hatfield testified that the “abscesses,” “boils,” and the “lanc[ing]” of those boils “very well could have been Staph infections.” However, it is unclear whether Dr. Hatfield intended to say whether the “abscesses,” “boils,” and the “lanc[ing]” of those boils were indications of an already existing staph infection or whether they actually caused Madison’s staph infection.

Shortly after providing the testimony quoted above, Dr. Hatfield testified:

“A. ... [W]hether [Madison’s] Staph [infection] came from the skin wound, I don’t know. Maybe the infectious disease specialist and maybe the cardiotho-racic surgeon may have a better idea. But it appears to be in my opinion.
“Q. [By counsel for W.A. Kendall:] Are you able to determine to a reasonable degree of medical certainty [that Madison’s various medical problems] came from the abrasion on the wrist?
“A. This ... infection of the skin is just one piece of the perfect disease.”

Therefore, although it is unclear, it appears that Madison’s wrist injury was the “skin wound” that Dr. Hatfield opined apparently caused Madison’s staph infection. This conclusion is supported by earlier testimony by Dr. Hatfield:

“A. ... [When Madison was being-treated at NMC] it was discovered that he had ... a non-healing wound of his right wrist. And this wound become more red and swollen and warm to touch. It looked as if ... it was infected. And so this was a ... possible source for [staph infection].
“Q. [By counsel for Madison:].... Did you discuss with any of [the other doctors at NMC] the cause or origin of these symptoms that Mr. Madison was experiencing while [at NMC]?
“A. We ... discussed [it], and it was felt that his ... Staph [infection] could have been and was very likely related to his skin infection.”

Dr. Hatfield’s testimony seems to indicate that Madison’s wrist wound was the likely source of his staph infection. However, regarding whether Madison’s boils that were lanced in Texas caused his staph infection, Dr. Hatfield’s testimony is unclear.

Dr. James Willig, a physician whose practice concentrates on infectious diseases, treated Madison following his mi-tral-valve-replacement surgery. Ms. Madison cites the following testimony by Dr. Willig as evidence that the two boils that Madison developed in Texas caused his staph infection:

“Q. [By counsel for Madison:] ... [I]t’s your opinion that ... from a medical standpoint, the most likely source of the infection was the opening in the wrist?
“A. The opening in the wrist complicated by the subsequent boils and infections there, yes.”

(Emphasis added.) The “boils” referenced by Dr. Willig occurred after Madison sustained a wrist wound and at the location of that wrist wound. The two boils that developed in Texas were lanced and resolved in September 2005, apparently before Madison injured his wrist. The two boils that Madison developed in Texas were located in his left armpit, but the boils referenced by Dr. Willig in his testimony were located on Madison’s right wrist. Therefore, the boils mentioned by Dr. Willig as indicating the source of the staph infection were not the two boils that Madison had lanced in Texas.

Dr. Willig’s testimony indicated that he believed that Madison’s wrist injury was the likely source of his staph infection. Dr. Willig further testified:

“Q. [By counsel for Madison:] ... [D]o you have an opinion as to whether or not Mr. Madison’s staph infection was from his workplace exposure and the break in the skin, the boils that developed ... ?
“A. ... The fact that he had an infection, a pus producing infection on his wrist a few weeks before [the staph infection was discovered] and had been undergoing treatment for that, to us it’s almost a smoking gun, if you will, that ... here’s an active site of infection that would have given him entry into the bloodstream.
“Q. ... Taking into consideration [Dr. Hatfield’s testimony], does that further confirm to you ... that the most likely scenario medically [is] that it’s from the right wrist where this [staph] infection came from?
“A. [Dr. Hatfield] goes as far as to state that it was infected and that it was a possible source of [the staph infection], I think this is pretty much what we’ve mentioned in the past. I mean, if there’s an active infection, it’s just the smoking gun.”

Dr. David McGiffin performed the mi-tral-valve-replacement surgery on Madison at UAB Hospital after he was diagnosed with endocarditis. Dr. McGiffin traced Madison’s endocarditis to his right-wrist wound. Dr. McGiffin testified:

“Q. [By counsel for W.A. Kendall:] Where things get fuzzy from what I understand, Doctor, is the cause of the endocarditis?
“A. It’s not fuzzy in my mind.
“Q. And Doctor, what are your opinions as to the cause of the endocarditis?
“A. The overwhelming likelihood is that the infection that he had on the hand[, ie., wrist,] seeded the mitral valve....”

After a careful consideration of the evidence, we conclude that there is not substantial evidence supporting a finding that the two boils that Madison developed in his armpit in Texas medically caused his staph infection and resulting complications. That is, the record does not contain evidence fi*om which the trial court reasonably could have determined, by a preponderance of the evidence, that the boils caused Madison’s staph infection and resulting complications. Ex parte McInish, 47 So.3d at 778. The overwhelming evidence in this case indicates that Madison’s right-wrist wound, not the two boils in his left armpit, caused or contributed to the staph infection and the resulting complications.

As noted, the trial court found that Madison provided proper notice in this case by providing notice of the boils that developed in his left armpit while working in Texas. However, because we conclude that those boils did not medically cause the staph infection and the resulting complications, it follows that notice of those boils is irrelevant with respect to those injuries. W.A. Kendall argues that Madison did not provide proper notice in this case because, W.A. Kendall says, Madison did not provide notice of his right-wrist injury. Although we conclude that there is not substantial evidence demonstrating that Madison’s left-armpit boils caused his staph infection and resulting complications, the trial court found that both Madison’s right-wrist wound and his left-armpit boils were “factors of causation” regarding the staph infection and the resulting complications. The trial court did not determine whether Madison provided proper notice to W.A. Kendall of the right-wrist injury. Whether an employer has received proper notice of an injury is a question of fact to be determined by the trial court. Davis v. Paragon Builders, 652 So.2d 762, 764 (Ala.Civ.App.1994). Accordingly, we reverse the trial court’s judgment insofar as it found that Madison’s left-armpit boils caused his staph infection and resulting complications, and we remand the case for the trial court to make a factual finding regarding whether Madison provided proper notice of his right-wrist injury.

REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN, THOMAS, and MOORE, JJ., concur.

THOMPSON, P.J., concurs in the result, without writing.

      . Madison died during the pendency of this appeal. Following the filing of a suggestion of death and a motion to substitute, this court substituted Madison’s dependent son, Ryan Madison, by and through his paternal grandmother and next friend, Linda Locke Madison, as the appellee. See Rule 43, Ala. R.App. P.; and § 25-5-57(a)(5), Ala.Code 1975.

      . When Madison was admitted to NMC, because he was not lucid, Ms. Madison provided an account of her son's medical history. At that time, Ms. Madison stated that Madison, while working in Texas, had acquired scabies, a contagious itch or mange caused by mites, see Merriam-Webster's Collegiate Dictionary 1106 (llth ed. 2003), and had consequently been quarantined. This account of scabies and quarantine was not discussed at trial and was not cited by the trial court in its judgment, other than in the above quotation by Dr. Hatfield.


author: KELLUM, Judge.

text:
    Corion Lashawn MOORE v. STATE of Alabama.
    CR-09-0398.
    Court of Criminal Appeals of Alabama.
    June 25, 2010.
    Christopher Wayne Brodie, Montgomery, for appellant.

      Troy King, atty. gen., and Cecil G. Bren-dle, Jr., asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Corion Lashawn Moore, appeals from the circuit court’s revocation of his probation. The record indicates that on or about May 2, 2008, Moore pleaded guilty to unlawful possession of marijuana in the second degree. The circuit court sentenced Moore to 365 days in the county jail; however, that sentence was suspended, and Moore was placed on two years’ supervised probation.

On June 23, 2009, the State filed a motion seeking to revoke Moore’s probation based on new criminal charges of unlawful possession of a controlled substance, unlawful possession of marijuana in the first degree, and carrying a concealed weapon. On December 15, 2009, the circuit court conducted a brief hearing at which Moore, defense counsel, and the State were present. At the conclusion of that hearing, the circuit court entered an order revoking Moore’s probation. This appeal followed.

On appeal, Moore contends (1) that the circuit court erroneously revoked his probation without first conducting a revocation hearing, and (2) that the circuit court’s order revoking his probation is deficient because it did not adequately set forth the specific evidence relied on or the specific reasons for revoking his probation as required by Rule 27.6(f), Ala. R.Crim. P.

“‘The general rules of preservation apply to probation revocation hearings. Puckett v. State, 680 So.2d 980, 983 (Ala.Crim.App.1996), citing Taylor v. State, 600 So.2d 1080, 1081 (Ala.Crim.App.1992). This Court “has recognized, in probation revocation proceedings, only two exceptions to the general rule that issues not presented to the trial court are waived on appeal: (1) the requirement that there be an adequate written order of revocation ..., and (2) the requirement that a revocation hearing actually be held.” Puckett, 680 So.2d at 983.’ ”

Bauer v. State, 891 So.2d 1004, 1006 (Ala.Crim.App.2004) (quoting Owens v. State, 728 So.2d 673, 680 (Ala.Crim.App.1998)). This court has also recognized a third exception a defendant can raise for the first time on appeal—the requirement that the court advise the defendant of his or her right to request an attorney to represent the defendant during probation-revocation proceedings. See Law v. State, 778 So.2d 249, 250 (Ala.Crim.App.2000).

Moore challenges the sufficiency of the probation-revocation hearing and the adequacy of the circuit court’s probation-revocation order for the first time on appeal. However, the issues fall within one of the three exceptions to the general preservation requirement; they are, therefore, properly before this court for review.

Regarding his contention that the circuit court failed to conduct a probation-revocation hearing, Moore specifically argues that the hearing conducted on December 15, 2009, at which no testimony or evidence was presented, was not sufficient to constitute a probation-revocation hearing as required by § 15-22-24, Ala.Code 1975, and that the circuit court failed to comply with the requirements of Rule 27.6, Ala. R.Crim. P.

In Hollins v. State, 737 So.2d 1056, 1057 (Ala.Crim.App.1998), this court held:

“Section 15-22-54, Ala.Code 1975, requires a hearing as a prerequisite to the revocation of probation. This statutory requirement is mandatory and jurisdictional. Story v. State, 572 So.2d 510 (Ala.Cr.App.1990). Additionally, the appellant was denied his constitutional right to due process by the revocation of his probation without a hearing. The minimal due process to be accorded a probationer before his probation can be revoked includes written notice of the claimed violations of probation, disclosure to the probationer of the evidence against him, an opportunity to be heard in person and to present witnesses and documentary evidence, the right to confront and to cross-examine adverse witnesses, a neutral and detached hearing body such as a traditional parole board, and a written statement by the factfin-der as to the evidence relied on and the reasons for revoking probation. Rule 27.5 and 27.6, Ala. R.Crim. P. See Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975); Hernandez v. State, 678 So.2d 477 (Ala.Cr.App.1995).”

In support of his contention on appeal, Moore relies on this court’s holding in D.L.B. v. State, 941 So.2d 324 (Ala.Crim.App.2006). In D.L.B., the defendant, D.L.B., while on probation, was arrested on new charges of the possession and distribution of unlawful drugs. The circuit court scheduled a probation-revocation hearing on two separate occasions; however, on both occasions the hearing was continued. On the third scheduled hearing date, the circuit court conducted a brief hearing at which it heard arguments from both defense counsel and the prosecutor. No testimony was taken at the hearing. At the conclusion of the hearing, the circuit court revoked D.L.B.’s probation, noting “that it was revoking D.L.B.’s probation based on the State’s representation.” D.L.B., 941 So.2d at 325.

D.L.B. appealed the revocation of his probation, arguing that the circuit court erroneously revoked his probation without first conducting a probation-revocation hearing and that the hearing conducted by the court was insufficient to comply the requirements of § 15-22-54, Ala.Code 1975. 941 So.2d at 326. This court agreed and reversed the judgment of the circuit court, holding:

“Although the July 13, 2005, hearing purported to be a probation-revocation hearing, the court announced that it was revoking D.L.B.’s probation without hearing testimony from any State’s witnesses and without allowing D.L.B. an opportunity to be heard. Because the circuit court revoked D.L.B.’s probation based on the representations of the prosecutor, rather than on evidence presented to the court in the form of witness testimony or other legal evidence, D.L.B. was denied the right to a hearing where he could be heard and present witnesses and documentary evidence and where he could confront and cross-examine adverse witnesses.”

D.L.B., 941 So.2d at 326.

In the instant case, as in D.L.B., the circuit court revoked Moore’s probation without hearing testimony from any State’s witnesses and without allowing Moore an opportunity to be heard. The record establishes that the circuit court relied on the representations of the prosecutor, as well as the court’s own recollection of evidence presented at an earlier hearing involving Moore’s codefendant, in deciding to revoke Moore’s probation. The circuit court did not consider evidence in the form of witness testimony or other legal evidence before revoking Moore’s probation. Therefore, we must conclude that Moore was denied his right to a probation-revocation hearing. Accordingly, we reverse the circuit court’s revocation of Moore’s probation and remand this case for the circuit court to conduct a probation-revocation hearing in accordance with § 15-22-54, Ala.Code 1975, and Rule 27.6, Ala. R.Crim. P.

Because we are reversing the circuit court’s revocation of Moore’s probation on the basis that the court failed to conduct a probation-revocation hearing in compliance with Rule 27.6, we need not address Moore’s second contention pertaining to the adequacy of the circuit court’s order revoking Moore’s probation. However, we remind the circuit court that Rule 27.6(f), Ala. R.Crim. P., provides that, when revoking probation, “[t]he judge shall make a written statement or state for the record the evidence relied upon and the reasons for revoking probation.”

REVERSED AND REMANDED.

WISE, P.J., and WELCH, WINDOM, and MAIN, JJ., concur.


author: WISE, Presiding Judge.

text:
    STATE of Alabama v. Travis German HENRY.
    CR-09-0667.
    Court of Criminal Appeals of Alabama.
    June 25, 2010.
    Troy King, atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellant.
    William R. Davis, Montgomery, for ap-pellee.
   WISE, Presiding Judge.

The appellee, Travis German Henry, was indicted for unlawful possession of a controlled substance. He moved to suppress evidence a law enforcement officer seized during a patdown search. After conducting a hearing, the trial court granted Henry’s motion to suppress. This appeal by the State followed.

During the suppression hearing, Officer C. Livingston of the Montgomery Police Department testified that, on December 17, 2008, he stopped Henry’s vehicle for failing to signal a turn. Henry pulled into a service station and stopped his vehicle and, even though Livingston was approximately one car length behind him, Henry got out of his vehicle and started walking away from it toward a convenience store. Livingston testified that he told Henry to go back to his vehicle and that, as he walked toward the vehicle, Henry kept fumbling with his left pocket. He also testified that he thought Henry was getting ready to run.

Livingston testified that he did not know if Henry had a weapon, that he instructed Henry to place his hands on his vehicle, and that he started patting Henry down for his safety. He also testified that, while he was patting him down, Henry “kept moving his left hand to make me believe that it was a weapon at that time.” (R. 7.) Because of the fumbling, and before he completed the patdown, Livingston asked Henry if there was anything he needed to know. At that point, Henry said, “ ‘[M]an, I ain’t going to lie. I got some dope in my pocket.’” (R. 4.) Livingston then retrieved what appeared to be cocaine from Henry’s pocket and placed Henry under arrest.

At the end of the suppression hearing, the following occurred:

“THE COURT: Why were you patting him down?
“THE WITNESS: For my safety.
“THE COURT: So how does dope in his pocket interfere with your safety?
“THE WITNESS: Because as he was walking back toward the vehicle where I was at, he was steady reaching into his pocket.
“THE COURT: I know, but if you had patted his pocket, you would have discovered what?
“THE WITNESS: I didn’t finish patting him down. I was patting — I didn’t pat his whole body. I didn’t get to that pocket just yet.
“THE COURT: I’m saying if you had patted that pocket, do you think you would have felt something like a weapon?
“THE WITNESS: Yes. If I would have patted that pocket, yes.
“THE COURT: What weapon would you have found?
“THE WITNESS: Anything that could harm me.
“THE COURT: I’m just saying. Did he have a weapon?
“THE WITNESS: I didn’t finish the pat down.
“THE COURT: And I’m saying, why didn’t you?
“THE WITNESS: Why didn’t I?
“THE COURT: Right.
“THE WITNESS: Because I was—
“THE COURT: I thought you were concerned about your safety.
“THE WITNESS: Correct.
“THE COURT: So seem like to me if you were concerned about your safety, you would have completed the pat down. Am I right?
“THE WITNESS: Correct.”

(R. 8-9.)

The State argues that the trial court erroneously granted Henry’s motion to suppress the evidence law enforcement officers seized during a patdown search. Specifically, it contends that Livingston was justified in conducting a patdown search for weapons and that, once Henry admitted that he had drugs in his pocket, Livingston had probable cause to search him and arrest him for unlawful possession of a controlled substance.

In State v. Hill, 690 So.2d 1201, 1203-04 (Ala.1996), the Alabama Supreme Court stated the following with regard to standards of review to be applied when reviewing a trial court’s ruling on a motion to suppress:

“As a preliminary matter, we note that there has been some debate regarding the applicable standard of appellate review. In its unpublished memorandum, the Court of Criminal Appeals showed great deference to the trial court’s decision to suppress the evidence of the cocaine and marijuana. It stated:
“ ‘[A] trial court’s ruling on a motion to suppress will not be disturbed unless it is “palpably contrary to the weight of the evidence.” Patterson v. State, 659 So.2d 1014 (Ala.Cr.App.1995). The trial court is in a far better [sic] than this court to rule on the merits of a motion to suppress. Sullivan v. State, 23 Ala.App. 464, 127 So. 256 (1930). The trial court’s ruling [on] the motion to suppress was not palpably wrong.’
“The State contends that the deference of the Court of Criminal Appeals to the judgment of the trial court was unwarranted. It claims that an appellate court should review de novo the trial court’s finding that ‘reasonable suspicion’ was lacking, because the facts in the case are not in dispute. We agree.
“The trial judge made his ruling following a hearing at which he heard oral testimony only from Officer Bailey. We stated in Ex parte Agee, 669 So.2d 102 (Ala.1995):
“ ‘Where evidence is presented to the trial court ore tenus in a nonjury case, a presumption of correctness exists as to the court’s conclusions on issues of fact; its determination will not be disturbed unless clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Odom v. Hull, 658 So.2d 442 (Ala.1995). However, when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court’s judgment. Ex parte Board of Zoning Adjustment of the City of Mobile, 636 So.2d 415 (Ala.1994).’
669 So.2d at 104. Where the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the Supreme Court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court’s application of the law to those facts.’ Stiles v. Broum, 380 So.2d 792, 794 (Ala.1980) (citations omitted).”

(Emphasis added.)

In R.W. v. State, 913 So.2d 505, 512-13 (Ala.Crim.App.2005), this court addressed the issue of patdown searches as follows:

“ ‘[I]n Terry v. Ohio, [392 U.S. 1 (1968) ], the United States Supreme Court held that a limited search for weapons was partially justified by the need to protect the arresting officer from assault with a concealed weapon. “In determining whether a police officer had a basis for initiating a frisk, there are two matters to be considered: whether the officer had a sufficient degree of suspicion that the party frisked was armed and dangerous; and whether the officer was rightfully in the presence of the party frisked so as to be endangered if that person was armed.” LaFave, Search & Seizure § 9.4(a) (2d ed. 1987). By concluding that the officer had sufficient articulable suspicion to make the investigatory stop, we also conclude that the officer was rightfully in the presence of the appellant, being the party frisked. Moreover, the United States Supreme Court stated in Terry v. Ohio, supra:
“‘“The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Cf. Beck v. Ohio, 379 U.S. 89, 91 [85 S.Ct. 223, 224, 13 L.Ed.2d 142] (1964); Brinegar v. United States, 338 U.S. 160, 174-176 [69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879] (1949); Stacey v. Emery, 97 U.S. 642, 645 [24 L.Ed. 1035] (1878). And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Cf. Brinegar v. United States supra.'”
“ ‘392 U.S. at 27, 88 S.Ct. at 1883.
“ ‘ “We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous; ... he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.”
‘“Terry v. Ohio, 392 U.S. at 30, 88 S.Ct. at 1884.’
“State v. Richardson, 616 So.2d 400, 402-03 (Ala.Crim.App.1993).
“Here, Officer Drummer and other officers received a dispatch regarding an anonymous caller who reported that several young men were using illegal drugs on the porch of a residence in southwest Birmingham. The residence was in a high-crime area specifically known as an area where illegal drug activity took place; there had also been several recent burglaries in the area. When Officer Drummer and the other officers arrived, they saw several young men on the front porch of the residence as the anonymous caller described. All of the men, including R.W., were fidgeting and appeared nervous, and R.W., at one point, had his hands inside his shirt. While conducting interviews with the men, one officer discovered a ‘roach’ in a flowerbed near the porch. Considering the totality of the circumstances, we conclude that there was reasonable suspicion that R.W. was involved in criminal activity and that R.W. may have been armed so as to justify the Terry stop and frisk. Although Officer Drummer testified that he did not believe, when he initiated the patdown, that R.W. was armed, Officer Drummer’s subjective beliefs are irrelevant in determining reasonable suspicion. ‘Reasonable suspicion, like probable cause, is measured using an objective standard.’ Williams [v. State], 716 So.2d [753] at 756 [ (Ala.Crim.App.1998) ]. Considering the circumstances, a reasonably prudent person in Officer Drummer’s position would have been justified in believing that his safety as well as the safety of his fellow officers was in danger. See, e.g., Hall v. State, 897 So.2d 410 (Ala.Crim.App.2003), and Smith v. State, 884 So.2d 3 (Ala.Crim.App.2003). See also Hilliard v. Commonwealth, 17 Va.App. 23, 26, 434 S.E.2d 911, 913 (1993) (‘Suspicion of illegal drug possession and distribution is a circumstance which gives rise to an inference of dangerousness.’).”

This court has also held that

“ ‘not all stops call for a frisk.’ 3 La-Fave § 994, p. 115. A police officer may conduct a reasonable search of a person for weapons “where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.’ Terry, 392 U.S. at 27, 88 S.Ct. at 1883.
“In determining whether a frisk is justified, two factors must be considered:
“ ‘In determining whether a police officer had a basis for initiating a frisk, there are two matters to be considered. One concerns whether the officer had a sufficient degree of suspicion that the party frisked was armed and dangerous, and the other whether the officer was rightfully in the presence of the party frisked so as to be endangered if that person was armed.’ 3 LaFave at § 9.4(a), p. 109.”

Worthy v. State, 473 So.2d 634, 638 (Ala.Crim.App.1985). Finally,

“[wjhether there is probable cause to merit a warrantless search and seizure is to be determined by the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). ‘Probable cause exists where all the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been or is being committed and that contraband would be found in the place to be searched.’ Sheridan v. State, 591 So.2d 129, 130 (Ala.Crim.App.1991).”

State v. Stallworth, 645 So.2d 323, 325 (Ala.Crim.App.1994).

Based on Henry’s actions when he got out of and walked away from his vehicle, and his continued fumbling in his pocket, Livingston had reason to believe that Henry was armed and dangerous. Therefore, he was justified in performing a pat-down search for officer safety.

The trial court appears to have based its decision to grant the motion to suppress on the fact that Livingston did not complete the patdown search and its conclusion that, therefore, he must not have been truly concerned about his safety. However, Livingston testified that, because Henry continued to fumble with his pocket during the patdown search, as if trying to make him think he had a weapon, he asked Henry if there was anything he needed to know about. At that point, and before Livingston completed the patdown search, Henry admitted that he had drugs in his pocket, and Livingston retrieved the drugs from Henry’s pocket and arrested him. Henry’s admission that he had drugs in his pocket gave Livingston probable cause to reach into the pocket to retrieve the drugs. See Stallworth, supra.

For the reasons set forth herein, Livingston had reasonable suspicion to conduct a patdown search of Henry for officer safety. When Henry admitted, during that pat-down search, that he had drugs in his pocket, that reasonable suspicion ripened into probable cause for Livingston to retrieve the drugs and arrest him for unlawfully possessing them. Therefore, the trial court erred in granting Henry’s motion to suppress. Accordingly, we reverse the trial court’s judgment and remand this case for proceedings that are consistent with this opinion.

REVERSED AND REMANDED.

WELCH, WINDOM, KELLUM, and MAIN, JJ., concur.


author: MAIN, Judge.

text:
    James WRITESMAN v. ALABAMA DEPARTMENT OF CORRECTIONS.
    CR-09-0830.
    Court of Criminal Appeals of Alabama.
    June 25, 2010.
    James Writesman, pro se.
    Kim T. Thomas, gen. counsel, and Albert S. Butler, asst. gen. counsel, Alabama Department of Corrections, for appellee.
   MAIN, Judge.

James Writesman, an inmate incarcerated at Fountain/J.O. Davis Correctional Facility, filed a petition for a writ of habeas corpus, alleging a miscalculation of his minimum release date because he was not credited for the time he spent in jail in foreign states awaiting his return to Alabama. After the Alabama Department of Corrections (“DOC”) responded, the circuit court dismissed Writesman’s petition. This appeal followed.

The record indicates that Writesman was convicted of four counts of second-degree theft of property and was sentenced to concurrent terms of 18 years with 85 days of jail credit on each count: Jefferson County cases numbered CC-1989-2355, CC-1989-2356, CC-1989-2357, and CC-1989-2358, and a start date for the sentences of October 2, 1989. It further shows he was paroled on October 12, 1992, and was declared delinquent on March 15, 1993, for failure to report. He was subsequently arrested in Tennessee on December 14, 1996, and returned to the DOC on December 21,1996. It also shows he escaped from work release on September 11, 2000. He was thereafter captured and placed in jail in Florida on September 28, 2001, and was not returned to the DOC’s custody until January 17, 2002.

In his petition, Writesman claimed he is owed 7 days of credit from December 14, 1996, to December 21, 1996, while he was incarcerated in Tennessee and to 3 months and 15 days of credit from September 28, 2001, to January 17, 2002, while in prison in Florida. The DOC moved to dismiss Writesman’s petition. In support of its motion to dismiss, the DOC attached the affidavit of Mark Bruton, its correctional records assistant director, which provided that Writesman was not entitled to any credit for the periods of incarceration in Tennessee and Florida before his return to Alabama and showed the calculation for the total number of days of “dead time” as 5 years, 1 month, and 12 days (3 years, 9 months, and 6 days plus 1 year, 4 months, and, 6 days), with a minimum release date of August 18, 2012. (C. 23-25.)

The Escambia Circuit Court, the circuit court in the county where Fountain/J.O. Davis Correctional Facility is located, was the proper venue for Writes-man’s petition for habeas corpus, and it had the authority to issue a writ of habeas corpus. See Ex parte Culbreth, 966 So.2d 910 (Ala.2006). This Court has jurisdiction to consider Writesman’s appeal of the circuit court’s denial of his petition for a writ of habeas corpus challenging the DOC’s calculation of the time he must serve in prison. See § 12-3-9, Ala.Code 1975 (“The Court of Criminal Appeals shall have exclusive appellate jurisdiction of all misdemeanors, ... habeas corpus and all felonies, including all post-conviction writs in criminal cases.”). A petition for a writ of habeas corpus is the proper method by which to test whether the DOC has correctly calculated the time an inmate must serve in prison. See Austin v. Alabama Dep’t of Corr., 975 So.2d 398 (Ala.Crim.App.2007). Before an amendment effective September 1, 1999, § 15-22-32, Ala. Code 1975, stated:

‘Whenever there is reasonable cause to believe that a prisoner who has been paroled has violated his parole, the Board of Pardons and Paroles, at its next meeting, shall declare such prisoner to be delinquent, and time owed shall date from such delinquency. The warden of each prison shall promptly notify the board of the return of a paroled prisoner charged with violation of his parole. Thereupon, such board, or a single member of such board, shall, as soon as practicable, hold a parole court at such prison or at such other place as it may determine and consider the case of such parole violator, who shall be given an opportunity to appear personally or by counsel before such board and produce witnesses and explain the charges made against him. The board shall, within a reasonable time, act upon such charges and may, if it sees fit, require such prisoner to serve out in prison the balance of the term for which he was originally sentenced, calculated from the date of delinquency or such part thereof as it may determine; however, the delinquent parolee shall be deemed to have begun serving the balance of the time so required on the date of his rearrest as a delinquent parolee.”

(Emphasis added.)

The legislature amended § 15-22-32, effective September 1, 1999, to provide, in pertinent part, as follows:

“(a) Whenever there is reasonable cause to believe that a prisoner who has been paroled has violated his or her parole, the Board of Pardons and Paroles, at its next meeting, shall declare the prisoner to be delinquent, and time owed shall date from the delinquency. The warden of each prison shall promptly notify the board of the return of a paroled prisoner charged with violation of his or her parole. Thereupon, the board, a single member of the board, a parole revocation hearing officer, or a designated parole officer shall, as soon as practicable, hold a parole court at the prison or at another place as it may determine and consider the case of the parole violator, who shall be given an opportunity to appear personally or by counsel before the board or the parole court and produce witnesses and explain the charges made against him or her. The board member, parole revocation hearing officer, or a designated parole officer, acting as a parole court, shall, within a reasonable time, conduct the parole revocation hearing to determine guilt or innocence of the charges and may recommend to the board revocation or reinstatement of parole. Upon revocation of parole, the board may require the prisoner to serve out in prison the balance of the term for which he or she was originally sentenced, calculated from the date of delinquency or the part thereof as it may determine. The delinquent parolee shall be deemed to have begun serving the balance of the time required on the date of his or her rearrest as a delinquent parolee.”

(Emphasis added.) See Sundberg v. Thomas, 13 So.3d 43 (Ala.Crim.App.2009) (addressing a similar claim and holding that the DOC improperly designated time as “dead time”).

Based on the foregoing, Writesman was entitled to credit for the seven days between the date he was imprisoned in Tennessee and the date he was returned to the DOC in Alabama. Likewise, he was entitled to credit for time between the date he was incarcerated in Florida and the date he was returned to Alabama authorities. Therefore, the DOC improperly designated this time as “dead time” that cannot be credited against his sentence. Accordingly, we reverse the circuit court’s judgment and remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WISE, P.J, and WELCH, WINDOM, and KELLUM, JJ., concur.

      . We note Writesman is serving multiple sentences for multiple convictions. For purposes of sentence calculation, his concurrent sentences in cases numbered CC-1989-2355, CC-1989-2356, CC-1989-2357, and CC-1989-2358 control. See § 14-3-38, Ala.Code 1975.

      . We note that our calculations show that he would be entitled to 3 months and 20 days credit for his period of incarceration in Florida.

      .In its brief to this Court, the DOC appears to concede that Writesman is entitled to seven days of credit for the time he was incarcerated in Tennessee. However, the DOC fails to address his incarceration period in Florida before his return to Alabama.


author: QUINCE, J.

text:
    Shawn M. ARTHUR, Petitioner, v. Josette A. ARTHUR, Respondent.
    No. SC08-1675.
    Supreme Court of Florida.
    Jan. 14, 2010.
    As Revised on Denial of Rehearing Feb. 10, 2011.

      Monterey Campbell and Kristie Hatch-er-Bolin of GrayRobinson, P.A., Lakeland, Florida, for Petitioner.
    Mark A. Neumaier, Tampa, Florida, for Respondent.
   QUINCE, J.

Shawn M. Arthur seeks review of the decision of the Second District Court of Appeal in Arthur v. Arthur, 987 So.2d 212 (Fla. 2d DCA 2008), on the ground that it expressly and directly conflicts with three decisions of the First District Court of Appeal, Sylvester v. Sylvester, 992 So.2d 296 (Fla. 1st DCA 2008); Janousek v. Janousek, 616 So.2d 131 (Fla. 1st DCA 1993); and Martinez v. Martinez, 573 So.2d 37 (Fla. 1st DCA 1990). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. Based on our reasoning below, we quash the Second District’s decision in Arthur to the extent it is inconsistent with this opinion, and approve the First District’s decisions in Sylvester, Janousek, and Martinez to the extent that they are consistent with our analysis and holding.

FACTS AND PROCEDURAL BACKGROUND

In a dissolution of marriage action, the trial court granted shared parental responsibility, designating Josette A. Arthur (the Wife) as the primary residential parent. Shawn M. Arthur (the Husband) was granted reasonable visitation of the child. See Arthur v. Arthur, 987 So.2d 212, 213 (Fla. 2d DCA 2008). Moreover, and most pertinent to our decision in this case, the trial court authorized the Wife to permanently relocate with the parties’ minor child to the state of Michigan after the child reached the age of three. At the time of trial, the minor child was sixteen months old. See id. In granting the Wife’s relocation request, the trial court reasoned that the relocation was proper because the Wife proposed to move to the area where she grew up and had family, and the area was close to the Husband’s extended family. See id. at 213-14. Regarding its reasons for delaying the relocation until the child reached the age of three, the trial court explained:

[T]he Court is cognizant that children between infancy and approximately 3 years of age need more frequent contact with both parents in order to properly bond with the parents. But for the Court’s concern for the Husband’s ability to bond with his son, the Wife’s relocation would have been granted without further delay.

Id. at 214.

On appeal, the Husband argued that the trial court erred by determining that the Wife could relocate with the child approximately twenty months after the final hearing. More specifically, the Husband asserted that the trial court’s ruling was a prospective determination of the child’s best interest and that the court lacked authority to make such a determination. See Arthur, 987 So.2d at 214. Relying on the First District Court of Appeal’s decision in Janousek v. Janousek, 616 So.2d 131 (Fla. 1st DCA 1993), the Husband contended that the trial court was required to make a determination regarding relocation and the child’s best interests at the present time and to decide the issue with finality. See Arthur, 987 So.2d at 214. The Second District Court of Appeal disagreed and held that the trial court did not exceed its authority in granting the relocation request upon the child reaching the age of three. See id. The district court rejected the Husband’s claim that the trial court found relocation not to be in the best interest of the child as of the day of the trial. Instead, the Second District concluded that the trial court’s detailed findings in the final judgment supported the Wife’s relocation request. See id. Additionally, the district court concluded that Janousek was not in conflict with its decision. The district court determined that unlike the instant case, the trial court in Janousek prohibited relocation; thus Jan-ousek did not control and was factually distinguishable. See id. Accordingly, the Second District affirmed the trial court’s final judgment regarding the relocation issue. See id. at 213.

The Husband petitioned this Court for discretionary review of the Second District’s decision in Arthur. His petition was based on express and direct conflict with the First District’s decisions in Sylvester, Janousek, and Martinez. We granted review to resolve this conflict.

ANALYSIS

Section 61.13001, Florida Statutes (2006), titled “Parental relocation with a child,” establishes the procedures involved in the relocation of a child, whether relocation is sought after agreement between the parties or alternatively contested by one party. In the case of a contested relocation, the Legislature has stated that “[n]o presumption shall arise in favor of or against a request to relocate with the child when a primary residential parent seeks to move the child and the move will materially affect the current schedule of contact, access, and time-sharing with the nonrelo-cating parent or other person.” § 61.13001(7), Fla. Stat. (2006). Instead, section 61.13001(8) states:

The parent or other person wishing to relocate has the burden of proof if an objection is filed and must then initiate a proceeding seeking court permission for relocation. The initial burden is on the parent or person wishing to relocate to prove by a preponderance of the evidence that relocation is in the best interest of the child. If that burden of proof is met, the burden shifts to the nonrelo-cating parent or other person to show by a preponderance of the evidence that the proposed relocation is not in the best interest of the child.

In addition to the burden that the parties must meet, the statute outlines several factors a trial court must consider before reaching a decision on a parent’s request for permanent relocation. Section 61.13001(7) provides that the court shall evaluate:

(a) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the child’s life.
(b) The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
(c) The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, visitation, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent once he or she is out of the jurisdiction of the court.
(d) The child’s preference, taking into consideration the age and maturity of the child.
(e) Whether the relocation will enhance the general quality of life for both the parent seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities.
(f) The reasons of each parent or other person for seeking or opposing the relocation.
(g) The current employment and economic circumstances of each parent or other person and whether or not the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child.
(h) That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations.
(i) The career and other opportunities available to the objecting parent or objecting other person if the relocation occurs.
(j) A history of substance abuse or domestic violence as defined in s. 741.28 or which meets the criteria of s. 39.806(l)(d) by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(k) Any other factor affecting the best interest of the child or as set forth in s. 61.13.

Section 61.13, Florida Statutes (2006), requires trial courts to “determine all matters relating to custody of each minor child of the parties in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act [UCCJEA].” § 61.13(2)(b)l, Fla. Stat. (2006). In turn, the UCCJEA states:

A child custody determination made by a court of this state which had jurisdiction under this part binds all persons who have been served in accordance with the laws of this state or notified in accordance with s. 61.509 or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact except to the extent the determination is modified.

§ 61.507, Fla. Stat. (2006). It is this portion of the UCCJEA that the First District relied upon in Martinez, the decision guiding the court’s opinion in Janousek, in vacating the trial court’s order that required in part that (1) the husband be designated the interim primary residential parent of the child and (2) both parents return to the court in two years where the court would make a final and binding decision. Martinez, 573 So.2d at 39-40. The district court in Martinez indicated its general preference for finality in trial court judgments because “a litigant is entitled to know that a judgment determining his rights is final and will not be disturbed, except on appeal, or under the conditions prescribed by a rule.” Id. at 40 (quoting Board of Public Instruction of Dade County v. Dinkines, 278 So.2d 663, 664 (Fla. 3d DCA 1973)). Further, the court stated:

[W]hen a cause involving child custody is presented to the trial court at the final hearing and there is evidence from which the trial court can conclude that the children’s best interests dictate that one parent rather than the other should be designated the primary residential parent, the trial court is required to make a final determination on that issue at that time.

Martinez, 573 So.2d at 40. Noting that nothing in the record precluded the trial court from rendering a final decision at the time of the hearing, the district court concluded that the ruling “erroneously deprived the final judgment of the statutorily-required finality.” Id. at 41.

The First District reiterated this line of reasoning in Janousek in reviewing a trial court order that granted a wife primary residential responsibility and permitted her to relocate two minor children after a five-year period. See 616 So.2d at 131-32. Quoting its Martinez decision, the district court reasoned that “when a cause involving child custody is presented to the trial court, ‘the trial court is required to make a final determination on that issue at that time.’ Id. at 132 (quoting Martinez, 573 So.2d at 40). The district court noted that “[n]o evidence was presented which would support a determination that a substantial change in circumstances would occur at the end of this five-year period or that such a relocation would promote the welfare of the children.” Id. Accordingly, the district court vacated the relocation provision in the final judgment. See id.

More recently, the First District decided Sylvester, a case with facts similar to those presented in the instant ease. In Sylvester, the trial court granted the wife’s relocation request but delayed relocation until the child reached five years of age and/or started kindergarten, finding that it was not in the best interest of the child to be immediately separated from the husband. At the time of the hearing the child was three years old. See 992 So.2d at 296. The trial court determined that current relocation was not in the best interest of the child because it believed that the child needed more time to acclimate to the marital dissolution. Rather, the court found that the child would be emotionally and psychologically capable of handling a deferred relocation. See id. at 296-97. On appeal, the First District reversed the trial court’s order, holding that the trial court erred in permitting relocation two years from the date of the hearing. Id. at 296. Noting its decision in Janousek, the district court found that “the proper cause of action is to determine whether relocation is presently appropriate and consider future relocation based on the circumstances existing at that time.” Id. at 298. The district court recognized its disagreement with the Second District’s decision in Arthur, to the extent that Arthur allowed a trial court “to look into its crystal ball and determine whether relocation would be in the best interest in the future.” Id. The court further noted that “[i]t is difficult enough to determine the present emotional and psychological needs of a child; it is impossible to speculate what those needs will be in two years.” Id. at 297.

Relying on the above case law, the Husband alleges two errors with the trial court’s judgment. First, he argues that because there was no evidence presented to the trial court as to the child’s best interests twenty months after the final hearing, the trial court acted beyond its authority in making a prospective finding of the minor child’s best interests. In support of this argument, he claims that the trial court should have determined the child’s best interests as of the time of the final hearing, not the child’s best interests twenty months later. He alleges that the trial court’s conclusion was inconsistent with its determination that such relocation could not occur until twenty months after the final hearing and its findings concerning the impact of relocation on the child’s ability to bond with the Husband. Second, the Husband asserts that the trial court’s grant of relocation based upon a prospective finding of best interests impermissibly shifts the burden of proof to him in a future attempt to prevent relocation.

Upon review of the Husband’s arguments and the well-reasoned analyses in the First District’s opinions in Martinez, Janousek, and Sylvester, we conclude that a best interests determination in petitions for relocation must be made at the time of the final hearing and must be supported by competent, substantial evidence. In this case, the trial court authorized the relocation based in part on its conclusion that relocation would be in the best interests of the child twenty months from the date of the hearing. Such a “prospective-based” analysis is unsound. Indeed, a trial court is not equipped with a “crystal ball” that enables it to prophetically determine whether future relocation is in the best interests of a child. Any one of the various factors outlined in section 61.13001(7) that the trial court is required to consider, such as the financial stability of a parent or the suitability of the new location for the child, could change within the extended time period given by the court before relocation. Because trial courts are unable to predict whether a change in any of the statutory factors will occur, the proper review of a petition for relocation entails a best interests determination at the time of the final hearing, i.e. a “present-based” analysis.

Although the trial court in this case did not utilize this “present-based” analysis, we conclude that if it had done so, the court would have denied the relocation request. Our reading of the order indicates that the court did not agree that a relocation at the time of the hearing was in the best interests of the child. We find the most telling phrase of the order to be the court’s statement that “[b]ut for the Court’s concern for the Husband’s ability to bond with his son, the Wife’s relocation would have been granted without further delay.” In its consideration of subsection (b) of section 61.13001(7), the court found that “[r]equiring the Wife to wait until the child turns three (3) years old allows the Husband and child the time necessary to form a lasting bond with each other.” Thus, although the court may have favored relocation once the child reached three years of age, it is clear that the court found that relocation was not in the best interests of the child at the time of the hearing. Therefore, the petition for relocation should have been denied.

Based on our determination that the trial court’s prospective best interest determination was erroneous, we conclude that it is unnecessary to address the Husband’s claim of trial court error. Thus, we make no decision as to whether trial court’s grant of relocation in this case improperly shifted the burden of proof to the Husband in a future attempt to prevent relocation.

CONCLUSION

Based on the above analysis, we quash the Second District’s decision in Arthur to the extent it is inconsistent with this opinion, and approve the decisions of the First District in Martinez, Janousek, and Sylvester to the extent they are consistent with the foregoing opinion. We vacate the provision in the final judgment of dissolution permitting the Wife to relocate after twenty months and remand this case to the Second District with directions to remand to the trial court to deny the Wife’s request for relocation.

As to the Wife’s motion for appellate attorneys’ fees, we direct the district court to remand the issue to the trial court for a determination on the motion. If the Wife establishes her entitlement pursuant to section 61.16, Florida Statutes (2006), and Rosen v. Rosen, 696 So.2d 697 (Fla.1997), the trial court is authorized to award her all or a portion of the reasonable appellate attorneys’ fees incurred for representation before this Court. We deny without prejudice the Wife’s motion for appellate court costs, as this motion should be filed with the appropriate trial court pursuant to Florida Rule of Appellate Procedure 9.400(a).

It is so ordered.

PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.

      . Our holding is in agreement with the holding in Janousek, which the Husband relied on for his argument that the trial court must make a final determination at the time of the hearing. The Second District attempted to distinguish Janousek on the basis that the trial court's findings in the instant case favored relocation by the Wife whereas the court in Janousek prohibited the move. However, we believe this to be an incorrect characterization of the facts in Janousek. The trial court’s order, although restricting the distance of the relocation, allowed the wife to relocate after a five-year period. See Janousek, 616 So.2d at 132 n. 1 ("During oral argument, counsel for the parties agreed that [the final judgment] permitted the wife to relocate the children at the end of the five-year period based on the fact that she was named the primary residential parent.”). Similarly, the trial court in the instant case permitted relocation no earlier than twenty months after the hearing.

      . Our decision here does not prohibit the Wife from filing a petition for relocation in tire future.