author: THOMPSON, Presiding Judge.

text:
    CHILTON COUNTY BOARD OF EDUCATION v. Benita CAHALANE.
    2110532.
    Court of Civil Appeals of Alabama.
    Aug. 24, 2012.
    Rehearing Denied Nov. 2, 2012.
    John Hollis Jackson, Jr., of Jackson & Jackson, LLP, Clanton; and Dorman Walker and Neah Mitchell of Balch & Bingham LLP, Montgomery, for appellant.
    William M. Dawson, Birmingham, for appellee.
   THOMPSON, Presiding Judge.

The Chilton County Board of Education (“the Board”) appeals a decision of a hearing officer reversing the Board’s decision to suspend its employee, Dr. Benita Caha-lane, for 90 days without pay. The events that form the basis of this appeal occurred after July 1, 2011, the effective date of the Students First Act (“the SFA”), § 16-24C-1 et seq., Ala.Code 1975, which, among other things, repealed and replaced the former Fair Dismissal Act (“the FDA”), see former § 36-26-100 et seq., Ala.Code 1975. See § 16-24C-14, Ala. Code 1975 (the effective date of the SFA is July 1, 2011).

It is undisputed that Cahalane is a “classified employee” of the Board as that term is defined under the SFA and that, because of her length of service with the Board, she has attained the status of “non-probationary employee.” See § 16-24C-3(2), Ala.Code 1975 (defining “classified employee”); and § 16-24C-4(2) (setting forth the conditions for attaining nonpro-bationary-employee status). We note that the SFA speaks in terms of the rights of the parties when a person’s employment is “terminated” pursuant to that act. Under the SFA, however, a suspension without pay of the employment of a nonprobation-ary employee for more than 20 days is subject to review under the SFA in the same manner as is a termination of employment. § 16-24C-6(I), Ala.Code 1975.

The record indicates that on July 26, 2011, Dave Hayden, the superintendent of the Chilton County schools, acting pursuant to § 16-24C-6(c) of the SFA, notified Cahalane of his intention to recommend that the Board suspend her from her employment for 90 days without pay; that notice cited a violation of Board policy as the reason for the suspension.

Cahalane timely contested that suspension, see § 16-24C-6(c), and the Board conducted a hearing at which it received evidence. On September 20, 2011, the Board issued a decision upholding the superintendent’s recommendation that Caha-lane be suspended without pay for 90 days. Cahalane appealed the Board’s decision, seeking a review by a hearing officer pursuant to § 16-24C-6(e) of the SFA.

The hearing officer conducted a hearing at which it heard the arguments of the parties but received no evidence. On February 6, 2012, the hearing officer issued a decision reversing the decision of the Board. The Board timely appealed pursuant to § 16-24C-12, Ala.Code 1975.

The evidence presented to the Board reveals the following facts, which are largely undisputed. Cahalane has worked in the education field for approximately 30 years, and she has been employed by the Board for approximately 20 years. At the time of the incident that gives rise to this appeal, Cahalane was employed as the Board’s coordinator for special education, and her office was located in the Board’s main office building. It is undisputed that the Board has a policy forbidding the possession of illegal drugs on the Board’s property.

On the morning of July 21, 2011, Caha-lane discovered a small bag containing a green, leafy substance in her vehicle. Ca-halane testified that her daughter, who had recently borrowed the vehicle, had a history of drug problems. Cahalane removed the substance from her vehicle, which was parked in the Board’s employee parking lot, and carried it into her office. Once in her office, Cahalane placed the bag containing the substance in a prescription-medication bottle bearing her name and the name of a medication that had been prescribed to her.

It is undisputed that, because of her daughter’s history of drug use, Cahalane intended to take the substance to a police station for testing. While in her office on the morning of July 21, 2011, Cahalane showed the substance to a coworker, Mandy Varden, and asked Varden if she thought the substance was marijuana. The record indicates that neither Cahalane nor Vai'den was certain whether the substance was marijuana. Cahalane informed Varden that she planned to take the substance to the police station during her lunch hour to determine whether the substance was, in fact, marijuana. Varden testified that she warned Cahalane that if she were caught with the substance in her purse or in her vehicle, she could go to jail.

Later on the morning of July 21, 2011, Cahalane received a telephone call from her doctor asking her to come to the doctor’s office to discuss the results of some blood work; Cahalane explained that she has a serious liver condition. Cahalane testified that, after receiving that telephone call, she arranged to leave her office at 11:30 to take “a half day” off work to consult her doctor. Cahalane left her office to attend that doctor’s appointment, but she left the pill bottle containing the substance in a drawer in her office desk.

Varden testified that later on the afternoon of July 21, 2011, she became concerned that, because of the Board’s anti-drug policy, her employment might be terminated because she had knowledge that the substance was in the Board’s offices. Therefore, Varden stated, she informed another coworker, Paula Thornton, that Cahalane had shown the substance to her. Varden and Thornton verified that the substance remained in Cahalane’s office, and Thornton informed Willie Mae White, the assistant superintendent of the Chilton County schools, of the presence of the substance in Cahalane’s office. White, in turn, notified Hayden, who called police chief Brian Stilwell. Hayden, Stilwell, and a narcotics officer with a drug-sniffing dog met at the Board’s main offices on the evening of July 21, 2011, and the dog alerted on Cahalane’s desk. Stilwell testified that the substance was not visible on Cahalane’s desk and that, because they were not certain they had probable cause to conduct a search, the officers did not search the drawers of Cahalane’s desk.

The next morning, July 22, 2011, Hayden met with Varden and Thornton, and he then met with Cahalane. Hayden testified that he told Cahalane that he had been informed that she had something in her office that should not be there, and that Cahalane responded, “You mean the marijuana?”. Hayden characterized Caha-lane as “forthcoming,” and he stated that she left their meeting to go to her office and returned with the substance. A police officer called to the Board’s offices conducted a field test on the substance and confirmed that it was marijuana.

At the hearing before the Board, Caha-lane explained that she had planned to take the substance to the police to have it tested to determine whether her daughter was again using drugs. Cahalane stated, however, that she had not wanted to ask to leave work because she had taken a number of days off work because of her health condition and she did not want to miss any more work. Cahalane also testified, however, that she had not known with certainty that the substance was marijuana and that, “if [she had] even thought that it was” marijuana, she would have immediately taken the substance to have it tested at the police station, even if that resulted in her having to take time off work.

On questioning by the superintendent, Cahalane admitted that she could have asked to leave work to have the substance tested. Cahalane admitted that the superintendent had never refused her requests to leave work and that she believed he would have allowed her to do so had she asked. She also later stated that she “could not have told [the superintendent] that it was marijuana because then [he] would have called the police.”

Cahalane stated that she “made a bad decision” in taking the substance into her office at the Board’s main office. She also stated that she believed that the substance was more secure in her office at the Board’s main office than it would have been if she had left it in her vehicle. Ca-halane pointed out that it would also have been a violation of Board policy to leave the substance in her vehicle, which was parked on the Board’s property on the morning of July 21, 2011.

Stilwell testified that Cahalane’s daughter admitted that she left the substance in Cahalane’s vehicle and that he found that admission to be credible. Stilwell testified that, based on his investigation, he believed that Cahalane had removed the substance from her vehicle so she could confront her daughter about her drug use. According to Stilwell, Cahalane had informed him that her daughter had tested positive for the use of marijuana on a “home” drug test administered during the weekend before the July 21, 2011, incident. Cahalane had told Stilwell that, in response to the results of the home drug test, her daughter had insisted that she had used a form of synthetic marijuana that was legal in Alabama at the time. Stilwell testified, however, that synthetic marijuana does not contain substances that make it detectable on drug tests.

In response to questioning by Cahalane, Stilwell testified that the police would have tested the substance if Cahalane had brought the substance to the police station in order to assist her in seeking to stop her daughter’s drug use. Stilwell agreed that, technically, Cahalane’s bringing the substance to the police would mean that she had an illegal substance in her possession. However, Stilwell stated that the police did not charge people in such situations because “we have to use common sense sometimes.”

We note that Cahalane was not charged with a crime as a result of having had the marijuana in her possession. Further, it does not appear from the record on appeal that Cahalane’s coworkers or the members of the Board disbelieved Cahalane that the marijuana belonged to her daughter.

In his decision, the hearing officer acknowledged that deference was to be afforded to the decision of the Board, but he reversed the Board’s decision, concluding that that decision was arbitrary and capricious. In reaching that decision, the hearing officer found that Cahalane did not intend to have an illegal substance on the Board’s property and that she “accidentally found herself with custody of a suspicious substance on school grounds.” The hearing officer also determined that the 90-day suspension of Cahalane’s employment was “manifestly unjust,” given the facts.

The SFA, which governs this action, was enacted to replace the FDA and the former Teacher Tenure Act (“the TTA”), § 16-24-1 et seq., Ala.Code 1975. The SFA sets forth procedures for an employee to obtain a hearing to review an action by a school board that were formerly available under the FDA and the TTA. The former FDA provided for a “de novo hearing,” see former § 36-26-104, Ala.Code 1975, after which the hearing officer was to determine whether the decision of the Board was “for political or personal reasons.” Former § 36-26-102, Ala.Code 1975. Under the TTA, a teacher could appeal a transfer or a termination of his or her employment to determine if that action was “arbitrarily unjust.” See former § 16-24-7 and former § 16-24-10(a), Ala. Code 1975. Under the FDA, and under the TTA, the hearing officer was the finder of fact, and the hearing officer’s decision regarding the disputed facts was entitled to deference. See Ex parte Dunn, 962 So.2d 814, 823-24 (Ala.2007) (reiterating that former § 16-24-10(a) of the TTA authorized de novo review by the hearing officer of a school board’s decision and afforded deferential review to the decision of the hearing officer based on the evidence it received); Montgomery Cnty. Bd. of Educ. v. Webb, 53 So.3d 96, 114 n. 3 (Ala.Civ.App.2008), rev’d on other grounds, Ex parte Webb, 53 So.3d 121 (Ala.2009) (under the FDA, the hearing officer was the finder of fact, and his or her decision was entitled to deference); see also Ex parte City of Birmingham, 7 So.3d 363, 368-69 (Ala.Civ.App.2008) (a panel reviewing the record from the ore tenus hearing before a hearing officer did not afford proper deference to the decision of the hearing officer that was based on that evidence). The appellate courts reviewed the decisions of the hearing officers in those cases, i.e., in which the hearing officer was the finder of fact, under an “arbitrary and capricious” standard. Ex parte Webb, 53 So.3d at 127; Ex parte Dunn, 962 So.2d at 816-17.

In this case, the Board conducted a hearing pursuant to § 16-24C-6(c). The SFA also provides for a hearing in the event an employee appeals the decision of a school board; the relevant provision states, in pertinent part:

“Except as hereinafter provided, the appeal shall be submitted to the hearing officer. The hearing officer shall hold a hearing. Deference is given to the decision of the employer....”

§ 16-24C-6(e), Ala.Code 1975.

At the appeal before the hearing officer, the parties and the hearing officer discussed whether the SFA authorized a hearing before the hearing officer at which evidence might be presented, as had the FDA and TTA. However, neither party argued that it or she was entitled to a de novo hearing. Rather, both parties indicated that they were satisfied with the evidence presented at the hearing before the Board, although Cahalane’s attorney advised the hearing officer that Cahalane was available to testify should the hearing officer need clarification on any evidence or issue. Accordingly, the matter was submitted to the hearing officer on the arguments of the parties, and neither party objected.

The Board argues on appeal that the hearing officer erred in reversing its decision under the SFA; it contends that the hearing officer failed to afford proper deference to its decision. As the Board points out, the SFA is different from the FDA, which would have applied to Caha-lane, in that it fails to set forth a specific standard pursuant to which the hearing officer is to review the decision of the Board. The SFA specifies only that “a hearing” be conducted and that “deference” is to be afforded to the decision of the Board. § 16-24C-6(e). With regard to the interpretation of the SFA, the legislature stated:

“The repealer provisions of Act 2011-270[, which enacted the SFA and repealed the FDA,] notwithstanding, and except as expressly provided otherwise in this chapter, the terms and phrases used in subsection (a) to identify the reasons on which termination may be based and in subsection (f) to describe the standards by which decisions of the employer are to be reviewed by hearing officers shall be deemed to carry the meaning traditionally accorded the terms and phrases by the appellate courts of this state under prior law.”

§ 16-24C-6(n), Ala.Code 1975. However, subsection (f) of § 16-24C-6 does not contain a reference to the “standards by which decisions of the employer are to be reviewed by hearing officers.” Thus, other than the reference to affording “deference” to the decision of the Board, the legislature, in enacting the SFA, set forth no explicit standard by which the actions of the Board are to be reviewed.

The hearing officer in this case applied the “arbitrary and capricious” standard to his review of the Board’s decision. The Board agrees that that standard applies, although it disagrees with the hearing officer’s reversal of its decision under that standard. In her brief on appeal, Caha-lane also agrees that the hearing officer correctly applied the “arbitrary and capricious” standard to his review of the Board’s decision. Accordingly, in resolving this appeal, this court will determine whether the hearing officer properly applied the “arbitrary and capricious” standard in his review of the Board’s decision.

In this case, the hearing officer reviewed the matter from the position this court occupied under the FDA. With regard to such review, this court has held:

“In employing the arbitrary-and-capricious standard of review, the legislature intended this court to be ‘extremely deferential’ to the hearing officer’s decision in an FDA case. See Ex parte Dunn, 962 So.2d 814, 816 (Ala.2007) (construing arbitrary-and-capricious standard of review mandated by Teacher Tenure Act). As our supreme court has stated:
“ ‘[T]he reviewing court may not substitute its judgment for that of the hearing officer.... [w]here “reasonable people could differ as to the wisdom of a hearing officer’s decision[,] ... the decision is not arbitrary.”
“ ‘ “If the decision-maker has ‘ “examined the relevant data and articulated a satisfactory explanation for its action, including a ‘rational connection between the facts found and the choice made,’ ” ’ its decision is not arbitrary. See Alabama Dep’t of Human Res. v. Dye, 921 So.2d [421, 426 (Ala.Civ.App.2005) ] (quoting Prometheus Radio Project v. FCC, 373 F.3d [372, 389 (3d Cir.2004) ] (quoting in turn Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962))).” ’
“Ex parte Dunn, 962 So.2d at 816-17 (quoting with approval, but reversing on other grounds, Board of Sch. Comm’rs of Mobile County v. Dunn, 962 So.2d 805, 809, 810 (Ala.Civ.App.2006)). Pursuant to the arbitrary-and-capricious standard of review, this court may ‘disagree with the wisdom of the decision, [but] we may not substitute our judgment for that of the hearing officer.’ Ex parte Dunn, 962 So.2d at 823-24.”

Bishop State Cmty. Coll. v. Thomas, 13 So.3d 978, 986 (Ala.Civ.App.2008). As noted above, our supreme court has stated that, “[w]here ‘reasonable people could differ as to the wisdom of a hearing officer’s deeision[,] ... the decision is not arbitrary.’ ” Ex parte Dunn, 962 So.2d at 816 (quoting with approval Board, of Sch. Comm’rs of Mobile Cnty. v. Dunn, 962 So.2d at 809, rev’d on other grounds); Bishop State Cmty. Coll. v. Thomas, 13 So.3d at 986.

In both Bishop State Community College v. Thomas, supra, and Ex parte Dunn, supra, the hearing officer received evidence and was the trier of fact, and the courts reviewed the hearing officer’s decision based on that receipt of evidence under the arbitrary-and-capricious standard. In this case, the Board received evidence and was the trier of fact. The hearing officer was asked to review the Board’s decision based on that evidence. Thus, as indicated above, the hearing officer in this case was required to afford deference to the decision of the Board, even if he would have reached a different result than did the Board. § 16-24C-6(e); Bishop State Cmty. Coll. v. Thomas, supra; Ex parte Dunn, supra. In other words, the hearing officer in this case did not receive evidence, and, in reviewing the record of the proceeding before the Board, he was in no better position than is this court to review the decision reached by the Board after the presentation of evidence.

The Board contends, among other things, that the hearing officer erred in determining that intent was an element of the Board’s anti-drug policy. As the Board points out, deference must be afforded to the Board’s interpretation of its own policy, if that interpretation is reasonable. Ex parte Board of Sch. Commr’s of Mobile Cnty., 824 So.2d 759, 761 (Ala.2001). The Board did not submit as evidence a copy of its anti-drug policy. However, the fact that the Board’s policy is a “zero-tolerance” policy, i.e., one that prohibits drugs or controlled substances on the Board’s premises for any reason, was not in dispute. The testimony of the witnesses, including Cahalane, all of whom were employees of the Board, indicates that those witnesses understood that illegal drugs were not allowed to be brought onto the Board’s property. The findings in the hearing officer’s decision indicate that the hearing officer acknowledged that the Board’s policy effectively had no provision regarding intent and that its interpretation of its policy was not unreasonable: the hearing officer stated in his February 6, 2012, decision that “[f]or the superintendent and the Board to strictly apply a zero-tolerance [anti-drug] policy and rule is not, standing alone, erroneous.” We agree with that finding, and we conclude that the Board’s interpretation of its own anti-drug policy as a “zero-tolerance” policy was not unreasonable. Ex parte Board of Sch. Commr’s of Mobile Cnty., supra.

However, regardless of the hearing officer’s determination that the Board’s interpretation of its own policy forbidding illegal drugs on its property was not erroneous, the hearing officer then stated, citing a phrase used by Stilwell in his testimony, that the Board must use “common sense” in applying its anti-drug policy. The hearing officer concluded that because of the purportedly extenuating circumstances of this case, the Board erred in applying a zero-tolerance policy to discipline Cahalane. By its terms, however, a “common-sense” approach allowing exceptions to a disciplinary rule under certain facts may not be applied to the Board’s interpretation, which we have determined is reasonable, of its zero-tolerance policy concerning controlled substances and illegal drugs. We agree with the Board that, because its interpretation of its own anti-drug policy as a zero-tolerance policy is reasonable, the hearing officer erred in concluding that fact-dependent exceptions to that policy must be considered and that the Board erred in failing to do so.

Furthermore, even assuming that the hearing officer correctly determined that the Board’s zero-tolerance anti-drug policy required a showing of intent and was subject to a “common-sense” exception, we conclude that the hearing officer erred in determining that the Board’s decision in this case was arbitrary and capricious, given the evidence. The hearing officer, in reaching his decision, found that Cahalane was “without intention to possess a controlled substance” and that she “accidentally found herself with custody of a suspicious substance on school grounds.” The Board argues that, in making those determinations, the hearing officer failed to give appropriate deference to its decision based on the evidence it received. As is explained below, we agree.

The evidence before the Board does tend to indicate that Cahalane did not intend to have marijuana in her vehicle and that the marijuana was placed in Ca-halane’s vehicle by her daughter. However, as the Board determined, the incident of July 21, 2011, was caused by Cahalane’s actions and choices. It is not clear from the record whether Cahalane discovered the substance in her vehicle before or after she arrived on the Board’s property, but Varden’s testimony indicates that it might have occurred before Cahalane arrived on the Board’s property. Varden testified: “[Cahalane] told me she was going to [take the substance to have it tested] that morning before she came in but that she was running late and did not do it.” Caha-lane’s testimony does not clearly indicate when she discovered the substance in her vehicle. Regardless, rather than leaving the Board’s property upon the discovery of the substance in her vehicle, Cahalane elected to take the substance, which she suspected was marijuana, into the Board’s offices.

On appeal Cahalane insists that on the morning of July 21, 2011, she did not know with certainty that the substance was, in fact, marijuana. Cahalane testified before the Board that if she had thought the substance was marijuana, she would have immediately taken it for testing. However, that testimony is not consistent with much of the evidence. The evidence indicates that Cahalane believed that the substance likely was an illegal substance. For example, Cahalane testified that, because of her daughter’s history of drug use, she planned to take the substance to the police station for testing, and she had asked Var-den if Varden thought the substance was marijuana. Stilwell testified that Caha-lane had informed him that her daughter had tested positive for marijuana on a “home test” the weekend before July 21, 2011. The superintendent testified that on the morning of July 22, 2011, when he met with Cahalane, she had answered his inquiry about whether she had any improper materials in her office by asking if he was referring to “the marijuana” in her office. She also told the superintendent during her testimony that if she had told him about the “marijuana” on the morning of July 21, 2011, he would have called the police. Given that evidence, we cannot conclude that the hearing officer was correct in determining that the decision of the Board was arbitrary and capricious.

We note that, before the hearing officer and in her brief submitted to this court, Cahalane argues that she had a “perfectly logical explanation for her failure to follow up” with removing the substance from the Board’s offices to have it tested. Cahalane argues that she made a “rational and reasonable” choice to leave the Board’s offices on the morning of July 21, 2011, to attend an appointment at her doctor’s request. She contends, therefore, that the Board’s decision to suspend her employment was arbitrary and capricious.

It does not appear that any party has questioned the reasonableness or necessity of Cahalane’s attending the doctor’s appointment on the morning of July 21, 2011. The issue before the Board, however, was the presence of the marijuana in Caha-lane’s office. The evidence before the Board indicates that, although Cahalane acknowledged the superintendent would have allowed her to leave work if she had asked, Cahalane elected not to do so. Rather, because she did not want to miss any more time from work, Cahalane elected to wait to have the substance tested. She later left work for the doctor’s appointment and left the substance in her desk at the Board’s offices. The record contains no explanation as to why Caha-lane did not remove the substance when she went to the doctor’s office. Regardless, it is undisputed the Cahalane brought the marijuana onto the Board’s property, and she left it there overnight.

We recognize the difficulty of the situation in which Cahalane found herself on July 21, 2011, and that, as she stated, she made a mistake. We also note that it does not appear that the Board failed to recognize the extenuating circumstances of this situation or that it was unsympathetic to her situation. Cahalane testified that she was relieved that her employment had not been terminated over the incident, an option that was available to the Board. See § 16-24C-6(a) (a “nonprobationary classified employee” may be “terminated [or suspended] at any time ... for incompetency, insubordination, neglect of duty, immorality, failure to perform duties in a satisfactory manner, or other good and just cause... .”). The record indicates that Cahalane’s coworkers and the superintendent did not believe that Cahalane had used or was using illegal drugs. However, the Board determined that Caha-lane’s bringing the substance that, given the facts, she knew might be an illegal drug onto the Board’s property and leaving it there was a violation of the Board’s anti-drug policy. Given the evidence presented to the Board, we conclude that the Board’s decision to suspend Cahalane for 90 days without pay was not arbitrary and capricious, and, therefore, we conclude that the hearing officer erred in substituting his judgment for that of the Board under that standard. Accordingly, we reverse the February 6, 2012, decision of the hearing officer.

REVERSED AND REMANDED.

PITTMAN and THOMAS, JJ., concur.

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

      . The Board’s main offices, at which Caha-lane’s office was located, are not on the grounds of a school.

      . The SFA also sets forth procedures for notifying the employee of the school board's intended action and of its decision after a hearing. See § 16-24C-6. Cahalane does not allege that she did not receive proper notice pursuant to the requirements of the SFA.

      . The subsections referenced in § 6 of Act No. 2011-270, Ala. Acts 2011, the legislation that enacted the SFA, are identical to those codified at § 16-24C-6, Ala.Code 1975.

      . In her brief on appeal, Cahalane argues, as support for the hearing officer’s decision, that the 90-day suspension of her employment was too harsh a sanction, given the facts. However, Cahalane did not file a conditional cross-appeal to raise that issue in the event this court reversed the decision of the hearing officer. Bess v. Waffle House, Inc., 824 So.2d 783, 787 (Ala.Civ.App.2001) (an appellee may file a conditional cross-appeal in order to preserve an argument for appeal in the event the appellate court reverses the judgment based on an argument of the appellant); see also First Props., L.L.C. v. Bennett, 959 So.2d 653, 657 (Ala.Civ.App.2006) ("Because we have concluded that the judgment is due to be reversed as a result of the appeal, the condition specified in the owner’s conditional cross-appeal has occurred, and that cross-appeal is ripe for review.”). Accordingly, there is no proper argument for this court to review as to that issue.


source: Caselaw Access Project

author: BOLIN, Justice.

license: Public Domain

text:
    Ex parte Benita CAHALANE. (In re Chilton County Board of Education v. Benita Cahalane).
    1120201.
    Supreme Court of Alabama.
    Jan. 11, 2013.
    William M. Dawson, Birmingham, for petitioner.
    Submitted on petitioner’s brief only.
    Sabrina L. Comer of Comer & Gund-lach, PLLC, Montgomery, for amicus curiae Alabama Education Association, in support of the petitioner.
   BOLIN, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

MALONE, C.J., and WOODALL, STUART, PARKER, SHAW, MAIN, and WISE, JJ., concur.

MURDOCK, J., dissents.


author: THOMAS, Judge.

text:
    LaDon JONES v. ADAMS FARMS et al.
    2111109.
    Court of Civil Appeals of Alabama.
    Jan. 18, 2013.
    M. Adam Jones of Jacoby & Meyers, LLC, Dothan, for petitioner.
    Russell N. Parrish of Farmer, Price, Hornsby & Weatherford, L.L.P., Dothan, for respondents Adams Farms and Don Adams.
    Peter A. Mclnish, Dothan, for respondent First South Farm Credit, ACA.
   THOMAS, Judge.

LaDon Jones appeals from a judgment entered by the Henry Circuit Court (“the trial court”) in favor of Adams Farms, Don Adams, and First South Farm Credit, ACA.

The record indicates the following. This case arises from a dispute over a strip of land approximately 210 feet long and 30 feet wide (“the strip”). In 1972, Jones Construction, a general partnership consisting of LaDon, his father, and his brother, Linward Jones, purchased Lot 52 from U.L. Brackin and Lot 54 from Ralph Ward, believing the lots to be two adjacent parcels, each consisting of one acre of land. The strip in question lies directly between these two lots. In August 2011, Carl Brackin sold the remaining Brackin land, which shared a boundary line with Lot 52, to Adams Farms. Questions of ownership of the strip arose during the survey performed in connection with the conveyance of the remaining Brackin land from Carl to Adams Farms.

On February 13, 2012, LaDon sued Adams Farms and Don Adams, the owner of Adams Farms (sometimes referred to collectively as “Adams”), to quiet title to the strip. In the complaint, LaDon asserted ownership of the strip through adverse possession. LaDon also requested that the trial court issue a temporary restraining order, a preliminary injunction, and a permanent injunction preventing Adams from entering upon the strip. The trial court issued a temporary restraining order on February 13, 2012; that order was subsequently renewed. Adams answered LaDon’s complaint on March 6, 2012. La-Don filed an amended complaint on March 14, 2012, adding First South Farm Credit, ACA (“First South”) as a defendant; Adams filed an answer to the amended complaint on March 20, 2012.

The trial court held a hearing regarding LaDon’s request for a preliminary injunction on March 28, 2012. At the instruction of the trial court, LaDon submitted a memorandum of law on April 25, 2012; Adams filed a response to the memorandum of law and a motion for a summary judgment that included an affidavit from Carl on May 1, 2012. First South filed an answer to the amended complaint and a motion for a summary judgment on May 8, 2012.

A trial was held on May 30, 2012. The relevant testimony is as follows. Both Linward and LaDon testified that they had believed the lots they purchased were one acre each and shared a common boundary line and that neither of them had noticed that the deed for Lot 52, which was admitted into evidence, conveyed only 0.88 acres. In 1982, Jones Construction dissolved and conveyed Lots 52 and 54 to LaDon individually. LaDon testified that from 1972 to 1982 he maintained a year-round garden on Lot 52 and on the strip. He further testified that the strip provided the only access to his property and that he had used the strip for ingress and egress since 1972.

LaDon and his son, Huey Jones, further testified that, from 1982 through 1986, Lot 52 and the strip were used to raise cattle. As part of that operation, LaDon testified, he constructed a fenced “cattle run” from his barn, located on Lot 54, across the strip, into the grazing area located on Lot 52. Testimony further indicated that, from 1986 until the early 1990s, that same area was used to pasture horses. According to LaDon, he had removed the fence after he no longer pastured horses, but he had continued to maintain a garden on the strip and to mow the grass growing on the strip. He also testified that he had erected a birdhouse on the strip in 1983 that remained until Don Adams, or his representatives, removed it in 2011.

Carl testified that he began to “look after” the remaining Brackin land after his father died in 1990. According to Carl, beginning in 1993, he drove across the remaining Brackin land twice a year, using the strip as ingress to and egress from the property. Carl also testified that during those biannual visits he had never witnessed any evidence indicating that La-Don, or anyone else, was asserting ownership of the strip. Carl also testified by affidavit that LaDon had used the strip with permission from the Brackin family and that he would have taken “the necessary action” had he witnessed an attempt by LaDon to exercise ownership over the strip.

The trial court entered a judgment on June 21, 2012. The judgment stated:

“The essential facts: [LaDon] and his predecessor in interest have owned lot 54 the land where his home is situated in Newville since the 1960’s. In 1972 [LaDon] purchased lot 52 from U.L. Brackin. Lot 52 was a section slightly less that one acre of an area of farmland. [LaDon] states his belief that lot 52 was one acre, but the deed establishes that U.L. Brackin retained a ‘strip’ of land for access to his field. This strip of land divides lot 52 and lot 54 and is the subject of [LaDon’s] claim to quiet title by adverse possession. Over the years lot 52 was generally used by [LaDon] as a garden. From 1982 to 1986 lot 52 was used to graze cows and from 1986 to the 1990’s horses were pastured there. In 1982 [LaDon] erected a fence across the strip to create a lane or pathway for the cows to pass between lot 52 and lot 54. Sometime in the 1990’s [LaDon] removed the fence. Since the purchase of lot 52 [LaDon] has mowed the grass on the strip and erected a gourd pole on the strip in 1983. The strip was rarely, if ever used for access to U.L. Brackin’s farmland because more suitable access exists in another location. The strip is essentially situated in location and size as what would be a continuation of the Town of Newville’s paved road known as Patterson Street, which abruptly -stops at the strip. All was neighborly and peaceful these many years until the heirs of U.L. Brackin sold the field to Defendant Adams Farms. Realizing the deed of the field included the strip, [LaDon] erected a fence blocking access and posted ‘no trespassing’ signs. In response [Don Adams] used his excavator to tear down the fence and the gourd pole. The Sheriff was summoned and the pending litigation to quiet title was instituted.
“The claim for adverse possession is governed by a ten-year rule. Code of Alabama 6-5-200. The Court has carefully weighed the evidence and studied the adverse possession cases of the Alabama Supreme Court and the Court of Civil Appeals and has deliberated the case. Title by adverse possession is a heavy burden, by clear and convincing evidence, with a presumption in favor of the record owner. Cooper v. Cate, 591 So.2d 68 (Ala.1991).
“Accordingly, judgment entered for [Adams and First South] on [LaDon’s] claim to quiet title by adverse possession; judgment entered for [LaDon] awarding a private easement by prescription over the strip between lot 52 and lot 54. Any other relief requested by either party and not addressed by this order is denied.”

LaDon timely appealed to our supreme court on July 27, 2012, and the supreme court transferred the case to this court pursuant to § 12-2-7, Ala.Code 1975. In his brief, LaDon argues that the trial court erred in denying his claim alleging adverse possession in light of the trial court’s express findings of fact in LaDon’s favor. He further argues that the trial court’s award of an easement by prescription is essentially a conclusion that LaDon also satisfied the elements of adverse possession.

“In Kerlin v. Tensaw Land & Timber Co., 390 So.2d 616, 618 (Ala.1980), [our supreme court] summarized the elements that must be proven before a finding of adverse possession can be made:
“ ‘In Alabama there are basically two types of adverse possession, these two types being statutory adverse possession and adverse possession by prescription. Adverse possession by prescription requires actual, exclusive, open, notorious and hostile possession under a claim of right for a period of twenty years. See, Fitts v. Alexander, 277 Ala. 372, 170 So.2d 808 (1965). Statutory adverse possession requires the same elements, but the statute provides further that if the adverse possessor holds under color of title, has paid taxes for ten years, or derives his title by descent cast or devise from a possessor, he may acquire title in ten years, as opposed to the twenty years required for adverse possession by prescription. § 6-5-200, Ala.Code 1975. See, Long v. Ladd, 273 Ala. 410, 142 So.2d 660 (1962).’ ”

Fort Morgan Civic Ass’n, Inc. v. City of Gulf Shores, 100 So.3d 1042, 1051 (Ala.2012).

To prevail on his adverse-possession claim, LaDon was required, among other things, to present clear and convincing evidence to overcome the presumption that his use of the strip was permissive. The trial court’s judgment included numerous findings of fact that appear to support LaDon’s claim that his use of the strip was hostile.

However, the trial court’s judgment did not include an express finding as to whether LaDon’s use of the strip was hostile rather than permissive. Instead, the trial court determined that LaDon had not adversely possessed the strip — implying that LaDon’s use of the strip was permissive. However, the trial court alternatively awarded LaDon a prescriptive easement over the strip. Hostile use of land for 20 years is an essential element of a prescriptive easement. See Johnson v. Coshatt, 591 So.2d 483, 485 (Ala.1991).

“ ‘To establish an easement by prescription, the claimant must use the premises over which the easement is claimed for a period of twenty years or more, adversely to the owner of the premises, under claim of right, exclusive, continuous, and uninterrupted, with actual or presumptive knowledge of the owner. The presumption is that the use is permissive, and the claimant has the burden of proving that the use was adverse to the owner. Cotton v. May, [293 Ala. 212, 301 So.2d 168 (1974) ]; Belcher v. Belcher, 284 Ala. 254, 224 So.2d 613 (1969); West v. West, 252 Ala. 296, 40 So.2d 873 (1949).’ ”

Id. (quoting Bull v. Salsman, 435 So.2d 27, 29 (Ala.1983)). Because we cannot reconcile the judgment’s contradictory rulings, we reverse the trial court’s judgment and remand the cause for the trial court to make a finding regarding whether La-Don’s use of the strip was permissive or hostile based on the evidence already presented and to rule on the adverse-possession and prescriptive-easement claims in a manner that is consistent with that finding.

REVERSED AND REMANDED.

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

      . Carl Brackin is the son and heir of U.L. Brackin, who died in 1990.

      . First South holds the mortgage to the property owned by Adams Farms.

      . Although there is no order regarding the preliminary injunction, LaDon’s memorandum of law indicates that the trial court granted the preliminary injunction.

      .LaDon was already the sole owner of and resided on Lot 55, which is adjacent to Lot 54. His house burned down in 1982. He rebuilt the house on Lots 54 and 55.

      . LaDon testified that when he noticed the survey flags placed in connection with Adams Farms’ purchase of the remaining Brackin land, he erected a fence across the strip and posted a "No Trespassing” sign. He further testified that Don Adams, or his representatives, tore down the fence, the sign, and the birdhouse with an excavator.

      6. The record clearly indicates that Jones Construction purchased Lot 54 in 1972 and that Jones Construction conveyed Lot 54 to LaDon ¿n 1982. None of the parties note this error on appeai.

      . The trial court held that LaDon's claim is governed by the 10-year rule pursuant to § 6-5-200, Ala.Code 1975. We note that this claim does not appear to meet the statutory-adverse-possession requirements outlined in § 6-5-200; however, none of the parties have raised that issue on appeal.


author: MOORE, Judge.

text:
    M.M. v. COLBERT COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2111027.
    Court of Civil Appeals of Alabama.
    Jan. 18, 2013.

      M. Chad Smith, Tuscumbia, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for ap-pellee.
   MOORE, Judge.

M.M., who is the maternal grandmother of S.P., J.P., H.H., and E.H. (hereinafter referred to collectively as “the children”), appeals from a judgment entered by the Colbert Juvenile Court (“the juvenile court”) on July 9, 2012, denying her petitions for custody of the children, who had been declared dependent. We affirm.

Facts and Procedural Background

In October and November 2010, the Colbert County Department of Human Resources (“DHR”) picked up the children after discovering that they were living in uninhabitable and inhumane conditions in the home of the children’s mother, J.H. (“the mother”), and Ja.P., the father of S.P. and J.P. and the stepfather of H.H. and E.H. At that time, the mother and Ja.P. did not list the maternal grandmother as a potential relative placement. As part of a safety plan, S.P. and J.P. were placed in foster care and H.H. and E.H. were placed with their paternal grandparents. The juvenile court subsequently adjudicated the children dependent on December 3, 2010.

On February 16, 2011, the maternal grandmother filed a motion to intervene in the dependency proceedings regarding J.P. and S.P. and petitioned for custody of J.P. and S.P. On February 24, 2011, the maternal grandmother filed a similar motion to intervene and petition for custody regarding E.H. and H.H. On February 25, 2011, the juvenile court granted the motions to intervene.

At some point, DHR sent a representative to the home of the maternal grandmother to investigate her suitability for assuming the custody of the children. During the investigation, the DHR representative inquired of the maternal grandmother whether she had ever been involved with DHR. The maternal grandmother denied that she had. DHR subsequently performed a background check and discovered that, in 1994, the Franklin County Department of Human Resources (“the Franklin County DHR”) had filed a report showing that the maternal grandmother was “indicated” for physically abusing and injuring the mother, who was at that time 15 years old, by beating the mother with a belt across the mother’s legs. DHR also learned that the maternal grandmother had observed the conditions in the mother and Ja.P.’s home on a weekly basis before the children were removed from the home, that she had suspected that there might be domestic violence in the home, but that she had not reported any problems to DHR and had not taken any other legal action to assist the children. A DHR social worker testified that the maternal grandmother had made excuses for the mother and for the conditions in the home. Based mainly on those two pieces of evidence, DHR determined that the maternal grandmother lacked the necessary protective capacity to properly care for the children.

The mother initially informed DHR that she did not want the maternal grandmother involved in the cases. E.H. and H.H., who were born in 1998 and 2001, respectively, also expressed a dislike for the maternal grandmother and informed DHR that they did not want to live with her. The mother underwent counseling, in part to deal with her relationship and history with the maternal grandmother, and the counselor had recommended that the mother refrain from having any contact with the maternal grandmother. The mother informed DHR that she had experienced migraine headaches and panic attacks, which, the mother said, became more severe in the presence of the maternal grandmother. The mother further consistently informed DHR’s representatives that she did not want the maternal grandmother to obtain custody of the children. When the juvenile court allowed the maternal grandmother to attend an Individualized Service Plan meeting in April 2012, the maternal grandmother became embroiled in an argument with the mother and falsely accused the paternal grandparents of receiving money to care for E.H. and H.H. A DHR representative and the foster father for J.P. and S.P. had to ask the maternal grandmother to sit down and be quiet so that she would not continue to disrupt the meeting.

DHR also had received accusations that the maternal grandmother had stalked the children. During one visit, it was alleged, the maternal grandmother had told E.H. that the maternal grandmother should have kidnapped the children when she had had the chance, which had alarmed the paternal grandmother. DHR also had noted a report that the maternal grandmother had obtained telephone service in the name of E.H. and had allowed E.H. to search for men on the Internet.

On May 28, 2012, the juvenile court conducted a permanency hearing, which included a dispositional hearing on the maternal grandmother’s petitions for custody. At that hearing, the maternal grandmother testified that she did not recall the 1994 abuse incident and that she was totally unaware that an “indicated” report had been filed against her, which, she said, had resulted in her not having an opportunity to appeal those findings. The maternal grandmother implied that the mother had embellished the circumstances surrounding the abuse allegations and that they had only struggled over the belt. The maternal grandmother also implied that the report had been instigated by her disgruntled ex-husband during a postdivorce custody dispute. The maternal grandmother noted that she had not lost custody of the mother at that time. The maternal grandmother further testified that she had often been forcibly removed by the police from the home of the mother because Ja.P. had not wanted her there, asserting that Ja.P. had prevented her from observing the problems in the home on those occasions and taking action to protect the children. The maternal grandmother admitted, however, that she had never contacted DHR about her concerns regarding the welfare of the children.

Upon cross-examination by counsel for the maternal grandmother, the DHR social worker admitted that DHR did not have a policy of automatically excluding relatives who had previously been indicated for child abuse or neglect. That same social worker also testified that the home of the maternal grandmother had been considered a good home and that DHR had not conducted any further background check on the maternal grandmother.

The maternal grandmother provided the juvenile court with photographs of her home and testified that it was suitable for all four children, who she felt should stay together. The maternal grandmother also testified that she could meet the financial needs of the children. The maternal grandmother testified that she got along well with the mother and theorized that the mother was only trying to please DHR by stating that she did not want the maternal grandmother to have custody of the children. The maternal grandmother’s son, the brother of the mother, testified that the maternal grandmother had been a good parent and would make a good custodian for the children. The mother corroborated that testimony, also stating that she wanted the maternal grandmother to obtain custody of the children if she could not. The paternal grandmother testified that the maternal grandmother had been violent with the mother around the children, that E.H. and H.H. had consistently expressed negative feelings about the maternal grandmother, and that the maternal grandmother had telephoned her occasionally to inquire about the children and had sent them presents, but had never asked to speak to them. The evidence indicated that E.H. and H.H. were adjusted to and doing well in the custody of the paternal grandparents, and the mother testified that she had no problem with them remaining in the paternal grandparents’ custody. The maternal grandmother testified that she had seen J.P. and S.P. only intermittently since they had been taken into foster care.

On July 9, 2012, the juvenile court entered a judgment finding that the maternal grandmother had misled DHR about the previous child-abuse investigation and had observed the children living in deplorable conditions but had failed to act. Considering that evidence, along with the evidence of the troubled past the maternal grandmother shared with the mother and the excuses the maternal grandmother had made for the mother’s poor parenting, the juvenile court denied the maternal grandmother’s petitions for custody. The juvenile court awarded the paternal grandparents custody of E.H. and H.H. and ordered DHR to maintain custody of J.P. and S.P. with a permanency plan for adoption by an unidentified resource. The maternal grandmother filed her notice of appeal on July 23, 2012.

Issues

On appeal, the maternal grandmother argues that the juvenile court erred in denying her petitions for custody without requiring DHR to investigate her current fitness to care for the children and in finding that it would not be in the best interests of the children for the children to be placed in her custody.

Discussion

I. The Duty to Investigate

In Ex parte J.R., 896 So.2d 416 (Ala.2004), the supreme court held that before the state can terminate a parent’s parental rights, the state must prove that the children are dependent and determine whether there exists a remedy less drastic than termination of parental rights. In that respect, the state has the burden of initiating investigations into potential relative custodians and also bears the burden of “ ‘proving] the unsuitability of one who seeks to be considered as the custodian of a dependent child.’ ” 896 So.2d at 428 (quoting D.S.S. v. Clay Cnty. Dep’t of Hu man Res., 755 So.2d 584, 591 (Ala.Civ.App.1999)).

In the present ease, the juvenile court did not terminate the parental rights of the mother or Ja.P., but it adopted a permanency plan calling for the adoption of J.P. and S.P., which requires DHR to file a petition to terminate the mother’s and Ja.P.’s parental rights. See § 12-15-315(a)(2), Ala.Code 1975. The juvenile court thus impliedly found that placing the children with the maternal grandmother was not a viable alternative that would forestall termination of the parental rights of the mother. Such a finding may be, and should be, made in a judgment entered after a permanency hearing. See A.D.B.H. v. Houston Cnty. Dep’t of Human Res., 1 So.3d 53 (Ala.Civ.App.2008); D.P. v. Limestone Cnty. Dep’t of Human Res., 28 So.3d 759, 763 (Ala.Civ.App.2009); and F.V.O. v. Coffee Cnty. Dep’t of Human Res., [Ms. 2110398, Dec. 7, 2012] — So.3d -(AIa.Civ.App.2012). Thus, the maternal grandmother has properly raised the issue whether DHR initiated a proper investigation into her custody petitions in this appeal.

The maternal grandmother argues that she was not fairly investigated because, she says, DHR never conducted a home study, never conducted an investigation into her financial status, and never researched her criminal background. Section 12-15-314(a)(3)c., Ala.Code 1975, provides that, if it is found to be in the best interests of the child, a juvenile court can place a dependent child in the custody of a relative “who, after study by [DHR], is found by the juvenile court to be qualified to receive and cai’e for the child.” Although our caselaw has established that DHR must investigate a potential relative placement, see D.S.S., 755 So.2d at 591, and that the investigation must relate to the current fitness of that relative, see V.M. v. State Dep’t of Human Res., 710 So.2d 915, 921 (Ala.Civ.App.1998), our caselaw has not delineated the standards regarding the adequacy of such an investigation nor has DHR promulgated any regulations setting out the standards for an appropriate investigation. See J.B. v. Cleburne Cnty. Dep’t of Human Res., 991 So.2d 273, 283 (Ala.Civ.App.2008).

Nevertheless, this court has recognized that parents have the responsibility to properly provide their children adequate food, clothing, shelter, health care, education, nurturing, and protection. B.B.T. v. Houston Cnty. Dep’t of Human Res., 89 So.3d 169, 171 (Ala.Civ.App.2011). In considering whether a relative can assume a surrogate parental role for a dependent child, this court has further clarified that

“a relative is ‘fit’ and ‘qualified’ if that relative can safely and properly discharge the parental responsibilities of meeting the child’s needs during the child’s minority. Conversely, a relative is not ‘fit’ or ‘qualified’ if that relative cannot safely and properly discharge parental responsibilities to and for the child or cannot properly care for the child because of the relative’s improper conduct, adverse condition, or inappropriate circumstances.”

J.B., 991 So.2d at 283. Thus, when conducting a “study” of a relative to determine his or her fitness to act as a surrogate parent, DHR is tasked with investigating and assessing those qualities, characteristics, and circumstances affecting the ability and willingness of the relative to meet the basic needs of the child.

In this case, it appears that DHR began to conduct a thorough investigation of the maternal grandmother by visiting her home and investigating her background to gather information regarding her parenting skills. However, during the early stages of that investigation, DHR discovered that the maternal grandmother had been indicated for child abuse against her own child in 1994, which she had implicitly denied, and that she had repeatedly witnessed the neglect of the children at issue in this case but had failed to report their plight to DHR. Cf K.N.F.G. v. Lee Cnty. Dep’t of Human Res., 983 So.2d 1108 (Ala.Civ.App.2007) (holding that Lee County DHR had no duty to investigate relative further after disqualifying him due solely to discovery of 14-year-old felony convictions, one of which involved drug trafficking). If, in the course of an investigation, DHR discovers facts, which, when assessed objectively, would indicate to DHR that a relative presently lacks basic protective capacities, DHR has no duty under any statute or regulation to continue to investigate that relative to determine if he or she has a suitable home environment, a sound financial status, or a clean criminal background, attributes that may be positive but certainly would not be redeeming. Thus, we find no merit in the maternal grandmother’s contention that DHR failed to adequately investigate her before determining that she was unfit to assume the care of the children.

Moreover, we note that, in this case, the juvenile court granted the maternal grandmother a hearing on her petitions for custody of the children. At that hearing, the juvenile court correctly placed the burden on DHR to prove the unfitness of the maternal grandmother, and DHR introduced the evidence outlined above to satisfy that burden. At that point, the juvenile court granted the maternal grandmother an opportunity to rebut DHR’s showing by presenting positive evidence regarding her relationship with the children and her parenting ability. The maternal grandmother proved that she had an adequate home structure and a sound financial condition. No evidence was presented indicating that the maternal grandmother had ever been convicted of a crime. Thus, the juvenile court received all the evidence that the maternal grandmother complains would have been revealed if DHR had conducted a more thorough investigation. See J.B., 991 So.2d at 284 (“In assessing the fitness and qualification of a relative to assume custody of dependent children, the juvenile court is required to consider all the evidence relating to the relative’s ability to serve the best interests of the child.”). The maternal grandmother has failed to show how she was injured by any alleged failure of DHR to more thoroughly investigate her custodial fitness. See Rule 45, Ala. R.App. P. (stating that a judgment cannot be reversed unless “it should appear that the error complained of has probably injuriously affected substantial rights of the parties”).

II. The Sufficiency of the Evidence

Once a child is found dependent, a juvenile court may dispose of the custody of the child according to its determination of the best interests of the child. See § 12-15-314, Ala.Code 1975.

“In Ex parte Alabama Department of Human Resources, 682 So.2d 459 (Ala. 1996), the Alabama Supreme Court stated the applicable principles of appellate review in the context of a challenge to a juvenile court’s custodial disposition of a dependent child:
“ ‘Appellate review is limited in cases where the evidence is presented to the trial court ore tenus. In a child custody case, an appellate court presumes the trial court’s findings to be correct and will not reverse without proof of a clear abuse of discretion or plain error. Reuter v. Neese, 586 So.2d 232 (Ala.Civ.App.1991); J.S. v. D.S., 586 So.2d 944 (Ala.Civ.App.1991). This presumption is especially applicable where the evidence is conflicting. Ex Parte P.G.B., 600 So.2d 259, 261 (Ala.1992). An appellate court will not reverse the trial court’s judgment based on the trial court’s findings of fact unless the findings are so poorly supported by the evidence as to be plainly and palpably wrong. See Ex parte Walters, 580 So.2d 1352 (Ala.1991).’
682 So.2d at 460.”

J.J. v. J.H.W., So.3d 519, 522 (Ala.Civ.App.2008).

In this case, the juvenile court determined that the children should not be placed in the custody of the maternal grandmother because the maternal grandmother had misrepresented her prior involvement with the Franklin County DHR, had failed to act to protect the children from their deplorable living conditions, which she had attempted to justify, and had engaged in a volatile and tempestuous relationship with the mother. In summary, the juvenile court found that the maternal grandmother was not fit and qualified to receive and care for the children so that she should be given preference over a nonrelative caregiver. See § 12-15-314(a)(3)e. (“Unless the juvenile court finds it not in the best interests of the child, a willing, fit, and able relative shall have priority for placement or custody over a non-relative.”). In light of that finding, which we conclude was fully supported by the evidence in the record, although that evidence was in some respects conflicting, we hold that the juvenile court did not err in determining that the best interests of the children would not be served by placing the children in the custody of the maternal grandmother. See M.H.J. v. State Dep’t of Human Res., 785 So.2d 372 (Ala.Civ.App.2000) (holding that grandmother who, among other things, had failed to detect obvious signs of neglect affecting the health of her grandchildren was not a suitable relative resource).

AFFIRMED.

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

THOMAS, J., concurs in the result, without writing.

      . Child abuse or neglect is ''indicated" "[w]hen credible evidence and professional judgment substantiates that an alleged perpetrator is responsible for child abuse or neglect.” § 26 — 14—8(a)(1), Ala.Code 1975.


text:
    Armand John RUBERTI v. Tami Shea RUBERTI.
    2110938.
    Court of Civil Appeals of Alabama.
    Jan. 18, 2013.

      Kelly Tipton Lee, Elmore, for appellant.

      J. Robert Faulk of McDowell, Faulk & McDowell, L.L.C., Prattville, for appellee.
   MOORE, Judge.

Armand John Ruberti (“the father”) appeals from a January 24, 2012, judgment of the Autauga Circuit Court (“the trial court”) awarding Tami Shea Ruberti (“the mother”) certain monthly monetary benefits labeled as “living expense assistance” based on her petition for postminority support for the parties’ disabled adult daughter, L.N.R. (“the daughter”).

The mother gave birth to the daughter on August 25, 1992, during the parties’ marriage. The parties were divorced by a judgment entered in 1994, with the mother receiving physical custody of the daughter and the father receiving specified visitation rights. On July 15, 2011, a little over a month before the daughter reached the age of majority, the mother filed a petition to modify the divorce judgment, requesting that the father pay postminority support for the daughter, who the parties stipulated was mentally and physically disabled. The trial court set the petition for a hearing on January 24, 2012. According to the judgment resulting from that hearing, the parties agreed to present, and did present, information to the trial court without a record.

The same day as the presentation of the information to the trial court, the trial court entered a judgment stating, in pertinent part:

“Court establishes a sum of $455.00 per month as living expense assistance payable to the mother commencing February 1, 2012. The Court establishes an arrearage for this expense, owed by [the father] to [the mother] in the sum of $2,730.00.”

The trial court further ordered the father to pay the attorney for the mother the sum of $2,789.08 within 180 days for the fees incurred in the action. The father filed a timely postjudgment motion, which the trial court granted in part and denied in part. The father timely appealed to this court.

The father first argues that the trial court erred in awarding the mother “living expense assistance.” The father contends that Alabama law does not recognize such an award, except for periodic alimony, which, he says, the mother did not request and could not recover. The father further notes that the mother petitioned only for postminority support for their adult disabled daughter, see Ex parte Brewington, 445 So.2d 294, 297 (Ala.1983) (recognizing that a parent can petition for postminority support for a disabled child), which, he says, can be awarded only in accordance with Rule 32, Ala. R. Jud. Admin., and the appendices to Rule 32, which establish guidelines for awarding child support (“the child-support guidelines”), see Ex parte Cohen, 763 So.2d 253, 256 (Ala.1999) (“If the trial court ... determines that the adult child is entitled to postminority support, then ... the court should use the child-support guidelines ... to calculate the proper amount of that support.”), with which, the father asserts, the trial court did not comply. Accordingly, the father contends that the trial court could not have ordered him to pay an arrearage of “living expense assistance.”

We cannot discern why the trial court labeled its award “living expense assistance.” The father speculates that the trial court characterized the award as “living expense assistance” in order to avoid any impact on the benefits the daughter was receiving from the Social Security Administration. See Abbett v. Treadwell, 816 So.2d 477, 482-83 (Ala.Civ.App.2000) (Crawley, J., concurring in the result) (disapproving of circuit court’s labeling of postminority support as “spousal support” to avoid reduction in Supplemental Security Income benefits payable to disabled adult child). Even if true, the trial court’s use of that designation would not warrant a reversal of the judgment. “[T]he substance of the award takes precedence over the form or label.” Kenchel v. Kenchel, 440 So.2d 567, 569 (Ala.Civ.App.1983). “[T]he labels provided in a judgment are not controlling on the question of the true nature of the obligation.” Anderson v. Anderson, 686 So.2d 820, 324 (Ala.Civ.App.1996). An allowance “ ‘will be considered and construed in accordance with its substance and not its mere form.’ ” DuBoise v. DuBoise, 275 Ala. 220, 228, 153 So.2d 778, 785 (1963) (quoting Sullivan v. Sullivan, 215 Ala. 627, 629, 111 So. 911, 912 (1927)).

The mother petitioned solely for postminority support for the daughter. Such support, by definition, includes monetary payments made to cover the living expenses of a disabled adult child. See Martin v. Martin, 494 So.2d 97, 100 (Ala.Civ.App.1986). Postminority support necessarily assists the disabled child and the custodial parent with covering those costs. Thus, labeling an award of postminority support as “living expense assistance” does not transform that award into some other type of support, such as periodic alimony. To hold otherwise would be to invalidate the award on the ground that the father received no notice that such an award had been requested or could be adjudicated. See Kirkland v. Kirkland, 575 So.2d 1154 (Ala.Civ.App.1991) (award of periodic alimony vacated due to lack of due process when husband had no notice that wife was seeking alimony and parties had not litigated that issue). When construing judgments, this court should adopt that meaning that will assure the validity of the judgment rather than one that will render the judgment illegal and improper. Ex parte Snider, 929 So.2d 447, 457 (Ala.2005). Thus, we conclude that the trial court intended to, and did, award the mother postminority support under Brewington, supra.

Rule 32(E), Ala. R. Jud. Admin., specifically provides that CS-41 and CS-42 forms “shall be filed in each action to establish or modify child-support obligations and shall be of record....” In Martin v. Martin, 637 So.2d 901, 902 (Ala.Civ.App.1994), this court held that compliance with the filing requirements stated in Rule 32(E) is mandatory. However, since Martin, this court has excused the filing of CS-41 and CS-42 forms in cases in which the evidence in the record clearly established that the child-support award complied with the child-support guidelines. See, e.g., Dunn v. Dunn, 891 So.2d 891, 896 (Ala.Civ.App.2004). In this case, the parties stipulated that no record would be made of the proceedings, so we do not know for a fact that the trial court received the required forms and properly calculated the postminority support; however, we do know that oral testimony was presented to the trial court. “ ‘[Wjhen a trial court’s order is based on evidence that is not before the appellate court, we conclusively presume that the court’s judgment is supported by the evidence.’ ” Leeth v. Jim Walter Homes, Inc., 789 So.2d 243, 247 (Ala.Civ.App.2000) (quoting Neuman v. State, 623 So.2d 1171, 1172 (Ala.Civ.App.1998)). Thus, we presume that the missing testimony would have clearly established that the trial court computed the father’s postminority-sup-port obligation in accordance "with the child-support guidelines. We reject the father’s arguments that the trial court failed to properly follow the guidelines and that the evidence did not support the trial court’s ultimate determination as to the amount of postminority support due.

The father further argues that the trial court erred in ordering him to pay the mother’s attorney’s fees. The father contends that, without a finding of contempt, the trial court had no basis for the award. The mother did seek to hold the father in contempt for failing to pay certain medical and dental expenses of the daughter, but the trial court elected not to hold the father in contempt. A trial court cannot award an attorney’s fee in a contempt action when no finding of contempt is made. Sosebee v. Sosebee, 896 So.2d 557, 564 (Ala.Civ.App.2004). However, “it is well settled that a trial court may award an attorney fee in a modification proceeding.” Beverly v. Beverly, 28 So.3d 1, 5 (Ala.Civ.App.2009). The judgment does not clearly state the basis for the attorney-fee award, but we note that the parties agreed to resolve all other pending matters, including the contempt claim filed by the mother, and litigated only the petition for modification of the divorce judgment to obtain postminority support. Under the circumstances, we construe the judgment as awarding a fee solely for the efforts of the mother’s attorney in prosecuting the modification petition. See Beverly, supra.

Finally, the father maintains that the amount of the attorney’s fee is not supported by the evidence. Again, because the parties stipulated that no record would be made of the proceedings, we must presume that the trial court received sufficient evidence to support its award. Leeth, supra. Hence, we find no basis for reversing the judgment due to the alleged lack of any evidence to support the attorney-fee award.

The judgment of the trial court is affirmed. The mother’s request for double the amount of her costs and fees pursuant to Rule 38, Ala. RApp. P., is denied.

AFFIRMED.

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

      . The father filed some forms as attachments to his postjudgment motion, but we do not know whether those forms had been filed with the trial court at the time of its decision or whether the mother had also filed forms at that time. Although the father asserts that he had filed his forms, and although the mother asserts that both parties had filed the appropriate forms, the record cannot be enlarged on appeal by such statements. Roberts v. Roberts, 424 So.2d 644, 645 (Ala.Civ.App.1982).