Abbott, Matter of
| Decision Date | 09 November 1983 |
| Citation | 450 So.2d 118 |
| Parties | (In the Matter of Melissa Sue ABBOTT, a minor child). CULLMAN COUNTY DEPARTMENT OF PENSIONS AND SECURITY and State Department of Pensions and Security of the State of Alabama v. Hubert Gene PLAKE and Katrina Abbott Priest. Civ. 3751. |
| Court | Alabama Court of Civil Appeals |
Bryce Scott Davis of Davis & South, Cullman, for appellant.
Hayden R. Battles of Battles & Battles, Cullman, for appellee.
Roy W. Williams, Jr. and Martha E. Williams, Cullman, amicus curiae for appellants.
This is a child custody case.
Melissa Sue Abbott, born January 30, 1978, is the illegitimate daughter of Katrina Abbott Priest. In April 1979 she was placed in the temporary custody of the Cullman County Department of Pensions and Security. Since that time Melissa has been living in a licensed foster home.
On August 12, 1981 the Cullman County Department of Pensions and Security filed a petition seeking the termination of all legal rights of the parents and the award to the Department of the child's legal custody and the authority to place the child for adoption. The father, Hubert Gene Plake, acknowledged paternity and legitimated the child. He then filed an answer to the August 12, 1981 petition in which he denied that he had neglected Melissa or refused to provide proper care for her. He also counter-petitioned for permanent custody of Melissa.
After an ore tenus hearing, the trial court granted permanent custody of Melissa to the father. Cullman County DPS asked for a reconsideration and the request was denied. Cullman County DPS and State of Alabama DPS (hereinafter DPS) appeal to this court.
An amicus curiae brief has been filed here by the attorneys for William Lee Abbott, Melissa's half brother.
Amicus argues that rule 20, Alabama Rules of Juvenile Procedure, requires that all testimony in a juvenile case be recorded so that a record of those proceedings will be preserved. No such record was made; hence a review of the trial court's judgment is precluded.
It is true that no record of the testimony was made in the trial court. It is also true that no objection was made to the failure of the trial court to record the proceedings as required by rule 20. But, a rule 10(d), Alabama Rules of Appellate Procedure, record of the testimony has been prepared, approved by the trial judge, and filed in this court.
A rule 10(d) record of the proceedings will be accepted and relied on in the absence of a record made according to rule 20, A.R.J.P., where the rule 20 record was in effect waived by the parties to the proceedings in the trial court. See Sangster v. Sangster, 366 So.2d 1136 (Ala.Civ.App.1979). Accordingly, the 10(d) record will be considered by this court in assessing the sufficiency of the evidence to support the judgment of the trial court.
Appellants contend here that it was wrong for the trial court to remove Melissa from the custody of the appellants and the foster parents and place her permanent custody with her natural father. They argue that the evidence does not support such a decision.
Ely v. Casteel, 341 So.2d 730 (Ala.Civ.App.1977).
In a termination of parental rights case, the judgment of the trial court is reviewed in the light of the ore tenus rule. And, such a judgment is given every favorable presumption and will not be overturned unless it is palpably wrong. Hudgins v. State, 418 So.2d 913 (Ala.Civ.App.1982).
Before a trial court can terminate a parent's right to the custody of its child, there must be clear and convincing evidence before the court that it would not be in the child's best interests to be in the natural parent's custody. Massey v. Massey, 410 So.2d 422 (Ala.Civ.App.1981).
In the case sub judice, the evidence shows that DPS was given temporary custody of Melissa when she was fourteen months old. She had been neglected by her natural mother. DPS placed Melissa with foster parents until a permanent disposition of her custody could be made.
About two years later...
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