Wix v. State, Dept. of Pensions and Sec.
| Decision Date | 23 January 1985 |
| Parties | Elizabeth WIX v. STATE of Alabama, DEPARTMENT OF PENSIONS AND SECURITY. Civ. 4397. |
| Court | Alabama Court of Civil Appeals |
Daniel Baker King of King & King, Gadsden, for appellant.
Mary Lee Stapp and John Coleman Campbell, Asst. Attys. Gen., for appellee.
This is an appeal from an order of the Juvenile Court of Calhoun County denying the motion of the paternal grandmother for temporary or permanent custody of her grandson, Kenneth Wix. The grandmother presents two issues for our review: (1) was the trial court's order not supported by the evidence and therefore reversible error; (2) did the trial court abuse its discretion and deny the grandmother her constitutional rights in turning down the grandmother's request for an extended visit by Kenneth in her Tennessee home so that she could be further evaluated. Answering both questions in the negative, we affirm.
The trial court heard the evidence presented ore tenus, and its decree is therefore given a presumption of correctness such that it will not be disturbed unless palpably wrong. Fitzgerald v. Jeter, 428 So.2d 84 (Ala.Civ.App.1983). In all child custody matters the controlling consideration is the best interests of the child. Johnson v. Sparks, 437 So.2d 1308 (Ala.Civ.App.1983). The award of custody of a dependent child is within the sound discretion of the trial court. Nesmith v. Nesmith, 419 So.2d 247 (Ala.Civ.App.1982). In exercising its discretion in the child's best interests:
"[The] trial court considers numerous factors including the sex and age of the child, the child's emotional, social, moral, material, and educational needs, the parties' age, character, stability, health, and home environments, the interpersonal relationship between the child and the parties, the effect on the child of a disruption of the custody arrangement, and the parties' success in raising other children."
Johnson v. Sparks, supra, citing Ex parte Devine, 398 So.2d 686 (Ala.1981) (emphasis added). The evidence tends to support the order of the trial court.
Kenneth Wix, then about two years old, was taken by his father, James Carl Wix, a truck driver, on a trucking run to Florida. Also on the trip was Wix's girlfriend, Tina Marie Williams, a/k/a Sherry Garrison, whom Wix had known only a short time. While in Florida Wix's truck was confiscated by the authorities. Wix called the grandmother, asking for money so he and his son could return home; the local Travelers Aid also called the grandmother, requesting money on behalf of Wix and Kenneth. She refused both requests. As they began hitchhiking back, Wix and Tina Marie split up, with Tina Marie taking Kenneth. They were to meet in Tennessee. Wix soon arrived at his mother's home. Tina Marie never made it to Tennessee with Kenneth. Tina Marie had begun hitchhiking and had abandoned Kenneth in Alabama before going off with another truck driver. Kenneth was turned over to the Calhoun County Department of Pensions and Security (DPS) as an anonymous child. The FBI began an extensive search to determine Kenneth's parents. It found no missing person's report on him in any of the contiguous states. The FBI continued its search from May 1983 to August 1983 when they found Tina Marie, who led them to Carl Wix. By then the Calhoun County Juvenile Court had adjudicated Kenneth as a dependent and had given temporary custody to DPS.
The grandmother officially sought custody of Kenneth as early as September 28, 1983. On January 4, 1984 the grandmother made a motion for extended visitation by Kenneth in her Tennessee home for "an evaulation ... of the Grandparent and child interaction and behavior observations."
The Tennessee Department of Human Services recommended that the grandmother be given custody of Kenneth. However, after an extensive case study, the Alabama DPS recommended that Kenneth not be placed with the grandmother. After a hearing the trial court ordered that DPS retain temporary custody of Kenneth.
The grandmother is now in her mid-fifties. She was married twice, divorced twice, and had five children, all of the first marriage. She had little success in rearing her own children. Of her five children, she has an on-going relationship with only one. She has not seen one daughter for more than ten years. She has up to eleven grandchildren and is unsure of the correct number since ...
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