
    I.A.J. v. STATE DEPARTMENT OF HUMAN RESOURCES.
    2980634.
    Court of Civil Appeals of Alabama.
    Sept. 3, 1999.
    Rehearing Denied Nov. 12, 1999.
    Certiorari Quashed Oct. 13, 2000 Alabama Supreme Court 1990372.
    Benton H. Persons, Andalusia, for appellant.
    
      J. Coleman Campbell and Joel C. Marsh, asst, attys. gen., Department of Human Resources, for appellee.
   YATES, Judge.

This case involves the termination of parental rights of the mother, I.A.J., and the father, H.L.H., as to their two minor children. Only the mother appeals.

The mother and father are divorced; pursuant to a divorce judgment, the father had had custody of the children since 1994. In March 1997, the Covington County Department of Human Resources (“DHR”) petitioned the court for temporary custody of the children. DHR alleged that there was evidence of neglect and abuse by the father and that the children would be in immediate physical and/or emotional danger if they remained in the father’s home. Further, DHR provided a report detailing numerous reports of neglect and abuse of the children from 1993 through 1997 involving the father and other family members. On April 1, 1997, the court granted DHR temporary custody; ordered that the children be placed in therapeutic foster care, based on their special needs; and ordered a home evaluation of the mother for possible placement. In September 1997, the court received a report from the Florida Department of Children and Families. That report disapproved the mother’s home for placement, finding, among other things, that the mother had 14 other people living in her household; had a history of alcohol and drug abuse; had an extensive criminal history; had had recent incidents of alcohol use; and lacked financial stability. Following a dispositional hearing in September 1998, at which both parents were present, the court informed the parents that if conditions did not improve or if suitable relative placements were not found, the court would adopt DHR’s plan to terminate their parental rights.

In October 1998, DHR petitioned to terminate the parents’ rights, alleging that the children continued to be dependent because of the parents’ unwillingness and inability to properly care for the children. DHR stated that the parents had failed to provide for the material needs of the children, that they had failed to maintain regular visits or consistent communication with the children, and that DHR’s' attempts to rehabilitate the parents had failed. Further, DHR alleged that the parents would be unable to provide a suitable home for the children in the foreseeable future; that there were no relative resources identified for alternative placement; and that it would be in the “best interest of the minor children that the natural parents be permanently relieved of the [children’s] care and custody.”

Following an ore tenus proceeding, the court, on January 19, 1999, terminated the parental rights of the mother and father. The mother appeals, arguing that the trial court’s judgment is not supported by clear and convincing evidence.

When ore tenus evidence is presented in a case involving the termination of parental rights, the judgment of the trial court is presumed correct and will be set aside only if the record shows the judgment to be plainly and palpably wrong. L.A.G. v. State Dep’t of Human Resources, 681 So.2d 596, 598 (Ala.Civ. App.1996).

“ ‘The trial court is given the authority to terminate parental rights if it finds from clear and convincing evidence that the parents are unable or unwilling to discharge their responsibilities to and for the children. The trial court shall consider whether the parents have abandoned their children, whether the parents have problems with drugs or alcohol, and whether reasonable efforts to rehabilitate the parents have failed. If the children are not in the physical custody of their parent or parents, the trial court shall also consider such circumstances as whether the parents have provided material needs for the children, whether the parents have maintained regular, scheduled visits with the children, and whether the parents have adjusted their circumstances to meet the needs of the children according to agreements reached administratively or judicially.’ ”

A.R.E. v. E.S.W., 702 So.2d 138, 139 (Ala. Civ.App.1997) (quoting M.H.S. v. State Dep’t of Human Resources, 636 So.2d 419, 421 (Ala.Civ.App.1994) (citations omitted)).

To terminate the parental rights upon the State’s petition, a court must make several findings. First, the court must determine that the child is dependent, according to clear and convincing evidence. Second, the court must find that there exists no viable alternative to termination of the parent’s custodial rights. J.L. v. State Dep’t of Human Resources, 688 So.2d 868, 869 (Ala.Civ.App.1997). Although a child’s parents have a prima facie right to custody, the paramount concern in these proceedings is the best interests of the child. Id.; see also S.W. v. Walker County Dep’t of Human Resources, 709 So.2d 1267 (Ala.Civ.App.1998).

The court entered a detailed 10-page order that chronicled the history of abuse and neglect of the children, beginning in Florida in 1989 and involving both parents and continuing with numerous reports involving the father in Alabama. The two abuse reports involving the mother occurred in 1989; the children have not resided with the mother since 1994. The trial court heard testimony regarding the mother’s extensive history of alcoholism and drug use, including arrests for drug possession; a listing in the Florida registry for child abuse; and a two-year sentence with the Florida Department of Corrections for violent offenses and drug crimes. A report made following a Florida home evaluation in 1997 stated that the mother continued to consume alcohol; that she lived with an abusive spouse; and that she would not be approved for placement. The Alabama DHR reported that the mother continued to have a drinking problem; that she had an unstable employment history and unstable living arrangements; and that she had failed to improve her home life since 1989. Further, a DHR employee testified that the children, because of their special needs, had received counseling and treatment in therapeutic foster care and that the mother’s continued instability would not provide an appropriate environment to meet the needs of the children.

The mother testified that she was currently married to an abusive spouse but that she was planning to divorce him; that she was currently unemployed; and that she had moved several times within the past six months and planned to relocate in Alabama. The mother gave conflicting testimony regarding her drinking problem and her attendance at substance abuse/treatment programs.

The court also considered testimony by the paternal grandmother, who had previously petitioned for custody of both children. She had been rejected as a relative resource because of her age, the age and health problems of her husband, and the fact that her son, who was a convicted child molester, lived on her property.

After thoroughly reviewing the record, we find evidence to support the termination of the mother’s parental rights. The trial court had the opportunity to hear and observe the witnesses, including the mother. We, therefore, accept the trial court’s determination that DHR has carried its burden of proving that the mother is unable to provide a stable home environment for the children and that it is in the best interests of the children to terminate the mother’s parental rights.

AFFIRMED.

ROBERTSON, P.J., and MONROE and THOMPSON, JJ., concur.

CRAWLEY, J., dissents.

CRAWLEY, Judge,

dissenting.

I must respectfully dissent. The mother argues that DHR failed to make reasonable efforts to rehabilitate her. I agree. Whether “reasonable efforts by [DHR] ... leading toward the rehabilitation of the parents have failed” is a factor to be considered by the trial court in making the decision to terminate parental rights. Ala. Code 1975, § 26-18-7(a)(6). See also Ezekiel v. State Dep’t of Human Resources, 562 So.2d 524, 525 (Ala.Civ.App.1990) (examining whether “reasonable efforts to rehabilitate the mother were exhausted prior to terminating her rights”). In addition, in cases like this one, where the child is no longer in the physical custody of the parents, the trial court must also consider the “[l]ack of effort by the parent to adjust his circumstances to meet the needs of the child in accordance with agreements reached ... with [DHR].” Ala.Code 1975, § 26-18-7(b)(4).

As the majority points out, the mother has an arrest record in Florida for, among other things, assault and robbery; she has apparently served time in a Florida prison. However, the mother has no history of arrest after 1988. The mother also admitted a past problem with alcohol. She testified, however, that she had been sober for six months and that she was attending AA meetings. She denied that she needed counseling for her addiction to alcohol, but stated that she would get counseling “if she had to” to get her children back. She testified that she had been through counseling in 1990 at a facility she called the “Tri-County” and that she had also sought counseling at the Peace River Center in Lakeland, Florida. Although she had not yet started counseling in Paxton, Florida, where she lived at the time of the hearing, she testified that she had been on the waiting list at a counseling center in nearby DeFuniak Springs and that she was about to start counseling sessions there on the Monday after the January 8, 1999, hearing. She also admitted that her present husband, from whom she is separated with the intent to divorce, has an alcohol problem; this is a fact she had denied at the dispositional hearing in September 1998.

The mother testified about her living arrangements and work history since the September 1998 hearing. She said that she had had a job with a landscaping company called Florida Scapes; that she had worked at that job for three or four months; and that she expected to be rehired by the owner once he had work again. She further explained that the job was seasonal. She stated that she had left the home she shared with her husband in Paxton, and had gone to live with her parents in south Florida. She testified that she worked for a restaurant in south Florida for a few weeks while she was there but that she left the job when she decided to move back to Paxton. She testified that her sister-in-law had let her move in with her family in Paxton temporarily. She further testified that she had a job interview at Covington Sewing Factory in Florala, Alabama, scheduled for the Monday following the January 8, 1999, hearing. She stated that she intended to move to Alabama.

Elle Mancil, the children’s caseworker, was questioned about the effort the Department made to rehabilitate the mother. She testified as follows:

“Our attempts have been to work with [the mother] to encourage her, because of her history of the alleged substance abuse and the chronic nature of it along through the years, and everything that is listed in this home evaluation being so negative, we have said to her “What you need to do is either seek out treatment, get into a treatment program that is going to say that you no longer have a problem, or by some other means show that you are no longer having problems with alcohol and drugs.'’ But, basically, with her living in Florida, all we can do is advise and refer her to get the treatment on her own.... It’s hard to provide services to a parent when they don’t live in the same state.”

After a review of the record, I am not clearly convinced that termination of the mother’s parental rights to her children is warranted. I question the majority’s reliance on the mother’s criminal history; the mother has not been arrested since 1989. To satisfy the clear and convincing standard, the Department was required to present evidence of the mother’s present living conditions and her present ability to care for her children. See T.H. v. State Dep’t of Human Resources, 740 So.2d 1089 (Ala.Civ.App.1998); Hamilton v. State, 410 So.2d 64 (Ala.Civ.App.1982).

Although the mother’s situation is not yet ideal, her attempts to better her situation, including leaving an alcoholic husband, seeking alcohol counseling, and deciding to relocate to Alabama indicate her desire and commitment to making a better life for her and her children. The mother made these attempts without aid from the Department. The mother has shown improvement in the four months between the September 1998 hearing and the January 1999 hearing; she should not be penalized for falling short when she has had to seek out services on her own. Because the Department made little, if any, attempt to rehabilitate the mother, as required by Ala.Code 1975, § 26-18-7(a)(6), and because the mother has attempted to adjust her circumstances to meet the needs of her children, see Ala.Code 1975, § 26-18-7(b)(4), I would reverse the juvenile court’s judgment terminating the parental rights of the mother. 
      
      . The older child, age 12, had been diagnosed with attention deficit hyperactivity disorder (ADHD) and pppositional defiant behavior, and the younger child, age 11, had been diagnosed with adjustment disorder with mixed disturbance of emotion and conduct.
     