LEWIS v. STATE DEPT. OF PENSIONS AND SEC., 426 So.2d 862 (Ala.Civ.App. 1983)
426 So.2d 862
Civ. 3465.Court of Civil Appeals of Alabama.
February 9, 1983.
Appeal from the Circuit Court, Montgomery County, H. Mark Kennedy, J.
Curtis C. Reding, Jr., Montgomery, for appellant.
Clyde P. McLendon, Asst. Atty. Gen., and Wayne P. Turner, Montgomery, for appellee.
EDWARD N. SCRUGGS, Retired Circuit Judge.
This case concerns the award of the permanent custody of a dependent child to the Department of Pensions and Security of the State of Alabama (D.P.S.) with the grant of authority to that agency to place the child for adoption.
The mother appeals and complains of the insufficiency of the evidence.
It is presumed that parental custody is in the best interest of a child. However, that prima facie right is overcome when the evidence is clear and convincing that a custody award to a parent is contrary to the child’s best interest. Hamilton v.State, 410 So.2d 64 (Ala.Civ.App. 1982). Since the family court conducted an evidentiary hearing, its findings are presumed to be correct and cannot be disturbed on appeal unless palpably wrong. Witcher v. Motley, 417 So.2d 208 (Ala.Civ.App. 1982).Page 863
We have carefully read and studied the entire record and the helpful briefs of counsel. No benefit would accrue to anyone by a recital of the facts which were presented to the trial court. The high burden of proof which was imposed upon D.P.S. was met in this case and, accordingly, the parental preference presumption was overcome. The evidence was clear and convincing that it was not to the welfare of this infant that her custody be granted to the mother. The action taken by the trial court was not palpably wrong. As a matter of fact, no other viable solution here existed except the one which was reached and rendered by the trial court in its final judgment.
The foregoing opinion was prepared by Retired Circuit Judge Edward N. Scruggs while serving on active duty status as a judge of this court under the provisions of section 12-18-10
(e), Code 1975, and this opinion is hereby adopted as that of the court.
All the Judges concur.