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April 14, 1995


Appeal from Madison Juvenile Court. (JU-93-1183.01 and. JU-93-1184.01).

Wright, Retired Appellate Judge. All the Judges concur.

The opinion of the court was delivered by: Wright

WRIGHT, Retired Appellate Judge

In December 1993 the Madison County Department of Human Resources filed a petition, seeking temporary custody of H.W. and R.W. The paternal grandparents, L.W. and C.W., filed a motion to intervene, seeking custody of the children. Following oral proceedings, the trial court entered an order, placing temporary custody with the Department and suggesting that the Department initiate proceedings to terminate the parental rights of the children's parents. The grandparents appeal.

The record reflects that the parents of the children were married in 1987 and had three children. At the time of the hearing H.W. was four years old, and R.W. was not yet one year old. The parents' middle child, D.W., died in December 1993. She was 22 months old at the time of her death. The death of the middle child precipitated this action.

An understanding of the facts surrounding the child's death is necessary. According to the mother, the child choked on mashed sweet potatoes and ultimately lost consciousness. She rushed the child to a neighbor's house for assistance. The neighbor attempted unsuccessfully to revive the child. The child was subsequently taken to the hospital and put on a life support system.

Employees of the hospital suspected that child abuse was involved. Authorities were called to investigate. The child was subsequently disconnected from the life support system. Her body was released to the Alabama Department of Forensic Sciences for an autopsy. The autopsy showed that the child sustained contusions on the scalp and forehead, an occipital skull fracture, subdural hemorrhages, and retinal hemorrhages. The autopsy listed the cause of death as blunt force trauma to the child's head. The cause of death was not found to be from choking or strangulation.

An investigation ensued. Friends and acquaintances of the parents were interviewed. The authorities found sufficient evidence to support the child abuse theory. The children were removed from the parents' home and placed with the Department, pending a more thorough investigation.

The Department subsequently filed a petition, alleging that the children were dependent. Upon a finding of dependency by the trial court, the Department sought temporary legal custody of the children. The paternal grandparents intervened, seeking custody.

All parties agreed that the children were dependent. The issue presented on appeal is whether there was sufficient evidence to support the trial court's denial of the grandparents' petition for custody.

The primary consideration in cases pertaining to custody of a child is what is in the best interests of the child. Shackelford v. State Dep't of Human Resources, 527 So. 2d 1329 (Ala. Civ. App. 1988). When determining what would be in the best interests of the child, the court must consider whether an individual seeking custody is physically, financially, and mentally able to care for the child. Shackelford.

The record reflects that the grandparents have been married for 45 years. They have four children. In addition to the 2 grandchildren at issue, the grandparents have 4 other grandchildren, 2 of whom live within 8 miles and the other 2 within 35 miles of the grandparents' residence in Georgia. The evidence reveals that the grandparents maintain a close relationship with their children and grandchildren.

The grandparents have lived in Albany, Georgia, since 1970. They have lived in the same house in an upper middle-class neighborhood for 24 years. Their home contains four bedrooms.

The grandfather is 65 years old. In 1970 he retired as a full colonel from the United States Air Force. Before retiring, he had flown a total of 150 combat missions in Korea and Vietnam and was held for nearly 2 years as a prisoner-of-war during the Korean conflict. He was awarded seven commendation medals, including the Purple Heart. After retiring, he returned to school and earned a degree in accounting. He became employed by a utility commission. At the time of the hearing he was employed as the commission's comptroller. He has been so employed for 20 years. The grandfather's salary, plus his military retirement benefits, exceeds $100,000 annually. The grandfather is actively involved in numerous organizations. He shoots M-1 rifles competitively. There was testimony that he did not have any medical problems and that he was in sound health.

Friends of the father testified that the father had commented on occasion that the grandfather had a drinking problem and that he was a strict disciplinarian. The grandfather testified that he last remembered having a drink with some friends in February 1994. He testified that he liked beer with certain foods. He denied that he had ever had a problem with alcohol. He denied that he was an abusive parent.

The grandmother is also 65 years old. She has been a homemaker for the majority of her married life. While she uses prescription medications to control her non-insulin dependent diabetes, high blood pressure, and arthritis, she testified that these conditions have not prevented her from performing her daily activities. She also has an inactive thyroid, which requires appropriate medication. The grandmother is actively involved in numerous activities. The ...

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