Ex Parte G.C.

• Decision Date: 29 July 2005
• Docket Number: 1040001.
• Court: Alabama Supreme Court
• Parties: Ex parte G.C., Jr. (In re G.C., Jr. v. E.B. and D.B.).

Page 651

924 So.2d 651

Ex parte G.C., Jr. (In re G.C., Jr. v. E.B. and D.B.).

1040001.

Supreme Court of Alabama.

July 29, 2005.

Rehearing Denied September 23, 2005.

COPYRIGHT MATERIAL OMITTED

Bill G. Hall and D. Milburn Gross, Jr., of Ables, Baxter, Parker & Hall, P.C., Huntsville, for petitioner.

Dinah P. Rhodes of Rhodes & Creech, Huntsville, for respondents.

STUART, Justice.

G.C., Jr. ("the father"), appealed to the Court of Civil Appeals from a judgment awarding custody of his minor son, J.G.C. ("the child"), to E.B. and D.B. ("the maternal grandparents"). The Court of Civil Appeals affirmed the judgment without an opinion. G.C. v. E.B. (No. 2030309), 919 So.2d 329 (Ala.Civ.App.2004) (table). We granted the father's petition for certiorari review.

The evidence in the trial court revealed the following facts. The father and L.B. ("the mother") met at a Narcotics Anonymous meeting in 1998. They began a relationship that eventually resulted in the mother's pregnancy. They ended the relationship before the mother informed the father that she was pregnant; however, the father became aware that the mother was pregnant before the birth of the child in April 1999. The father and mother never married. At the time of the child's birth, the father was working out of town. The father saw the child two weeks after the child was born. Two months after the birth of the child, the father requested a paternity test, which established that he was the biological father. The mother and the child lived with the maternal grandparents for several months after the child was born. At some point, the mother moved out of the maternal grandparents' house and left the child with the maternal grandparents.

The father visited the child several times during the first year and was present for the child's first birthday. The father did not visit with the child much during the second year because he was working out of state. In August 2000, 14 months after he had learned that he was the biological father of the child, the father filed in the probate court a declaration of legitimation, requesting that he be determined to be the child's father. The trial court issued the order of legitimation, and the child's last name was changed to the father's.

In February 2002, after the mother forcibly removed the child from the maternal grandparents' home, the maternal grandparents sought temporary custody of the child. In April 2002, the trial court entered a pendente lite order, awarding the mother custody of the child and awarding the maternal grandparents specified visitation. The father received notice of that order and subsequently intervened in the proceedings. As a result, he was awarded regularly scheduled visitation with the child.

In August 2002, the mother, father, and maternal grandparents entered into an agreement, pursuant to which the mother and the father were to have joint legal and physical custody of the child and the maternal grandparents were to have specific visitation rights. The trial court entered an order adopting the agreement. In October 2002, while the child was visiting with the father, the mother overdosed on heroin and was unable to care for the child. As a result, at the urging of the maternal grandparents, the father and the maternal grandparents filed a joint petition to modify custody, seeking to remove shared custody from the mother. The trial court entered a pendente lite order, awarding joint physical custody of the child to the father and the maternal grandparents.

In February 2003, the father filed a petition seeking full custody of the child, claiming that the maternal grandparents had taken the position that their right to the child was superior to his. Following a hearing at which evidence was presented ore tenus,¹ the trial court awarded sole custody of the child to the maternal grandparents, subject to the visitation rights of the father. In denying the father's request for full custody, the trial court, in an order dated December 10, 2003, concluded that the father had voluntarily relinquished custody of the child to the maternal grandparents and that he was unfit to have custody. The trial court made the same findings regarding the mother. The mother, however, does not dispute those findings.

Specifically, the trial court stated in its order:

"Despite the petition of the grandparents requesting that they be granted joint custody with the father, the father requests that he be granted primary custody of the child.² This court cannot grant such a request due to a record replete with evidence that points to the father's unfitness and voluntary abandonment of this child. As to the father, the record reflects that:

"1. The father was not present at the birth of the child. He claims that he was out of town on business. He did not even tell his mother about the child until the child was 7 months old. He and the mother never lived together. The father chose not to legitimize the child until about a year and five months after the birth of the child, claiming he didn't have the $200.00 to pay for it then. The first time he met the [maternal grandparents], which was when [the child] was around 18 months old, he did not even state his last name.

"2. The father lived at home with his parents till he was twenty-four years old. He moved out to live with a friend, [W.H.] He lived with [W.H.] for three or four months and moved back home. He lived at home for another year and a half then moved in with Mr. [T.] He has been back home for the past year living with his mother. He says he will move out but he doesn't know when—he has made no plans to do so.

"3. The father has a history of quitting jobs after three or four months. He has finally maintained a job with his current employer ... for a little over two years now, although he is no longer working as a business installer. The father claims to have saved $1,200.00 since February of 2003, but he did not have a plan for his money. Although he requested full custody of his child, he had never thought to budget for [the child]'s clothes or school. When questioned about his monthly expenses, the father stated that he pays his mother $50.00 per month to live in her home, pays for car insurance, his cell phone bill, and for food and gas. He sold his own car and now drives his father's. After going through his expenses and income the father learned that he had over $4,200.00 from February that he could not account for. The father is oblivious at age 30 about where his money goes. The evidence is clear that he has never had to manage his money because his parents loaned [him money] and paid debts for him for years.

"4. Upon cross-examination the father admitted that he had abandoned a former girlfriend when she got pregnant. She later lost the baby. He admitted that he might have abandoned the child, as well. His current girlfriend's name is `Winter.' He could not remember her last name. He met her at her place of employment — a Waffle House [restaurant]. He recently gave up an opportunity to have visitation with [the child] to go out on a date with this girlfriend.

"5. The father had a full month in the summer of 2003 to have visitation with his son. Even with accommodations made with the [maternal grandparents], the father chose not to exercise the visitation, claiming that he had no more vacation days left at work and he did not want to put [the child] in day-care. The evidence further shows that the father never exercises visitation with [the child] alone. Until the last hearing in September, the father has never spent 24 hours alone with his own son.

"6. The father admits that this move will traumatize [the child]. The father also admits that [the child] thinks of the [maternal grandparents] as his parents. The father fully admits that he has waited until now to assert any rights he may have to this child. He admits that his own mother took the active role in issues involving [the child] until February of 2003. The father admits that he has no idea what size clothes [the child] wears because his mother likes to buy the clothes for [the child] and goes with him and picks them out and she knows the sizes. The father admits that he still relies on the [maternal grandparents] to see to [the child]'s medical needs, i.e. taking him to the doctor, etc., because he (the father) `has to work'; despite admitting that he has time to pick up a friend and eat breakfast before work.

"7. Finally, the father agreed in his testimony that [the child] should not be taken out of the [maternal grandparents'] home at this time and placed in his custody. Even ... the paternal grandmother admitted that the [maternal grandparents] were the ones that made [the child] a top priority, as she noted that she and her son were preoccupied with her husband's terminal illness.

"Based on the above, the court finds by clear and convincing evidence that both parents voluntarily abandoned their parental responsibilities to this child, and as a result [the child] has no true parental bond with either of them. The mother now clearly recognizes this fact[;] the father recognizes that he wasn't there for all those years, but states that he wants to be there now.

"Unfortunately, those years have made all the difference in [the child]'s world because the child's security and bonding to the maternal grandparents took place during the time that the father was not interested in asserting his pare§ Reversed and remanded.ntal rights. That's the whole point of the emphasis being added by our Supreme Court in its opinion in [Ex parte] Terry, [494 So.2d 628 (Ala.1986)]. That is why there are exceptions to the `Terry' standard.

"This court finds by that same clear and convincing evidence that this father is currently unfit to have custody of any child. Based on the totality of the evidence the father can hardly manage himself, much less the addition of a child. He hasn't a clue where his money...