Ex Parte W.H., Jr.

• Decision Date: 05 May 2006
• Docket Number: 2050040.,2050026.
• Citation: 941 So.2d 290
• Parties: Ex parte W.H., Jr., and K.H. (In the matter of T.T.O., also known as T.T.H., a minor child). N.O. v. J.R.O. and C.W.O.
• Court: Alabama Court of Civil Appeals

941 So.2d 290

Ex parte W.H., Jr., and K.H (In the matter of T.T.O., also known as T.T.H., a minor child) N.O. v. J.R.O. and C.W.O.

2050026.

2050040.

Court of Civil Appeals of Alabama.

May 5, 2006.

J. Bary Abston, Huntsville, for petitioners W.H., Jr., and K.H.

Reta A. McKannan, Huntsville, for appellant N.O.

Tiffan Miller Taylor, Huntsville, for appellees J.R.O. and C.W.O.

Joan-Marie Kettell, Huntsville, for C.O.

THOMPSON, Judge.

In April 2005, N.O. ("the mother") and C.O. ("the father") (collectively "the parents") were arrested on burglary charges and incarcerated. At that time, the parents and T.T.O., also known as T.T.H. ("the child"), were residing in the home of J.R.O. and C.W.O., the father's parents and the child's paternal grandparents (collectively "the paternal grandparents"). The child's date of birth is October 11, 2003.

On April 19, 2005, apparently while the parents remained incarcerated, W.H., Jr., the child's maternal grandfather, and his wife, K.H., the child's maternal stepgrand-mother (collectively "the maternal grandparents"), filed in the juvenile court a petition seeking custody of the child as well as pendente lite custody of the child.¹ The juvenile court assigned their petition case no. JU-05-1584.01. In their April 19, 2005, petition, the maternal grandparents asserted that the child was a dependent child within the meaning of § 12-15-1(10), Ala. Code 1975. They alleged, among other things, that the parents were addicted to drugs and mind-altering substances; that repeated efforts at rehabilitating the parents had failed; that the parents had lost custody of their older child in a previous juvenile proceeding; and that, due to the parents' drug-related problems, the parents were unable to safely care for and parent the child. The maternal grandparents asserted that they were fit and proper persons to have custody of the child and that the child's best interests would be served by granting them custody of the child. The maternal grandparents also submitted affidavits of the child's maternal great-grandfather, the maternal grandfather, and one of the mother's cousins; those affidavits set forth details regarding the parents' drug abuse. The maternal grandparents also submitted an "Alabama Uniform Incident/Offense Report Supplement Report" of the Madison County Sheriff's Department regarding the parents' arrest for stealing tools from the maternal grandparents. In his affidavit, the maternal grandfather stated that "I am pressing charges against [the parents] because this is the only way that I know to make them get some help."

On April 27, 2005, the juvenile court entered an order granting the maternal grandparents pendente lite custody of the child. In that order, the juvenile court also appointed a guardian ad litem for the child.

On April 26, 2005, the day before the juvenile court entered its April 27, 2005, pendente lite custody order, the parents and the paternal grandparents had filed in the juvenile court a sworn pleading styled "joint stipulation of the [parents and the paternal grandparents]" in which the parents and the paternal grandparents agreed to transfer custody of the child to the paternal grandparents. The parents and the paternal grandparents requested that the juvenile court adopt as a custody order that "joint stipulation." The juvenile court assigned that "joint stipulation" case no. JU-05-1596.01; that "joint stipulation" stated, in relevant part:

"This agreement, made and entered into on the 26th day of April, 2005, by and between [the parents] and [the paternal grandparents].

". . . .

"WHEREAS, the natural parents of the minor child . . . are currently incarcerated in the Madison County Jail and are charged with a felony. Prior to said incarceration the [parents] and the minor child . . . had resided with the [paternal grandparents] for some time. The [parents] have suffered with certain drug-related problems and the paternal grandparents have provided support for the [parents] and the . . . minor child and

"WHEREAS, the parties have reached this agreement with regard to custody of the minor child . . . and desire that the Court approve their Agreement and incorporate the parties' Agreement into a final order and decree of this Court; and

"NOW THEREFORE, in consideration of the promises, and of the mutual covenants herein provided, it is hereby agreed by and between the parties as follows:

"1. The parties stipulate that the minor child is [a] dependent child, as defined in section 12-15-1(10) of the Code of Alabama, 1975. The [paternal grandparents] shall have the legal and physical custody of the minor child . . . .

"2. Upon the [parents'] release from jail, they shall have visitation with the child at all times and places as is agreed upon by the parties. The parties agree that the visitation shall be exercised in a suitable location for the minor child and that all persons present shall be free from alcohol or any mind-altering substance.

"3. At the time of execution of this Agreement, neither of the [parents] is steadily employed. The parties stipulate and agree that the [parents] are currently experiencing substantial financial distress, and the parties further agree that a child-support obligation should be deferred at this time. Should the [parents] be released from jail, they shall contribute to the costs of the minor child as they are financially able. The parties agree that said child support is a deviation from Rule 32 Guideline Support and that said deviation is warranted at this time.

"4. The parties agree that this Agreement constitutes the entire understanding between the parties and supersedes all and any other prior agreements, if any, heretofore made between them other than those herein expressly set forth. The parties further acknowledge that each has signed this agreement freely and voluntarily and after having had an opportunity to consult with legal counsel. It is agreed between the parties that this Agreement shall be filed in the Juvenile Court of Madison County, Alabama in a dependency action there, and it is acceptable by the parties that the provisions of this Agreement, if acceptable to the Court, shall be incorporated into and made a part of a Final Order of Custody . . . in that action, or in the event this Agreement is not acceptable to said Court for the purposes hereinabove set out, the same shall be and become null and void and shall not be evidence or considered as such by any Court."²

On April 29, 2005, the paternal grandparents filed a motion to set aside the April 27, 2005, pendente lite custody order. In their April 29, 2005, motion, the paternal grandparents alleged, among other things, that on April 26, 2005, the parents had "signed custody" of the child over to them, that the maternal grandparents were aware of that fact, and that the child had resided in their home for over two years. The paternal grandparents requested that the juvenile court permit the child to remain in their home where he was safe, well cared for, and well adjusted. The paternal grandparents agreed to cooperate with the guardian ad litem for the child; they also agreed not to leave the child alone with the parents pending a hearing on the matter.

Also, on April 29, 2005, the maternal grandparents filed a motion styled "Motion for Order Directing the Sheriff of Madison County to Place Minor Child in the Custody of [the Maternal Grandparents]." In their April 29, 2005, motion, the maternal grandparents alleged, among other things, that the paternal grandparents had refused to turn the child over to them after being served on April 28, 2005, with the April 27, 2005, pendente lite custody order; that the parents continued to reside in the paternal grandparents' home; and that it was not in the best interests of the child to remain in a home with the parents because of the parents' problems with drug addiction. The maternal grandparents also alleged that on April 29, 2005, they had discovered that the parents were attempting to transfer custody of the child to the paternal grandparents via the parents and the paternal grandparents' "joint stipulation." In support of their April 29, 2005, motion, the maternal grandparents attached a copy of the April 27, 2005, pendente lite custody order and the "joint stipulation."

On May 4, 2005, the juvenile court held a hearing regarding case no. JU-05-1584.01 and case no. JU-05-1596.01. Although that hearing was not transcribed, the maternal grandparents, on appeal, pursuant to Rule 10(f), Ala R.App. P., properly supplemented the record with a "joint stipulation with respect to hearing of May 4, 2005," which was signed by the maternal grandparents, the paternal grandparents, and the guardian ad litem;³ that stipulation stated, in relevant part:

"a. [The maternal grandparents] were personally present and were represented . . . by [counsel]. [The paternal grandparents] were personally present and were represented . . . by [counsel]. [The parents] . . . of the subject minor child were present and were not represented by counsel. . . . [T]he guardian ad litem for the subject minor child, was also personally present. . . .

"b . Judge Sherrod did not take testimony at the hearing, but stated that on a pendente lite basis the paternal grandparents . . . should exercise custody of the minor child pending further orders of the Court, and that the parties should attempt to work out visitation by agreement. Judge Sherrod directed that the natural parents['] contact with the minor child should be supervised by one of the four grandparents. [The parents] . . . did not object to the Court's decision to place pendente lite custody of the minor child with the paternal grandparents at the hearing of May 4, 2005.

"c. Judge Sherrod directed that the two cases be consolidated under one case number."

The juvenile court did not enter a written order following the May 4, 2005, hearing.

In August 2005,...