Appeal
from Autauga Juvenile Court (JU-21-13.01)
THOMPSON, PRESIDING JUDGE
J.B.L
("the father") filed in the Autauga Juvenile Court
("the juvenile court") a petition seeking to
terminate the parental rights of J.C.L. ("the
mother") to a minor child born of their marriage in
2009. After conducting a hearing at which ore tenus evidence
was received, the
juvenile court entered a judgment on June 30, 2021, granting
the father's petition. The mother has timely appealed.
The
record reveals the following pertinent facts. The mother and
the father married in 2004. At the time of their marriage
the mother had two children, Ki.H. and Ko.H., from a previous
relationship; those two children were then approximately 11
years old and 4 years old, respectively.
Approximately
four years after the child's birth, the mother and the
father separated, and the mother filed an action in the
Autauga Circuit Court ("the circuit court") seeking
a divorce from the father. The mother's testimony at the
June 24, 2021, hearing in this matter indicates that, after
the parties separated, the mother moved to Irondale, a suburb
of Birmingham, to live in a home owned by her mother and in
which Ki.H. was living while he attended a nearby college.
The father, the child, and Ko.H. remained living in the
marital residence in Prattville.
On
December 18, 2014, the circuit court entered a divorce
judgment that incorporated a settlement agreement reached by
the parties that addressed the division of marital property
child custody, and child support. In pertinent part, that
judgment provided:
"2. CHILD CUSTODY
"A. The parties shall have joint legal and physical
custody of the minor child . . ., but this custodial
agreement shall only go into effect once the [mother]
relocates to a residence which is thirty (30) straight-line
miles or less from the current marital residence. Until then,
the parties shall have joint legal custody but with the
[father] having primary physical custody. So long as the
[mother] is more than thirty (30) straight line miles from
the marital residence, the [father] shall have the final
decision-making authority as to those issues materially
impacting the child. ... The [father's] address shall be
used for determining which school district the child shall
attend. He shall have the final decision-making authority for
all issues related to the education and health of the child.
The [mother] shall have the final decision-making authority
for all issues dealing with the extra-curricular activities
in which the child shall participate, but the same must be
conducted or at least originate in Autauga County, plus all
issues dealing with religion.
''. "3. CHILD SUPPORT
"The [father] shall pay $300 in the amount of child
support to the [mother] beginning that first day of the first
month after she permanently relocates to a residence that is
thirty (30) straight-line miles or less from the current
marital residence. The same shall continue each month
thereafter in the same amount until the child reaches the age
of majority (i.e., 19), becomes self supporting, becomes
emancipated, or becomes married. This amount is an upward
deviation [from the amount recommended in the child-support
guidelines] as agreed to by the [father] so as to facilitate
a prompt resolution.
"4. CUSTODIAL PERIODS
"Both patties shall have equal access to and equal
custodial periods of time with the minor child at all
reasonable times and places, as the parties mutually agree,
including but not limited to the following:
"a. Once the [mother] has relocated to a permanent
residence that is no more than thirty (30) straight-line
miles from the current marital residence, the parties shall
then enjoy week-on/week-off custodial periods of time with
the child. ...
"...
"m. The [mother] shall not live more than thirty (30)
straight-line miles from the current marital residence unless
she is willing for the [father] to have the child in his
custodial care in the same manner as now set forth by the
pendente lite order in this case. Thus, she would be entitled
to the child for two (2) weekends in a row, then the [father]
would have the child for the next one (1) weekend. This
rotation schedule shall apply so long as she lives in a
location more than thirty (30) miles from the current marital
residence. Only her holiday custodial times would remain the
same."
At the
June 24, 2021, termination-of-parental-rights hearing, the
mother testified that she did not move within 30
straight-line miles of the parties' former marital
residence, and, for that reason, the father had maintained
"primary physical custody" of the child. We note
that an award of "primary physical custody" of a
child is, under Alabama law, actually an award of sole
physical custody, as that term is defined in §
30-3-151(5), Ala. Code 1975. S.J.H. v. N.T.S., 301
So.3d 843, 847 n.4 (Ala. Civ. App. 2020); Whitehead v.
Whitehead, 214 So.3d 367, 371 (Ala. Civ. App. 2016).
On May
21, 2018, the circuit court entered a judgment modifying the
parties' divorce judgment; that modification judgment
incorporated the terms of a settlement agreement reached by
the parties. That judgment provided, in pertinent part, that
the father would have sole custody of the child, that the
mother would receive a standard schedule of visitation with
the child, and that the parties would enter into family
counseling to address any ongoing issues; the cost of the
family counseling was to be equally divided between the
parties. The May 21, 2018, modification judgment did not set
forth any child-support obligation for the mother.
Approximately
one year later, on July 25, 2019, the circuit court entered a
second modification judgment with regard to the parties'
divorce judgment. In that July 25, 2019, modification
judgment, the circuit court noted that the mother had failed
to appear at the hearing upon which that judgment was based.
That judgment states, in part:
"The record of testimony is ample in this matter and
does not need to be recited in this order, other than to
state
the [mother] has shown a clear disregard for the provisions
of this Court's orders and has failed to consider the
best interests of the minor child. The [mother] has exhibited
a complete failure to communicate with the [father]. She has
also completely failed to cooperate in the previously
agreed-upon counseling with Thea Langley. The [child's]
guardian ad litem and the counselor both reported serious
concerns about the [mother's] lack of cooperation and
ability to make rational decisions.
"The weekend prior to the hearing was extremely eventful
and included the filing of emergency orders to suspend
visitation, involvement of local law enforcement, and other
events that were upsetting to all involved. The events of the
weekend could have easily been avoided had the [mother]
communicated or co-parented with the [father]. The [father]
testified to his repeated inability to contact the minor
child while in the custody of the [mother]. Furthermore, the
Court noted that one of the [mother's] children has
resided with the [father] since the time of the initial
divorce, even though there is no blood relation between the
two. The [father], the counselor, and the guardian ad litem
were unanimous in their requests that the [mother's]
visitation be suspended. These requests were supported by the
evidence presented.
"The parties initially shared joint legal and physical
custody of the minor child in their settlement agreement in
[the original divorce action]. This joint custody was
predicated upon the [mother] relocating to within thirty (30)
miles of Prattville, where the parties and minor child lived
during the marriage. This was modified to grant the [father]
primary physical custody and joint legal custody between the
parties in [the first modification action], with the [mother]
receiving visitation. The current petition seeks to suspend
the [mother's] visitation, limit her communication with
the minor child, and require payment of child support.
"Now, after full and final consideration of the
testimony presented, together with the pleadings, exhibits,
argument of counsel, recommendation of the counselor, and
recommendation of the guardian ad litem, it is hereby:
ORDERED, ADJUDGED and DECREED as follows:
"CUSTODY: The [father] has sole physical custody of the
minor child; therefore the Alabama Supreme Court's
standard established in Ex parte McLendon, 455 So.2d
863 (Ala. 1984), is inapplicable in this matter. The [father]
was previously vested with sole physical custody of the minor
child through the [May 21, 2018, judgment] in [the first
modification action]. The [father] shall retain sole physical
custody of the minor child. Based upon the evidence presented
and the recommendations of the guardian ad litem and the
counselor, the [mother's] visitation with the minor child
shall be suspended. The [mother's] communication with the
minor child shall be limited and monitored as set forth
below. The [mother] may have her visitation rights [restored]
upon filing a petition to modify this Court's order and
meeting the applicable legal standards to prove that
visitation is in the best interests of the minor child.
"1.) LEGAL CUSTODY: The [father] is vested with sole
legal custody of [the child]."
(Capitalization in original.)
In
addition, in its July 25, 2019, modification judgment, the
circuit court ordered the mother to pay $240.03 per month in
child support, required the parties to continue counseling
and awarded the mother telephone visitation with the minor
child on Tuesday and Thursday nights. The circuit court also
found the mother in contempt and ordered
her to pay $3,500, as well as one-half of...