A.J.H.T. v. K.O.H.

• Decision Date: 27 July 2007
• Docket Number: 2051035.
• Citation: 983 So.2d 394
• Parties: A.J.H.T. v. K.O.H.
• Court: Alabama Court of Civil Appeals

983 So.2d 394

A.J.H.T. v. K.O.H.

2051035.

Court of Civil Appeals of Alabama.

July 27, 2007.

Certiorari Denied October 26, 2007 Alabama Supreme Court 1061604.

Glenn A. Shedd, Fort Payne, for appellant.

Ralph K. Strawn, Jr., of Henslee, Robertson, Strawn & Sullivan, L.L.C., Gadsden, for appellee.

PER CURIAM.

A.J.H.T. ("the mother") appeals a judgment terminating her parental rights regarding J.H., born in February 1999; K.H., born in April 1997; and B.H., born in July 1994 (J.H., K.H., and B.H. are hereinafter collectively referred to as "the children"). We affirm.

On November 15, 2005, K.O.H. ("the father") petitioned the juvenile court to terminate the mother's parental rights regarding the children. The juvenile court held an ore tenus proceeding on July 31, 2006, regarding the termination petition. On August 31, 2006, the juvenile court entered its judgment terminating the mother's parental rights. That judgment states, in pertinent part:

"After due consideration of the testimony received and an in-camera interview with the minor children, the Court finds as follows[:] 1. That the Defendant/mother ... has successfully maintained stable housing and employment for over one year; 2. The Defendant/mother ... has a prior history of drug use and a felony conviction, as does the Plaintiff/father ...; 3. Both parties have successfully remained drug free for over two years.

"However, the Defendant/mother has failed to provide any support or maintenance for the minor children and has not maintained regular visits nor any form of contact or communication with the minor children for over four years. This lack of effort or inability to adjust her circumstances to meet the needs of the minor children constitutes abandonment of the said minor children ...."

On September 13, 2006, the mother filed a notice of appeal and requested, among other things, certification of the record as adequate for appellate review or, in the alternative, a transfer of the case to the circuit court for a trial de novo. The juvenile court then certified the record as adequate for appellate review on September 26, 2006. On December 7, 2006, the mother filed a motion titled "Motion to Reconsider Certification of Record as Adequate." The juvenile court subsequently denied that motion.

On appeal, the mother first argues that the juvenile court erred by certifying the record as adequate for appellate review because, she says, (1) the parties did not agree to the in camera examination of the children and (2) the juvenile court conducted the in camera examination without recording it.

The transcript of the proceeding does not indicate when the juvenile court suspended the proceeding to conduct the in camera examination. However, Robert Beck, the father's attorney, submitted an affidavit to the juvenile court stating that the parties had agreed to the in camera examination and were aware that the juvenile court would conduct that examination without the presence of a court reporter or a recording device. The mother neither made an objection to the in camera examination at trial that was noted on the record nor submitted an affidavit disputing the allegations in Beck's affidavit. The mother cannot induce error of the juvenile court by agreeing to the in camera examination with knowledge that it was not going to be recorded and argue on appeal that the juvenile court erred on this basis. We therefore cannot reverse the juvenile court's order certifying the record as adequate for appellate review on this ground. See Atkins v. Lee, 603 So.2d 937, 945 (Ala. 1992) ("A party may not predicate an argument for reversal on `invited error,' that is, `error into which he [or she] has led or lulled the trial court.' Dixie Highway Express, Inc. v. Southern Ry., 286 Ala. 646, 651, 244 So.2d 591, 595 (1971); see also State Farm Mutual Automobile Ins. Co. v. Humphres, 293 Ala. 413, 418, 304 So.2d 573, 577 (1974)."). Cf. Wilson v. State Dep't of Human Res., 527 So.2d 1322, 1325 (Ala.Civ.App.1988) (concluding that the parties' did not preserve their arguments for appellate review because they failed to raise a timely objection to the juvenile court's in camera examination of the parties' children).

Next, the mother argues that insufficient evidence supports the juvenile court's judgment terminating her parental rights.

The following is a recitation of the pertinent evidence. The mother and the father have two children together, J.H. and K.H., ages 7 and 9 at the time of the trial, respectively. The mother also has a daughter, B.H., age 12 at the time of the trial, born of a prior relationship. The mother and the father were married to each other; however, they subsequently divorced in March 2000.

The trial court entered a divorce judgment awarding the father custody of J.H. and K.H. In its judgment, it made a finding of unfitness regarding the mother, a finding of dependency regarding B.H., and awarded custody of B.H. to the father. The trial court awarded the mother unsupervised visitation and ordered her to pay $454.91 in monthly child support.

After the divorce, the father remarried to H.H. ("the stepmother"). The father and the stepmother have one child together, and the stepmother has two children from a previous relationship, all of whom reside with them. The father is a cashier working at a garden center, and the stepmother is a homemaker.

The evidence established that the mother exercised her visitation rights until sometime in 2001. The mother testified of the first instance when the father began to interfere with her visitation rights. According to the mother, the children were in her physical custody while the father's son from another relationship had been hospitalized. After the father retrieved the children from the mother's physical custody, the stepmother became angry and told the mother that she could no longer exercise visitation with the children. She further testified that the stepmother and the father had threatened to call law enforcement if she attempted to exercise visitation with the children. The mother testified that she had made attempts to contact the father to exercise visitation but that her attempts were of no avail. K.Ho. ("the maternal grandmother") and two of the mother's sisters also testified that the mother's attempts to exercise visitation were thwarted by the father. The mother last visited with the children during the time of the maternal grandmother's visitation in the summer of 2001. When the father discovered that the mother had visited with the children, he no longer permitted the maternal grandmother to visit with them.

However, the father denied that the stepmother made decisions regarding the mother's visiting with the children. The stepmother also denied interfering with the mother's visitation rights or threatening to call law enforcement in the event the mother sought to exercise her rights.

Contrary to the mother's rendition of the facts, the father testified that in late 2000 the mother called him before her visitation period was scheduled to end, requesting that he obtain the children from her. According to the father, the children were sick and filthy when he arrived to retrieve the children. Additionally, he stated that the mother did not have electricity and running water in her home. The father then told the mother that she could not exercise visitation until she obtained adequate housing.

The father testified that the next time the mother requested visitation was when she inadvertently encountered the father at a convenience store. In response to the mother's request, the father told the mother that he was unaware of her current condition; the mother did not expound on her situation. The father testified that although he and the stepmother moved twice, the mother failed to contact him despite her having his telephone number. According to the father, the next time he received correspondence from the mother was when he was served with notice of her petition seeking to hold him in contempt for his alleged interference with her visitation rights in March 2005. The father testified that he responded by seeking to have the mother's visitation with the children supervised but that he then petitioned to terminate the mother's parental rights based upon the children's desire not to visit with the mother. The stepmother petitioned to adopt the children, and the father petitioned to adopt B.H.

The mother admitted that the children desired not to visit with her. She also admitted that she has not purchased any food or clothing for the children and that she has not had any contact with the children since June 2001. The mother stated that she has not given the children gifts or cards since Christmas 2000 because she believed that her attempts to give the children gifts would be of no avail since she was told that she could not have any contact with the children. However, she testified that she had purchased the children toys, which she placed in the room that she had furnished for them.

The mother also admitted that she had failed to tender her monthly child-support obligation to the father although she was, at times, able to pay child support. The mother estimated an arrearage totaling approximately $37,000. The mother testified that she had failed to pay child support because she had been unemployed for a period of time. The mother testified that she had retained counsel to petition for a modification of child support but that that attorney had failed to file that petition on her behalf. She further testified that her counsel at trial had advised her to save money for the children. She stated that she had saved between $2,400 and $2,500 and that she was saving $200 per month for the children. At the time of trial, the mother had been employed with the same employer since February 2005, earning $10.00 an hour.

The mother has enrolled in college and has remarried. The mother has been living in a...