J.W. v. N.K.M.

• Decision Date: 13 June 2008
• Docket Number: 2061032.
• Citation: 999 So.2d 526
• Parties: J.W. v. N.K.M.
• Court: Alabama Court of Civil Appeals

999 So.2d 526

J.W. v. N.K.M.

2061032.

Court of Civil Appeals of Alabama.

June 13, 2008.

Joan-Marie Kettell Dean, Huntsville, for appellant.

Norman Bradley, Jr., Huntsville, for appellee.

On Application for Rehearing

THOMPSON, Presiding Judge.

The opinion of March 28, 2008, is withdrawn, and the following is substituted therefor.

On April 28, 2006, N.K.M. ("the great-aunt") filed a complaint seeking to have H.N.W. ("the child") declared dependent and seeking an award of custody of the child. In her complaint, the great-aunt alleged that J.W., the child's mother ("the mother"), had left the child, who was then seven years old, in the care of relatives since the child was an infant and that the child had been residing in the great-aunt's home for the past year.¹ The great-aunt later amended her dependency complaint to allege that the mother had abandoned the child and was unfit to have custody of the child. The mother did not file an answer, but she contested the dependency action. The juvenile court entered a pendente lite order based on an agreement reached by the great-aunt and the mother in which it awarded the great-aunt pendente lite custody of the child, awarded the mother visitation with the child on alternating weekends, and ordered that the child attend counseling.

The juvenile court conducted an ore tenus hearing on the great-aunt's dependency complaint. On June 29, 2007, the juvenile court entered a judgment in which it found the child to be dependent and awarded custody of the child to the great-aunt. The juvenile court awarded the mother a standard schedule of visitation and ordered her to pay monthly child support. The mother filed a postjudgment motion, and that motion was denied by operation of law. See Rule 59.1, Ala. R. Civ. P. The mother timely appealed.

The child was born 2 months before the mother turned 21 years old. The mother did not list the name of the child's father on the child's birth certificate. The great-aunt testified that the mother had never identified the child's father and that that was one reason why she and the child's great-grandmother had not been able to pursue a child-support action against the child's father during the time that the child had lived with them.

At the time of the child's birth in September 1998, the mother was living with her mother, A.R. ("the grandmother"). When the child was approximately two months old, the mother returned to work; her regular work hours were from 6:00 p.m. to 2:00 a.m. The mother's grandmother, D.B. ("the great-grandmother"), took care of the child in her home while the mother worked. At that time, the great-aunt and her two daughters were also living in the great-grandmother's home. The great-aunt helped in caring for the child when the mother was at work.

The great-aunt testified that the mother soon began leaving the child with the great-grandmother and her overnight. That arrangement gradually progressed into the mother's leaving the child with them for more extended periods. According to the great-aunt, the child predominantly lived in the great-grandmother's home for the first two years of the child's life, even after the mother married and moved into her own apartment near the great-grandmother's home.

The mother testified that she left the child overnight at the home of the great-grandmother to avoid interrupting the child's sleep. The mother testified that the child lived with her during the first two years of the child's life and that the great-grandmother only provided child care during the times when she was at work. We note that the testimony of C.S., another of the mother's maternal aunts, supports the great-aunt's allegations that the child had lived in the home of the great-grandmother since she was several months old.

It is undisputed that when the child was two years old the mother moved to Kentucky and left the child with the great-grandmother. The mother lived in Kentucky for approximately eight months. According to the mother, she telephoned the great-grandmother several times each week to talk to her about the child. When the mother returned to Alabama, she lived in the grandmother's home for approximately a year. During that year, the child continued to live with the great-grandmother. The mother explained her decision to leave the child with the great-grandmother at that time by stating that the child, who was then three years old was in school and that she did not want to disturb the child's daily routine. The mother stated that she "sometimes" saw the child on a daily basis during that time and that she visited the child on weekends if the great-grandmother and great-aunt did not have other plans with the child.

The mother then moved to Virginia to reconcile with R.J., a man with whom she previously had been involved. The mother married R.J. and lived with him in Virginia for approximately a year and a half. The mother testified that she did not take the child to live with R.J. and her in Virginia because she was trying to "get her life settled" and attempting to save some money so that she could bring the child to live with her. During the year and a half that the mother lived in Virginia, she saw the child on three occasions, and she spoke with the child by telephone a few times each week.

The mother returned to Alabama in 2002 with R.J. and a son born during the mother's marriage to R.J. According to the great-aunt, the mother, R.J., and the son lived with the grandmother for a few months and then lived in their own apartment for approximately one year. The child continued to live in the home of the great-grandmother during that time.

The mother then moved to Tennessee, and the child continued to reside in the home of the great-grandmother with the great-grandmother and the great-aunt. The mother testified that she moved to Tennessee because the grandmother had also moved there. The record does not indicate when that move occurred; however, the mother divorced R.J. in Tennessee in November 2004, so it appears that she had been in Tennessee for some time when her divorce judgment was entered.

Pursuant to the 2004 Tennessee divorce judgment, R.J. was ordered to pay child support for the son who was born during the mother and R.J.'s marriage. At the hearing in this matter, the mother stated that R.J. was the child's father. According to the mother, the Tennessee divorce judgment does not mention the child or provide support for her because, the mother stated, she did not want the child to "be brought into the turmoil."

The mother stated that R.J. now wanted his paternity established and that, although no court action had been initiated, plans were underway for a DNA paternity test to establish his paternity. At one point during the hearing, the mother testified that she wanted R.J.'s paternity established so that she could receive child support from him; she later stated that she had no intention of pursuing a child-support action against R.J. The mother testified that, in the event the great-aunt was awarded custody of the child, she would provide the information necessary for the great-aunt to pursue an action to establish R.J.'s paternity and to receive child support from him.

The mother has been employed as a certified nursing assistant in Tennessee for approximately three years. At the time of the hearing, the mother was living in Tennessee with J.G., a man she identified as her fiancé. The mother testified that the child and J.G. have a good relationship. The mother stated that she and J.G. did not intend to marry until she obtained custody of the child so that the child could participate in the wedding. The mother explained that she did not want to marry during her weekend visitation with the child because, she said, she wanted to spend that time focusing on the child.

The evidence indicated that the mother and her fiancé lived in a three-bedroom mobile home and that the child has her own bedroom in that home. The great-aunt testified that the mother's home was clean when she visited it. However, the great-aunt expressed concern that the mother's fiancé owned the mobile home and the mother had no ownership rights in that home and that the mother would have no home if her relationship with J.G. ended.

The mother testified that in 2005 the great-aunt and other family members became concerned about the ability of the great-grandmother, who was in her 80s, to properly care for the child. At approximately the same time those concerns were raised, the great-aunt married and moved to a home with her new husband. The great-aunt testified that the child went to live with her when she married; she explained that the child resided with her during the week but that the child stayed after school with the great-grandmother and often visited the great-grandmother for at least one day on the weekend. The home of the great-aunt and her husband has separate bedrooms for each of the great-aunt's two daughters, the husband's daughter, and the child. Both the great-aunt and her husband, who is a math and special-education teacher, testified that they considered the child to be one of their own children and that the child seemed to be doing well in their family.

The mother testified that when concerns about the great-grandmother's ability to continue to care for the child were raised, she had intended to bring the child to live with her. She testified, however, that she did not want to move the child until the child had finished the school year and that she had planned to move the child in the summer. It is undisputed, however, that the mother did not visit the child between December 2005 and April 2006, when the great-aunt filed the dependency complaint. The mother explained that, during that time, her work schedule was hectic and that she had maintained telephone contact with the child.

The mother stated that it was always her intention to someday return and to have the child live with her...