J.W. v. T.D.

• Citation: 58 So.3d 782
• Decision Date: 16 July 2010
• Docket Number: 2090042 and 2090043.
• Parties: J.W.v.T.D. and B.D.
• Court: Alabama Court of Civil Appeals

58 So.3d 782

J.W.

v.T.D. and B.D.

2090042 and 2090043.

Court of Civil Appeals of Alabama.

May 28, 2010.Rehearing Denied July 16, 2010.Certiorari Denied Sept. 10, 2010

Alabama Supreme Court 1091484.

Benjamin J. Freeman, Dothan, for appellant.Matthew C. Lamere, Dothan, for appellees.BRYAN, Judge.

J.W. (“the father”) appeals from a judgment of the Houston Juvenile Court (“the juvenile court”) insofar as it found his two children, Ba.R.W. and Br.R.W. (“the children”), to be dependent and awarded custody of the children to T.D., the maternal uncle of the children (“the uncle”), and B.D., the uncle's wife (“the aunt”).

The father and K.W. (“the mother”) were married in 2000. The mother had a daughter, Br.D., from a previous relationship, and she gave birth to the children, who are fraternal twins, in November 2003. The mother died on October 28, 2008, and on October 29, 2008, the father presented himself to his therapist for crisis intervention. The same day, C.D., the maternal grandfather of the children (“the grandfather”) filed a petition in the juvenile court, in case nos. JU–08–683.01 and JU–08–684.01, alleging that the children were dependent, and the juvenile court awarded pendente lite custody of the children to the grandfather.

On March 10, 2009, the uncle filed a petition in the present actions, case nos. JU–08–683.02 and JU–08–684.02, that alleged that the children were dependent, and he requested custody of the children. The uncle alleged that the grandfather could not adequately care for the children because of his age, and he further alleged that the father was verbally and mentally abusive to the children. The juvenile court conducted a hearing on March 27, 2009. At that hearing, the grandfather withdrew his petition for custody. After taking some testimony, the juvenile court recessed the hearing, and pendente lite custody of the children was awarded to the uncle and the aunt pending further orders from the juvenile court. The father was allowed only supervised visitation with the children. On May 28, 2009, the juvenile court granted a motion of the Alabama Department of Human Resources (“DHR”) that requested relief from its obligation to supervise visitation between the father and the children because, DHR alleged, the father had completed parenting classes and anger-management classes and had otherwise completed everything requested of him by DHR. On September 22, 2009, the juvenile court resumed the hearing that had begun in March 2009, and it entered a final judgment in case nos. JU–08–683.02 and JU–08–684.02 on October 2, 2009. The juvenile court found the children dependent, awarded custody of the children to the uncle and the aunt, and awarded the father unsupervised visitation with the children. Without filing a postjudgment motion, the father timely appealed. We have consolidated the father's appeals.

The record reveals the following pertinent facts. The uncle, who was 35 years old at the time of the final hearing, testified that he and the aunt live in Columbia in a five-bedroom mobile home. The uncle testified that the aunt had three children from a previous relationship that lived with the uncle and the aunt: a boy who was 17 years old, a girl who was 15 years old, and a girl who was 12 years old. Br.D., the mother's oldest child and the half sister of the children, also lived with the uncle and the aunt; she was 11 years old at the time of the final hearing. The uncle testified that the children, who were five years old at the time of the hearing, shared a bedroom, that Br.D. and his 15–year–old stepdaughter shared a bedroom, and that his 17–year–old stepson and 12–year–old stepdaughter each had their own bedroom. He stated that the children often spent the night at his house before the mother passed away and that all the children living in his household got along well.

The uncle testified that both of the children are enrolled in school at Head Start. However, Br.R.W. had demonstrated significant behavioral problems at school, including threatening to break his teacher's arm. Br.R.W. had been diagnosed with attention deficit/hyperactivity disorder (“ADHD”), mild autism, pervasive developmental disorder, overanxious disorder, mood disorder, sleep disorder, and seizure episodes. The aunt testified that Br.R.W. took three types of prescription medication, including Ritalin three times a day to treat ADHD. The aunt testified that Br.R.W.'s behavior had improved after the grandfather took custody of him following the mother's death, and, according to the aunt, Br.R.W.'s behavior had further improved since he had moved into her home.

Both the uncle and the aunt work, and the uncle stated that the children would be eligible for insurance coverage under the aunt's insurance plan provided through her employer. The children originally had health insurance through Medicaid, but the father had gotten the children insurance through a program called AllKids; the aunt testified that the counselor of the children did not accept AllKids insurance.

The uncle stated that he had strived to get along with the father because he had married the uncle's sister, the mother. He stated that he had not had any contact with the father since the mother passed away. The uncle stated that the father had not supported his family, that he had not maintained a stable job, and that he would often “scream and holler” at the children. The uncle admitted that his whole family “intensely disliked” the father. However, the uncle also testified that he could set his personal feelings about the father aside in order to facilitate a relationship between the father and the children. The uncle testified that the children were thriving in his home and that the children attended Sunday School at a Baptist church in Columbia.

The aunt testified that she got along fine with the father but that she feared that he would not return the children after his visitation. The aunt testified that she had seen the father discipline the children and that, in the aunt's opinion, the father spanked Ba.R.W. too often and that he did not spank Br.R.W. enough. She agreed that the children seem to miss the father.

The father testified that he had a history of mental illness, including anger issues since his childhood that manifested in a verbally abusive way. He agreed that he often “screamed and hollered” at the children and that the problem was so severe that he sought professional treatment in April 2008. The father was diagnosed with bipolar disorder. The father took four different prescription medications to treat his mental illness: Depakote, for mood instability; hydroxyzine, for anxiety; Effexor, for depression; and trazadone, a sedative antidepressant, for disturbed sleep.

The father testified that he had attempted suicide on September 2, 2008, because he had gone off of his medication for several days in order to have a myelogram. He was hospitalized for three days following that incident. The father admitted that Br.D. had been afraid of both him and the mother “in the last month or so,” apparently referring to the last month that the mother was alive. He stated that he knew that two knives had been found in Br.D.'s bedroom after the mother died, but the father denied that the knives had been there because Br.D. was afraid of him. The father testified that a steak knife had been in Br.D.'s bedroom because he and the mother had been sleeping in that room and he had used the knife to “cut some wires.” He stated also that there had been a butter knife on the headboard, but he did not explain why it had been there.

The father admitted that he had a history of alcohol abuse and drug abuse and that it had been several years since he had used cocaine, marijuana, or methamphetamine. The father sought treatment for alcoholism in November 2008, after what Dr. David Ghostley, a licensed clinical psychologist, described as “20 years of heavy drinking.” The father admitted that he had “relapsed” in December 2008, but he testified that he had not consumed alcohol since that time. The father testified that he had successfully completed anger-management classes through SpectraCare and the Wise Center and that he was still regularly seeing his psychologist in addition to his psychiatrist.

Dr. Ghostley testified that he had performed a psychological evaluation of the father on January 19, 2009, at the request of the juvenile court. Dr. Ghostley testified that, in his opinion, the father was capable of caring for the children so long as he took his prescribed medication. However, some of the statements made by the father to Dr. Ghostley were inconsistent with the father's psychiatric records. For example, the father reported to Dr. Ghostley that he had not consumed alcohol in the two months before his suicide attempt. However, his records from SpectraCare revealed that the father had been mixing alcohol and pain medication two weeks before his suicide attempt. After being informed of this inconsistency, Dr. Ghostley stated that he still believed that the father could care for the children if he remained on his medication. However, he also stated that, hypothetically, he could change his opinion regarding his recommendation if the father were to begin consuming alcohol again.

Pictures of the father's home that were taken by the grandfather ¹ the week before the final hearing were admitted into evidence; the pictures showed the condition of the inside of father's home. The father stated that the room that was messiest was caused by a “busted” water heater that leaked water into a bedroom and the dining room and that that was the reason that “stuff” was “everywhere.” The pictures showed prescription medication bottles that were left on surfaces that could be reached by the children, and there was a handwritten note taped to the father's front door that asked the power company not to turn his power off. The father testified that he had...