L.R.M. v. D.M.

• Decision Date: 12 January 2007
• Docket Number: No. 2050093.,No. 2050092.,2050092.,2050093.
• Citation: 962 So.2d 864
• Parties: L.R.M. and J.M. v. D.M. L.R.M. and J.M. v. D.M. D.M. v. L.R.M. and J.M.
• Court: Alabama Court of Civil Appeals

962 So.2d 864

L.R.M. and J.M. v. D.M.

L.R.M. and J.M. v. D.M.

D.M. v. L.R.M. and J.M.

No. 2050092.

No. 2050093.

Court of Civil Appeals of Alabama.

January 12, 2007.

Rehearing Applications Denied February 23, 2007.

Ralph K. Strawn, Jr., of Henslee, Robertson, Strawn & Sullivan, L.L.C., Gadsden, for appellants/cross-appellees L.R.M. and J.M.

Christopher G. McCary, Legal Services Alabama, Anniston, for appellee/cross-appellant D.M.

MURDOCK, Judge.

These appeals, which are more correctly classified as an appeal and a cross-appeal, see discussion infra, involve a custody dispute between D.M., who is the mother of A.M., and L.R.M. and J.M., who are A.M.'s paternal great-grandparents. In the underlying proceedings before the Cherokee Juvenile Court, the mother, the paternal great-grandparents, and A.M.'s father all sought custody of A.M. The juvenile court awarded custody to the mother, awarded the father supervised visitation, and awarded the paternal great-grandparents standard visitation. We note that the father has not appealed from the juvenile court's judgment.

The mother and the father began dating in January 2002. Their daughter, A.M., was born in May 2003. A few days after A.M.'s birth, the mother graduated from high school. The mother and A.M. resided with A.M.'s maternal grandmother in Cedar Bluff. The father resided with the paternal great-grandparents, who had raised him, in Jamestown.

In September 2003, the father and the mother, who were both approximately 19 years old, married. After their marriage, the father, the mother, and A.M. resided in a home next door to the paternal great-grandparents. It is undisputed that A.M. spent almost all of the time between September 2003 and the end of May 2004 in the paternal great-grandmother's care. It is also undisputed that the mother spent the night with the paternal great-grandparents on occasion and that the mother spent many days in the paternal great-grandparents' home with A.M.

The above-described care arrangement was attributable, in part, to the father's insistence that the mother leave A.M. with the paternal great-grandparents because A.M. interrupted his sleep. The father has a history of drug problems, and he has a violent temper. Based on the evidence presented to the juvenile court, it could have found that the young mother was in the unenviable position of acceding to the father's desires or facing unpleasant consequences for her and the child. For example, on one occasion, the father actually struck A.M. when he and the mother got into an argument in bed. Also, on three occasions during the few months that the mother and the father resided together, they separated because of domestic violence committed by the father against the mother. On each occasion, the mother took A.M. and they resided with the maternal grandmother for a few days.

Except for the three brief periods of separation described above, the father and the mother resided together between September 2003 and early April 2004, when they permanently separated. During the time that the father and the mother resided together, they regularly used marijuana and they also used methamphetamine. It appears, however, that the mother's drug use was heavily influenced by her relationship with the father. Unlike the father, the mother did not use drugs before she met the father, and she apparently ceased using drugs after she and the father separated in April 2004. The mother also did not use drugs from July 2002, when she suspected that she was pregnant with A.M., until the parties married and began residing together in September 2003. Also, the first time that the mother used methamphetamine was one month after she observed the father using that drug and after she and the father had married.

As stated above, the father and the mother separated in April 2004. Thereafter, the mother moved back into the maternal grandmother's home, and the mother began working at a local restaurant. The mother continued to leave A.M. in the paternal great-grandmother's care much of the time because of her erratic work schedule and because of disagreements between she and the father about who should care for A.M. The mother testified that occasionally she had to be at work at 5:00 a.m. and that she would leave A.M. with the paternal great-grandmother overnight because she did not want A.M. to have to wake up that early. The mother also testified that when she attempted to leave A.M. in the maternal grandmother's care, the father would obtain A.M. from the maternal grandmother and take her to the paternal great-grandmother's home while the mother was at work.

In early June 2004, the mother moved with A.M. to Rome, Georgia, where the mother had resided in the past and where her younger sister and some of the mother's extended family still resided.¹ The mother moved into a public-housing apartment located next door to her sister's public-housing apartment. Not long after the mother moved to Rome with A.M., she arranged for the paternal great-grandparents to retrieve A.M. for a weekend visit. The paternal great-grandparents returned A.M. to the mother after the weekend visit.

Approximately three days after the paternal great-grandparents returned A.M., the father went to Rome to visit A.M. According to the mother, when the father arrived she was preparing to take A.M. to a doctor because A.M. had developed a rash after a recent inoculation. Upon his arrival, the father stated that he would take A.M. to a doctor instead. Thereafter, the father took A.M. to the paternal great-grandparents' home; the paternal great-grandparents subsequently took the child to a doctor.

Two days after the father left A.M. with the paternal great-grandparents, he filed a complaint for a divorce in the Cherokee Circuit Court (case number DR-04-80). The father alleged various grounds for divorce, and he alleged that the mother had abandoned A.M. to the paternal great-grandmother. The father also alleged that the mother had "been in the company of known drug users with the child [and that she] . . . . currently resides in a two bedroom apartment with five people residing therein where parties are engaging in deviate, inter-racial sexual acts, homosexual acts, consuming drugs and endangering the health, safety and welfare of [A.M.]." The father requested that he be awarded "immediate ex parte custody" of A.M. and that he be awarded permanent custody of A.M. In support of his complaint, the father filed an affidavit from the paternal great-grandmother. The affidavit stated:

"That I have been the primary caregiver for the minor child made the basis of this action with the child sleeping in my home and providing all of the activities of daily living for the child since September, 2003. That the . . . mother of the minor child is not gainfully employed, has provided little or no support or maintenance for the minor child and has failed to provide medical attention for the minor child.

"That on or about April, 2004, the [mother] confided in me and advised me that she was associating with known drug users . . . and that the said individuals were engaging in deviate, interracial homosexual relations. That one [Al.M.] is a known drug user.

"That on June 11, 2004, the [mother] asked me to meet her in Rome, Georgia to pick up the child and when I found the minor child she suffered from a severe diaper rash. That on June 16, 2004 the [father] brought the minor child to my home and the child was covered in a severe body rash due to an allergic reaction wherein I sought immediate medical attention for the minor child on that date. That the [mother] has failed to provide adequate nutrition for the minor child.

". . . .

"It is my belief that the [mother] is both physically and mentally unable and unwilling to care for the minor child . . . .

"I believe that the minor child in the custody of the [mother] would be endangered and at risk for serious physical, emotional and psychological injury."

In conjunction with his divorce complaint, the father also filed a motion requesting the entry of several pendente lite orders, including an order for pendente lite custody of A.M. On the day that the father filed his complaint and motion, the circuit court entered an ex parte order awarding the father "temporary custody" of A.M. and setting his motion for a hearing to be held on August 2, 2004.

In July 2004, the paternal great-grandparents filed a "Petition to Intervene and Complaint by Intervenors." They alleged that A.M. had "primarily lived and slept in their home since her birth" and that "[n]ot to allow the intervention could cause significant harm to" A.M. The paternal great-grandparents requested that they be considered an "alternative placement" for A.M. should the court determine that neither the mother nor the father "would be a proper party to have the full care, custody and control" of A.M. The circuit court granted the motion to intervene.

Also in July 2004, the mother, who had repeatedly requested that A.M. be returned to her and who had obtained an attorney from "Legal Services Alabama," filed an answer and a counterclaim for a divorce. The mother conceded in her pleadings that A.M. was the father's child. She requested that the circuit court enter an order divorcing her and the father, awarding her custody of A.M., awarding her child support, and dividing the marital property.

In August 2004, after a hearing on the father's motion for pendente lite orders, the circuit court entered an order that stated that A.M. was the mother's and father's child but that they "did not establish a common law marriage prior to the birth of the child. [A.M.] is not, therefore, a child of the marriage of this Plaintiff and Defendant." The circuit court concluded that it did "not have jurisdiction to determine the issues of custody, visitation and child support of this child which are contested by these parties." It then severed the issues of...