M.B. v. J.S.

• Decision Date: 27 March 2020
• Docket Number: 2181008
• Citation: 327 So.3d 1147
• Parties: M.B. v. J.S. and Ja.S.
• Court: Alabama Court of Civil Appeals

327 So.3d 1147

M.B.

v.J.S. and Ja.S.

2181008

Court of Civil Appeals of Alabama.

March 27, 2020

Rehearing Denied May 29, 2020

Amy M. Shumate, Dothan, for appellant.

Laura Peterman Wells, Dothan, for appellees.

DONALDSON, Judge.

M.B. ("the father") appeals from the judgment of the Houston Juvenile Court ("the juvenile court") terminating his parental rights to B.B. ("the child"). Because the juvenile court's judgment is supported by the evidence in the record, we affirm the judgment.

Facts and Procedural History

The father and B.C. ("the mother") are the unmarried parents of the child who was born on XX/XX/2015. The father and the mother ended their relationship in January 2016. J.S. and Ja.S. ("the grandparents") are the maternal grandparents of the child. On January 30, 2019, the grandparents filed a complaint seeking to terminate the parental rights of the father to the child.¹

The following facts established during the dependency action regarding the child, which preceded the termination-of-parental rights action, are not disputed.² The juvenile court entered an order on November 23, 2015, granting pendente lite custody of the child to the grandparents and visitation to the mother and the father. During the hearing on pendente lite issues, the father was informed of his right to counsel but was not represented by counsel. The pendente lite order stated the date of the next hearing. On April 29, 2016, the juvenile court entered an order resetting the date of the final hearing for July 14, 2016, but none of the parties appear to have been notified of that order. Neither the father nor the mother appeared at the final hearing. The juvenile court entered a judgment in the dependency action in July 2016 granting the grandparents custody of the child.

On June 14, 2019, the juvenile court conducted a trial on the grandparents' petition to terminate the father's and the mother's parental rights. The father and Ja.S. ("the grandmother") testified at the trial. The father testified that he believed that the grandparents were restricting his visitations with the child to an hour on Tuesdays when, he believed, he should have been receiving four hours a week of visitation in accordance with the pendente lite order in the dependency action. The father testified that he had never objected to the Tuesday visitations because he had never received notice of another court date. According to the father, the only document he had received in the dependency action was the pendente lite order entered on November 23, 2015. The father testified that he had never received a copy of the July 2016 final judgment in the dependency action and that he did not attend the final hearing in the dependency action because he had never received notification of the hearing. The father testified that he had learned of the judgment in the dependency action when he appeared in court in June 2018 regarding a child-support action brought against him. The father testified that he had not been represented by an attorney until the termination-of-parental-rights action was commenced and that he had not been able to afford hiring an attorney before that time.

The father testified that he had not paid the grandparents any child support since the grandparents had received custody of the child in 2015. According to the father, he was served in a child-support action against him in September 2017. The father testified that, before he appeared in court for the child-support action in June 2018, he had not been required to pay child support and that "he didn't know how to" pay the grandparents child support. According to the father, he lost his job a month after he appeared in court in June 2018 for the child-support action because he had been late to work. The father testified that he had been unable to pay child support when he was unemployed but that he had later sent the grandmother a text message asking her how to go about paying child support and had not received a response. The father admitted that he did not give the grandparents any money for child support during any of the times he saw them after sending that text message. The father testified that he is now willing and able to provide support for the child.

The father and the grandmother testified regarding his visitations with the child from 6:00 p.m. to 7:00 p.m. on Tuesdays. The father described his visitations with the child as follows: "They usually go pretty good. [The child is] pretty excited to see me. We have a good time. We play around some. Unless my girlfriend shows up with me. And either [the grandmother will] take [the child] and leave or she'll fuss." The grandmother testified that she was fine with the father's girlfriend transporting the father to visitations but that she did not feel like the girlfriend should participate in the visitations because, she said, the child should be spending time with the father during the visitations. The father testified that he had asked the grandparents to have visitations on weekends but had not received a response. The grandmother testified that the father had asked a few times about changing visitations to weekends, that she had responded by suggesting further discussion, and that the father had not responded to her suggestion. The grandmother testified that the father and the mother had chosen Tuesdays as the day for their visitations.

The father testified that, "[i]f possible, I would see [the child] everyday." The father claimed that he had missed only three visitations that had been previously arranged by the parties in four years. The grandmother testified that the father had missed numerous arranged visitations without any notice. The father testified that the grandparents strictly observed the period for the Tuesday visitation. According to the father, the grandparents would leave the visitation location after only 10 minutes had elapsed after 6:00 p.m. on Tuesdays, so, if he was more than 10 minutes late, he would miss that visitation. The grandmother testified that the father was frequently late to the visitations and that, on one occasion, they had waited up to an hour for him to show up. The father testified that the longest visitation period the grandparents have allowed was an hour and a half. The grandmother testified that the father had left visitations early. The father testified that the grandparents only sometimes allowed him to rearrange the visitation schedule when he was not able to attend.

The father testified that he has had periods of one month, two months, and three months during which he did not exercise his visitation. The father testified that the longest period during which he did not see the child was between August and October of 2018 when he did not have a job, a telephone, or a motor vehicle. According to the grandmother, the longest period that the father did not exercise his visitation exceeded three months. The grandmother testified that transportation has been a problem for the father in attending visitations and that she had observed the father arrive at their visitation location after having traveled by walking or bicycling. The father testified that he had visitations with the child three times in May 2019 but that he did not have any visitations with the child in the two Tuesdays before the termination-of-parental-rights trial in June 2019. The father testified that he had notified the grandparents that he was not able to exercise visitations with the child on the Tuesdays in June 2019 because of his work schedule.

The father and the grandmother testified regarding their communications pertaining to visitations, the child, and the locations for visitation. The father testified that the grandparents were attempting to "drive a wedge" between him and the child. The grandmother testified that the father had sent harassing messages to her. The father and the grandmother testified regarding whom the child was calling "mom" and "dad," which last name was used for the child, and the child's addressing the father by his first name. According to the father, he has called to talk to the child and has been told that the child is either asleep or eating. The grandmother testified that the father had called after 9:00 p.m. when the child was in bed and that, when the father did speak to the child on the telephone, the child did not say much because of the child's age.

The father testified that he had stated to the grandmother in December 2018 that he needed time to get himself together and that he has done so since then. The father testified that he had been working for a company for the past four months, earning $300 a week. According to the father, he had previously worked at another company for 9 to 10 months before losing that job in July 2018 and that he had been unemployed until February 2019. The father testified that he has lived in a house with his girlfriend and her 7-year-old child since April 2017. The father testified that the rent is $265 a month, that the house has two bedrooms and one bathroom, and that the house is an appropriate place for visitations with the child. The father testified that he has a motor vehicle but no valid driver's license and that someone else drives for him.

The father testified that he has no pending criminal charges against him. According to the father, he was arrested once for possession of illegal drugs four years before the termination-of-parental-rights trial, which was before the grandparents were involved with the custody of the child. The father testified that he is clean and no longer takes illegal drugs. The grandmother testified that there was a history of domestic violence between the father and the mother. According to the grandmother, the mother had called her numerous times and the grandparents had "had to go get her and go see about her and stuff." The grandmother testified that it has been several years since the last domestic-violence incident because the father and the...