W.T.H. v. M.M.M.

• Decision Date: 10 June 2005
• Docket Number: No. 2040147.,2040147.
• Parties: W.T.H. v. M.M.M.
• Court: Alabama Supreme Court

915 So.2d 64

W.T.H. v. M.M.M.

No. 2040147.

Court of Civil Appeals of Alabama.

June 10, 2005.

COPYRIGHT MATERIAL OMITTED

Melvin Hasting, Cullman, for appellant.

Joseph D. Steadman of Dodson & Steadman, P.C., Mobile; and Michael D. Sherman of Sherman & Jeffries, L.L.C., Mobile, for appellee.

CRAWLEY, Presiding Judge.

W.T.H. ("the father") appeals from a judgment of the Mobile Juvenile Court determining that his two minor children, 15-year-old L.H. and 13-year-old M.H., are dependent and placing them in the custody of M.M.M. ("the maternal grandmother").

The father and M.E.H., the children's mother, separated in 1997 and were divorced in 1999. The parents were awarded joint legal custody of their three children, the oldest of whom, J.H., is now an adult. The mother was awarded sole physical custody of the children; the father was awarded standard visitation and ordered to pay child support in the amount of $438 per month. During the marriage, the family lived in Cullman. When the parents separated, the mother moved with the children to Mobile and lived with the maternal grandmother. Before the separation and divorce, the mother had been diagnosed with an incurable brain disease. Her condition deteriorated over the next seven years and, during that time, the maternal grandmother cared for the children and the mother.

In May 2003, the father filed in the Cullman Circuit Court a petition to modify his child-support obligation. Upon motion of the mother, venue was changed to the Mobile Circuit Court. In September 2003 the mother answered the father's petition and counterclaimed, seeking to have the father held in contempt for a child-support arrearage. The father failed to appear on the date set for trial, and, on October 2, 2003, the Mobile Circuit Court dismissed the father's petition and entered a default judgment in favor of the mother on her counterclaim, holding the father in contempt and ordering him committed to the county jail until he purged himself by paying $15,285.29. The circuit court also modified the visitation provisions of the divorce judgment, requiring that the father's visits with the children be supervised.

The mother died on July 16, 2004. Three days later, the father attended the mother's funeral in Mobile. After the funeral, he took the two minor children back to Cullman with him. On July 22, 2004, the maternal grandmother filed in the Mobile Juvenile Court a "Petition for Custody," alleging that the children were dependent within the meaning of § 12-15-1(10), Ala.Code 1975; an "Instanter Petition for Custody and Immediate Return of the Children"; and an affidavit, averring, in pertinent part, the following:

"[The father] took the two minor children under false pretense, sending me a message through their nineteen-year-old brother that he [the father] was taking them to lunch. I was later contacted by the children and told that their father had taken them to Cullman and [was] not returning them to Mobile. My grandchildren have called me on three or four occasions each day since their removal, most often in tears, wanting to return to Mobile. The stress of their mother's death has been compounded by [the father's] removal of them from their home.

"Due to [the father's] extensive history of [convictions for driving under the influence] and his history regarding the care of the children in the past, I am very worried about the children's health and welfare, and I am of the opinion that they are in an immediate threat of danger if they remain in their father's physical custody."

In an ex parte order rendered on July 22, 2004, the Mobile Juvenile Court granted the maternal grandmother's instanter petition and ordered the children returned to the maternal grandmother. The juvenile court set the custody petition for a hearing on September 29, 2004.

On July 28, 2004, the father moved the Mobile Circuit Court to vacate the judgment holding him in contempt, assessing a child-support arrearage, and ordering him incarcerated. On the same date, the father moved the Mobile Juvenile Court to dismiss the maternal grandmother's petitions and to set aside its July 22 order. The father asserted the following grounds: (1) that the petitions were not properly verified by an intake officer as required by § 12-15-50, Ala.Code 1975, and Rule 12, Ala. R. Juv. P.; (2) that the petitions failed to set forth with specificity the basis for bringing the children within the juvenile court's dependency jurisdiction, pursuant to § 12-15-52(c), Ala.Code 1975; (3) that the juvenile court failed to direct the issuance of the petitions and summonses to the children, who were over the age of 12 years, as mandated by § 12-15-53, Ala.Code 1975; (4) that the juvenile court did not have subject-matter jurisdiction to modify the child-custody provision of the judgment divorcing the children's parents; and (5) that the proper venue was Cullman County rather than Mobile County.

The Mobile Juvenile Court indicated that it would hear the father's motion to dismiss on September 29, 2004, when it tried the issue of custody. At the beginning of the trial on September 29, the juvenile court announced that it would reserve ruling on the father's motion to dismiss until after it had taken testimony.

At trial, the father acknowledged that he was an alcoholic. He testified that in the 10-year period from 1991 to 2001, he had been convicted 7 times for driving under the influence ("DUI") and once for public intoxication. For his most recent DUI conviction in February 2001, he had been sentenced to a 15-month term of imprisonment. He completed an eight-week substance-abuse program in prison and was then released on parole. The father testified that it was a condition of his parole not to drink alcohol. He stated that he had abided by that condition and had had nothing to drink before January 3, 2003, the date his parole was over. The father asserted that, with the exception of one relapse within a month of the completion of his parole, he had had nothing to drink for "over a year." When questioned as to the last time he had indulged in alcohol, the father testified, "I'm not sure exactly what that date might be. I know in AA [Alcoholics Anonymous] they do put emphasis on a sobriety date. But I had set so many and failed ... that I quit doing that." The father stated that since his parole completion date he had neither attended Alcoholics Anonymous ("AA") meetings nor met with a sponsor. He testified that as a consequence of his DUI convictions, he had no driver's license and did not drive. He explained that he would not be eligible to obtain a driver's license until 2008. In the meantime, he said, relatives and friends provided him with transportation.

The father testified that he had had a number of minimum-wage jobs since the divorce. He explained that he had paid his child support until he was incarcerated, and, he said, he had no arrearage until that time. The father acknowledged that, immediately upon taking the children to Cullman after the mother's funeral, he filed a motion with the Mobile Circuit Court to terminate his child-support obligation and filed an application with the Social Security Administration to have the children's Social Security benefits paid to him. He admitted that he had later received one Social Security check in the amount of $734 that he did not remit to the maternal grandmother.

The father testified that he would consider it improper to have an unrelated guest of the opposite sex spend the night with him when the children were present in the house. He assured the court that he would not indulge in such behavior unless he were married, and, he stated, he had no plans to marry.

The minor children testified in camera. Both said that they had seen the father drinking beer during their two-week visitation with him in the summer of 2004. In addition, they testified that, during the same time period, they had seen beer in the father's refrigerator and had smelled alcohol on his breath. The daughter testified that, on one occasion, she felt "in danger" when the father "grabbed [her] wrist while [they] were playing [and she thought the father] was drunk." Both children said that the father regularly drove a car during their summer visitation with him and during the time that they were in Cullman with him after the mother's funeral. Both children also testified that the father and a woman named "Wanda," whom the father referred to as his girlfriend, had spent the night in the same bedroom during the time they were in Cullman after the mother's funeral. Each child expressed a preference for remaining in Mobile with the maternal grandmother.

The maternal grandmother testified that she is 67 years old and is employed at a Dillard's department store in Mobile. Her average income from that employment is $1,200 to $1,500 per month. She also receives $1,175 per month from the Veterans Administration as a consequence of her late husband's disability and $1,100 per month in Social Security benefits for the children. In addition, her 39-year-old daughter lives in the household and pays rent of $150 per month. The maternal grandmother takes six different prescription medications for hypertension, diabetes, and a heart condition. She testified that, during the father's marriage to the mother, the father was often drunk and abusive to the mother. She said that after the father's release from prison, she had seen him staggering drunk in her driveway. On that occasion, she said, the father slept in the older son's vehicle, which was parked in her driveway; in the backseat of the vehicle the maternal grandmother saw 10 cans of beer in a briefcase that she recognized as the father's.

The maternal grandmother testified that she was asking for custody of the children because they had been with her for eight years, they liked their schools and friends in Mobile, and their lives were "stabilized," in contrast, she...