J.H. v. J.W.

69 So. 3d 870, 2011 Ala. Civ. App. LEXIS 68, 2011 WL 835098
CourtCourt of Civil Appeals of Alabama
DecidedMarch 11, 2011
Docket2091134
StatusPublished
Cited by3 cases

This text of 69 So. 3d 870 (J.H. v. J.W.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
J.H. v. J.W., 69 So. 3d 870, 2011 Ala. Civ. App. LEXIS 68, 2011 WL 835098 (Ala. Ct. App. 2011).

Opinion

MOORE, Judge.

J.H. (“the father”) appeals from a judgment of the Etowah Juvenile Court modifying the custody of H.H. (“the child”). We dismiss the appeal.

Procedural History

On December 29, 2008, the father filed a petition requesting that the juvenile court establish his paternity of the child, award him and J.W. (“the mother”) joint custody of the child, and award him liberal visitation. That case was assigned case number JU-08-540.01. On April 16, 2009, the juvenile court entered a judgment adopting a settlement agreement that had been entered between the parties. The judgment, among other things, adjudicated the father to be the father of the child and awarded the parties joint legal and physical custody of the child with the mother being designated as the primary physical custodian of the child; the parties were to exchange custody every other week.

Subsequent to the April 16, 2009, initial custody determination, the mother, on July 6, 2009, filed a petition for protection from abuse in the Etowah Circuit Court; that [872]*872petition was assigned case number DR-09-533.90. In that petition, the mother alleged, among other things, that the father had spanked the child with a belt, leaving bruises. The circuit court entered an ex parte protection order on July 6, 2009, which, among other things, awarded the mother temporary custody of the child and suspended the father’s visitation. That order was entered by the same judge who had presided over the paternity proceedings in the juvenile court.

On July 29, 2009, the juvenile court, sua sponte, entered an order in case number JU-08-540.01, stating, in pertinent part:

“Based upon the events referred to in the Petition for Protection from Abuse and Orders entered therein, [in case number] DR-09-533.90,
“IT IS HEREBY ORDERED, ADJUDGED AND DECREED BY THE COURT AS FOLLOWS:
“1. The father’s visitation or ‘alternate custody’ referred to in Paragraph 4 of the Settlement Agreement dated 03/30/2009 and accompanying Order dated 04/l[6]/2009 is hereby suspended indefinitely, pending an investigation by the Etowah County Department of Human Resources [ (‘DHR’) ].
“2. DHR is hereby given Protective Supervision of the subject child, and this case shall be reviewed on the CIP docket. DHR is ordered and directed to provide services to the mother, the father, and the subject child.”

On October 23, 2009, the juvenile-court referee entered a judicial-review order in case number JU-08-540.01 stating that the Etowah County Department of Human Resources (“DHR”) must continue to provide protective supervision of the child. On April 19, 2010, the juvenile-court referee entered a second judicial-review order terminating DHR’s protective supervision of the child.

On May 13, 2010, the mother filed another petition for protection from abuse in the circuit court; that petition was assigned case number DR-09-533.91. Also, on May 21, 2010, the mother filed in the juvenile court a petition to modify custody alleging, in pertinent part:

“1. That the circumstances of the parties have changed in that the [father’s] violent and abusive temperament has escalated and that the needs of the minor child have changed.
“2. That the [father] is physically, verbally, mentally and emotionally abusive to the minor child and the [mother]. That on July 5, 2009, the [father] physically abused the minor child.... That since said date, the parties attempted to reconcile; however, despite anger management and parenting classes recommended by DHR, the [father’s] abusive and violent temperament has escalated and has resulted in the minor child being afraid of the [father]. That on May 13, 2010, the [father] came to the home of the [mother] and threatened her and that the [mother] was forced to seek a Protection From Abuse Order against the [father].... That the [mother] fears for the safety of the minor child while in the custody of the [father],
“3. That in [April] 2009, the ... father ... was granted joint legal and physical custody of the minor child and was granted alternate custody every other week. [The mother] avers that the [father] has not exercised said custody every other week as granted. That although the [father] was granted [custody] every other week, the [father] usually only has the minor child with him one or two days and then returns the minor child to the [mother] or leaves the minor child with his paternal grandfather.
[873]*873“4. [The mother] avers that on or about May 11, 2010, the [father] had the minor child in his physical custody. That the [father’s] father called the [mother] to come pick up the minor child at 9:00 A.M. because the [father] was suppose[d] to take the minor child to the doctor, but the [father’s] father could not awaken the [father]. That the [father] did not awaken until 3:00 P.M.
“5. That the [father] routinely has the 10 year old and 16 year old female children of his ex-girlfriend spend the night with him and that the 10 year old female sleeps in the bed with the [father].
“6. That the [father] has taken the minor child with him when he spends the night at his girlfriend’s house.
“7. [The mother] avers that it is in the best interest of the minor child that she be granted full care, control and custody of the minor child. [The mother] further avers that the [father] should be granted supervised standard visitation with the minor child until such time he completes parenting and anger management classes.”

The mother attached to her petition to modify a copy of the petition for protection from abuse that she had filed in case number DR-09-533.90 on July 6, 2009, and a copy of the “Ex Parte Protection Order” that was entered by the circuit court in that case on the same day. She also attached a copy of the petition for protection from abuse that she filed in case number DR-09-533.91 on May 13, 2010, and a copy of the “Ex Parte Protection Order” entered by the circuit court in that case the same day. The mother’s May 21, 2010, petition to modify was assigned case number JU-08-540.02.

On August 3, 2010, the juvenile court entered a judgment in case number JU-08-540.02, stating:

“The subject child was born out of wedlock on September 11, 2005. By agreement dated March 30, 2009, the parties agreed to share joint legal and physical custody of the child. Under this Agreement, the parties alternated physical custody every other week. On or about July 6, 2009, the father administered excessive corporal punishment to the subject child. [The] Etowah County Department of Human Resources [ (‘DHR’) ] became involved. The mother filed a Petition for Protection from Abuse (31 DR2009-533.90). This Court issued an Order in that case. This Court also entered in this JU [juvenile] case, an Order dated July 2[9], 2009 which ‘suspended indefinitely’ the father’s ‘alternating custody’ referred to in Paragraph Four (4) in the Settlement Agreement dated March 30, 2009.... DHR was granted Protective Supervision in this JU case. The father’s visitation was supervised by DHR. On October 19, 2009, the mother agreed to ‘drop’ the PFA [proteetion-from-abuse] Order and the Court acquiesced.

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Bluebook (online)
69 So. 3d 870, 2011 Ala. Civ. App. LEXIS 68, 2011 WL 835098, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jh-v-jw-alacivapp-2011.