Lt v. Wl

47 So. 3d 1241, 2009 Ala. Civ. App. LEXIS 551, 2009 WL 3711948
CourtCourt of Civil Appeals of Alabama
DecidedNovember 6, 2009
Docket2080369
StatusPublished

This text of 47 So. 3d 1241 (Lt v. Wl) 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
Lt v. Wl, 47 So. 3d 1241, 2009 Ala. Civ. App. LEXIS 551, 2009 WL 3711948 (Ala. Ct. App. 2009).

Opinion

47 So.3d 1241 (2009)

L.T.
v.
W.L. and T.L.

No. 2080369.

Court of Civil Appeals of Alabama.

November 6, 2009.
Rehearing Denied January 22, 2010.
Certiorari Denied April 9, 2010 Alabama Supreme Court 1090592.

*1242 Barry C. Leavell of Leavell & Associates, Attorneys at Law, L.L.C., Northport, for appellant.

Kenneth E. Gibbs and Harold S. Patrick of Gibbs, Patrick & Sears, LLP, Opelika, for appellees.

THOMAS, Judge.

L.T. ("the mother") has four children. Her third child, C.K. ("the child"), was born prematurely in July 2003. In October 2003, while the mother was pregnant with her fourth child, W.L. ("the maternal grandfather") and T.L. ("the maternal stepgrandmother") (collectively referred to as "the maternal grandparents"), in response to pressure from family members and involvement by the Montgomery County Department of Human Resources ("DHR"), began caring for the child overnight and on weekends. During the week, the maternal grandfather would take the child to the mother's residence so that the mother could care for the child during the day.

However, this arrangement was discontinued in December 2003, after the child was repeatedly returned to the maternal grandparents wearing the same diaper that had been placed on her that morning. The child's bottom was raw as a result of the mother's failure, even after instruction, to properly tend to diaper changes. In addition, according to the maternal stepgrandmother, the child was failing to thrive, having lost weight and having contracted a scalp fungus.

The child continued to reside with the maternal grandparents throughout 2004, with little involvement from the mother. In March 2005, the maternal stepgrandmother filed a dependency petition seeking legal custody of the child; that action was *1243 assigned case number JU-05-036.01. The petition was granted; however, the mother maintains that she was never served with the dependency petition or given notice of the March 2005 hearing in the dependency action.

In March 2007, the maternal grandparents filed a petition seeking the termination of the mother's parental rights; that action was assigned case number JU-05-036.03. The mother and V.L., the child's maternal great-grandmother, filed separate petitions seeking custody; those petitions are not contained in the record on appeal. The mother, in case number JU-05-036.03, also filed a Rule 60(b), Ala. R. Civ. P., motion seeking to set aside the default judgment in the March 2005 dependency action.

In July 2008, the juvenile court held a hearing on the competing petitions. The mother, the maternal stepgrandmother, the maternal grandfather, and the maternal great-grandmother testified at the hearing. The overwhelming tendency of the evidence was that the mother had simply abdicated her parental responsibilities to the child to the maternal grandparents.

The mother testified that the child first went to stay with the maternal grandparents when DHR asked her family for assistance during her fourth pregnancy, which was a high-risk pregnancy. According to the mother, the child only spent weekends with the maternal grandparents from October 2003 to some time in early 2005. She explained that the maternal stepgrandmother would not let the mother take the child home after an Easter gathering in 2005, resulting in an altercation between the mother and the maternal stepgrandmother. The mother denied having knowledge at that time that the maternal grandparents had received a judgment awarding them custody of the child in March 2005.

At the hearing in July 2008, the mother admitted that she had tested positive for THC, the chief intoxicant in marijuana, in August 2007. She testified that she had worked at three different places of employment during the year preceding the hearing and that she had worked at each of them for between two and four months. Despite indicating that she had been employed for at least part of the time the child was in the custody of the maternal grandparents, the mother admitted that she had not paid any child support due under the 2005 custody judgment. She did say that she had sent some items of clothing for the child but that they had been returned to her. The mother further admitted that she had had no contact with the child from Easter 2005 to Thanksgiving 2006 and again from Thanksgiving 2006 to August 2007. The mother explained that her failure to contact or communicate with the child had resulted from her belief that another family member had secured a restraining order against her.

The maternal great-grandmother, who was 65 years old at the time of trial, explained that she had filed a petition seeking custody of the child because she believed that, if the mother did not have custody, she would be the next logical choice for custody because she had had legal custody of the mother when she was a minor. According to the maternal great-grandmother, she had had custody of the mother because the mother's parents, one of whom is the maternal grandfather, had been unfit due to drug use. The maternal great-grandmother indicated that she had cared for the mother's oldest child on a very frequent basis since his birth and that the mother's second oldest child frequently *1244 stayed with her as well; the evidence indicated that those two children stayed with the maternal great-grandmother on a nearly constant basis at the time of the July 2008 trial. She also testified that the maternal grandfather and the mother had smoked a drug of some type in her backyard one to two years before the July 2008 trial; the maternal grandfather denied smoking any drug and had passed a drug test.

The maternal grandfather testified that he had become involved with the child when DHR contacted him about complaints it had received about the mother in the fall of 2003. Although DHR originally requested that he take custody of all three of the mother's children, the maternal grandfather said that he had responded that he and his wife could not take on the responsibility of caring for three young children at that time. Because the older two children had been frequently cared for by the maternal great-grandmother, who was willing to continue to assist the mother, the maternal grandfather had agreed to assume responsibility for the child, who was an infant. The maternal grandfather said that the decision to take the child was prompted by the fact that being up at night caring for a three-month-old infant was difficult for the maternal great-grandmother.

When questioned about contact between the mother and the child since the maternal grandparents had taken custody of the child, the maternal grandfather responded by explaining that the mother had not contacted the child at all. In addition, the maternal grandfather noted that the mother had not provided any monetary support or personal-care items for the child. According to the maternal grandfather, even on the rare instance when the mother was in the presence of the child, like at a May 2008 birthday party for the maternal grandfather, the mother only spent 5 to 10 minutes with the child. The maternal grandfather stated that the two telephone calls the mother had made to the maternal grandfather since August 2007 did not include a request to speak with the child.

When asked why he had decided to petition for a termination of the mother's parental rights, the maternal grandfather mentioned the desire to provide the child with all the benefits she would be entitled to if he adopted her.

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Bluebook (online)
47 So. 3d 1241, 2009 Ala. Civ. App. LEXIS 551, 2009 WL 3711948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lt-v-wl-alacivapp-2009.