M.H. v. H.N.M.

70 So. 3d 398, 2011 Ala. Civ. App. LEXIS 38, 2011 WL 480037
CourtCourt of Civil Appeals of Alabama
DecidedFebruary 11, 2011
Docket2091203
StatusPublished
Cited by1 cases

This text of 70 So. 3d 398 (M.H. v. H.N.M.) 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
M.H. v. H.N.M., 70 So. 3d 398, 2011 Ala. Civ. App. LEXIS 38, 2011 WL 480037 (Ala. Ct. App. 2011).

Opinion

BRYAN, Judge.

M.H. (“the father”) appeals from a judgment entered by the Walker Juvenile Court (“the juvenile court”) that awarded custody of his daughter, M.J.H. (“the child”), to H.N.M., the child’s maternal aunt (“the maternal aunt”). In M.H. v. H.N.M., 46 So.3d 967 (Ala.Civ.App.2009), this court dismissed the father’s initial appeal in this matter after we concluded that the judgment was nonfinal because the juvenile court had failed to rule on the father’s request for visitation with the child. After this court dismissed the father’s appeal, the juvenile court entered an order that was identical to the initial order awarding custody of the child to the maternal aunt except that it also awarded the father visitation with the child every other weekend of each month and at any additional times to which the parties agreed.

A summary of the procedural history of this case can be found in M.H. v. H.N.M., supra; therefore, we will not discuss it in detail here. However, we will briefly ad[401]*401dress the juvenile court’s jurisdiction to determine the custody of the child. This proceeding was initiated by the maternal aunt in December 2007 when she filed a petition for custody of the child because the whereabouts of E.D., the mother of the child (“the mother”), were unknown. The record indicates that the maternal aunt’s December 2007 petition for custody was the second proceeding presented to the juvenile court regarding the child’s custody. In May 2005, an emergency petition for custody was filed by the father’s cousin, and the father’s cousin was apparently awarded pendente lite custody of the child at that time. However, after a trial, the juvenile court awarded custody of the child to the mother in August 2006.1 Because the record indicates that the juvenile court had previously decided the issue of custody of the child, former § 12-15-82, Ala.Code 1975, which was applicable at the time the maternal aunt filed her petition for custody of the child, applies.2 Former § 12-15-32(a) provided, in pertinent part: “[Jjuris-diction obtained by the juvenile court in any case of a child shall be retained by it until the child becomes 21 years of age unless terminated prior thereto by order of the judge of the juvenile court....” Accordingly, because there is no indication in the record that the juvenile court entered an order terminating its jurisdiction over the child, we conclude that the juvenile court properly exercised its continuing jurisdiction over the child in ruling on the maternal aunt’s petition for custody of the child.3

On appeal, the father argues that the juvenile court exceeded its discretion when it awarded the maternal aunt custody of the child. In doing so, he argues that the findings of fact in the juvenile court’s judgment were unsupported by the evidence, that the maternal aunt failed to meet her burden of proving that he was unfit, and that the juvenile court erred by considering his physical appearance in making its custody determination. The father also argues that the juvenile court exceeded its discretion by failing to award him liberal visitation with the child.

The testimony presented at the June 2008 ore tenus hearing revealed the following. The mother and the father never married, but they were living together when the child was born in December 2004. D.G., the child’s paternal grandmother (“the paternal grandmother”), testified that the mother, the father, and the child moved into her home after the child was born. However, the father testified that he, the mother, and the child lived together until his relationship with the mother ended, approximately five weeks after the child was born, and that, at that time, the mother and the child moved in with his mother, the paternal grandmother. According to the father, the mother moved to Jasper shortly thereafter and left the child with his cousin. The paternal grandmother testified that the mother left the child with the father’s cousin around April or May of 2005.

[402]*402In May 2005, the father’s cousin filed a petition for custody of the child, referenced above, and the testimony of the parties confirmed that the father’s cousin was awarded pendente lite custody of the child. However, the paternal grandmother testified that the father’s cousin (her niece) had actually given her custody of the child during that time. The maternal aunt’s testimony indicated that the mother immediately tried to regain custody of the child and that the juvenile court returned custody of the child to the mother in August 2006. The maternal aunt testified that the paternal grandmother had allowed the mother to visit the child only on two occasions during the time that the paternal grandmother had custody of the child.

The father testified that he had assisted his cousin in obtaining custody of the child in May 2005 and that, at that time, he had agreed to terminate his parental rights to the child. However, he also stated that he had never signed anything to terminate his parental rights. Although it was confirmed that the father was a respondent listed on his cousin’s 2005 petition for custody of the child, the father stated that he was not involved in the custody action.

According to the father, he saw the child every day when his cousin had custody of the child and he tended to “100% or more” of the child’s needs during that time, including the child’s material needs, such as diapers, and the child’s physical needs, such as feeding and bathing the child. However, the father also testified that he had been working in Huntsville during that custody proceeding and that he was home only on the weekends. It was unclear where the father lived when he came back from Huntsville on the weekends. Further, according to the maternal aunt, the father was not involved with the child after May 2005 because his cousin had a restraining order entered against him.

The paternal grandmother testified that she had cared for the child during the first 20 months of the child’s life, even after the father’s cousin, her niece, was awarded custody of the child. The paternal grandmother admitted that she had attempted to intervene in the 2005 custody action in order to obtain custody of the child, and she admitted that she had tried to stop the return of the child to the mother in August 2006 by filing motions after the close of that custody trial.

After the mother obtained custody of the child in August 2006, she did not allow the father to visit the child. The father stated that the mother had a restraining order entered against him but that he would occasionally go to the mother’s place of employment to talk to her. The father stated that, before the mother disappeared, he had not seen the child in 16 months. The maternal aunt testified that the child did not recognize the father when he came to the maternal aunt’s home in November 2007, shortly after the mother disappeared, and that the child did not ask about the father.

At the time of the mother’s disappearance in November 2007, the father was living and working in Gulf Shores. When the father learned of the mother’s disappearance, he returned to Walker County and asked the maternal aunt for custody of the child. However, the maternal aunt expressed her desire to keep custody of the child until the mother was found, in light of the previous custody battle between the mother and the father’s family. The father agreed to allow the child to remain with the maternal aunt, and he apparently returned to Gulf Shores.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

A.E. v. M.C.
100 So. 3d 587 (Court of Civil Appeals of Alabama, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
70 So. 3d 398, 2011 Ala. Civ. App. LEXIS 38, 2011 WL 480037, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mh-v-hnm-alacivapp-2011.