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 address
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.
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. The mother was discovered to be deceased on or about December 11, 2007.
At the time of her death, the mother had three children with three different fathers: El.D., who was four years old at the time
The maternal aunt, who was 29 years old at the time of the hearing, testified that she lived in a three-bedroom, two-and-one-half-bathroom home. She had custody of her son, who was five years old at the time of the final hearing, as well as the mother's three children. Her brother, who was 22 years old, lived in the basement of her home. The maternal aunt worked Sunday through Thursday from 10:30 p.m. until 8:30 a.m., and she hired a babysitter to care for the mother's children and her child while she was at work. The maternal aunt's child and the mother's oldest child attended school, and the mother's two younger children, including the child, remained at home with the maternal aunt on weekdays. The record indicated that the babysitter, friends of the maternal aunt, the maternal aunt's brother, and the aunt and uncle of the maternal aunt helped the maternal aunt care for the children during the day while the maternal aunt slept.
The maternal aunt admitted that the father of her child, T.N., was imprisoned on drug charges at the time of the hearing. She stated that she was aware of a prior drug charge against T.N., and that T.N. had frequently come to her home before he was imprisoned so that he could visit their child. Before his incarceration, T.N. took their child and the mother's oldest child to school before the maternal aunt returned from work. The maternal aunt also admitted that her brother had been arrested for possession of marijuana approximately one year before the hearing, but she testified that she had warned him that if he ever brought drugs into her home she would not allow him to live with her. She stated that she was trying to help her brother because he did not have anyone else to help him.
On cross-examination, the maternal aunt testified that her petition for custody of the child was based on her desire to keep the mother's three children in the same household. She stated that she did not believe that the father was unfit, but she also stated that the child did not know the father because the father had not spent time with the child. The maternal aunt testified that the father had not provided any financial support for the child to the mother after their relationship ended and that the father had not provided any support for the child after she was awarded pendente lite custody of the child in December 2007.
The record indicated that the father had been living in Florida at some time and that he had moved to Gulf Shores approximately 18 months before the hearing.
The father testified that his driver's license was suspended, and he indicated that he relied on his mother and his coworkers for transportation. The father worked as a mason, and he stated that he had been employed "off and on" by the same company for 18 months. At the time of the hearing, he earned $10 an hour, but he stated the he could earn more income once he retrieved his trade tools from Gulf Shores. The father stated that he could obtain health insurance through his employer, although he did not have insurance at the time of the final hearing.
The father has another child living in Florida who was six years old at the time of the final hearing. The father did not pay child support for that child "through the courts," but he stated that he sent the child money when it was needed. The father stated that he had not seen his other child in a few years and that it was difficult to visit her because she lived in central Florida. The father admitted that he had had two domestic-violence-related charges filed against him: one by the mother, although those charges were dropped, and one by the mother of his child who lived in Florida. The father testified that he had pleaded guilty to the domestic-violence-related charge in Florida, which he described as a "touch or strike battery," although he later testified that he had pleaded nolo contendre to that charge. However, the father admitted that he was guilty of the offense and that he had shaken the victim and pushed her in order to get away from her.
When asked if he had ever used any illegal drugs, the father responded that he had used marijuana "earlier in [his] childhood. . . or my teenage years." The father stated that he was not sure of the last time he had used marijuana, but he admitted that he could not pass a drug screen at the time of the hearing because he had used marijuana in the 30 days before the hearing. According to the paternal grandmother, the father possessed all the skills necessary to care for the child. She admitted that she was aware of the father's use of marijuana, but she opined that marijuana was "better than being around cocaine" and that the child was "not in danger with marijuana as she would be with cocaine." When asked if she knew that the father used marijuana "pretty regularly," the paternal grandmother responded that she "tr[ied] not to know that." She further testified: "I know he smokes [marijuana]. I don't know if it is just socially or what."
The father's attorney objected to a question presented to the father by the maternal aunt's attorney regarding the number of tattoos the father had on his body. The juvenile court overruled the objection, and the father stated that he had approximately 70 tattoos. The maternal aunt's counsel questioned the father regarding the meaning of several of his tattoos, including one on the father's head that the father identified as the symbol for anarchy. The father stated that he had had a problem with authority when he was younger but that he no longer had that problem. The father testified that he once worked at a tattoo parlor and that he did not pay for any of his tattoos but that his tattoos were worth "a couple of grand."
The child's guardian ad litem stated on the record that she had reservations about
Based on this evidence, the juvenile court entered a judgment that set forth specific findings of fact. Some of those findings were as follows:
Based on its findings of fact, the juvenile court held that the father was "unfit and that he had voluntarily forfeited his place as the fit and proper person to have custody" of the child based on
On appeal, the father argues that some of the juvenile court's specific findings of fact were unsupported by evidence in the record and that the juvenile court erred by relying on those erroneous findings to support its judgment finding him unfit.
Our standard of review is well settled:
"Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005). `Under the ore tenus standard, the judgment of the trial court
Water Works & Sanitary Sewer Bd. of City of Montgomery v. Parks, 977 So.2d 440, 443-44 (Ala.2007). Furthermore, "[i]t is the province of the trial courts to estimate the credibility of witnesses, and if a trial court concludes that a witness was willfully untruthful, that court may disregard any or all of that witness's testimony." Summers v. Summers, 58 So.3d 184, 188 (Ala.Civ.App.2010).
Considering the specific findings of fact in the judgment, it appears that the juvenile court believed that the father was willfully untruthful about at least one issue—his usage of marijuana. Accordingly, the juvenile court was justified in disregarding any part or all of the father's testimony. With that premise in mind, we will determine whether the juvenile court's findings of fact, and its judgment declaring the father to be unfit, are so unsupported by the evidence that reversal of the judgment is required.
First, we will address the juvenile court's finding that the father failed to "establish any hint of a relationship" with the child. The father argues that he presented evidence indicating that he saw the child every day for the first 20 months of the child's life, that he cared for the child while she was in the custody of his cousin, and that the mother refused to allow the father to see the child after she gained custody of the child in August 2006. We agree that the evidence indicated that the father had established a relationship with the child after her birth in December 2004, but the evidence regarding the father's role in caring for the child after his cousin was awarded custody was disputed. Although the father stated that he saw the child every day, he also testified that he was working out of town during that time, and the maternal aunt testified that the father's cousin had a restraining order entered against him. Regardless, there was clear and convincing evidence indicating that the father had not maintained whatever relationship he had established with the child. Between August 2006 and December 2007, the father had not seen or otherwise contacted the child. The evidence indicated that the mother had not allowed the father to visit the child after August 2006, but the father had not taken any legal action that would have enabled him to maintain a relationship with the child. Although the juvenile court's finding of fact would have been more accurate if it had stated that the father had failed to "maintain" a relationship with the child (as the juvenile court stated in paragraph 22 of the judgment), we conclude that the juvenile court's finding that the father failed to establish a relationship with the child is substantially in conformance with the evidence presented at the ore tenus hearing.
Next, the father argues that the evidence did not support the juvenile court's conclusion that he refused to financially support the child. The father again points to evidence indicating that he tended to all the child's needs while his cousin had custody of the child. Even if the juvenile court believed the father's testimony in this regard, it was undisputed that the father had not provided any support for the child to the mother after August 2006 and that he had not provided any support for the child to the maternal aunt after she gained pendente lite custody
The father next argues that there was insufficient evidence to support a finding that he was charged and convicted of domestic violence. We agree with the father that there was no evidence to support the juvenile court's finding in paragraph 22 of the judgment that the father was required to attend anger-management classes as a result of his "touch or strike" conviction in Florida. The father argues that because he pleaded nolo contendre to the touch or strike charge in Florida, we cannot consider that conviction to prove the fact that he committed the offense underlying the conviction, citing McNair v. State, 653 So.2d 320, 327 (Ala.Crim.App. 1992). Although that premise may be true, it does not require us to conclude that the juvenile court erroneously determined that the father had been charged and convicted of domestic violence. First, it was undisputed that the father had been charged with a touch or strike battery involving the mother of his older child. The father initially testified that he had pleaded guilty to the touch or strike charge in Florida and that he was guilty of the touch or strike charge filed against him by the mother of his other child because he had pushed the victim. Therefore, based on the father's testimony, the juvenile court could have concluded that the father had been charged and convicted of a domestic-violence offense.
Finally, the father argues that the evidence did not support the juvenile court's finding that he was a prolific drug user. The father argues that there was no evidence presented to support the juvenile court's conclusion in paragraph 20 of the judgment that the father smoked marijuana daily. Although the juvenile court, in order to decide the issue of custody, was "`in the better position to evaluate the credibility of the witnesses . . . and . . . to consider all of the evidence, as well as the many inferences that may be drawn from that evidence,'" Ex parte Patronas, 693 So.2d 473, 475 (Ala.1997) (quoting Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994)), inferences drawn from the evidence must be reasonable. We agree with the father that the evidence presented does not support a finding that the father smoked marijuana daily or that he was a "prolific" drug user. However, there was clear and convincing evidence indicating that the father had smoked marijuana within 30 days of the hearing, and the juvenile court could have drawn a reasonable inference from the paternal grandmother's testimony that the father used marijuana.
The specific findings of fact in the judgment indicate that the juvenile court believed that the father had been willfully untruthful regarding his domicile, but the father argues on appeal that he answered the questions presented to him about where he lived truthfully. The father testified that he lived with the paternal grandmother and her husband, but it was later revealed that the father "lived" at the paternal grandmother's home only on the weekends. Even if the father considered the paternal grandmother's home to be his "home," we agree that it was misleading for the father to testify that he lived with the paternal grandmother at the time of the hearing when, in actuality, he spent only two of seven days of the week at the paternal grandmother's home.
There was also some confusion about how long the father had been living and working in the Walker County area. When the father testified that he had been
The father also takes issue with the findings of fact found in paragraphs six through nine of the judgment, which discussed the prior custody proceeding filed by the father's cousin. Most of the information regarding that proceeding was taken from the paternal grandmother's testimony. However, to the extent that any part of the findings of fact in those paragraphs is unsupported by the evidence presented at the ore tenus hearing, the error was harmless because it had no bearing on the father's fitness to care for the child at the time of the hearing.
We have thoroughly reviewed the record on appeal and the specific findings of fact made by the juvenile court in its judgment, and we cannot conclude that the judgment, as a whole, is so unsupported by the evidence that it must be reversed. Despite the existence of some errors in the findings of fact, our review of the record reveals that there was clear and convincing evidence to support the juvenile court's conclusion that the father was unfit to be entrusted with the care and upbringing of the child at the time of the hearing. The record indicated that, at the time the maternal aunt petitioned for custody of the child, the father had not seen the child in at least 16 months and that the father had not maintained a relationship with the child during his absence from her life. See Ex parte A.M.B., 4 So.3d 472, 478 (Ala. 2008) (noting the mother's failure to visit the child as a factor to support a determination of her unfitness). Furthermore, at the time of the final hearing, the evidence indicated that the father had not provided financial support for the child in almost two years, that the father could not pass a drug screen, and that the father would have to rely on the paternal grandmother in order to properly care for the child. Indeed, the record also indicated that the father had never been solely responsible for the care of the child. See Ex parte G.C., 924 So.2d 651, 660 (Ala.2005) (in determining whether a parent is fit for custody of a child, a court must consider "whether the parent is fit to have the care, custody, and control of, that is, the total responsibility for, the child"); but see Ex parte A.M.B., 4 So.3d at 478 (stating that, "in the abstract, a parent's reliance on others, particularly family, for support is not, in and of itself, determinative of the parent's unfitness").
In A.M.B. v. R.B.B., 4 So.3d 468, 471 (Ala.Civ.App.2007), this court, affirming a judgment that found a mother to be unfit, stated:
As noted above, the juvenile court found that the father had placed his own interests and desires above the child's, and the father did not challenge that finding. Considering the totality of the evidence in the record, we find clear and convincing evidence to support the juvenile court's
Next, the father argues that the juvenile court's consideration of his physical appearance merits reversal of the custody determination in favor of the maternal aunt. The father cites the juvenile court's interest in the number of and the meaning of his tattoos during the hearing and a portion of the judgment, wherein the juvenile court stated:
The judgment further stated that the appearance of the father spoke "volumes" to the juvenile court, and the judgment described the physical appearance of the father on the day of the hearing, including his clothing, his tattoos, and his body piercing. In support of his argument that the juvenile court's consideration of his physical appearance merits reversal of the custody determination, the father cites Jennings v. Jennings, 490 So.2d 10, 13 (Ala.Civ.App.1986), wherein this court acknowledged that "private biases and social pressures are impermissible consideration for removal of a child from the custody of a parent." In Jennings, this court affirmed an award of custody of a child to a husband pursuant to a divorce proceeding. Id. In that case, the trial court had been aware that the wife had begun dating a man of a different race, but, in awarding custody of the child to the husband, the trial court had stated that "`[n]either racial prejudices nor social considerations have been proved nor has any such consideration had any bearing on this decree.'" Id. (quoting trial court's judgment).
During the hearing, when the maternal aunt's counsel asked the father about his tattoos, the juvenile-court judge stated, in response the father's counsel's objection:
We agree that, generally speaking, a party's physical appearance, including the type of clothing the party is wearing and the existence of tattoos and body piercing, is irrelevant to the determination of custody of a child. However, we cannot disagree that messages displayed by a party on his or her person may reveal pertinent evidence about the character of a party seeking custody. See Ex parte Devine, 398 So.2d 686, 696 (Ala.1981) (listing the character of the party seeking custody as a pertinent factor in determining what custodial arrangement would serve the best interests of the child).
After a careful review of the entire record on appeal, we do not believe that the juvenile court's consideration of the father's physical appearance as "one piece of the puzzle" to determine the father's fitness mandates a reversal of the juvenile court's custody determination. It is clear from the record that the juvenile court did not base its determination of the father's
The father has not argued on appeal that the award of custody to the maternal aunt does not serve the best interests of the child. See T.T.T. v. R.H., 999 So.2d 544, 557 (Ala.Civ.App.2008) (noting that, after a nonparent has overcome a natural parent's prima facie right to custody of his or her child, the juvenile court must make a custody determination based on the best interests of the child). Accordingly, the juvenile court's judgment awarding the maternal aunt custody of the child is due to be affirmed.
Finally, the father argues that the juvenile court exceeded its discretion by failing to award him "liberal" visitation with the child.
K.L.U. v. M.C., 809 So.2d 837, 840-41 (Ala. Civ.App.2001).
The father argues that the juvenile court's failure to award him liberal visitation with the child effectively terminated his parental rights to the child. We disagree. This court, in K.C. v. Jefferson County Department of Human Resources, 54 So.3d 407, 413 (Ala.Civ.App.2010), rejected an argument made by a natural parent that "a judgment placing a child with a relative custodian and providing for visitation with a natural parent is equivalent to a judgment terminating that parent's parental rights." As we noted in K.C., the natural parent, in this case the father, retains "residual rights and responsibilities in and to the child, including the right to continued visitation and the responsibility of support. . . ." 54 So.3d at 413 (citing § 12-15-102(23), Ala.Code 1975, a provision in the new Alabama Juvenile Justice Act, § 12-15-101 et seq., Ala.Code 1975; but see former Ala.Code 1975, § 12-15-1(24), which was substantially similar to § 12-15-102(23)).
To support his argument that the juvenile court exceeded its discretion by awarding him visitation with the child only every other weekend of each month, the father points to evidence indicating that the maternal aunt agreed that the child should have a relationship with the father. However, it appears that the juvenile court considered that evidence, and, despite the fact that the father did not have a relationship with the child at the time of the hearing, the juvenile court allowed the father visitation with the child every other weekend. There is no indication that the father will not be able to develop a meaningful
Accordingly, we conclude that the judgment of the juvenile court is due to be affirmed.
PITTMAN and THOMAS, JJ., concur.
THOMPSON, P.J., and MOORE, J., concur in the result, without writings.