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T.N.S.R. v. N.P.W.

Alabama Court of Civil Appeals

December 12, 2014

T.N.S.R.
v.
N.P.W

Appeal from Calhoun Juvenile Court. (CS-12-900453).

REVERSED AND REMANDED WITH INSTRUCTIONS.

For Appellant: William J. Miller of Adams Miller, LLP, Anniston.

For Appellee: Melody Walker, Anniston.

Thompson, P.J., and Thomas and Donaldson, JJ., concur. Pittman, J., dissents, with writing.

OPINION

Page 685

MOORE, Judge.

T.N.S.R. (" the mother" ) appeals from a judgment of the Calhoun Juvenile Court (" the juvenile court" ) transferring custody of T.L.W. (" the child" ) from her to N.P.W. (" the father" ). We reverse the judgment.

Background

The child was born out of wedlock on December 30, 2008, with the father being identified on the birth certificate of the child as the father of the child. The parties originally raised the child jointly, except for a brief six-week period. However, when the child was approximately one year old, the father, following problems in his relationship with the mother, decided to better his life by moving by himself to South Carolina, leaving the child in the care of the mother and the child's paternal grandmother. Thereafter, the father paid the mother weekly child support and visited with the child every other weekend in Oxford. The parties maintained that arrangement for the next three years, with the mother eventually moving into her own mobile home at some point. The father testified that the arrangement had served the best interests of the child and had improved his relationship and the quality of the time he spent with the child.

The mother testified that, on December 30, 2010, she informed the father that their romantic relationship had ended. Afterwards, the mother began a relationship with another man; that relationship produced a daughter, the child's half sister, in October 2011. The father testified that, following the birth of the child's half sister, it became " increasingly difficult" for him to maintain contact with the child, until he completely lost communication with the mother and the child in June or July 2012 when they moved to Colorado with the mother's now husband, the father of the child's half sister. The mother testified that she had informed the father in advance of her move to Colorado, that, after the move, the father quit paying child support, and that she had facilitated telephone contact between the father and the child while she was living in Colorado.

On September 19, 2012, the father filed a paternity and custody action. The mother denied the father's paternity and demanded genetic testing; she also petitioned for sole custody of the child. After the testing revealed, in March 2013, that the probability of the father's paternity was 99.99998%, the mother filed a counterclaim to terminate the father's parental rights. The mother testified, however, that she had decided not to pursue the termination counterclaim, which was voluntarily dismissed during the trial, and that she had agreed that the child should resume his relationship with the father through visitation. The juvenile court approved a visitation schedule that had been

Page 686

agreed upon by the parties on May 23, 2013, when it adjudicated the paternity of the child in favor of the father. By that time, the mother was living in Virginia, where her husband, a military employee, had been transferred, and she was pregnant with her third child, who was subsequently born in August 2013. The visitation between the father and the child went well, although the child would demonstrate hostility toward the father at the beginning of the visitations.

At trial, the father testified to former drug use and criminal activity, but the mother agreed that the father had matured and that those problems were in his past. The father testified that he had been a good father to the child, which the mother also confirmed, testifying that she believed the child should maintain a close relationship with the father. The mother testified that the father had been physically abusive toward her during their relationship, which the father denied, and that, at one time, he had been diagnosed with bipolar disorder and depression. Undisputed evidence also showed that the father had another child, who lived in Washington state, with whom he had no relationship. Nevertheless, the mother testified that she did not know of any reason to question the parenting ability of the father at the time of the trial. The father's pastor testified that the father had overcome his past problems and that he was a good parent to the child. The father presented no evidence as to the parenting of the child by the mother. The juvenile court attempted to question the child, but he did not respond to most of the questions, despite the encouragement of both parents.

On February 17, 2014, the juvenile court entered a judgment that, among other things, awarded the father sole physical custody of the child. In its judgment, the juvenile court set out detailed findings of fact in which it determined that the mother had taken actions " both before and during this proceeding to reduce and or eliminate the [father]'s involvement with the minor child" and that the mother had " alienated the affections of the child for his father." The mother filed a postjudgment motion on March 3, 2014; that motion was denied by operation of law on March 17, ...


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