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B.M. v. J.R.

Alabama Court of Civil Appeals

February 27, 2015

B.M.
v.
J.R

Page 161

Appeal from Geneva Juvenile Court. (JU-11-168.02).

For Appellant: Charles W. Blakeney, Geneva.

For Appellee: Charles W. Fleming, Jr., Geneva; Michael P Hughes, guardian ad litem, Geneva.

MOORE, Judge. Pittman and Thomas, JJ., concur. Donaldson, J., dissents, with writing, which Thompson, P.J., joins. DONALDSON, Judge, dissenting. Thompson, P.J., concurs.

OPINION

Page 162

MOORE, Judge.

B.M. (" the father" ) appeals from a judgment entered by the Geneva Juvenile Court (" the juvenile court" ) on May 30, 2014, modifying a previous custody judgment and awarding physical custody of X.M. (" the child" ) to J.R. (" the mother" ). We reverse the juvenile court's judgment.

Procedural History

On May 22, 2013, the mother filed in the juvenile court a petition for contempt and a motion for an emergency enforcement order (" the contempt petition" ).[1] In pertinent part, the mother alleged that the father had denied her visitation with the child since January 2013 and had failed to participate in counseling as ordered by the juvenile court.[2] The mother sought a finding of contempt against the father and an emergency order directing the sheriff or other local law enforcement to assist the mother in retrieving the child for visitation. The father filed a response to the mother's petition for contempt and a counterclaim for contempt, alleging, among other things, that the child had contracted scabies and " a severe case of head lice" while in the mother's care, that the mother had failed or refused to diagnose the problems or to seek medical treatment for the child, that the mother had taken the child on a trip with the mother's current boyfriend, that the mother's boyfriend had stayed overnight without the knowledge or permission of the father, and that the mother had caused frustration by refusing

Page 163

to abide by the juvenile court's orders. On July 26, 2013, the juvenile court entered an order indicating that the parties had appeared for a hearing and had agreed to continue the contempt-of-court proceedings to a later date and to abide by the visitation order that was currently in place and the standards of conduct as ordered by the juvenile court; that the parties had agreed that the child would visit with the mother for 30 days, which period had begun on July 18, 2013; and that, following the mother's summer visitation, the parties would resume the visitation as previously ordered.

On September 19, 2013, the mother filed an amended petition for contempt and for a modification of custody, asserting, among other things, that the father had failed to assure the child's attendance at counseling as ordered, had failed to allow the mother visitation with the child, and had failed to comply with the " standards of parental conduct" as ordered by the juvenile court; that the father had " backhanded" the mother, hitting her violently in the face during an argument at Samson Elementary School on September 16, 2013; and that the father was residing in Florida and leaving the child in the care of others while the father was gone for long periods. The mother sought emergency temporary custody and, following a hearing, permanent custody of the child. The mother attached to her amended petition her affidavit and a copy of a police report that she had filed, which indicated that the father had " back handed her in the face."

A hearing was held on March 17, 2014. On May 20, 2014, the juvenile court entered an order granting the mother's petition to modify custody and awarding the mother joint legal custody and primary physical custody of the child. The juvenile court denied the mother's petition to hold the father in contempt for his failure to comply with the visitation order and awarded the father visitation with the child. The father filed his notice of appeal to this court on June 3, 2014. Because the juvenile court had failed to rule on the father's contempt claim, this court reinvested the juvenile court with jurisdiction to rule on that outstanding claim. On remand, the juvenile court entered an order denying the father's claim for contempt against the mother.

Facts

The mother testified that she had lived with the child's maternal grandmother, who had kicked the mother out of her home in November 2010, and that the maternal grandmother had filed a dependency petition regarding the child. According to the mother, although the November 2011 order entered following the filing of that dependency petition had awarded primary physical custody of the child to the father, the child had lived with the mother until June 2012, when, she said, the child had begun living with the father. The mother testified that the juvenile court had ordered the child to attend counseling but that the child had not completed that counseling. She further testified that there had been a period during the summer of 2013 when she had been denied visitation with the child. The mother admitted that, at some point in time, she had been told that the child had contracted scabies while at her house and that that was the reason the child had not been allowed to visit her.

The mother testified that the father had been living in the same house since September 2013; that, before the father had obtained his own house, he had lived with R.C. and was rarely at R.C.'s house when she had taken the child there and picked her up; and that the father also had a house in Defuniak Springs, Florida, where he had lived with his sister. According to the mother, the child had been living with

Page 164

R.C., and, the mother said, she was aware of that because she would pick the child up for visitation at R.C.'s house and would drop the child off there 90% of the time. The mother presented as evidence a copy of the registration-profile form that had been sent home with the child at the beginning of the school year that was in session at the time of the trial; she testified that, on that form, her name and contact information had been scratched out and had been replaced by that of the father, R.C., and R.C.'s wife, E.C. The mother acknowledged that the father's signature did not appear on that form, that his name was misspelled on the form, and that " he had no acknowledgment." According to the mother, the child's school-attendance record revealed that the child had had 10 unexcused absences for the school year in session at the time of the trial; that the child had been checked out of school 18 times, 13 times by either R.C. or E.C. and only twice by the father; and that, in the previous school year, the child had had 27 absences, including 20 unexcused absences.[3] The mother testified that the child is a good student and that she was in the elementary honor society, although, she said, the child had received a C in science, which was unusual.

The mother testified that, on one occasion, she had waved the father down in his vehicle to speak to him about " homecoming," which the child was to participate in; that she and the father had had a disagreement; and that the father, while sitting in his vehicle, had " backhanded" the mother in the face as she was standing outside the vehicle. The mother testified that she had filed a police report regarding the incident but that she had not prosecuted the action. The mother testified that she had decided to seek custody of ...


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