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M.M. v. K.H.

Alabama Court of Civil Appeals

July 28, 2017


         Appeal from Jefferson Juvenile Court, Bessemer Division (JU-16-390.01)

          PER CURIAM.

         On June 21, 2016, K.H. filed in the Jefferson Juvenile Court ("the juvenile court") a petition seeking to have a child born to M.M. ("the mother") declared dependent and seeking an award of custody of the child. The mother filed an answer asserting, among other things, that K.H. had intervened in a divorce action between the mother and B.M., the mother's husband, that was then pending in the Jefferson Circuit Court ("the circuit court"). The mother alleged that in a June 20, 2016, order, the circuit court had ordered that the child be "returned" to the mother. It is undisputed that the circuit court in the mother's divorce action did not receive any evidence before it entered the order "returning" custody of the child to the mother. It does not appear that K.H. sought appellate review of that order.

         We note that it appears the mother had physical custody of the child pursuant to the circuit court's order for approximately one to two days when K.H. filed the dependency petition. The mother bases her argument--that there was no evidence indicating that she was not properly caring for the child at the time the dependency petition was filed--on that custodial period. It appears that the juvenile court awarded K.H. pendente lite custody of the child. The juvenile court awarded the mother visitation during the pendency of the dependency action, and that visitation took place with no difficulties.

          The juvenile court conducted an ore tenus hearing in the dependency action. On October 15, 2016, the juvenile court entered a judgment in which it found the child dependent and awarded custody of the child to K.H., subject to the mother's rights of visitation. The mother filed a postjudgment motion on October 28, 2016. The juvenile court rendered an order extending its time to consider that postjudgment motion so that it could conduct a hearing on the motion on November 17, 2016. See Rule 1(B)(1), Ala. R. Juv. P. (providing that a juvenile court may extend the time for considering a postjudgment motion for an additional 14 days by issuing a written order to that effect). The juvenile court entered an order on November 17, 2016, in which it denied the postjudgment motion in substance but made minor alterations to the original judgment. The mother timely appealed.

         The record indicates the following facts. The mother was married to B.M., and the two had a child, D.M. ("the half sibling"), born in 2014. The mother and B.M. separated in May 2015; a divorce action between the two was initiated in the circuit court at some point in 2015. The mother testified that she began a relationship with another man and that, in July 2015, she became pregnant with that man's child, who is the child at issue in this case. For the first time at the dependency hearing, the mother identified J.A. as the man with whom she had had the relationship in 2015 and as the father of the child. The mother testified that J.A. had asked her to have an abortion and that their relationship had ended.

         The mother's divorce action was stayed during her pregnancy, and it is undisputed that B.M. was excluded, through genetic testing, as being the father of the child. At the time of the dependency hearing in this matter, a judgment had been entered in the mother's divorce action that divorced the parties to that action and awarded them joint legal and joint physical custody of the half sibling. The mother explained that she and B.M. alternate custody of D.M. on a weekly basis.

         The mother testified that K.H. was her hairdresser and that she had learned that K.H. and her husband, J.H., were unable to have children. The mother approached K.H. about the possibility of K.H. and J.H. adopting the child. K.H. and J.H. agreed; the record indicates that the mother spoke primarily with K.H. and that she spoke with J.H. only once before the child was born. K.H. attended several prenatal doctor's appointments with the mother.

         The child was born, two months premature, on February 4, 2016. The next day, on February 5, 2016, the mother signed a form at the hospital in which the child was born that identified K.H. and J.H. as the "adoptive parents" and allowed them access to the child in the hospital. The mother also signed a form that allowed the hospital to release the child, upon her discharge, into the custody of K.H. and J.H. The mother acknowledged during the dependency hearing that, by signing those forms, she believed that she was relinquishing custody of the child to K.H. and J.H.

         The mother was discharged from the hospital within a few days of the child's birth, but the child was not discharged into the care of K.H. and J.H. until March 7, 2016. The patient-care instructions for the child upon her discharge were signed by K.H. on March 7, 2016, as the "parent/guardian." The record indicates that the mother visited the child in the hospital weekly until the child was discharged.

         On March 16, 2016, J.H. was arrested in connection with his alleged abuse of prescription medications. K.H. immediately moved out of the home she had shared with J.H. and moved, with the child, into her parents' home. K.H. explained that she did not want to have herself or the child in an environment in which drugs might be an issue. She admitted that J.H. had a previous arrest, apparently related to drug use, but that the charges stemming from that arrest had been dropped; the record does not indicate when that occurred or if it occurred during her marriage to J.H.

         K.H. informed the mother of J.H.'s arrest and the fact that the two had separated on March 17, 2017. Both K.H. and the mother testified that the mother told K.H. that she needed to think. The mother testified that she asked for the return of the child the next day. K.H. disputed that testimony and stated that the mother telephoned her back quickly and told her that she would not take any action to prevent K.H. from adopting the child.

         The mother testified that she visited the child at the mother's parents' home or K.H.'s parents' home once a week for five or six weeks after K.H. left J.H. K.H. testified she had accommodated all of the mother's requests for visitation with the child until the Wednesday before Mother's Day weekend, when the mother requested that she be allowed to take the child to a "meet and greet" on the Saturday of Mother's Day weekend. K.H. stated that she refused that request by the mother to pick up the child and take her to meet the mother's family. On May 9, 2016, the day after Mother's Day, the mother filed in her divorce action a motion for the return of custody of the child from K.H. We note that the mother testified that she had asked for the child for a "meet and greet" with her family in late March or April 2016, although she was uncertain of the specific date on which she made that request.

         The mother testified that she had not been allowed to see the child for a period of approximately six to seven weeks between the time she filed her May 9, 2016, motion for the return of the child in her divorce action through the date of the June 20, 2016, hearing on that motion. K.H. testified that the mother had not asked to visit the child during that period and that, with the exception of the mother's request to take the child ...

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