S.A.M. v. M.H.W.

261 So.3d 356

S.A.M.

v.M.H.W.

2160686

Court of Civil Appeals of Alabama.

November 3, 2017

Jacquelyn H. Wesson of Wesson & Wesson, LLC, Warrior, for appellant.

William W. Lawrence, Talladega; and S. Dale Price, Sylacauga, for appellee.

PER CURIAM.

S.A.M. ("the mother") and M.H.W. ("the father") are the unmarried parents of S.M. ("the child"), who was born on December 2, 2012. In October 2015, the father filed in the Talladega Juvenile Court a petition seeking to establish paternity and seeking custody of the child. The record reveals the following facts.

The mother and the father met in December 2009. They dated for a few months, and the father, who is a pharmacist, moved to Alaska. The parents kept in touch, and, in March 2012, the mother went to Alaska to visit the father. She became pregnant during her two-week visit, but the parents did not continue a romantic relationship after that visit.

At the time of the child's birth, the mother was employed as a camp director at a YMCA camp in Alabama; as part of her salary package, she was provided a home at the camp in which she and the child resided year-round. However, in late November 2014, the mother lost her employment.

Because she had lost her employment and had no immediate position available to her, the mother decided to take a four-month-long trip with a friend and the child. The mother and her friend camped and, at times, stayed in motels. The mother and the child also slept in the back of the mother's Jeep vehicle. They visited Yosemite National Park, Joshua Tree National Park, Zion National Park, "Red Rock," and the Grand Canyon. The mother and her friend met other friends during the trip, including the mother's then-boyfriend, at different locations. The mother explained that her then-boyfriend would sleep in his own tent when he spent the night with them; she admitted that she might have spent some evenings in her then-boyfriend's tent, but, she said, she would do so only after putting the child to sleep in her tent or the Jeep vehicle and that she would return to her tent or the Jeep vehicle to sleep. The father, who had been on a trip to the Coachella music festival held in Indio, California, met them at Joshua Tree National Park; he stayed two nights, during which the child slept with him in his tent.

The mother testified that she desired to work for the United States Forestry Service and that she had applied in several western states, including Colorado and Washington, for a position as a forestry-service technician. She was hired as a forestry-service technician in Wenatchee, Washington, where she worked from May 31, 2015, through October 31, 2015. During those months, the mother left the child in Alabama in the care of W.M. ("the maternal grandmother") because, the mother testified, she did not have sufficient funds to pay for child care in Washington at that time. The mother contacted the child every day while she was in Washington.

The mother explained that, in order to become a permanent employee of the forestry service, one had to complete three years as a seasonal employee. As of the time of the May 2016 trial, she had been rehired for the same position for the May to October 2016 season, expected to earn between $12 and $13 per hour, and expected to work between 50 and 60 hours per week. The mother further testified that she intended to take the child with her to Washington in 2016. The mother testified that she had rented a three-bedroom, two-bathroom home in which she and the child would reside. She said that the child support the father would be paying under the pendente lite agreement the parties had reached would enable her to hire a college-age nanny, who would reside with her and the child in Washington.

The mother admitted that, at the time of her deposition, which had been taken in March 2016, she had intended, if she were rehired for the position in Washington, to leave the child with her mother and to return to Alabama after her seasonal employment ended. She said, however, that the increased child support enabled her to secure child care and led to her decision to take the child with her. She also explained that her ability to take the child with her to Washington impacted her plans after her seasonal employment ended.

Regarding her future plans, the mother testified that she expected that she would be rehired for her third seasonal-employment season in 2017 and that she would then qualify for a permanent position. She also explained that she hoped to be able to stay in Washington after completing the 2016 season. She explained:

"I've got the option to live up there year round. I have the option to work at the supervisor's office at the end of my time in the field. I have the option to spend time with [the child] during those months. But right now I can't make a decision because I don't know what in the end [the father] is going to be helping with or anything like that."

When asked about the opportunities for the child in Wenatchee, the mother explained that Wenatchee was located on the Columbia River and said that it was a leading producer of apples. She said that the area had a cultural arts center and apple festivals in which the child could participate. In addition, she noted that water sports were available on the river and that snowboarding and skiing were available at a local resort.

The father testified that he is a pharmacist. He said that he had worked as a pharmacist in Alaska and that he was, at the time of trial, employed as a pharmacist in a hospital pharmacy in Steamboat Springs, Colorado. He explained that his hours were 10:00 a.m. to 6:00 p.m. each weekday, that he worked 40 hours a week, and that he earned $52 per hour.¹ He testified that the hospital had a day-care facility for the child to attend but that it closed at 5:30 p.m. According to the father, his supervisor had assured him that he could bring the child to the hospital pharmacy during the last 30 minutes of his shift, where the father intended to "put [him] in the back with a coloring book."

The father further testified that he lived in a one-bedroom, garage apartment "along a back alley (inaudible) that's tucked in downtown Steamboat." He said that he had a trundle bed on which the child could sleep. He also stated that the child could sleep anywhere he wanted, including in the main bed.

The father testified that the child would have access to skiing and other outdoor activities in Steamboat Springs. He also noted that the school in the area was a "school of distinction." The father testified that he usually rode his bike to work but that he also had access to public transportation.

The maternal grandmother testified that the child had remained in her care while the mother worked in Washington between May 31 and October 31, 2015. She said that the mother and the child had had contact of some sort every day. She described the child as independent and noted that he had a large vocabulary. She commented that he loves participating in outdoor activities with the mother, including swimming, hiking, and camping.

The juvenile-court judge questioned the mother extensively during her testimony. The judge quizzed her about whether the four-month trip was of benefit to the child, whether driving across the country with a toddler was dangerous, and whether the child would remember the trip. The juvenile-court judge indicated that he found the mother's decision to make the trip with the child indicative of a lack of stability:

"THE COURT: Listen, and that's why I'm trying to draw a thin line here because I don't think it's the Court's province to step in morality [ (sic) ] and being that you want to raise your child as a granola child, that's your right. But stability is important to children."

The juvenile-court judge then questioned the mother about why she did not want the father to be given custody of the child:

"THE COURT: What have you seen [the father] do to make you believe that he would ever hurt or neglect that child?

"THE MOTHER: It is not that I feel like [the father] is going to do anything bad to the child as far as—

"THE COURT: I said hurt or neglect. Neglect is bad. And neglect is not paying attention.

"THE WITNESS: Then—

"THE COURT: (Inaudible) those two words have got to cover something that's a (inaudible).

"THE MOTHER: Then if neglect includes not paying attention I just personally and I can—I'll give examples.

"THE COURT: Are you saying he stays out until 4:00 in the morning getting drunk, does he do a bunch of drugs or is he hanging out at raves, what are you saying?

"THE MOTHER: So from [the father's] behavior in the past. I do know that he smokes marijuana or has in the past. I also know—

"THE COURT: Has he ever smoked marijuana in front of [the child]?

"THE MOTHER: Not to my knowledge. I don't—I haven't seen them together enough to know if that happens or not.

"THE COURT: Have you ever smoked marijuana?

"THE MOTHER: No."

The juvenile-court judge then began examining the mother about whether smoking marijuana makes a parent unfit.

"THE COURT: I asked you what concerns—have you ever seen him do anything that leads you to believe that he would hurt, neglect, do anything to harm the child, whether it's intentional or by accident?

"THE MOTHER: Right. And—

"THE COURT: And because you've seen him smoke marijuana before, not around the child, you believe he's going to neglect the child?

"THE MOTHER: Where I was going with that is I don't know if he smokes anymore or if he would smoke in front of [the child]. I just know that when people smoke [marijuana] they cannot be as observant and if he's going to be taking care of [the child] solely by himself and he decides to indulge in that habit, then who is going to be the other person—

"THE COURT: And my question is: What knowledge do you have that that's going to happen? When's the last time you saw him smoke marijuana?

"THE MOTHER: It was when I was in Alaska, it was years ago. And that's why I acknowledge the fact that I don't know

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