W.W. v. H.W.

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W.W. v. H.W.

No. CL-2022-0710

Alabama Court of Civil Appeals

April 14, 2023

Appeal from Morgan Juvenile Court (JU-21-823.01)

THOMPSON, PRESIDING JUDGE

On November 1, 2021, H.W. ("the mother") filed in the Morgan Juvenile Court ("the juvenile court") a petition seeking to terminate the parental rights of W.W ("the father") to the minor child born of their marriage. The juvenile court conducted a hearing on May 16 2022, at which it received ore tenus evidence. On that same day, the juvenile court entered a judgment granting the mother's petition and terminating the father's parental rights. In its judgment, the juvenile court found, in part, that the father had abandoned the child. The father filed a timely notice of appeal to this court.

The record does not indicate when the parties married, but, on September 2, 2020, the Cullman Circuit Court conducted a pendente lite hearing in a divorce action involving the parties. During that pendente lite hearing, the parties reached a settlement agreement concerning their competing claims in the divorce action. The Cullman Circuit Court entered a judgment on October 7, 2020, that divorced the parties and incorporated the terms of the parties' settlement agreement. Pursuant to that divorce judgment, the mother was awarded sole custody of the child, and the father was awarded supervised, alternating-weekend visitation with the child for a period of six months. The divorce judgment required the father to attend a substance-abuse assessment and to submit to random drug screens during that six-month period. According to the provisions of the divorce judgment after the father had completed the substance-abuse assessment and six months of drug screens, the parties were to file a joint motion in the Cullman Circuit Court so that the father could receive a standard schedule of unsupervised visitation with the child. The divorce judgment further required that the wife transport the child to the alternating-weekend visitations with the father and that the father pay the mother $64.80 for doing so; the father explained that that amount was to compensate the mother for gasoline for her vehicle.

The divorce judgment also awarded the father telephone visitation with the child on Mondays, Thursdays, and Fridays between 5:00 p.m. and 7:00 p.m., and it provided that the mother could contact the child by telephone on Saturdays when the child was visiting the father. Pursuant to the terms of the divorce judgment, the party who intended to contact the child during the times specified in that judgment was to "text the other party simply stating that [he or she is] about to contact the child. If the minor child is not available at that time, the minor child shall return the contact that same day."

In addition, the divorce judgment required that the father pay the mother $526.13 per month in child support, and it ordered that an income-withholding order ("IWO") be entered within 14 days of the entry of that judgment. The divorce judgment specified that, until the father's child-support obligation could be paid through the IWO, the father was to pay his monthly child-support obligation directly to the mother.

On August 18, 2020, while the divorce action was pending, the Cullman Circuit Court entered a pendente lite protection-from-abuse ("PFA") order against the father. The mother testified that she had requested the entry of the PFA order because the father had been constantly harassing her, had yelled and cursed at her, and had threatened to kill her. The divorce judgment specified that the PFA order was to "remain in full force and effect except for any provisions that would conflict with the [father's] rights to visitation and communication with the child as set out herein."

The mother testified that in accordance with the settlement agreement that was later incorporated into the divorce judgment, the father was to complete a substance-abuse evaluation on September 9, 2020. However, the mother testified, she did not know whether the father had attended that evaluation. The mother stated that she had received two photographs from the father via text messaging that showed the results of two drug screens that the father had taken some time after October 2020; the father did not send the mother any text message explaining those photographs. The mother stated, however, that the father had "also sent me pictures before the divorce that he had found online" and that, after the divorce, he had sent her text messages saying he had mailed child-support payments but that she had never received any of those payments. The mother stated that, based on those facts, it was difficult for her "to know when things are true and when they are not." Regardless, the mother said, the father did not notify her that he had completed the requirement that he submit to drug screens for six months.

The mother explained that the father "is not allowed" to drive with the child in a vehicle because he had "been caught" driving while under the influence of alcohol and, at the time the parties reached their settlement agreement, he had been unable to provide proof that he had a driver's license or vehicle insurance. For that reason, the mother said, the settlement agreement had provided that the mother transport the child to any visitations with the father. The mother also testified that, before the parties entered into the settlement agreement in September 2020, the father had not exercised visitation with the child for almost one year.

The mother and the father agreed that the father had exercised his supervised alternating-weekend visitation, as outlined in the settlement agreement, only twice. The first supervised weekend visitation between the father and the child occurred on September 6, 2020, through September 8, 2020, which was the weekend following the execution of the settlement agreement. The mother stated that the father next exercised his supervised weekend visitation with the child on October 2, 2020, through October 4, 2020. Those two weekend visitations were supervised by the father's mother, S.N. ("the paternal grandmother").

The mother testified that during the father's October 2020 visitation with the child, the child had used a social-media videoconferencing platform to contact her. The mother stated that the child was crying during that contact, and, the mother said, she could see and hear the father and his girlfriend "fighting" in the background behind the child. The mother admitted that she had contacted law enforcement and had asked them to check on the situation. Law-enforcement officers traveled to the home (it is not clear whether it was the father's home or the paternal grandmother's home), but no arrests were made.

In his testimony, the father denied that he and his girlfriend were fighting or that he had frightened the child during the visitation in October 2020. The father admitted that the child had been crying when the child had contacted the mother. However, the father said that the child had been crying because the child missed the mother.

The mother testified that, after the October 2020 visitation, the father did not again ask for or attempt to arrange any further supervised weekend visitations. However, she said, on several occasions, the father requested that he be allowed to visit the child on dates that were outside the schedule of visitation set forth in the divorce judgment. The mother explained that the father would call on a weekday and ask to see the child. The mother stated that she had generally denied the father any visitation other than that set forth in the divorce judgment but that she had transported the child for two meetings with the father in mid-2021. The mother stated that on May 4, 2021, at the father's request, she and the child met the father at a fast-food restaurant for approximately 30 minutes; the mother explained that that meeting had lasted only 30 minutes because the parties became concerned about tornado warnings and agreed to end the meeting early. The mother testified that she transported the child to a meeting with the father at a Mexican restaurant on June 7, 2021, but, she said, she decided to leave with the child within 30 minutes because the father "was [lying] down in the booth at [the] Mexican restaurant while we were trying to eat." The mother also stated that, in March 2021, she sent the father the schedule for the child's extracurricular softball season, but, she said, the father had not attended any of the child's softball practices or games.

According to the mother, after the divorce, she initially allowed the father to speak with the child if the child was not asleep or the mother was not at work. However, she testified that after the parties reached the settlement agreement and after the divorce judgment had been entered, the father continued to harass her, and, she said, he had again threatened her life. The mother elaborated that, as a part of his harassment, the father had sometimes called her as frequently as 30 times in one hour. The mother testified that although the divorce judgment specified that the father could call the child three times a week between 5:00 p.m. and 7:00 p.m., his harassing communications occurred outside those times.

The mother testified that because of the father's continued inappropriate contacts, she and the child, on June 13, 2021 moved from their former residence to a new home, and the mother did not provide the father with the address of the new home. In addition, at that time, the mother "blocked" the father from contacting her on her cellular telephone. The mother stated that the father had claimed to be living with the paternal grandmother at the time she blocked him on her...