Ex parte D.C.H.

• Decision Date: 21 April 2023
• Docket Number: CL-2022-0617
• Parties: Ex parte D.C.H. v. E.C.H. and D.C.H. In re: J.D.
• Court: Alabama Court of Civil Appeals

1

Ex parte D.C.H.

In re: J.D. v. E.C.H. and D.C.H.

No. CL-2022-0617

Alabama Court of Civil Appeals

April 21, 2023

(Madison Circuit Court, DR-20-305.80)

PETITION FOR WRIT OF MANDAMUS

HANSON, JUDGE

D.C.H ("the father") petitions this court for a writ of mandamus directing the Madison Circuit Court ("the circuit court") to vacate its March 23, 2022, order bifurcating the consolidated trials of the adoption and grandparent-visitation claims in this case and retransferring D.P.D.'s ("the husband") adoption petitions to the probate court.

Facts and Procedural History

This is the second time that the grandparent visitation issues and the petitions for adoption involving these parties have been before this court. J.D. v. D.P.D., 348 So.3d 423 (Ala. Civ. App. 2021). A recitation of the facts and procedural history underlying the petitions is necessary.

The father and E.D. ("the mother") are the natural parents of S.H., born in 2011, and E.H., born in 2013 ("the children"). In 2016, the mother and father divorced in Virginia following the father's arrest for and conviction of crimes related to the sexual abuse of several minor victims (not including the children). The father was sentenced to 50 years in prison. The Virginia divorce judgment ("the Virginia judgment") awarded sole legal and physical custody of the children to the mother, but it also incorporated an agreement that awarded visitation rights to the father's mother, J.D. ("the grandmother"), who had intervened in and been made a party to the Virginia divorce action. In 2018, the mother married D.P.D. ("the husband"), and the mother, the husband, and the children have resided in Alabama since that time. On November 4, 2019 the husband filed petitions in the Madison Probate Court ("the probate court") seeking to adopt the children. In his petitions, the husband alleged that the father had impliedly consented to the adoptions by virtue of his criminal conviction and the resulting 50-year prison sentence. The husband's petitions also recognized the grandmother's visitation rights with the children but requested limitation of the grandmother's continued visitation and of her communication with the children following the adoptions.

The father was served with notice in the federal penitentiary where he is incarcerated, and the grandmother was served in Ohio where she resides. On December 16, 2019, the father, pro se, answered the petition, stating that he was contesting the adoption petitions. The grandmother filed an answer and requested a hearing. The probate court set a hearing on the husband's adoption petitions for June 30, 2020. The father claimed that he filed a motion to appear via "Video Teleconference" in February 2020; however, that motion was not in the record in the previous appeal. On June 9, 2020, the father filed a "motion for a ruling" on his request to appear via "video teleconference." J.D. v. D.P.D., 348 So. 3d at 427. No ruling on any motion filed by the father was included in the record.

On June 22, 2020, the grandmother initiated an action in the circuit court against the mother seeking to formally register the Virginia judgment pursuant to § 30-3B-305, Ala. Code 1975, and to enforce and/or modify the visitation rights granted in the Virginia judgment. That same day, the grandmother filed in the probate court a "petition to enforce" her visitation rights as provided in the Virginia judgment. On June 29, 2020, the husband filed a motion to dismiss the grandmother's "petition to enforce."

On June 30, 2020, the probate court held a contested hearing on the husband's adoption petitions and entertained arguments on the husband's motion to dismiss the grandmother's "petition to enforce." The grandmother appeared via videoconferencing software, and her counsel appeared personally at the hearing. There is no transcript from the probate court's hearing. The grandmother, however, contends that she was not permitted to testify at the hearing and that, following oral arguments as to whether her "petition to enforce" was procedurally proper, the probate court ruled from the bench that it was not proper; invited the grandmother's counsel to leave the hearing; and disconnected the grandmother from the videoconferencing broadcast of that hearing. J.D. v. D.P.D., 348 So.3d at 428. It appears that the mother and the husband thereafter testified in support of the husband's adoption petitions. The father did not appear for the hearing and was not represented by counsel at the hearing.

On June 30, 2020, the probate court issued judgments in the adoption proceedings granting the husband's petitions to adopt the children, and it also dismissed the grandmother's "petition to enforce" her visitation rights with the children. Regarding the grandmother's "petition to enforce," the probate court issued the following order:

"'This cause came to be heard on a purported Petition to Enforce [a] Judgment ... filed by the ... grandmother; [the husband's] motion to dismiss same; and the ... grandmother's response to [the husband's] Motion to Dismiss. Said hearing was held on June 30, 2020. [The husband] was physically present along with his attorney of record; the ... grandmother was present via Zoom also with her attorney of record who was physically present. Upon consideration of said petitions, motion and response as well as the arguments of counsel ore tenus, this Honorable Court does hereby Order, Adjudge and Decree as follows:

"'1. [The husband's] Motion to Dismiss the Petition to Enforce [the] Judgment ... is, hereby, granted.

"'2. The ... grandmother was not properly before this Court.

"'3. The ... grandmother's petition and amended petition were not timely filed.

"'4. The ... grandmother failed to state a claim upon which relief could be granted.

"'5. As such, both the Petition to Enforce ... and Amended Petition to Enforce [the] Judgment ... are dismissed."

J.D. v. D.P.D., 348 So.3d at 428.

Regarding the husband's petitions to adopt the children, the probate court entered identical judgments granting the husband's petitions, making the following findings:

"All contests have been resolved in favor of [the husband]. The court is satisfied from clear and convincing evidence that the ... father impliedly consented to [these] adoption[s] by failing to provide the adoptee[s] with any financial support in almost six (6) years; and failing to communicate with the adoptee[s] in any manner in almost three (3) years such that he knowingly and voluntarily left the adoptee[s] with others without provision for support and without communication, and failed and refused to maintain a significant parental relationship with the adoptee[s] for a period of at least three (3) years. The court is satisfied from clear and convincing evidence the best interest of the adoptee[s] will be served by granting the petition[s] to adopt: said evidence including, in part, that the adoptee[s'] biological father will not be released from prison until the adoptee[s are] ... adult[s]; that the adoptee[s have] been in the actual physical custody of [the husband] since June of 2018; that the ... mother has consented to [the] adoption[s] both in writing and in the presence of this Honorable Court; that [the husband] is suitable to be the parent[ ] of [the] adoptee[s] and has acted in that capacity for the past two (2) years, developing a significant parental relationship with the adoptee[s]; that the adoptee[s have] thrived in [the husband]'s care; and that [the] adoption[s] by [the husband are] proper."

J.D. v. D.P.D., 348 So.3d at 429.

The probate court also awarded a monetary judgment, pursuant to § 26-10A-24(i), Ala. Code 1975, in favor of the husband and against the father in the amount of $6,033.65, representing the legal costs, including attorney's fees, allegedly expended by the husband in responding to the father's adoption contest.

The father, through new counsel, and the grandmother each filed postjudgment motions in the probate court. The postjudgment motions were denied by operation of law, and both the grandmother and father filed timely notices of appeal from the probate court's judgments.

On August 11, 2020, the mother moved the circuit court to dismiss the grandmother's action in that court on the ground that the circuit court lacked subject-matter jurisdiction. Specifically, the mother argued that, under § 30-3-4.2(j), Ala. Code 1975, the "probate court's orders of adoption [had] superseded the [Virginia judgment's] custody and visitation provisions, rendering them null and void," and that the probate court had exclusive jurisdiction over postadoption grandparent-visitation rights pursuant to § 26-10A-30, Ala. Code 1975. J.D. v. D.P.D., 348 So.3d at 429. In support of the motion to dismiss, the mother submitted copies of the adoption judgments entered by the probate court. The mother also moved for an award of attorney's fees. On August 25, 2020, the circuit court entered a final judgment summarily dismissing the grandmother's action and awarding the mother an attorney's fee in the amount of $2,740. The grandmother timely appealed from the circuit court's judgment to this court.

Regarding the father's appeals from the judgments of the probate court granting the husband's petitions to adopt the children, this court held that the judgments were void because they had been entered in a manner inconsistent with due process. J.D. v. D.P.D., 348 So.3d at 43132. We noted that the probate court hearing had been conducted during the COVID-19 pandemic and that, in response to the pandemic, our supreme court had issued administrative orders encouraging telephone and videoconferencing as a complete substitute for in-person court proceedings. We held that, in light of our...