Ex parte S.H., 2180892

• Decision Date: 11 October 2019
• Docket Number: 2180892
• Parties: Ex parte S.H. (In re: K.G. v. S.H.)
• Court: Alabama Court of Civil Appeals

Ex parte S.H.

(In re: K.G.
v.
S.H.)

2180892

ALABAMA COURT OF CIVIL APPEALS

OCTOBER TERM, 2019-2020
October 11, 2019

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

PETITION FOR WRIT OF MANDAMUS

(Jefferson Circuit Court, CV-17-900409)

EDWARDS, Judge.

In May 2016, the Jefferson Juvenile Court ("the juvenile court") determined that L.G. ("the child") was a dependent

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child and awarded custody of the child to S.H. ("the maternal grandmother"). At that time, according to the 2016 judgment, both of the child's parents were deceased. In February 2017, K.G. ("the paternal grandmother") instituted in the Jefferson Circuit Court ("the circuit court") an action against the maternal grandmother in which the paternal grandmother sought to establish grandparent visitation pursuant to the Grandparent Visitation Act ("the GVA"), Ala. Code 1975, § 30-3-4.2. The maternal grandmother filed a motion to dismiss the paternal grandmother's action in March 2017, which motion she renewed in July 2017 and in March 2019.¹ On July 2, 2019, the circuit court entered an order denying the maternal grandmother's motion to dismiss; in that same order, the circuit court awarded the paternal grandmother pendente lite grandparent visitation pending a trial to be held in January 2020. The maternal grandmother filed in this court a petition for the writ of mandamus on August 5, 2019. Although we

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called for answers to the maternal grandmother's petition, none were filed.

"'"'A writ of mandamus is an extraordinary remedy that is available when a trial court has exceeded its discretion. Ex parte Fidelity Bank, 893 So. 2d 1116, 1119 (Ala. 2004). A writ of mandamus is "appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court." Ex parte BOC Group, Inc., 823 So. 2d 1270, 1272 (Ala. 2001).'"'"

Ex parte Gentry, 228 So. 3d 1016, 1022 (Ala. Civ. App. 2017) (quoting Ex parte Brown, 963 So. 2d 604, 606-07 (Ala. 2007), quoting in turn Ex parte Rawls, 953 So. 2d 374, 377 (Ala. 2006), quoting in turn Ex parte Antonucci, 917 So. 2d 825, 830 (Ala. 2005)). A petition for the writ of mandamus is a proper vehicle for reviewing an order awarding pendente lite grandparent visitation. Ex parte Gentry, 238 So. 3d 66, 72 (Ala. Civ. App. 2017); Ex parte McElrath, 258 So. 3d 364, 367 (Ala. Civ. App. 2018).

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In her petition, the maternal grandmother first argues that the circuit court lacks jurisdiction over the paternal grandmother's action. She asserts that the juvenile court acquired jurisdiction over the child pursuant to its exercise of dependency jurisdiction and that, because it has not terminated its jurisdiction over the child, the circuit court could not attain jurisdiction over a matter involving the child. Secondly, the maternal grandmother argues that, because custody of the child is not vested in a parent, the GVA does not operate in this instance to permit the paternal grandmother to seek visitation. Finally, the maternal grandmother asserts that, if the GVA does apply, the circuit court failed to properly apply the GVA to award the paternal grandmother pendente lite visitation because the circuit court failed to hold an evidentiary hearing and lacked evidence supporting the requirements for an award of pendente lite grandparent visitation.

We find the maternal grandmother's second issue dispositive of her petition. In essence, the maternal grandmother contends that the GVA is worded in such a way as to apply solely to conflicts regarding visitation between

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grandparents and parents. Thus, she says, the paternal grandmother cannot utilize the GVA to seek visitation with the child because, although she is the child's legal custodian, the maternal grandmother is not a parent.

The GVA provides, in pertinent part:

"(b) A grandparent may file an original action in a circuit court where his or her grandchild resides or any other court exercising jurisdiction with respect to the grandchild or file a motion to intervene in any action when any court in this state has before it any issue concerning custody of the grandchild, including a domestic relations proceeding involving the parent or parents of the grandchild, for reasonable visitation rights with respect to the grandchild if any of the following circumstances exist:

"(1) An action for a divorce or legal separation of the parents has been filed, or the marital relationship between the parents of the child has been severed by death or divorce.

"(2) The child was born out of wedlock and the petitioner is a maternal grandparent of the child.

"(3) The child was born out of wedlock, the petitioner is a paternal grandparent of the child, and paternity has been legally established.

"(4) An action to terminate the parental rights of a parent or parents has been filed or the parental rights of a parent has been terminated by court order; provided, however, the right of the

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grandparent to seek visitation terminates if the court approves a petition for adoption by an adoptive parent, unless the visitation rights are allowed pursuant to [Ala. Code 1975, §] 26-10A-30."

§ 30-3-4.2(b).

The GVA does not define the term "parent." Generally, "'[w]ords used in a statute must be given their natural, plain, ordinary, and...