F.S. v. D.D. (Ex parte R.D.)

• Citation: 313 So.3d 1119
• Decision Date: 12 June 2020
• Docket Number: 2190533
• Parties: EX PARTE R.D. and D.D. (In re: F.S. and D.S. v. R.D. and D.D.)
• Court: Alabama Court of Civil Appeals

313 So.3d 1119

EX PARTE R.D. and D.D.(In re: F.S. and D.S.

v.R.D. and D.D.)

2190533

Court of Civil Appeals of Alabama.

June 12, 2020

Jonathan E. Lyerly, Birmingham, for petitioners.

Jennifer Tombrello-Grissett of Tombrello Law Firm LLC, Hoover, for respondents..

THOMPSON, Presiding Judge.

This matter involves a petition for a writ of mandamus challenging an order of the Jefferson Probate Court ("the probate court") denying a motion to dismiss a petition seeking grandparent visitation.

The materials submitted to this court indicate that F.S. and D.S. ("the maternal grandparents") filed an April 18, 2019, petition in the probate court seeking, pursuant to § 26-10A-30, Ala. Code 1975, an award of grandparent visitation with their grandson ("the child"), who, at the time the petition was filed, was 15 years old. Section § 26-10A-30 is a part of the Alabama Adoption Code ("the Adoption Code"), § 26-10A-1 et seq., Ala. Code 1975. In their petition, the maternal grandparents alleged that their daughter, the child's mother, had died after the child's birth in 2003, that the child's father, R.D. ("the father"), had later married D.D., and that D.D. ("the adoptive mother") had adopted the child. In seeking an award of grandparent visitation with the child, the maternal grandparents alleged that the father and the adoptive mother had substantially decreased their visitation with the child and that the lack of a relationship with the maternal grandparents constituted a risk to the health and welfare of the child.

The father filed an answer opposing the maternal grandparents’ petition on a number of grounds, including a challenge to the constitutionality of § 26-10A-30. Later, the father and the adoptive mother filed a motion seeking to dismiss the maternal grandparents’ petition or, in the alternative, seeking the entry of a summary judgment in their favor. In that motion, the father and the adoptive mother argued, among other things, that the probate court lacked subject-matter jurisdiction over the maternal grandparents’ action. On March 1, 2020, the probate court entered an order denying the motion. The father and the adoptive mother (hereinafter referred to collectively as "the petitioners") filed this petition for a writ of mandamus in which they again contend that the probate court lacks subject-matter jurisdiction over the maternal grandparents’ action filed in that court.

A petition for a writ of mandamus is the appropriate method for reviewing the denial of a motion to dismiss for want of subject-matter jurisdiction. Ex parte Vega-Lopez, [Ms. 2180831, Dec. 20, 2019] 297 So.3d 1273 (Ala. Civ. App. 2019).

"Mandamus is an extraordinary remedy. An appellate court will grant a petition for a writ of mandamus only when ‘(1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court's jurisdiction is properly invoked.’ Ex parte Flint Constr. Co., 775 So. 2d 805, 808 (Ala. 2000) (citing Ex parte Mercury Fin. Corp., 715 So. 2d 196, 198 (Ala. 1997) ). Review by mandamus is not appropriate where the petitioner has another adequate remedy, such as an appeal. Ex parte Jackson, 780 So. 2d 681 (Ala. 2000) ; Ex parte Inverness Constr. Co., 775 So. 2d 153 (Ala. 2000) ; Ex parte Walters, 646 So. 2d 154 (Ala. Civ. App. 1994)."

Ex parte Amerigas, 855 So. 2d 544, 546–47 (Ala. Civ. App. 2003).

Generally, an award of grandparent visitation is governed by § 30-3-4.2, Ala. Code 1975. That section applies when a grandparent seeks visitation with a grandchild whose parents are divorced or seeking a divorce or when a parent of the child has died, among other situations, and it requires that grandparent-visitation claims be filed in a circuit court:

"(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) ... the marital relationship between the parents of the child has been severed by death or divorce. ..."

Pursuant to that statute, "[t]here is a rebuttable presumption that a fit parent's decision to deny or limit visitation to the petitioner is in the best interest of the child." § 30-3-4.2(c)(1).

However, § 30-3-4.2 specifies that that statute does not govern an award of grandparent visitation if the child is the subject of a intrafamily adoption action, stating:

"(i)(1) Notwithstanding any provisions of this section to the contrary, a petition filed by a grandparent having standing under Chapter 10A of Title 26 [i.e., the Adoption Code], seeking visitation shall be filed in probate court and is governed by Section 26-10A-30, rather than by this section if either of the following circumstances exists:

"a. The grandchild has been the subject of an adoption proceeding other than the one creating the grandparent relationship.

"b. The grandchild is the subject of a pending or finalized adoption proceeding."

Section 26-10A-30 governs awards of grandparent visitation with children who have been adopted by certain relatives and provides:

"Post-adoption visitation rights for the natural grandparents of the adoptee may be granted when the adoptee is adopted by a stepparent, a grandfather, a grandmother, a brother, a half-brother, a sister, a half-sister, an aunt or an uncle and their respective spouses, if any. Such visitation rights may be maintained or granted at the discretion of the court at any time prior to or after the final order of adoption is entered upon petition by the natural grandparents, if it is in the best interest of the child."

(Emphasis added.)

In this case, the child has been the subject of a finalized adoption proceeding in which the child was adopted by his stepparent, i.e., the adoptive mother. See § 30-3-4.2(i)(1) a. and (1)b. In their petition for a writ of mandamus filed in this court, the petitioners do not contend that the probate court lacked subject-matter jurisdiction to consider a grandparent-visitation claim asserted against the adoptive mother under § 26-10A-30. Rather, the petitioners argue that the probate court does not have jurisdiction to consider an award of grandparent visitation pursuant to § 26-10A-30 in an action filed against a "natural parent" of the child such as the father in this case. The adoptive mother does not have the capacity to assert the rights of a natural parent with regard to this argument. C.Z. v. B.G., 278 So. 3d 1273, 1282 (Ala. Civ. App. 2018). For that reason, we dismiss the petition insofar as it seeks relief on behalf of the adoptive mother. Accordingly, we address the argument asserted in the brief filed in support of the petition for a writ of mandamus as having been asserted only by the father.

The father contends that he, as the child's natural parent, is not subject to the jurisdiction of the probate court under § 26-10A-30 and that, for that reason, the maternal grandparents’ claim may not be maintained in the probate court. Rather, the father argues, the maternal grandparents’ claim is governed by § 30-3-4.2 and must be asserted in the circuit court.

The Alabama Legislature, in enacting earlier versions of the general grandparent-visitation statute, currently § 30-3-4.2, placed the award of such visitation at the discretion of the trial court in cases in which the child's parents were divorcing, see former § 30-3-3, Ala. Code 1975 (repealed), and, later, in situations in which the parents were divorcing or upon the death of a parent, see former § 30-3-4, Ala. Code 1975 (repealed). A 1984 amendment to the Adoption Code created former § 26-10-5, Ala. Code 1975, which provided that, at a probate court's discretion, " ‘visitation rights for the natural grandparents of the minor grandchildren may be maintained, or allowed upon petition of modification at any time after the final order of adoption is entered.’ " Snipes v. Carr, 526 So. 2d 591, 593 (Ala. Civ. App. 1988). Former § 26-10-5 was replaced in 1990 by § 26-10A-30, which remains in effect. See Ala. Acts 1990, Act No. 90–554.

In 1989, former § 30-3-4 was amended to set forth a presumption that grandparent visitation was in the child's best interests, but allowing the parent or parents to present evidence to rebut that presumption. See Ala. Acts 1995; Act No. 95–584; Weathers v. Compton, 723 So. 2d 1284, 1286 (Ala. Civ. App. 1998). Subsequently, in 1999, the legislature repealed former § 30-3-4 and replaced it with former § 30-3-4.1, Ala. Code 1975 (repealed), further limiting the circumstances under which grandparent visitation could generally be awarded; former § 30-3-4.1 provided that grandparent visitation could be awarded only upon a showing that such an award was in the child's best interest, based on a number of factors set forth in that statute. See Ala. Acts 1999, Act No. 99-436.

In 2000, the United States Supreme Court held in Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), that a parent's right to make decisions pertaining to the care, custody, and control of a child is a fundamental right. This court then held in R.S.C. v. J.B.C., 812 So. 2d 361, 363 (Ala. Civ. App. 2001), that former § 30-3-4.1 was unconstitutional. In response, the legislature amended former § 30-3-4.1 in 2003. See Ala. Acts 2003, Act. No. 2003-383. In Ex parte E.R.G., 73 So. 3d 634, 645 (Ala. 2011), our supreme court held that that subsequent version of former § 30-3-4.1 was also unconstitutional because it infringed on a parent's rights in and to his or her child. The court explained:

"The Act, however, and particularly § 30–3–4.1

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