J.D. v. D.P.D.

• Decision Date: 27 August 2021
• Docket Number: 2190884,2190885,2190968,2190887,2190886
• Parties: J.D. v. D.P.D. J.D. v. D.P.D. D.C.H. v. D.P.D. D.C.H. v. D.P.D. J.D. v. E.D.
• Court: Alabama Court of Civil Appeals

J.D. v. D.P.D.

J.D. v. D.P.D.

D.C.H. v. D.P.D.

D.C.H. v. D.P.D.

J.D. v. E.D.

Nos. 2190884, 2190885, 2190886, 2190887, 2190968

Alabama Court of Civil Appeals

August 27, 2021

Appeal from Madison Probate Court, Nos. 8325-A, 8326-A

Appeal from Madison Circuit Court (DR-20-305)

HANSON, JUDGE

These five consolidated appeals arise from judgments of the Madison Probate Court ("the probate court") granting a stepparent's petitions to adopt his wife's children over the objection of the children's natural father and from judgments of the probate court and the Madison Circuit Court ("the circuit court") dismissing petitions filed in those courts by the children's paternal grandmother seeking to enforce and/or modify a Virginia state-court judgment granting her visitation rights as to the children. Given the interrelated nature of the claims below we granted the parties' request to consider the appeals together; we dismiss the natural father's two appeals with instructions, and, as to the parental grandmother's appeals, we reverse and remand.

Facts and Procedural History

D.C.H ("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"). The mother and the father were divorced in Virginia in 2016 following the father's arrest and conviction for crimes related to the sexual abuse of several minor victims (not including the children). 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. With respect to the grandmother's visitation rights, the Virginia judgment provided as follows:

"[The grandmother] shall have visitation with the minor children, supervised by [the mother] as follows:

"a. Reasonable correspondence between [the grandmother] and the minor children with [the mother] providing a response to [the grandmother] from the minor children including, but not limited to, notes, cards, pictures, art works or the like, at least every sixty (60) days;

"b. Telephone contact a[t] least once per week between the [grandmother] and the minor children;

"c. Skype/Facetime [video conferencing] at least once per month between the [grandmother] and the minor children. In advance of this Skype/Facetime visit once a month, [the mother] will provide [the grandmother] with an update regarding the minor children by email. [The mother] will attach a picture of each minor child to her monthly email;

"d. Commencing 2018, [the grandmother] shall have annual weeklong visits with the minor children at or near [the mother]'s place of residence taking into consideration the minor children's schedule(s) and activities and with reasonable time between [the grandmother] and the minor children during that week. [The grandmother] may attend any activities of the children during that week; and

"e. Such other times as the parties may agree to."^[1]

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 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 and requested that the probate court grant the grandmother a limited right to continued visitation and communication with the children following the adoptions. His petitions stated in pertinent part:

"[T]he ... grandmother has enjoyed certain visitation rights with [the children]. [The husband] desires that she continue to have the right to visit and communicate with [the children] after [their] adoption by [the husband] as follows:

"[The g]randmother would be allowed to call, Facetime or Skype with [the children] up to twice per month at a time and for a duration agreed by [the mother] in writing (e.g., text, email, etc.);

"[The g]randmother would be allowed a supervised visit annually with [the children] at a location and for a duration agreed upon by [the mother] in writing (e.g., text, email, etc.). Said visitation would be supervised at all times by [the husband] and/or [the mother]; and

"[The g]randmother would be expressly prohibited from discussing the biological father, either directly or indirectly, with [the children] and would be expressly prohibited from disparaging, either directly or indirectly, the [mother] and/or [husband]."

The husband's petitions were served on both the father, who is incarcerated in the United States penitentiary in Terre Haute, Indiana ("USP Terre Haute"), and on the grandmother, who is a resident of Ohio. On December 16, 2019, the father, acting pro se, answered the husband's petitions, stating that he was "absolutely contesting the adoption of [the] children." On December 27, 2019, the grandmother filed an answer generally denying the allegations of the adoption petitions and requesting a hearing. The probate court ultimately set a final hearing on the husband's adoption petitions for June 30, 2020.

The father claims that, on February 10, 2020, he filed a "Motion to Appear Via Video Teleconference" at the hearing; however, that motion does not appear in the record. On June 9, 2020, the father filed a "motion for ruling" in the probate court in which he sought a ruling on his February 10, 2020, motion to appear via "video teleconference". The father's June 9, 2020, motion, which does appear in the record, set forth the following request to appear via "video teleconference":

"On or about February 10, 2020 I filed a Motion to Appear Via Video Teleconference for the hearing on [these cases]. As I stated before, USP Terre Haute is fully capable of producing me via Zoom or Skype [videoconferencing services]. All that is required is the order of this court requiring me to appear via Zoom. This will then allow me sufficient time to make the appropriate arrangements at the institution and confirm it with the court.

"I am fully opposed to the adoption of my children, whom I love more than anything in the world, by someone neither I nor the court knows anything about under [the husband]'s malicious and deceitful charge that I have abandoned my children. Because of this, my testimony is imperative. I respectfully request that this Honorable Court rule on my Motion to Appear and do so in my favor as it is also unopposed by [the husband]."

No ruling on any motion filed by the father to appear via "video teleconference" appears in the appellate 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 to the grandmother in the Virginia judgment. The grandmother alleged that the mother and the husband had sought to limit her visitation rights with the children, and she requested that the circuit court modify the provisions of the Virginia judgment to grant her additional unsupervised visitation with the children or, alternatively, to enforce the existing visitation rights set forth in the Virginia judgment. On June 24, 2020, the circuit court entered an order purporting to grant the grandmother's motion to register the Virginia judgment. We note that neither the mother nor the father filed any pleading or requested a hearing to contest the validity of the registration of the Virginia judgment, and the registration of that judgment in Alabama was, therefore, effected as a matter of law. See §30-3B-305(e).

Also on June 22, 2020, the grandmother filed in the probate court a "petition to enforce" her visitation rights as provided in the Virginia judgment. In that petition, the grandmother stated that she consented to the adoption of the children by the husband but requested that the probate court "[r]ecognize and enforce the contact and visitation privileges granted to [the grandmother] in the [Virginia judgment] and agreed to by the children's mother, as may be modified by the [circuit court]." The grandmother subsequently amended her "petition to enforce" to include a copy of the circuit court's order registering the Virginia judgment.

On June 29, 2020, the husband filed a motion to dismiss the grandmother's "petition to enforce" filed in the probate court. The husband's motion posited, among other things, that the grandmother was not a "party" to the adoption proceedings, and, he argued, the grandmother therefore did not have "standing" to seek visitation.

Also on June 29, 2020, the grandmother filed a motion to continue the June 30, 2020, hearing on the proposed adoptions or that, alternatively, she be permitted to attend the hearing by means of videoconferencing technology. The grandmother argued that, in light of the COVID-19 pandemic, traveling from her home in Ohio to Alabama for the hearing posed certain health risks for her and her family. Although no formal ruling on the motion is contained in the record, on June 29, 2020, an employee of the probate court forwarded an e-mail from the probate judge to counsel for the grandmother providing instructions on how she could virtually attend the scheduled hearing via "Zoom," a computer telecommunication program offering video conferencing services.

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...