255 So. 3d 764
Ala. Civ. App.2017Background
- Child born 2008; maternal grandmother (adoptive parent) obtained custody in 2010 and adopted the child in 2013; paternal grandmother sought grandparent visitation under Ala. Code § 26-10A-30.
- An earlier probate-court visitation judgment (Nov. 2015) was reversed by this court in D.T. because the paternal grandmother failed to properly institute and serve that action.
- Paternal grandmother refiled, properly served, trial held Aug. 9, 2016; probate court awarded visitation Sept. 29, 2016; adoptive parent appealed.
- Trial testimony (agreed statement of the case) showed a previously close relationship: paternal grandmother provided care, financial help, babysitting, hosted birthdays, and had overnight visits until ~2012; access was later limited after the adoption.
- Adoptive parent objected to visitation because paternal grandmother moved out of state, cohabits with an unmarried fiancé (overnight concerns), and paternal father’s potential contact; she also raised constitutional and procedural challenges and sought a guardian ad litem for the child.
- Probate court found a close, beneficial relationship between child and paternal grandmother and that the adoptive parent offered no evidence that visitation would harm the child; appellate court reviews for abuse of discretion and affirms.
Issues
| Issue | Adoptive Parent's Argument | Paternal Grandmother / Court Argument | Held |
|---|---|---|---|
| Constitutionality of § 26-10A-30 (facial & as-applied; Troxel-based) | Statute infringes adoptive parent's fundamental right to child-rearing (Troxel); statute allows visitation despite adoptive parent's objections | Ex parte D.W. controls: adoptive-parent rights are statutory and distinct; legislature may authorize grandparent visitation after adoption | Statute not unconstitutional; Ex parte D.W. binding; challenge rejected |
| Probate-court forum & due process (court of record / meaningful review) | Probate-court jurisdiction and lack of reporter denies meaningful appellate review (cites M.L.B.) | Appellant appealed and submitted agreed statement of the case under Rule 10(e); no showing of lost due-process rights | Rejected — no deprivation shown and agreed statement sufficed for review |
| Ex parte communications claim (as-applied due process) | Earlier improper ex parte communications in the overturned 2015 proceeding render statute unconstitutional as applied | No argument about ex parte contacts was raised below in the current proceeding; statutory invalidation not compelled by alleged ex parte contacts | Not considered on appeal (not preserved); statute not invalidated on that basis |
| Guardian ad litem & party status | Rule 17(c) required appointment of guardian ad litem for the child | Child was not a defendant or indispensable party; Rule 17(c) mandatory only for minor defendants; other statutes requiring GAL in certain proceedings do not apply | Court did not err in declining to appoint a GAL; GAL not required here |
| Burden of proof and sufficiency of evidence (best-interest showing) | Visitation requires clear-and-convincing proof; evidence here insufficient to show visitation is in this child’s best interest | Ex parte D.W. differentiates adoptive parents from biological parents; clear-and-convincing standard not required under § 26-10A-30; standard is best-interest and probate court found a beneficial, longstanding relationship | Clear-and-convincing standard rejected; on abuse-of-discretion review, probate court’s best-interest finding supported and award affirmed |
Key Cases Cited
- Ex parte D.W., 835 So.2d 186 (Ala. 2002) (adoptive-parent rights are statutory; legislature may permit grandparent visitation after adoption)
- Troxel v. Granville, 530 U.S. 57 (2000) (third-party visitation statute unconstitutional as infringing parental fundamental rights)
- M.L.B. v. S.L.J., 519 U.S. 102 (1996) (appellate record access and meaningful review principles)
- Weathers v. Compton, 723 So.2d 1284 (Ala. Civ. App. 1998) (framework: grandparent visitation after adoption must benefit child and outweigh potential detriment)
- Cathy L.(R.)M. v. Mark Brent R., 617 S.E.2d 866 (W. Va. 2005) (reversed grandparent-visitation award where trial court failed to give proper weight to adoptive parents’ objections)
- Mizrahi v. Cannon, 867 A.2d 490 (N.J. App. Div. 2005) (discusses harm standard and limits on interference with parents’ fundamental rights)