175 So. 3d 170
Ala. Civ. App.2015Background
- Child placed in custodians J.B. and K.B.’s custody by juvenile-court order (Dec. 2011). Custodians later sought to terminate mother's parental rights and to adopt the child.
- Maternal grandmother J.M. intervened (May–July 2013) and filed a custody-modification petition seeking custody or, alternatively, visitation; she was initially given supervised visitation pending review.
- Juvenile court terminated the mother’s parental rights (Nov. 4, 2013). Probate court granted the custodians’ adoption (Mar. 13, 2014).
- Juvenile court denied the maternal grandmother’s custody-modification petition but awarded her unsupervised overnight visitation on alternating weekends (Apr. 10, 2014); custodians timely appealed the denial-by-operation-of-law of their postjudgment motion.
- While appeal was pending, maternal grandmother successfully moved to set aside the probate adoption judgment as void for lack of required service; that order was entered in juvenile case no. JU-11-151.03 (custodians did not appeal that ruling).
- On appeal from the visitation judgment the custodians argued: § 26-10A-30 precluded visitation because the adoption was not a qualifying relative adoption; the juvenile court lacked jurisdiction to set aside the adoption; § 26-10A-17(a)(6) did not require service; Troxel protects custodians’ parental rights; and the visitation award was not in the child’s best interest.
Issues
| Issue | Plaintiff's Argument (Custodians) | Defendant's Argument (Maternal Grandmother/Juvenile Court) | Held |
|---|---|---|---|
| Whether § 26‑10A‑30 bars grandparent visitation because adoption was not a qualifying relative adoption | §26‑10A‑30 governs post‑adoption grandparent visitation and excludes non‑relative adoptions, so visitation award was improper | Juvenile court acted under juvenile‑court visitation jurisdiction (§12‑15‑115 and §30‑3‑4.1) in a pending child matter; adoption was later set aside so custodians were not adoptive parents | Court: §26‑10A‑30 inapplicable; visitation permissible under juvenile‑court statutes; affirmed |
| Whether custodians can challenge the juvenile court’s setting aside of the probate adoption judgment in this appeal | The setting aside deprived custodians of adoptive status and supports reversing visitation | Maternal grandmother: the order setting aside the adoption is a separate judgment not appealed by custodians | Court: custodians failed to timely appeal the separate judgment; they cannot collaterally attack it here; court will not consider those arguments |
| Whether Troxel v. Granville bars visitation as violation of custodians’ parental rights | Troxel protects custodians’ fundamental right to rear child, so grandparent visitation is unconstitutional as applied | Because adoption was set aside, custodians are not parents; Troxel thus inapplicable to them here | Court: Troxel argument fails because custodians are not parents (adoption void); no further Troxel analysis needed |
| Whether evidence supports unsupervised visitation as in child’s best interest | Visitation is not in child’s best interest (custodians’ contention); trial court abused discretion | Trial court weighed evidence; grandparent visitation is discretionary and custodians failed to brief applicable legal factors | Court: custodians waived detailed challenge by failing to cite authority and legal standards; trial court’s visitation ruling affirmed |
Key Cases Cited
- Troxel v. Granville, 530 U.S. 57 (2000) (parental‑rights precedent relied on by custodians)
- Ex parte E.R.G., 73 So.3d 634 (Ala. 2011) (addressed constitutionality of former §30‑3‑4.1)
- M.H. v. Jer. W., 51 So.3d 334 (Ala. Civ. App. 2010) (void judgments are nullities)
- Morgan v. Lauderdale Cnty. Dep’t of Pensions & Sec., 494 So.2d 649 (Ala. Civ. App. 1986) (unauthorized collateral attack principle)
- Snipes v. Carr, 526 So.2d 591 (Ala. Civ. App. 1988) (grandparent visitation lies within trial‑court discretion)