Ex parte R.D. and D.D. PETITION FOR WRIT OF MANDAMUS (In re: F.S. and D.S. v. R.D. and D.D.)
2190533
ALABAMA COURT OF CIVIL APPEALS
June 12, 2020
THOMPSON, Presiding Judge.
OCTOBER TERM, 2019-2020 (Jefferson Probate Court, Case No. 194969)
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.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2019-2020
_________________________
2190533
_________________________
Ex parte R.D. and D.D.
PETITION FOR WRIT OF MANDAMUS
(In re: F.S. and D.S.
v.
R.D. and D.D.)
(Jefferson Probate Court, Case No. 194969)
THOMPSON, Presiding Judge.
This matter involves a petition for a writ of mandamus challenging an order of the Jefferson Probate Court (“the
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
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] ___ So. 3d ___ (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
“(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.”
However,
“(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.”
“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
The father contends that he, as the child‘s natural parent, is not subject to the jurisdiction of the probate court under
The Alabama Legislature, in enacting earlier versions of the general grandparent-visitation statute, currently
In 1989, former
In 2000, the United States Supreme Court held in Troxel v. Granville, 530 U.S. 57, 65 (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
“The Act, however, and particularly
§ 30-3-4.1(d) , makes no mention of the fundamental right of parents. Instead, it instructs the trial court to ‘determine if visitation by the grandparent is in the best interests of the child.’ The ‘wishes of any parent who is living’ are merely among the ‘[o]ther relevant factors’ the court should ‘consider.’§ 30-3-4.1(d)(6), Ala. Code 1975 . As noted above, a parent‘s right is fundamental, and a limitation on that right must be subject to strict scrutiny. To be constitutional, the Act must infringe upon the parent‘s right only to the extentnecessary to protect a compelling state interest and must do so in a narrowly tailored way, using the least restrictive means. This it fails to do.”
Ex parte E.R.G., 73 So. 3d at 646.
In 2011, after the release of Ex parte E.R.G., supra, the legislature enacted Act Nos. 2011-539 and 2011-562 to amend former
Thus, the history of our grandparent-visitation statutes establishes that the intent of the legislature is and has been
As the father points out and as is explained above, the evidentiary burden applicable to an action seeking grandparent visitation with a child who is the subject of an intrafamily adoption pursuant to
In rejecting that argument in its March 1, 2020, order, the probate court determined, among other things, that the father had “availed himself of the jurisdiction of [the
However, merely because a party may not consent to subject-matter jurisdiction does not end the inquiry whether the probate court could properly exercise jurisdiction over
“‘The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.‘”
Austin v. Alabama Check Cashers Ass‘n, 936 So. 2d 1014, 1026 (Ala. 2005) (quoting Ex parte Master Boat Builders, Inc., 779 So. 2d 192, 196 (Ala. 2000), quoting in turn IMED Corp. v. Systems Eng‘g Assocs. Corp., 602 So. 2d 344, 346 (Ala. 1992)). Further, we must construe the two statutes together.
“‘Statutes are in pari materia where they deal with the same subject. Kelly v. State, 273 Ala. 240, 139 So. 2d 326 [(1962)]. Where statutes are in pari materia they should be construed together to ascertain the meaning and intent of
each. City of Birmingham v. Southern Express Co., [164 Ala. 529, 538, 51 So. 159, 162-63 (1909)]. Where possible, statutes should be resolved in favor of each other to form one harmonious plan and give uniformity to the law. Waters v. City of Birmingham, 282 Ala. 104, 209 So. 2d 388 [(1968)]; Walker County v. White, 248 Ala. 53, 26 So. 2d 253 [(1946)].‘”
Ex parte Alabama Bd. of Cosmetology & Barbering, 213 So. 3d 587, 590 (Ala. Civ. App. 2016) (quoting League of Women Voters v. Renfro, 292 Ala. 128, 131, 290 So. 2d 167, 169 (1974)).
A probate court is a court of limited jurisdiction: a probate court‘s jurisdiction “‘is limited to the matters submitted to it by statute.‘” AltaPointe Health Sys., Inc. v. Davis, 90 So. 3d 139, 154 (Ala. 2012) (quoting Wallace v. State, 507 So. 2d 466, 468 (Ala. 1987)). See also Walton v. Walton, 256 Ala. 236, 237-38, 54 So. 2d 498, 499 (1951) (“The jurisdiction of the probate court to act in the premises is statutory and limited, and it must appear from the face of the proceeding that it has acted within the scope of that jurisdiction. Nothing is presumed.“). “The probate court cannot take jurisdiction of a cause or administer remedies except as provided by statute.” Lappan v. Lovette, 577 So. 2d 893, 896 (Ala. 1991).
As has already been explained, subject to certain exceptions, a claim seeking an award of grandparent visitation is generally to be brought in the circuit court.
The Alabama Comment to
“Subsection (a)(1) defines ‘grandparent’ for purposes of this act. ... Chapter 10A of Title 26 of the Code of Alabama governs the visitation rights of a natural grandparent whose grandchild has been adopted or who is the subject of a pending adoption petition by certain relatives or by a stepparent. Thus, for example, a post-adoption petition for visitation by the natural grandparent of a grandchild that was adopted by a step-parent would be governed by the Adoption Code[, i.e., Chapter 10A of Title 26]. ...
“....
“Subsections (i) and (j) clarify the interaction of this act with Alabama‘s separate provision in the Alabama Adoption Code that governs a natural grandparent‘s opportunity to seek visitation rights with an adoptee who is being adopted or has been adopted. Ala. Code § 26-10A-30 (1975). Subsequent to Troxel [v. Granville, 530 U.S. 57 (2000)], the constitutionality of §-26-10A-30 of the Code of Alabama was challenged. The court distinguished the facts of the case from Troxel because it involved
‘the rights of adopting parents in the limited context of intrafamily adoptions’ and upheld its constitutionality in Ex parte D.W., 835 So. 2d 186, 189 (Ala. 2002); see also Ex parte A.S. and C.S., 91 So. 3d 656 (Ala. 2011) (Bolin, J., concurring specially). The Adoption Code provides that a natural grandparent may seek visitation rights in the limited situations when the adoptee is or has been adopted by a stepparent or certain relatives. ...”
“The question of standing implicates the subject-matter jurisdiction of the court. Ex parte Howell Eng‘g & Surveying, Inc., 981 So. 2d 413, 419 (Ala. 2006). ‘When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction.’ State v. Property at 2018 Rainbow Drive, 740 So. 2d 1025, 1028 (Ala. 1999). ... ‘When the absence of subject-matter jurisdiction is noticed by, or pointed out to, the trial court, that court has no jurisdiction to entertain further motions or pleadings in the case. It can do nothing but dismiss the action forthwith.’ [Cadle Co. v. Shabani, 4 So. 3d 460, 463 (Ala. 2008)].”
Nothing in either
“‘The right of grandparent visitation did not exist at common law but was instead created by legislative act.’ Sanders v. Wright, 772 So. 2d 470, 471 (Ala. Civ. App. 2000), quoting C.Y. v. C.L., 726 So. 2d 733, 734 (Ala. Civ. App. 1999). The statutory right of grandparent visitation must be strictly construed; it cannot extend to persons who do not fit the definition specified by the
Legislature. See Chavers v. Hammac, 568 So. 2d 1252 (Ala. Civ. App. 1990); Shoemaker v. Shoemaker, 563 So. 2d 1032 (Ala. Civ. App. 1990).”
T.R.S.S. v. R.S., 828 So. 2d 327, 330 (Ala. Civ. App. 2002).
In Ex parte D.W., 835 So. 2d 186, 191 (Ala. 2002), family members adopted a child, and the child‘s grandparents sought and were awarded grandparent visitation pursuant to
“‘The right of adoption ... is purely statutory, and was never recognized by the rules of common law.’ Hanks v. Hanks, 281 Ala. 92, 99, 199 So. 2d 169, 176 (1967). ‘Adoption ... is a status created by the state acting as parens patriae, the sovereign parent.’ Ex parte Bronstein, 434 So. 2d [780,] 781 (Ala. 1983). Therefore, the rights of adopting parents are purely statutory, as defined in the Alabama Adoption Code.”
Ex parte D.W., 835 So. 2d at 190.
In holding that
“It was the clear intent of the Legislature in enacting
§ 26-10A-30 to give the trial court the authority to grant post-adoption visitation rights to the natural grandparents of the adoptee, when theadoptee is adopted by a family member. The only reasonable conclusion is that the Legislature intended to limit the rights of the adopting parents by allowing the possibility of court-ordered grandparent visitation over the objections of the adopting parents. Any other conclusion would fail to give any effect to § 26-10A-30 , in violation of this Court‘s duty to harmonize the statutory provisions in order to give effect to all parts of the statute.....
Under the facts of this case, adopting parents, whose rights are exclusively dependent upon statutory law, must be treated differently than natural parents.”
We further note that a grandparent does not have standing to seek an award of visitation if his or her grandchild is adopted by a person who is not a family member identified in
Judge Thomas, in a special writing, explained:
“In an adoption by anyone other than a stepparent, the natural parents lose all parental rights to the adoptee.
§ 26-10A-29(b) [, Ala. Code 1975]. Thus, all others who may claim a relationship or a right to the child by virtue of the natural parents’ relationship to the child also lose their relationships and rights to the child. Ex parte Bronstein, 434 So. 2d [780,] 782 [(Ala. 1983)]. As explained by the Bronstein court, ‘adoption, like birth creates legal relationships under which the adoptive parents gain certain rights which pre-empt any visitation rights by natural parents or grandparents.’ Id. at 783.”
G.M. v. T.W., 75 So. 3d 1181, 1187 (Ala. Civ. App. 2011) (Thomas, J., concurring specially). See also T.R.S.S. v. R.S., 828 So. 2d 327, 329 (Ala. Civ. App. 2002) (holding that grandparents whose son‘s parental rights had been terminated lost standing to seek an award of grandparent visitation under a predecessor to
As the father points out, the distinction between the rights of natural parents and those of adoptive parents, and, therefore, the appropriate statute under which a grandparent-visitation action may be prosecuted, dictates the applicable
Neither
PETITION DISMISSED IN PART AND GRANTED IN PART; WRIT ISSUED.
Donaldson and Hanson, JJ., concur.
Moore, J., dissents, with writing, which Edwards, J., joins.
2190533
MOORE, Judge, dissenting.
I respectfully dissent.
R.D. (“the father“) and D.D. (“the adoptive mother“) filed a petition for a writ of mandamus requesting that this court order Judge Alan King of the Jefferson Probate Court (“the probate court“) to dismiss a grandparent-visitation action filed by F.S. and D.S. (“the maternal grandparents“), pursuant to
The question of subject-matter jurisdiction concerns solely the power of a court to adjudicate the case before it.
“Jurisdiction is ‘[a] court‘s power to decide a case or issue a decree.’ Black‘s Law Dictionary 867 (8th ed. 2004). Subject-matter jurisdiction concerns a court‘s power to decide certain types of cases. Woolf v. McGaugh, 175 Ala. 299, 303, 57 So. 754, 755 (1911) (‘“By jurisdiction over the subject-matter is meant the nature of the cause of action and of the relief sought.“’ (quoting Cooper v. Reynolds, 77 U.S. (10 Wall.) 308, 316, 19 L.Ed. 931 (1870))). That power is derived from the Alabama Constitution and the Alabama Code. See United States v. Cotton, 535 U.S. 625, 630–31, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (subject-matter jurisdiction refers to a
court‘s ‘statutory or constitutional power’ to adjudicate a case).”
Ex parte Seymour, 946 So. 2d 536, 538 (Ala. 2006).
Probate courts are constitutionally created courts with general jurisdiction over adoptions. See
”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.”
In their petition, the maternal grandparents alleged as follows:
“1. The Plaintiffs are the maternal grandparents of the minor child that is the subject of this Finalized Adoption.
“2. The [maternal grandparents‘] daughter, ... the mother of the ... child, is deceased and passed away in 2003, immediately after childbirth.
“3. [The father] and his second wife, [the adoptive mother], have been married approximately nine (9) years, and are residents of Shelby County, Alabama.
“4. [The child] was adopted by his step parent, [the adoptive mother], in Jefferson County, Alabama.
“5. [The maternal grandparents] have maintained a good relationship with the child to the best of their ability. However, they have seen [the child] less each passing year.
“6. [The father and the adoptive mother]‘s denial of Grandparent Visitation has created a substantial risk of harm to the child‘s mental, physical, or emotional health. “7. The child has several cousins, aunts, and uncles with whom he has spent many holiday gatherings and family time. The denial of substantial, quality time with this side of his family creates said risk of harm to his mental, physical, and emotional health.
“WHEREFORE, PREMISES CONSIDERED, the [maternal grandparents] ask this Honorable Court, pursuant to
Ala. Code [1975], § 26-10A-30 , to assume jurisdiction of this matter, issue notice to those parties in interest as appropriate, conduct a hearing to consider this pleading, appoint a Guardian ad Litem ... and issue such orders to authorize the requested visitation. [The maternal grandparents] pray for such other and further relief to which this Court deems in the best interest of the ... child.”
The petition expressly states a claim for relief under
In Ex parte Palmer, 574 So. 2d 44 (Ala. 1990), Mattie Palmer filed a complaint in the Lauderdale Circuit Court seeking visitation with her natural grandchild, who had been adopted by his stepfather with the consent of his natural father, Palmer‘s son. The Lauderdale Circuit Court entered a summary judgment against Palmer on the ground that it lacked
On certiorari review, the supreme court reversed the decision of this court. The supreme court determined that, when the legislature enacted a prior Grandparent Visitation Act, codified at
“is governed by
§ 26-10A-30 , rather than by [§ 30-3-4.2,] 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.”
The father and the adoptive mother in the present case do not dispute that the maternal grandparents are seeking visitation with the child of their daughter who died in 2003 and that the child has been the subject of a finalized adoption proceeding in which the adoptive mother, who was the child‘s stepmother, adopted the child.
The main opinion concludes that the probate court cannot adjudicate the claim for grandparent visitation made against the father because the maternal grandparents lack standing under the Adoption Code to maintain an action against the father. Assuming the legislature intended the understood legal meaning of standing when it enacted
“The concept of ‘standing’ refers to a plaintiff‘s ability to bring the action; the plaintiff must have a legally sufficient interest in that lawsuit, and, if he or she does not, the trial court does not obtain jurisdiction over the case:
“‘“To say that a person has standing is to say that that person is the proper party to bring the action. To be a proper party, the person must have a real, tangible legal interest in the subject matter of the lawsuit.” Doremus v. Business Council of Alabama Workers’ Comp. Self-Insurers Fund, 686 So. 2d 252, 253 (Ala. 1996). “Standing ... turns on ‘whether the party has been injured in fact and whether the injury is to a legally protected right.‘” [State v. Property at] 2018 Rainbow Drive, 740 So. 2d [1025, 1027 (Ala. 1999)] (quoting Romer v. Board of County Comm‘rs of the County of Pueblo, 956 P.2d 566, 581 (Colo. 1998) (Kourlis, J., dissenting)) (emphasis omitted). In the absence of such an injury, there is no case or controversy for a court to consider. Therefore, were a court to make a binding judgment on an underlying issue in spite of absence of injury, it would be exceeding the scope of its authority and intruding into the province of the Legislature. See City of Daphne v. City of Spanish Fort, 853 So. 2d 933, 942 (Ala. 2003) (“The power of the judiciary ... is ‘the power to declare finally the rights of the parties, in a particular case or controversy ....‘” (quoting Ex parte Jenkins, 723 So. 2d 649, 656 (Ala. 1998))) ....’
Town of Cedar Bluff v. Citizens Caring for Children, 904 So. 2d 1253, 1256 (Ala. 2004).
“In determining whether a party has standing in Alabama courts, we are guided by whether the following exist: ‘(1) an actual, concrete and particularized “injury in fact” –- “an invasion of a legally protected interest“; (2) a “causal connection between the injury and the conduct complained of“; and (3) a likelihood that the injury will be “redressed by a favorable decision.“’ Alabama Alcoholic Beverage Control Bd. v. Henri–Duval Winery, L.L.C., 890 So. 2d 70, 74 (Ala. 2003) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).”
Ex parte Merrill, 264 So. 3d 855, 862–63 (Ala. 2018).
As explained above, standing tests whether the person seeking relief is a proper plaintiff not whether the person
The father argues that the probate court cannot exercise jurisdiction over him because
I agree with the main opinion that the father‘s consent to the adoption proceedings did not confer subject-matter jurisdiction on the probate court in the underlying post-adoption proceedings. ___ So. 3d at ___. I do not agree, however, that the probate court lacks jurisdiction to adjudicate the claim made by the maternal grandparents against both the father and the adoptive mother. The probate court did not err in denying the motion to dismiss or, alternatively, for a summary judgment filed by the father and the adoptive mother asserting that the probate court lacked subject-matter jurisdiction. The maternal grandparents clearly have standing under
Edwards, J., concurs.