Ex Parte V.G.

379 So.3d 424

EX PARTE V.G.

(In re: K.S. and A.S.

v.V.G.)

Ex parte V.G.

(In re: K.S. and A.S.

v.V.G.)

CL-2022-0993

CL-2022-0994

Court of Civil Appeals of Alabama.

January 6, 2023

Elaine Thomaston of Beverlye Brady & Associates, Auburn, for petitioner.

Katherine M. Hoyt of Alsobrook Law Group, LLC, Opelika, for respondents.

THOMPSON, Presiding Judge.

On November 5, 2018, the Lee Juvenile Court ("the juvenile court") entered judgments finding two minor children ("the children"), whose parents are J.S. ("the mother") and J.L. ("the father"), dependent. The actions in which those judgments were entered had been assigned case number JU-18-296.01 and case number JU-18-297.01 in the juvenile court, At the time of the entry of the two November 5, 2018, dependency judgments, the father was deceased. In those judgments, the juvenile court awarded custody of the children to their paternal aunt, V.G. ("the aunt"), and awarded the mother certain rights of visitation with the children.

In June 2022, K.S. and A.S. ("the maternal grandparents") filed in the juvenile court, in actions assigned case number JU-18-296.02 and case number JU-18-297.02, petitions seeking an award of "grandparent visitation" with the children. In their petitions, the maternal grandparents alleged that the mother was incarcerated and that, although they had visited with the children since the children had been placed in the aunt’s custody, the aunt had placed unreasonable restrictions on their recent attempts to visit the children.

The aunt filed in each action a motion to dismiss the maternal grandparents’ petitions, arguing that the maternal grandparents had asserted claims under the Grandparent Visitation Act ("the GVA"), § 30-3-4.2, Ala. Code 1975, which allows a grandparent to seek an award of visitation with his or her grandchild under certain circumstances. In her motions to dismiss, the aunt argued that the GVA did not authorize the maternal grandparents’ claims under the facts of these cases. The juvenile court conducted a hearing on the motions to dismiss.

[1–3] On August 30, 2022, the juvenile court entered orders denying the aunt’s motions to dismiss but continuing the matters until the mother could be served. The aunt filed these petitions for a writ of mandamus.

"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).

[4] The aunt’s petitions for a writ of mandamus challenge orders denying her motions to dismiss. Initially, we note that,

"[s]ubject to certain narrow exceptions not applicable here, we have held that, because an ‘adequate remedy’ exists by way of an appeal, the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by petition for writ of mandamus. See Ex parte Jackson, 780 So. 2d 681, 684 (Ala. 2000) (quoting Ex parte Empire Fire & Marine Ins. Co., 720 So. 2d 893, 894 (Ala. 1998), quoting in turn Ex parte Central Bank of the South, 675 So. 2d 403 (Ala. 1996), for the general rule that ‘ " ‘a writ of mandamus will not issue to review the merits of an order denying a motion for a summary judgment,’ " ’ but noting that narrow exceptions exist, such as in cases involving governmental immunity); Ex parte Newco Mfg. Co., 481 So. 2d 867, 870 (Ala. 1985) (‘In its [m]andamus petition as addressed to its motion for summary judgment based on the statute of repose contained in the Tennessee products liability act, Newco seeks "to do by mandamus that which can be done on appeal." ’ (quoting Ex parte South Carolina Ins. Co., 412 So. 2d 269 (Ala. 1982))); see also Ex parte Mobile County Dep’t of Human Res., 815 So. 2d 527 (Ala. 2001) (issuing writ of mandamus to reverse an order denying a motion to dismiss asserting defense of immunity); Ex parte Alabama Dep’t of Forensic Sciences, 709 So. 2d 455 (Ala. 1997) (permitting review by petition for a writ of mandamus in case involving immunity)."

Ex parte Liberty Nat’l Life Ins. Co., 825 So. 2d 758, 761-62 (Ala. 2002).

[5] In her brief submitted in support of her petitions for a writ of mandamus, the aunt does not address which, if any, of the "narrow exceptions" to which Ex parte Liberty National Life Insurance Co., supra, refers would allow this court to review her petitions for a writ of mandamus. "[I]t is incumbent upon a party seeking mandamus review of such a ruling to explain why an ordinary postjudgment appeal would not be adequate." Ex parte Gulf Health Hosps., Inc., 321 So. 3d 629, 633 (Ala. 2020). We note that the aunt relies exclusively on Ex parte S.H., 321 So. 3d 1 (Ala. Civ. App. 2019), a case in which a paternal grandmother sought an award of visitation under the GVA with her grandchild who was in the custody of that child’s maternal grandmother. The maternal grandmother in that case moved to dismiss the paternal grandmother’s action, and the Jefferson Circuit Court ("the circuit court") entered an order denying the motion to dismiss and awarding the paternal grandmother a schedule of pendente lite visitation with the child. The maternal grandmother filed a petition for a writ of mandamus in which she challenged, among other things, whether the circuit court properly awarded pendente lite visitation under the GVA. This court held the GVA did not provide a cause of action pursuant to which a grand-parent could assert a claim for visitation against a nonparent custodian of a child. Ex parte S.H., 321 So. 3d at 4-5. Therefore, this court instructed "the circuit court to enter an order vacating its pendente-lite grandparent-visitation order and dismissing the paternal grandmother’s action." Ex parte S.H., 321 So. 3d at 5 (emphasis added; footnote omitted).

[6] Based on Ex parte S.H., supra, the aunt contends that the maternal grandparents lack "standing" to assert their claims seeking an award of visitation with the children. An absence of standing may be an exception that would allow review by way of a petition for a writ of mandamus. Ex parte HealthSouth Corp., 974 So. 2d 288, 292 (Ala. 2007).

The aunt, however, is incorrect that her arguments implicate an issue of standing.

" ‘[O]ur courts too often have fallen into the trap of treating as an issue of ‘standing’ that which is merely a failure to state a cognizable cause of action or legal theory, or a failure to satisfy the injury element of a cause of action. As the authors of Federal Practice and Procedure explain:

" ‘ "The question whether the law recognizes the cause of action stated by a plaintiff is frequently transformed into inappropriate standing tenus. The [United States] Supreme Court has stated succinctly that the cause-of-action question is not a question of standing."

" ‘13A Charles Alan Wright, Arthur K. Miller, and Edward H. Cooper, Federal Practice & Procedure § 3531 (2008) (noting, however, that the United States...