In re C.H.

391 So.3d 897

EX PARTE C.H.

(In re: In the matter of S.A.)

CL-2023-0523

Court of Civil Appeals of Alabama.

October 27, 2023

Jerry M. Blevins, Montgomery, for petitioner.

Trey J. Malbrough of The Malbrough Firm LLC, Birmingham, for respondents D.A. and M.A.

FRIDY, Judge.

This is the third petition for a writ of mandamus filed in connection with attempts by C.H. ("the maternal grandmother") to secure visitation with her grandchild S.A. ("the grandchild"), who is in the custody of D.A. and M.A. ("the paternal grandparents"). Each petition has involved questions of the jurisdiction of various courts to consider the issue of the maternal grandmother’s visitation. In this action, the maternal grandmother asks us to direct the Jefferson Juvenile Court to vacate its order of July 11, 2023, transferring her latest action to the Jefferson Circuit Court. For the reasons discussed herein, we grant the petition and issue the writ.

Background

To understand the relief that the maternal grandmother requests, a review of the relevant procedural history is necessary. The materials submitted to us indicate that on March 9, 2020, the Jefferson Juvenile Court entered a "private dependency petition order" in case number JU-18-293.01 ("the dependency action"), placing the grandchild in the custody of the paternal grandparents. The preprinted-form order included a checked box next to a provision that reads: "ALL PARTIES ARE HEREBY RESTRAINED FROM ALLOWING ANY CONTACT OF ANY NATURE BETWEEN THE CHILD(REN) AND ______." (Capitalization in original.) The maternal grandmother’s initials were handwritten in the blank. The preprinted-form order also included a handwritten notation that there was to be "[a]bsolutely no contact between [the grandchild] and [the maternal grandmother], whether in person, via phone, in writing, through 3rd party, or otherwise." The order set forth the conditions under which K.D., the grandchild’s mother ("the mother"), could visit the grandchild, awarded T.A., the grandchild’s father ("the father"), unsupervised visitation, and established a visitation schedule. The maternal grandmother was not mentioned in the visitation provisions of the March 9, 2020, dependency judgment.

On May 24, 2022, more than two years after the juvenile court entered the March 9, 2020, dependency judgment, the maternal grandmother filed an action in the Walker Circuit Court ("the visitation action") seeking visitation with the grandchild pursuant to Alabama’s Grandparent Visitation Act, § 30-3-4.2, Ala. Code 1975 ("the GVA"). The Walker Circuit Court later granted the maternal grandmother’s request to transfer the visitation action to the Jefferson Circuit Court. In turn, the Jefferson Circuit Court entered an order purporting to transfer the visitation action to the Jefferson Juvenile Court, where it was assigned case number JU-18-293.02. Ex parte D.A., 383 So. 3d 674 (Ala. Civ. App. 2023).

On September 22, 2022, the Jefferson Juvenile Court entered an order purporting to transfer the grandmother’s visitation action to the Walker Juvenile Court, stating that the grandchild lived in Walker County. On October 19, 2022, the paternal grandparents filed in the Jefferson Juvenile Court a "motion to reconsider order of transfer of venue," asserting that the grandchild lived in Jefferson County. On October 20, 2022, the Jefferson Juvenile Court entered an order purporting to grant the motion to reconsider, noting that "the case shall remain in Jefferson County" and adding that it would be docketed "soon."

On October 27, 2022, the paternal grandparents, relying on this court’s decision in Ex parte S.H., 321 So. 3d 1 (Ala. Civ. App. 2019), filed a motion to dismiss the visitation action because, they said, the GVA does not create a cause of action that would permit the maternal grandmother to seek visitation from a nonparent custodian of the grandchild. The Jefferson Juvenile Court entered an order purporting to deny the paternal grandparents’ motion to dismiss. On November 4, 2022, the Jefferson Juvenile Court entered an order purporting to award the maternal grandmother supervised visitation with the grandchild.

On November 9, 2022, the paternal grandparents filed the first mandamus petition, challenging the Jefferson Juvenile Court’s refusal to dismiss the visitation action. On January 24, 2023, the paternal grandparents filed the second mandamus petition, challenging the Jefferson Juvenile Court’s jurisdiction in light of its September 22, 2022, order purporting to transfer the case to Walker County.

On March 24, 2023, this court released Ex parte D.A., in which we concluded that the Jefferson Juvenile Court did not have jurisdiction over the maternal grandmother’s visitation action even though the Jefferson Circuit Court had purported to transfer that action to it. We set forth § 30-3-4.2(b), Ala. Code 1975, the statute governing grandparent visitation, which provides in part that

"[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 visitationrights with respect to the grandchild …."

We then explained that the documents submitted to us that were related to the two mandamus petitions

"indicate that the Jefferson Juvenile Court had closed the original dependency action and that there was no other case involving the grandchild pending in that court or any other court. Because no other court, including the Jefferson Juvenile Court, was exercising jurisdiction over the grandchild, § 30-3-4.2(b) required that the maternal grandmother’s original visitation action be filed in and adjudicated by a circuit court. See Ex parte R.D., 313 So. 3d 1119, 1129 (Ala. Civ. App. 2020)."

Ex parte D.A., 383 So. 3d at 679.¹ Based on that conclusion, we determined that the first mandamus petition concerning the Jefferson Juvenile Court’s refusal to dismiss the visitation action was moot. Id. at 679. We granted the second mandamus petition, in part, and ordered the Jefferson Juvenile Court to transfer the visitation action back to the Jefferson Circuit Court.

On May 30, 2023, after that writ had been issued, the maternal grandmother filed in the Jefferson Juvenile Court a petition to modify the original dependency action, which was designated as JU-18-293.03 ("the modification action"). In her petition, the maternal grandmother alleged that the circumstances that had resulted in the "no contact order" in the dependency action no longer existed, and she asked the Jefferson Juvenile Court to award her "reasonable, specified rights of visitation" with the grandchild.

On or about July 6, 2023, the paternal grandparents filed a motion to dismiss the modification action, because, they said, it sought the same relief as the visitation action. The next day, the Jefferson Juvenile Court entered an order stating that the paternal grandparents’ motion to dismiss was "other," adding: "Once this Court enters an order to transfer this court no longer has jurisdiction." The case-action summary for the modification action indicates that it was transferred to "adult court" on July 7, 2023; however, the materials submitted to us do not contain an actual transfer order. The case-action summary also indicates that on July 10, 2023, the Jefferson Juvenile Court scheduled a hearing in the modification action for July 18, 2023.

On July 11, 2023, the paternal grandparents filed a motion in the Jefferson Juvenile Court asserting that that court had transferred the visitation action – not the modification action -- to the Jefferson Circuit Court on July 7, 2023.² The paternal grandparents again asserted that the modification action sought the same relief as the visitation action and once again asked that the modification action be transferred to the Jefferson Circuit Court or be dismissed.

The maternal grandmother responded to the paternal grandparents’ motion to transfer or dismiss the same day that they filed it, asserting that the relief sought in the visitation action and the modification action was not the same. In the modification action, she said, she was seeking to modify the March 9, 2020, dependency judgment, over which the Jefferson Circuit Court had no jurisdiction. Furthermore, she said, she had dismissed the visitation action. On July 11, 2023, the Jefferson Circuit Court entered an order granting the maternal grandmother’s "notice of voluntary dismissal" of the visitation action, and the...