Opinion
CL-2023-0523
10-27-2023
Ex parte C.H. In re: In the matter of S.A.
Jefferson Juvenile Court, Bessemer Division (JU-18-293.03)
PETITION FOR WRIT OF MANDAMUS
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., [Ms. CL-2022-1148, Mar. 24, 2023] ___ So.3d ___ (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 visitation rights 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., ___ So.3d at ___. 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 ___. 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.
At the time the maternal grandmother filed her visitation action in the Jefferson Circuit Court, the Jefferson Juvenile Court did not have before it an active case involving the grandchild. Thus, at the time the visitation action was filed, the Jefferson Juvenile Court was not then "exercising jurisdiction with respect to the grandchild." § 30-3-4.2(b), Ala. Code 1975.
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. 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.
Both the paternal grandparents and the maternal grandmother assert that the Jefferson Juvenile Court transferred the visitation action to the Jefferson Circuit Court on July 6 or 7, 2023. We note that an order from the Jefferson Juvenile Court transferring the visitation action to the Jefferson Circuit Court is not contained in the materials submitted to us.
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 Jefferson Juvenile Court entered an order granting the paternal grandparents' request to transfer the modification action to the Jefferson Circuit Court.
On July 12, 2023, the maternal grandmother filed a motion in the Jefferson Juvenile Court asking that court to rescind its transfer order. The Jefferson Juvenile Court denied the motion the same day. The maternal grandmother filed a petition for a writ of mandamus on July 25, 2023.
Analysis
In her mandamus petition, the maternal grandmother argues that the Jefferson Juvenile Court erred in transferring the modification action to the Jefferson Circuit Court. The paternal grandparents respond that the Jefferson Juvenile Court does not have jurisdiction to consider the maternal grandmother's request in her modification action for visitation with the grandchild.
The maternal grandmother argues that, under § 12-15-117(a), Ala. Code 1975, when a juvenile court has previously adjudicated a child to be dependent, the juvenile court retains continuing jurisdiction over the child until the child attains the age of twenty-one or until the juvenile court terminates its jurisdiction over the case involving the child before the child attains of the age of twenty-one. See V.L. v. T.T.L., 141 So.3d 88, 92 (Ala. Civ. App. 2013). Therefore, the maternal grandmother says, the Jefferson Juvenile Court has jurisdiction to consider her request to modify the March 9, 2020, dependency judgment by setting aside the "no contact" provision and awarding her visitation.
The paternal grandparents argue that, because the maternal grandmother was not a party in the dependency action and never moved to intervene in that action, the maternal grandmother has "no visitation rights to modify." Therefore, they say, her action to modify is in fact an original action seeking visitation, which is the same relief she sought in the visitation action. In other words, they say, "[t]he maternal grandmother has simply called her petition for grandparent visitation a different name" and, they contend, a visitation action must be brought in a circuit court. The grandmother concedes that she was not a party to the dependency action. However, she says, the provision in the March 9, 2020, dependency judgment that ordered no contact between the grandchild and her was an injunction to which she was "arguably bound" and, therefore, she has a right to seek to modify that judgment.
"An injunction is defined as '[a] court order commanding or preventing an action.' Black's Law Dictionary 788 (7th ed. 1999)." Dawkins v. Walker, 794 So.2d 333, 335 (Ala. 2001). Because the nocontact provision in the March 9, 2020, dependency judgment prevented the grandmother from having contact with the grandchild, it constituted an injunction against her.
Contrary to the paternal grandparents' assertion, a trial court can enjoin the activity of a nonparty, D.M. v. F.L.C., [Ms. CL-2022-1070, Aug. 11, 2023] ___ So.3d ___ (Ala. Civ. App. 2023), and here, the no-contact provision of the March 9, 2020, dependency judgment forbids contact between the grandchild and the maternal grandmother. In Ex parte State Pers. Bd., 45 So.3d 751, 754 (Ala. 2010), our supreme court cited with approval United States v. Kirschenbaum, 156 F.3d 784, 794 (7th Cir. 1998), in which the United States Court of Appeals for the Seventh Circuit held that "non-parties who are bound by a court's equitable decrees have a right to move to have the order dissolved."
Section 12-15-117(c), Ala. Code 1975, provides that "[i]n any case over which the juvenile court has jurisdiction, the juvenile court shall retain jurisdiction over an individual of any age to enforce or modify any prior orders of the juvenile court unless otherwise provided by law _." In her modification petition filed in the Jefferson Juvenile Court, the maternal grandmother alleged that, since the entry of the March 9, 2020, dependency judgment, "there has been a material, substantial, and continuing change of circumstances justifying a modification of the [judgment] in that the issues/concerns underlying the 'no-contact order' between [the maternal grandmother] and the [grandchild] no longer exist." Because the maternal grandmother has asserted that new facts have arisen that render the continued application of the injunction against her inequitable, she is entitled to seek to have the no-contact provision of the dependency judgment set aside and, pursuant to § 12-15-117(c), Ala. Code 1975, the Jefferson Juvenile Court has jurisdiction to consider that relief. At this juncture, however, we do not determine whether, in light of this court's decision in Ex parte S.H., 321 So.3d 1 (Ala. Civ. App. 2019), among other things, the maternal grandmother can obtain an award of visitation with the grandchild.
None of the parties has provided this court with information regarding the conduct that led to the no-contact provision, but such information is not necessary at this stage in the litigation, in which we are simply attempting to determine the proper jurisdiction for the adjudication of the maternal grandmother's claim.
PETITION GRANTED; WRIT ISSUED.
Thompson, P.J., and Moore, Edwards, and Hanson, JJ., concur.