DocketNumber: 2160082
Citation Numbers: 255 So. 3d 764
Judges: Thomas
Filed Date: 3/3/2017
Status: Precedential
Modified Date: 7/29/2022
This is the second time that these parties have appeared before this court. See D.T. v. W.G,
"In November 2013, the Tuscaloosa Probate Court ('the probate court') entered a judgment approving the adoption of A.S. ('the child') by the child's maternal grandmother, D.T. ('the adoptive parent'). In July 2015, W.G. ('the paternal grandmother') filed a petition seeking an award of grandparent visitation with the child pursuant to Ala. Code 1975, § 26-10A-30. The paternal grandmother did not request that a summons be issued or serve the adoptive parent with the petition by certified mail as required by Rule 4(a)(1), Ala. R. Civ. P. Instead, the paternal grandmother served the petition on the adoptive parent as one would serve a motion under Rule 5, Ala. R. Civ. P., by mailing a copy of the petition to the attorney who had served as the adoptive parent's counsel in the adoption proceeding. After a hearing, which the adoptive parent did not attend, the probate court entered a judgment on November 2, 2015, awarding visitation to the paternal grandmother."1
(Footnotes omitted.) We dismissed the adoptive parent's appeal in D.T. based on our conclusion that the November 2, 2015, judgment was void because the paternal grandmother had not properly instituted her action and had not properly served the adoptive parent. D.T., 255 So. 3d at ----.
*766After the issuance of our opinion in D.T., the paternal grandmother instituted a new action seeking grandparent visitation under Ala. Code 1975, § 26-10A-30, and properly served the adoptive parent. The adoptive parent answered the complaint; in her answer, she included a constitutional challenge to § 26-10A-30. The probate court held a trial on the paternal grandmother's complaint on August 9, 2016, after which it entered a judgment on September 29, 2016, awarding the paternal grandmother visitation with the child. On October 6, 2016, the adoptive parent filed a postjudgment motion, which the probate court denied. The adoptive parent timely appealed the September 29, 2016, judgment to this court.
The trial testimony was either not recorded or not transcribed. Pursuant to Rule 10(e), Ala. R. App. P.,
The paternal grandmother testified that she was present at the birth of the child in September 2008 and that she visited with the child every other weekend during the first six months of the child's life. According to the paternal grandmother, she had offered financial assistance to the child's parents by supplying them with diapers, wipes, food, and clothing for the child. The paternal grandmother also said that she babysat the child at her home during the day and, on occasion, overnight during the early months of the child's life. After the child's parents, who had lived together but were not married, separated, the paternal grandmother said, the mother and the child had lived in the home of the mother's great-grandmother. The paternal grandmother testified that she had continued to assist the mother with the needs of the child.
In March 2010, when the child was approximately 18 months old, the adoptive parent sought and was granted custody of the child through the Tuscaloosa Juvenile Court. Since that time, the adoptive parent said, the child has resided with her. The adoptive parent formally adopted the child in 2013. At the time of the child's adoption, the child's father was incarcerated.
The paternal grandmother testified that she had hosted birthday parties for the child each year until 2013. She also testified that she had been allowed overnight visits in her own home with the child until January 2012. After the adoption was finalized, the paternal grandmother testified, the adoptive parent began to severely limit her access to the child. During 2013 and 2014, the paternal grandmother said, the adoptive parent allowed only six visits with the child; two of those visits were two-hour supervised visits in the adoptive parent's home. According to the paternal grandmother, after September 2014, the adoptive parent refused to allow the paternal grandmother to visit with the child.
*767The paternal grandmother testified that her last unsupervised visit with the child was on the child's fifth birthday in 2012. According to the paternal grandmother, when she was returning the child to the adoptive parent's home, she told the child that she might not be able to visit with her for a long time. The paternal grandmother said that the child responded by stating that she "could pack a bag, climb out her window and the [paternal] grandmother could come pick her up." The paternal grandmother said that she had discouraged the child's idea.
The paternal grandmother moved from Demopolis to Louisiana in 2013 for employment-related reasons and to care for her ailing father. The paternal grandmother does not own a home in Louisiana and lives with her fiancé. She testified that the child's father is no longer incarcerated and that he is in a rehabilitation program. She stated that "she would 'absolutely not' restrict access to the child by her biological father during her visits." She also said that she intended to reunite the child with her father at some point in the future. The paternal grandmother stated that she would be present when the child visited with the father.
The adoptive parent explained that she had discontinued overnight visits with the paternal grandmother after the child had told her that, when she had become scared one night, she had gone into the paternal grandmother's bedroom, where the paternal grandmother was in bed with a man to whom the paternal grandmother was not married. The adoptive parent said that the paternal grandmother had admitted that the man had been in her bed and that he had been in her home during other overnight visits.
The adoptive parent said that she had several concerns about allowing the paternal grandmother unsupervised or overnight visitation with the child. She expressed discomfort with the fact that the paternal grandmother lives in another state and about the paternal grandmother's cohabitation with a man to whom she is not married. The adoptive parent also testified that she did not want the child to have contact with her father. The adoptive parent admitted that she had "blocked" the paternal grandmother's telephone number because the adoptive parent had become frustrated over the paternal grandmother's continual text messages requesting telephone visitation with the child and the paternal grandmother's refusal to "take 'no' for an answer."
The probate court made the following factual findings in its judgment:
"[The child] was born on September 18, 2008, to [the biological mother] and [the father] [ (referred to collectively as 'the natural parents') ]. The adoptive parent is the maternal grandmother of the ... child and [the paternal grandmother] is the natural paternal grandmother of the ... child. Both [the adoptive parent and the paternal grandmother] were present at the ... child's birth, and provided substantial support to her natural parents during the ... child's infancy. [The paternal grandmother] had a visible and active presence in the ... child's life since her birth. While the ... child was under the care and custody of her [biological] mother, [the paternal grandmother] visited [the child] every other weekend, assisted the ... child's natural parents financially, provided babysitting services during the day and overnight, gifts, and paid for necessities, such as food, diapers, wipes, and clothes.
"In or about 2010, it became evident that the ... child's natural parents could not provide the necessary care to the ... child. [The adoptive parent], without objection from the [the paternal grandmother], *768obtained custody of the ... child through the Tuscaloosa County Juvenile Court. After [the adoptive parent] was awarded custody, [the paternal grandmother] continued to see the ... child on a regular basis and continued to provide emotional and financial support to the ... child. [The paternal grandmother] hosted the ... child's birthday parties at [her] home every year until 2013. The testimony of the [adoptive parent] and [the paternal grandmother] clearly established that [the paternal grandmother] had a close and loving relationship with the ... child that benefited the ... child.
"In 2013, unbeknownst to the [paternal grandmother], [the adoptive parent] filed a petition in this Court to adopt the ... child. This Court granted the adoption in Case No. PC-2013-700 on November 12, 2013. After [the adoptive parent] became the ... child's adoptive parent, [she] refused to allow [the paternal grandmother] to maintain her relationship with the ... child. [The adoptive parent] refused to respond to text messages from [the paternal grandmother] seeking to talk to and visit with the ... child for weeks. [The adoptive parent] also blocked [the paternal grandmother's] [tele]phone number because [the adoptive parent] believed that the text messages from [the paternal grandmother] were 'annoying' and because [the paternal grandmother] 'refused to take "no" for an answer,' when it came to [her] requests to see her granddaughter.
"[The adoptive parent] offered no evidence to support her decision to cut-off [the paternal grandmother's] long-standing relationship with the ... child. Nor did [the adoptive parent] offer any evidence that having a relationship with [the] paternal grandmother ... would not be in the ... child's best interest. Furthermore, [the paternal grandmother] is the only connection the ... child has to the paternal side of her family and familial relationships are beneficial to the ... child."
On appeal, the adoptive parent asserts four arguments. She first contends that the probate court erred by not appointing a guardian ad litem for the child. She next argues that § 26-10A-30 is unconstitutional, both facially and as applied to her. Finally, the adoptive parent complains that the probate court's decision to award visitation to the paternal grandmother is not supported by clear and convincing evidence that such visitation would be in the child's best interest.
We will first consider the adoptive parent's arguments regarding the constitutionality of § 26-10A-30. Although she argues that the statute is both facially unconstitutional and unconstitutional as applied to her in this particular instance, the adoptive parent's arguments regarding constitutionality are premised almost entirely on the principle that she, as the child's parent, has the fundamental right to the child's care, custody, and control, which right the United States Supreme Court, in Troxel v. Granville,
The adoptive parent also contends that the fact that the statute places jurisdiction over such visitation issues in the probate court, which, she says, is not a court of record
The adoptive parent next argues that § 26-10A-30 is unconstitutional as applied to her in the present case because, she says, the probate court violated her right to due process by considering ex parte communications with the paternal grandmother during the proceedings leading up to the entry of the November 2015 judgment that we reversed in D.T. Although a court's consideration of ex parte communications might violate a party's due-process rights, see Ex parte R.D.N.,
We turn now to the adoptive parent's argument that the probate court's judgment should be reversed because the probate court failed to appoint a guardian ad litem for the child, which she contends was required by Rule 17(c), Ala. R. Civ. P.
Rule 17(c) reads, in pertinent part, as follows: "The court shall appoint a guardian ad litem (1) for a minor defendant, or (2) for an incompetent person not otherwise represented in an action and may make any other orders it deems proper for the protection of the minor or incompetent person." Thus, the rule requires the appointment of a guardian ad litem for a minor defendant.
*771We therefore cannot agree with the adoptive parent that the probate court violated Rule 17(c) by declining to appoint a guardian ad litem for the child.
The adoptive parent also relies on English v. Miller,
English is inapposite here, however, because the basis for the supreme court's reversal of the trial court's judgment was its conclusion that the children in English were indispensable parties to the action. Because the supreme court ordered that the children be made parties to the action, Rule 19(a) would require appointment of a guardian ad litem for them. The child in the present case is not a party to the action; nor does the adoptive parent argue that the child is a necessary or indispensable party to the action. We conclude, therefore, that English does not require the probate court to appoint a guardian ad litem for the child.
Finally, we turn to the adoptive parent's argument that the probate court's decision to award the paternal grandmother visitation was not supported by the evidence. The adoptive parent admits that § 26-10A-30 does not indicate the burden of proof imposed upon the party seeking visitation under that statute. She then asserts that "that standard would have to be at least 'clear and convincing evidence.'" To support her assertion, she relies on cases interpreting former Ala. Code 1975, § 30-3-4.1, to require a clear-and-convincing-evidence burden of proof.
However, in light of our supreme court's holding in Ex parte D.W., we cannot agree that the burden of proof required under former § 30-3-4.1 is also required to support the award of visitation to a grandparent under § 26-10A-30. Our supreme court explained in Ex parte D.W. that the adoptive-parent status created by the adoption code specifically limited the rights of adoptive parents "by allowing the possibility of court-ordered grandparent visitation over the objections of the adopti[ve] parents," and it concluded that adoptive *772parents and natural parents "must be treated differently" as a result of the purely statutory nature of the adoption relationship. Ex parte D.W.,
The adoptive parent further argues that the paternal grandmother failed to establish that visitation with the child would be in the child's best interest. Relying on In re Grandparent Visitation of Cathy L.(R.)M. v. Mark Brent R.,
In Cathy, the West Virginia Supreme Court of Appeals considered whether an award of grandparent visitation after an adoption of the child was proper under
The Cathy court reversed the award of grandparent visitation based on its conclusion that the trial court had not given proper weight to the adoptive parents' preference that the child not visit with the child's biological paternal grandparents.
The adoptive parent in the present case argues that we should look to the decision in Cathy and determine, as that court did, that the evidence before the probate court does not support a conclusion that the child's best interest will be served by visitation with the paternal grandmother. Her *773concerns about the child's exposure to the paternal grandmother's fiancé and potential contact with the biological father, she says, were not given the appropriate weight or proper consideration by the probate court. Therefore, she concludes, a reversal of the award of visitation to the paternal grandmother is warranted.
We must disagree. The decision in Cathy is rooted in the holding of Troxel. As we have already explained, our supreme court has clearly differentiated the rights of a natural parent from the rights of an adoptive parent, which flow from the adoption code. Ex parte D.W.,
The adoptive parent's reliance on Mizrahi is not as easily dismissed. In Mizrahi, the Appellate Division of the New Jersey Superior Court examined the propriety of a grandparent-visitation order awarding visitation to the paternal grandparents of a child who, after the death of her mother, was being adopted by the child's great-aunt and her husband. Mizrahi,
The adoptive parent admits that the harm standard discussed in Mizrahi is inapplicable here. However, she contends that we should consider, as the New Jersey court did, that the fact that a warm and loving relationship existed between the paternal grandmother and the child in the present case during the first 18 months of the child's life does not compel the conclusion that it is in the best interest of the child to reestablish that relationship through court-ordered visitation. The adoptive parent further contends that the probate court did not have before it evidence relating to the specific best interest of the child at issue; that is, she contends that the paternal grandmother failed to present evidence
This court has set out guidelines to assist courts applying § 26-10A-30. See Weathers,
We must begin our review of the probate court's determination that visitation with the paternal grandmother would be in the child's best interest by noting that our review is limited to considering whether the probate court abused its discretion. Loftin v. Smith,
The adoptive parent contends that the probate court improperly placed on her the burden of proving that visitation with the paternal grandmother would not be in the best interest of the child. Indeed, the probate court's judgment states that the adoptive parent had not "offer[ed] any evidence that having a relationship with [the] paternal grandmother ... would not be in the ... child's best interest" and had "offered no evidence to support her decision to cut off [the paternal grandmother's] long-standing relationship with the ... child." Although we understand why the adoptive parent might believe that these statements indicate that the probate court was, in fact, requiring her to establish a basis to deny the requested visitation, we cannot agree that the probate court placed the burden of proof on the adoptive parent. Instead, it appears that the probate court concluded that the paternal grandmother and the child had enjoyed a close, loving relationship, that that relationship was a benefit to the child, and that the adoptive parent had not presented evidence satisfying the probate court that her decision to terminate that relationship was warranted or necessary. Thus, we read the judgment as concluding that an award of visitation to the paternal grandmother was warranted because of the close, loving, and beneficial relationship that the child had enjoyed with her, that the relationship should be allowed to continue so that the child could maintain a connection with her paternal relatives, and that no evidence indicated that the child's best interest would be better served by denying the requested visitation. Based on our limited record and our deferential standard of review, we cannot conclude that the probate court abused its discretion in awarding the paternal grandmother vitiation with the child under § 26-10A-30.
*775Based on our supreme court's holding in Ex parte D.W., we have rejected the adoptive parent's constitutional challenges to § 26-10A-30. We have also rejected her argument that the judgment should be reversed because of the probate court's failure to appoint a guardian ad litem for the child. We have further rejected the adoptive parent's contention that the appropriate burden of proof under § 26-10A-30 is the clear- and-convincing-evidence standard. Under our limited standard of review, we have determined that the evidence before the probate court supports the probate court's conclusion that the child's best interest would be served by allowing visitation with the paternal grandmother. Accordingly, the judgment of the probate court is affirmed.
AFFIRMED.
Pittman, Moore, and Donaldson, JJ., concur.
Thompson, P.J., concurs in the result, without writing.
In this opinion, we use the same defined terms we used in D.T.
Rule 10(e) provides:
"In lieu of the record on appeal as defined in subdivision (a) of this rule, the parties may prepare and sign a statement of the case showing how the issues presented by the appeal arose and how they were decided in the trial court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented. If the statement conforms to the truth, it, together with such additions as the court may consider necessary to present fully the issues raised by the appeal, shall be approved by the trial court and shall then be certified to the appellate court to which the appeal is taken as the record on appeal, and it shall be transmitted thereto by the clerk of the trial court within the time provided by Rule 11."
(Emphasis added.)
In her argument that § 26-10A-30 is unconstitutional as applied to her, the adoptive parent specifically contends that the fact that § 26-10A-30 allows a request for visitation to be brought "at any time" "poses the same problem ... as it did in Troxel," namely that the State has no compelling interest in promoting visitation well after a child has adjusted to her adoptive family, and that the probate court's statement in its judgment that the adoptive parent had not presented evidence indicating that visitation would not be in the child's best interest suffers from the same problem as did the judgment at issue in Troxel, namely that the probate court failed to give sufficient weight to the adoptive parent's decision to deny visitation or to her concerns about allowing visitation. As explained in the text, infra, because these arguments are premised on the application of the principles announced in Troxel, they are inapplicable to § 26-10A-30.
We note that a probate court is a court of record. See Terry v. Gresham,
The adoptive parent cites other statutes that require the appointment of a guardian ad litem in other types of actions: Ala. Code 1975, § 12-15-304 (requiring appointment of a guardian ad litem for a child in dependency and termination-of-parental-rights cases when the child is a party); 26-10A-22(b) (requiring appointment of a guardian ad litem for the child in a contested adoption proceeding); and § 26-17-612(b) (requiring appointment of a guardian ad litem for a child who is a party to a paternity proceeding). However, none of those statutes are applicable to visitation proceedings in the probate court under § 26-10A-30.
The adoptive parent indicates that the probate court denied her motion; however, no ruling on the motion appears in the record. The paternal grandmother appears to admit that the motion was, in fact, denied, and no order appointing a guardian ad litem is contained in the record. Thus, for purposes of this opinion, we will consider the motion seeking appointment of a guardian ad litem for the child as having been denied.
Rule 17(c) permits a court to "make any other orders it deems proper for the protection of the minor"; however, the rule does not require that such an order be entered.
Former § 30-3-4.1, a general grandparent-visitation statute, was declared unconstitutional in Weldon v. Ballow,
The adoptive parent contends that the paternal grandmother failed to present clear and convincing evidence relating to the best interest of the child. In light of our determination that the clear-and-convincing-evidence burden of proof is not applicable, we have recast the mother's argument as one contending that the burden of proof was not met because of the lack of sufficient evidence relating to the specific best interest of the child at issue.