Ex parte K.J.
K.J. In re: S.B.
Jefferson Circuit Court, Bessemer Division, CV-17-330
PETITION FOR WRIT OF MANDAMUS
("the father") petitions this court for a writ of
mandamus directing the Jefferson Circuit Court, Bessemer
Division ("the circuit court"), to grant his motion
to dismiss the petition of S.B. ("the
grandmother"), who sought an order from the circuit
court permitting her to have visitation with the father's
child, K.H.J. ("the child"). For the reasons
explained below, we deny the petition.
and Procedural History
materials submitted by the father indicate the following
facts and procedural history relevant to the disposition of
this petition for a writ of mandamus. The grandmother is a
parent of the child's mother, A.J. ("the
mother"). Pursuant to a court order from Greene County,
the mother had sole custody of the child and the father had
visitation rights. On March 17, 2014, the mother died. On
March 25, 2014, the grandmother filed a petition in the
Jefferson Juvenile Court, Bessemer Division ("the
juvenile court"), asserting that the child was
dependent. On May 1, 2015, the juvenile court entered a
judgment granting sole custody of the child to the father and
visitation to the grandmother.
grandmother appealed the juvenile court's judgment to
this court, and the father cross-appealed. In S.J. v.
K.J., 206 So.3d 641 (Ala. Civ. App. 2016), this court
held that the juvenile court's record was inadequate for
appellate review and transferred the grandmother's appeal
to the circuit court for a trial de novo. See Rule 28(D),
Ala. R. Juv. P. We also held that the father's
cross-appeal seeking appellate review of the judgment insofar
as it granted the grandmother visitation was moot because the
transfer of the grandmother's appeal to the circuit court
for a trial de novo annulled and vacated the juvenile
January 3, 2017, the father filed a motion to dismiss the
proceedings in the circuit court, asserting that the child
was not dependent. On February 3, 2017, the grandmother filed
an amended dependency petition, alleging that the father was
unable to properly parent the child. On August 25, 2017, the
circuit court conducted a pretrial conference in which the
grandmother orally moved to dismiss the action. On August 28,
2017, the circuit court entered an order dismissing the
action without prejudice.
September 7, 2017, the grandmother filed a petition in the
circuit court seeking visitation with the child, pursuant to
§ 30-3-4.2, Ala. Code 1975 ("the Grandparent
Visitation Act"). On November 27, 2017, the father filed
a motion to dismiss the petition for lack of jurisdiction. On
November 28, 2017, the circuit court entered an order denying
the father's motion to dismiss.
April 3, 2018, the father filed a second motion to dismiss.
In that motion, he argued that the circuit court lacked
jurisdiction over the proceedings under the Grandparent
Visitation Act. On April 26, 2018, the circuit court entered
an order denying the father's second motion to dismiss.
2, 2018, the father filed the present petition for a writ of
mandamus seeking an order compelling the circuit court to
grant his motion to dismiss. We have jurisdiction to review
the father's petition pursuant to § 12-3-10, Ala.
Code 1975, and § 12-3-11, Ala. Code 1975.
father contends that the circuit court lacks subject-matter
jurisdiction over the action, and "[t]he denial of a
motion to dismiss for lack of jurisdiction is reviewable upon
a timely filed petition for a writ of mandamus." Ex
parte Diefenbach, 64 So.3d 1091, 1093 (Ala.
Civ. App. 2010).
"'Mandamus is a drastic and extraordinary writ, to
be issued only where there is (1) a clear legal right in the
petitioner to the order sought; (2) an imperative duty upon
the respondent to perform, accompanied by a refusal to do so;
(3) the lack of another adequate remedy; and (4) properly
invoked jurisdiction of the court.'"
Ex parte Perfection Siding, Inc., 882 So.2d 307,
309-10 (Ala. 2003) (quoting Ex parte Integon Corp.,
672 So.2d 497, ...