B.H. ex rel. E.D.E. v. R.E.

• Decision Date: 11 January 2008
• Docket Number: 2060665.,2060664
• Citation: 988 So.2d 565
• Parties: B.H., on behalf of the minor child, E.D.E. v. R.E., Jr. G.W. v. R.E., Jr.
• Court: Alabama Court of Civil Appeals

988 So.2d 565

B.H., on behalf of the minor child, E.D.E. v. R.E., Jr.

G.W. v. R.E., Jr.

2060664

2060665.

Court of Civil Appeals of Alabama.

January 11, 2008.

B.H. Montgomery, guardian ad litem.

Edwin L. Yates, Montgomery, for appellant G.W.

Zachary T. Collins and Shirley D. Howell, Montgomery, for appellee.

THOMPSON, Presiding Judge.

B.H., on behalf of E.D.E. ("the child"), and G.W. separately appeal a judgment of the Montgomery Juvenile Court ("the juvenile court") that awarded custody of the child to R.E., Jr. ("R.E.").

Shortly after the child's birth in May 2005, the child's mother, K.D.H. ("the child's mother"), died of complications from childbirth. A few days later, on May 18, 2005, R.E. filed a dependency complaint in the juvenile court in which he alleged that he was the child's father and in which he sought custody of the child. The juvenile court appointed a guardian ad litem, B.H. ("the guardian ad litem"), to represent the interests of the child, and it ordered R.E. to submit to genetic testing to determine the child's relationship to R.E. On May 19, 2005, the guardian ad litem moved the juvenile court to allow the child to be released from the hospital into the custody of the child's maternal grandmother, G.W. ("the grandmother"); the juvenile court granted that motion. The next day, the grandmother filed in the juvenile court both a complaint seeking custody of the child and a dependency complaint.¹

In May 2005, R.E. moved the juvenile court for an award of temporary custody of the child, alleging that the court-ordered genetic testing had indicated a 99.9998% probability that he was the child's biological father. R.E. also filed in the juvenile court a document dated May 25, 2005, purporting to be a report of the genetic-test results ("the May 25, 2005, report"). The record indicates that the child remained in the custody of the grandmother and that the parties filed several motions in the juvenile court with regard to disputes over R.E.'s rights to visit the child. On June 3, 2005, the juvenile court ordered the Alabama Department of Human Resources to conduct investigations on the homes of R.E. and the grandmother.

On October 3, 2005, the grandmother filed an objection pursuant to § 26-17-12(c), Ala.Code 1975, to the admission into evidence of the May 25, 2005, report. Section 26-17-12(c) allows a party to file an objection to the admissibility of genetic-testing results within 15 days of the hearing at which the test results might be introduced. It also provides that in the absence of an objection to the admissibility of the genetic-testing results, the results are admissible without the need to prove the authenticity or accuracy of the test. § 26-17-12(c), Ala.Code 1975.

In March 2006, R.E.'s mother, V.E.B., filed in the juvenile court what she characterized as a dependency complaint in which she sought an award of custody of the child. As the basis for her seeking custody of the child, V.E.B. cited only the fact that there had been disputes with the grandmother regarding R.E.'s and V.E.B.'s desire to visit the child.

On May 24, 2006, the juvenile court conducted an ore tenus hearing on the pending custody petitions. At that hearing, R.E. attempted to establish that he and the child's mother had been common-law married at the time of the child's birth and, therefore, that he was the presumed father of the child. Pursuant to § 26-17-5(a)(1), Ala.Code 1975, a man is presumed to be the father of a child if he was married to the child's mother at the time of the child's birth.² A presumption of paternity under § 26-17-5(a), once established, may be rebutted only by the presentation of clear and convincing evidence indicating that the presumed father is not actually the child's natural father. § 26-17-5(b). During the May 24, 2006, hearing, R.E. expressly declined to attempt to offer into evidence the May 25, 2005, report.³

At the May 24, 2006, hearing, the grandmother disputed R.E.'s paternity. The grandmother also argued that R.E. had failed to comply with the terms of the Putative Father Registry Act, § 26-10C-1, Ala.Code 1975 ("the PFRA"). Therefore, the grandmother argued, pursuant to the PFRA, R.E. is deemed to have given his consent to an adoption of the child. At the time of the hearing, however, no adoption proceeding had been filed with regard to the child. During the May 24, 2006, hearing, the grandmother indicated her intention to file a petition to adopt the child should R.E. be unsuccessful in establishing a presumption of paternity through his claim of the existence of a common-law marriage.

On May 30, 2006, the juvenile court entered an order in which it determined that R.E. had not proven his claim of the existence of a common-law marriage between the child's mother and him. The court noted that "no evidence was otherwise presented to establish [R.E.'s] paternity." However, the juvenile court then ordered the child to submit to genetic testing and indicated that it would consider the issue of R.E.'s paternity after the completion of that genetic testing.⁴ Thereafter, on June 1, 2006, R.E. filed a motion to allow him to instead introduce the May 25, 2005, report, "if properly authenticated."

In response to the juvenile court's May 30, 2006, order, the grandmother filed an objection to the juvenile court's consideration of the genetic-test results. Among other things, the grandmother argued that all the parties' evidence and arguments had already been presented and that reopening the case to allow R.E. to submit additional evidence that he had declined to present originally was improper. See § 6-8-103, Ala.Code 1975. On August 2, 2006, the guardian ad litem submitted a recommendation to the juvenile court that the grandmother be awarded custody of the child.

At a September 13, 2006, hearing, the juvenile court heard the arguments of the parties concerning, among other things, their positions on whether the genetic-test results should be admitted. At that hearing, the grandmother again objected to the court's consideration of additional evidence. She argued that R.E. had proceeded under another theory in attempting to establish his paternity and that the genetic test had not been authenticated. At the conclusion of that hearing, the juvenile court indicated that it had concerns about the equity of not allowing R.E. to submit the results of the genetic testing into evidence. However, the juvenile court did not rule, either at that hearing or in any written order, on the admissibility of any genetic-testing results.

In October 2006, the grandmother filed in the Montgomery Probate Court ("the probate court") a petition to adopt the child. On October 11, 2006, the grandmother filed in the juvenile court a document entitled "notice of filing for adoption," in which she notified the juvenile court of the adoption proceeding then pending in the probate court. The grandmother also filed another objection to the juvenile court's consideration of the May 25, 2005, report.

At a hearing conducted on October 11, 2006, the juvenile court heard arguments concerning why the parties had failed to comply with its May 30, 2006, order requiring them to conduct genetic testing. At the conclusion of that hearing, the juvenile court again ordered a genetic test, and it specified that the results of the test were to be filed in the court. The results of an October 23, 2006, genetic test are contained in the record, and those results indicate a 99.999% probability that R.E. is the child's natural father.

In November 2006, the grandmother moved to stay the proceedings in the juvenile court pending the resolution of her petition to adopt the child. In February 2007, R.E. moved to remove the adoption proceeding from the probate court to the juvenile court and to consolidate the adoption proceeding with those proceedings already pending in the juvenile court.

On March 2, 2007, the juvenile court entered a detailed judgment in which it granted R.E.'s custody petition, denied the grandmother's and V.E.B.'s custody claims, and awarded the grandmother visitation rights.⁵ In its judgment, the juvenile court did not formally adjudicate R.E.'s paternity of the child. However, given the nature of the findings contained in that judgment, the award of custody to R.E., and the juvenile court's referral to R.E. throughout its judgment as "the father," we conclude that the adjudication of R.E.'s paternity was implicit in the March 2, 2007, judgment.

In reaching its March 2, 2007, judgment, the juvenile court relied, in part, on the results of the October 23, 2006, genetic test. In doing so, the juvenile court noted that R.E. had failed to attempt to submit the May 25, 2005, report into evidence during the May 23, 2006, hearing and that it had ordered that the results of the October 23, 2006, genetic test be "filed" in the court. The juvenile court did not find that the genetic-test results should be admitted into evidence over the grandmother's objection. Rather, the juvenile court stated in its judgment that it had taken "judicial notice of the results of" of the October 23, 2006, genetic test.

The guardian ad litem, on behalf of the child, and the grandmother each filed a postjudgment motion; the juvenile court denied those motions. The guardian ad litem, on behalf of the child, and the grandmother each filed a timely notice of appeal. Those appeals were consolidated.

The grandmother and the guardian ad litem (hereinafter together referred to as "the appellants") argue that the juvenile court erred in taking judicial notice of the genetic-test results. Rule 201, Ala. R. Evid., allows a court to take judicial notice of certain facts, even ex mero motu. See Rule 201(b) ("A court may take judicial notice whether requested or not.").

"A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial...