D.B. v. M.A.
Decision Date | 29 September 2006 |
Docket Number | 2050277.,2050034. |
Citation | 975 So.2d 927 |
Parties | D.B. and T.B. v. M.A. D.B. and T.B. v. M.A. |
Court | Alabama Court of Civil Appeals |
B. Andrew Whitmire, Jr., Birmingham; and Edwin K. Livingston, Montgomery, for appellants.
Carey W. Spencer, Jr., Birmingham; and Linda L. Cole, Birmingham, for appellee.
Troy King, atty. gen., and Sharon E. Ficquette and David S. Smith, asst. attys. gen., for amicus curiae Department of Human Resources, in support of the appellee.
On Applications for Rehearing
This court's opinion issued on May 26, 2006, is withdrawn, and the following is substituted therefor.
These appeals arise from consolidated proceedings involving an adoption action and an action to register and enforce a child-custody judgment entered by a Nebraska trial court. These appeals are before this court after numerous proceedings in three different courts in Alabama — a probate court, a juvenile court, and a family court — with accompanying orders from no less than five Alabama judges, in addition to proceedings in a Nebraska trial court. M.A. ("the father") is a Nebraska resident and the father of B.B., the child at issue in this action ("the child"). In an effort to obtain custody of the child, who was removed from Nebraska without the father's consent, the father has sought to register and enforce in Alabama a child-custody judgment entered by a Nebraska trial court. D.B. and T.B. ("the adoptive couple"), who currently have physical custody of the child, are Alabama residents who wish to adopt the child. We hold that Nebraska has subject-matter jurisdiction to determine the child's custody; that the Nebraska judgment at issue should not have been registered in Alabama; and that because the adoptive couple were not served with process in the Nebraska proceeding, the Nebraska judgment does not comply with the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A and 42 U.S.C. § 663 ("the PKPA"), or Alabama's version of the Uniform Child Custody Jurisdiction and Enforcement Act, § 30-3B-101 et seq., Ala.Code 1975 ("the UCCJEA"), and therefore is not enforceable in Alabama. However, we reiterate that any substantive proceedings in this case must be conducted in Nebraska.
On January 21, 2004, the child was born in Nebraska. Several days later, on January 25, 2004, the child was placed by his mother, M.T. ("the mother"), who is a resident of Nebraska, into the physical custody of the adoptive couple. Five days later, on January 30, 2004, the father learned of the potential adoption. That same day, he filed notice of his intent to claim paternity and to obtain custody with the Nebraska Department of Health and Human Services. On February 2, 2004, the adoptive couple moved the child to Alabama. On February 12, 2004, the adoptive couple filed a petition for the adoption of the child in the probate court of Montgomery County ("the probate court"). Several days later, the probate court issued an interlocutory order awarding custody of the child to the adoptive couple.
On February 20, 2004, the father filed a petition in a Nebraska trial court seeking an adjudication of his claim of paternity and his right to custody of the child. On March 17, 2004, the father and the mother appeared at a pretrial hearing in the Nebraska trial court. Also present at the hearing was an attorney representing the adoptive couple, although he did not make an official appearance. During the hearing, the mother admitted that M.A. is the father of the child in this case. Following the hearing, the Nebraska trial court entered an order finding that it had jurisdiction over the parties and the subject matter of the case. That order further noted that the father and the mother had stipulated that the father was the natural father of the child. On March 30, 2004, the father moved the Alabama probate court to stay the adoption proceedings.
On April 7, 2004, the Nebraska trial court reaffirmed that it had jurisdiction to determine the child's custody. On April 21, the Nebraska trial court held a trial, during which that court received testimony from the father, his mother, and the guardian ad litem appointed to protect the interests of the child. The mother was not present at the trial.
During the trial, the father testified that, at one point, he and the mother had planned on getting married but that the mother had broken off their relationship. The father also testified that he had tried to maintain contact with the mother and wanted to participate in the upbringing of their child but that, because of a lack of cooperation from the mother, he had been unable to do so.
The evidence introduced at trial also indicated that the mother had evidently decided, without the consent of the father, to put their child up for adoption. Before the child was born, the mother arranged to have the child adopted by the adoptive couple. The mother's attorney apparently sent a notice of this potential adoption to the father; however, that notice was mailed to the wrong address. The mother placed an announcement about the potential adoption in a local newspaper in Nebraska; that announcement stated that the father had until five days after the last publication of the announcement, i.e., until February 12, 2004, to file notice of his intent to claim paternity and to obtain custody. As noted above, the father filed notice of his intent to claim paternity and to obtain custody of the child on January 30, 2004. On the same day as the trial, the Nebraska trial court entered a judgment stating, in part:
The Nebraska trial court supplemented that judgment six days later, adding in part:
On April 29, the father moved to enforce the Nebraska trial court's judgment in the probate court. The next day, the father also filed a verified objection to the adoption petition in the probate court. On May 10, 2004, the adoptive couple moved to transfer the adoption proceeding to the juvenile court of Montgomery County ("the juvenile court"), and the probate court did so. On June 4, 2004 the adoptive couple filed in the juvenile court a response to the father's motion to dismiss the adoption action. In that response, the adoptive couple asserted, among other things, that the Nebraska judgment was invalid because they had not been served in the Nebraska proceeding.
On May 24, 2004, the father filed in the family court of Montgomery County ("the family court") a request for registration and enforcement of the Nebraska judgment declaring him to be the father of the child.
On June 14, 2004, the juvenile court action and the family court action were consolidated in the juvenile court. The father's attorney sought to serve notice of the request for registration of the Nebraska judgment on the mother by certified mail, then by publication. No response was ever received from the mother. The attorney for the adoptive couple was mailed notice of the request for registration of the Nebraska judgment, and he later admitted at a hearing on a Rule 60(b), Ala. R. Civ. P., postjudgment motion that he, as well as the adoptive couple, was aware of the registration proceeding.1
The juvenile court judge who ultimately presided over this case held a hearing on whether an Alabama court could properly exercise jurisdiction over this matter, and on September 22, 2005, the juvenile court entered a judgment wherein it stated, in part:
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