Ex Parte D.B.

• Court: Alabama Supreme Court
• Writing for the Court: Smith
• Citation: Ex Parte D.B., 975 So.2d 940 (Ala. 2007)
• Decision Date: 15 June 2007
• Docket Number: 1060529.,1060077.
• Parties: Ex parte D.B. and T.B. (In re D.B. and T.B. v. M.A.) Ex parte M.A. (In re D.B. and T.B. v. M.A).

975 So.2d 940

Ex parte D.B. and T.B.

(In re D.B. and T.B. v. M.A.)

Ex parte M.A.

(In re D.B. and T.B. v. M.A).

1060077.

1060529.

Supreme Court of Alabama.

June 15, 2007.

B. Andrew Whitmire, Jr., Birmingham; and Edwin K. Livingston, Montgomery, for D.B. and T.B.

Carey W. Spencer, Jr., Birmingham; and Linda L. Cole, Birmingham, for M.A.

Troy King, atty. gen., Sharon E. Ficquette, chief legal counsel, and James E. Long, deputy atty. gen., Department of Human Resources, brief of intervenor, Department of Human Resources, in support of M.A.

SMITH, Justice.

These two petitions for the writ of certiorari, which have been consolidated for purposes of issuing one opinion, involve an interstate dispute over custody of a minor child ("the child"); the parties claiming custody of the child are the child's biological father, M.A. ("the father"), a resident of Nebraska, and D.B. and T.B. ("the adoptive couple"), Alabama residents who sought to adopt the child in Alabama. The Court of Civil Appeals held that the State of Nebraska had subject-matter jurisdiction to decide the child's custody. D.B. v. M.A., 975 So.2d 927, 937 (Ala.Civ.App. 2006). However, the Court of Civil Appeals held that the Nebraska judgment awarding custody of the child to the father was not enforceable in Alabama against the adoptive couple because that judgment did not comply with notice provisions of the Parental Kidnaping Prevention Act, 28 U.S.C. § 1738A ("the PKPA"), or with Alabama's version of the Uniform Child Custody Jurisdiction and Enforcement Act, § 30-3B-101 et seq., Ala.Code 1975 ("the UCCJEA"). D.B., 975 So.2d at 930. We affirm.

Factual Background and Procedural History

The opinion of the Court of Civil Appeals provides the following factual background and procedural history of this case:

"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:

"`3. All the evidence indicates [that the father] did everything he needed to do to be both the biological and actual father of the minor child, wanting to raise, take care of, and support his minor child;

"`4. The evidence shows [that the father] did not abandon or neglect the minor child or [the mother] either during the pregnancy or after the minor child's birth;

"`5. All the evidence indicates [that the father] did all he needed to do to claim the paternity and custody of his minor child, and complied with all applicable Nebraska statutes;

"`6. [The father] did not consent to the adoption of the minor child, and he did not relinquish his parental rights to his minor child;

"`7. All the evidence indicates [that the father] is a good and decent person, and that [the father] is a fit and proper person to have the care, custody and control of his minor child;

"`8. The evidence further shows [that the father] has supportive parents committed to helping [the father] raise his minor child; and

"`9. This Court is legally required [to place the minor child], and it would be in the best interests of the minor child to be placed[,] in the care, custody and control of [the father].

"`The Court further ORDERS, ADJUDGES and DECREES that:

"`1. [The father's] Petition for Adjudication and Right to Custody should be, and is hereby, sustained;

"`2. [The father] is adjudicated to be the natural and biological father of the minor child born on January 21, 2004; and "`3. It would be in the best interests of the minor child if his physical and legal care, custody and control were awarded to [the father], and that [the father] should have the physical custody of said minor child and all rights that pertain thereto.

"`IT IS SO ORDERED.'

"The Nebraska trial court supplemented that judgment six days later, adding in part:

"`4. With respect to the adoption proceedings in the State of Alabama, to continue such proceedings would not be in the minor child's best interests; and

"`5. Any adoption proceedings in Alabama be dismissed and any Orders thereto be dissolved and the State of Alabama assist in returning the custody of the minor child ... to his biological and custodial parent, ... [the father], so that the [father] can obtain custody of ... [the child].'

"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 [case no. JU-04-593] 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 [case no. DR-04-648].

"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.

"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:

"`3. That the State of Alabama hereby declines jurisdiction of the case, finding that the State of Nebraska has never relinquished jurisdiction and that jurisdiction is proper in the State of Nebraska, County Court of Madison, Nebraska.

"`4. That the Juvenile Court Clerk shall immediately transfer this matter to the State of Nebraska, Madison County Court for further proceedings in this matter. The Court notes that the issues of termination of parental rights and adoption, if any, may be properly heard by the Nebraska Court.

"`5. That a copy of this Order be transmitted to the Honorable Reese McKinney, Montgomery County, Alabama Judge of Probate for his determination as to whether the pending adoption case should be stayed, held in abeyance or dismissed...