Ex parte K.R.
| Decision Date | 25 March 2016 |
| Docket Number | 1141274. |
| Citation | 210 So.3d 1106 |
| Parties | Ex parte K.R. (In re Adoption Petition of K.G.S.). |
| Court | Alabama Supreme Court |
David G. Kennedy of The Kennedy Law Firm, Mobile, for petitioner.
Joel A. Williams and Charles E. Sharp, Sr., of Friedman, Dazzio, Zulanas & Bowling, PC, Birmingham; David P. Broome, Mobile; and Brian McCarthy of McDowell Knight, Mobile, for respondent.
K.R. petitions this Court for a writ of mandamus directing the Mobile Probate Court ("the probate court") to set aside its interlocutory order awarding temporary custody of her biological child, E.R., to K.G.S. during the pendency of the underlying adoption proceedings; to remove J. Michael Druhan, who is serving as a temporary probate judge in this case; and to set aside the probate court's "gag" order concerning the adoption proceedings.
K.R.'s affidavit testimony indicates that she learned that she was pregnant with E.R. in October 2014. On December 5, 2014, K.R. contacted Donna Ames, an attorney, for advice on potentially placing her unborn child for adoption. Ames established and serves as the director of Adoption Rocks, an Alabama nonprofit organization that helps facilitate adoptions. On December 6, 2014, K.R. met with Ames to discuss the possibility of placing her unborn child for adoption; K.R.'s affidavit testimony indicates that, "[a]t that point," K.R.
At this time, K.R. wanted to place her unborn child for adoption.
On December 31, 2014, K.G.S., who was represented by Ames and who wanted to adopt K.R.'s unborn child, filed a motion requesting that the probate court conduct a pre-birth-consent hearing at which the probate court would explain to K.R. the consequences of her consenting to the adoption of her unborn child by K.G.S.
On February 6, 2015, K.R. appeared before Probate Judge Don Davis in order to give her "pre-birth consent to the adoption of" her unborn child by K.G.S. by signing a form giving that consent; K.G.S. was represented by Ames at this time. A confidential hearing was conducted in order for the probate court to thoroughly explain to K.R. the consequences of her consenting to K.G.S.'s adoption of her unborn child; the only attendees were Judge Davis, K.R., and a court reporter. After explaining the contents of the pre-birth-consent form to K.R., including the manner by which K.R. could withdraw her consent even after the child was born, K.R. signed the pre-birth-consent form.
On May 23, 2015, Ames withdrew from representing K.G.S.; David Broome later filed a notice of appearance on behalf of K.G.S.
On May 28, 2015, K.R. gave birth to E.R. K.R. did not withdraw her pre-birth consent to the adoption of E.R. by K.G.S. to which K.R. had agreed on February 6, 2015. E.R. was in K.R.'s custody at this time.
On June 15, 2015, K.G.S. filed her petition to adopt E.R. On the same day, K.G.S. filed in the Mobile Juvenile Court ("the juvenile court") a petition alleging that E.R. was dependent and requesting that she be given emergency custody of E.R. On June 16, 2015, the juvenile court issued an order granting K.G.S.'s petition and ordering the Mobile County sheriff to pick up E.R. and transport E.R. to K.G.S. pending further order of the juvenile court. On June 18, 2015, the Mobile County sheriff picked up E.R. and placed him in K.G.S.'s custody.
On June 19, 2015, 22 days after E.R.'s birth, K.R. executed and filed with the probate court a notice stating that she was withdrawing "the adoption and relinquishment previously signed by me." K.R. also filed a motion contesting K.G.S.'s petition for adoption of E.R. On the same day, the probate court entered an interlocutory order awarding K.G.S. custody of E.R. On July 14, 2015, K.R. filed a motion requesting that the probate court set aside its June 19, 2015, interlocutory order awarding custody of E.R. to K.G.S.
It appears from the probate court docket sheet attached to K.R.'s mandamus petition that, on July 10, 2015, K.G.S. filed an "emergency motion to remove social media." Neither party has provided this Court with a copy of K.G.S.'s motion, but it appears that K.G.S. requested that the probate court enter an order prohibiting public discussion of the adoption case by the parties. The probate court set K.G.S.'s motion for a hearing to be held on July 22, 2015.
On July 15, 2015, K.R. filed a motion requesting that Judge Davis recuse himself from the contested adoption proceedings. K.R. alleged that Judge Davis serves on the advisory board of Adoption Rocks and, thus, that "he should recuse [himself] from this matter to avoid the appearance of impropriety and bias." On July 21, 2015, Judge Davis entered the following order recusing himself:
Thereafter, the clerk of the probate court assigned this case to J. Michael Druhan, a Mobile attorney. The presiding judge of the Mobile Circuit Court did not appoint Druhan to serve as a temporary probate judge in this case; the only action taken to that effect was by the clerk of the probate court.
On July 22, 2015, K.R. filed a motion requesting that Druhan recuse himself from serving as the temporary probate judge in this case. K.R. argued that Druhan had not been properly appointed as a temporary probate judge and that the matter of appointing a temporary probate judge should be referred either to the presiding judge of the Mobile Circuit Court for reassignment pursuant to § 12–1–14.1, Ala.Code 1975, or to the Chief Justice of the Alabama Supreme Court for reassignment pursuant to § 12–2–30, Ala.Code 1975.
Also on July 22, 2015, after conducting a hearing, Druhan entered the following order:
(Capitalization in original.)
On July 23, 2015, K.G.S. filed an "emergency motion for contempt including sanctions and dismissal of contest." K.G.S. alleged that "a close friend" of K.R.'s had posted, in violation of the probate court's July 22, 2015, order, a "scandalous article on her [F]acebook [social-media] page." Based on this allegation, K.G.S. requested that the probate court dismiss K.R.'s contest of the adoption, hold K.R. in contempt, impose monetary sanctions, and have K.R. incarcerated. On July 31, 2015, K.R. filed a motion requesting that the probate court alter, amend, or vacate the portion of the probate court's July 22, 2015, order requiring the parties not to publicly discuss the adoption proceedings. Also on July 31, 2015, K.R. filed a "supplemental motion for judicial recusal" requesting that Druhan recuse himself from serving as the temporary probate judge in this case. On August 3, 2015, Druhan denied K.R.'s supplemental motion for judicial recusal. On August 10, 2015, K.G.S. filed a motion "for contempt and other relief." K.G.S. alleged that K.R. had continually violated the probate court's July 22, 2015, order by posting to a Facebook social-media page about matters pertaining to the adoption proceedings. Also on August 10, 2015, Druhan conducted a hearing on K.R.'s motion to alter, amend, or vacate; after receiving arguments from both parties, Druhan denied K.R.'s motion.
On August 13, 2015, K.G.S. filed a motion for a temporary restraining order prohibiting K.R. from continuing to violate the portion of Druhan's July 22, 2015, order requiring the parties to cease publicly discussing matters pertaining to the adoption proceedings.
On August 20, 2015, K.R. filed with the Court of Civil Appeals a petition for a writ of mandamus and an emergency motion to stay the adoption proceedings in the probate court. On August 24, 2015, the Court of Civil Appeals issued an order, in which all the judges concurred, stating, in pertinent part:
On August 27, 2015, K.R. filed a petition for a writ of mandamus with this Court and a request that this Court stay the adoption proceedings in the probate court during the pendency of her mandamus petition. On September 2, 2015, K.G.S. filed a motion in opposition to K.R.'s request for a stay of the adoption proceedings. Among other things, K.G.S. argued that K.R.'s mandamus petition was untimely filed and, thus, was due to...
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