Ex Parte A.M.P.
| Decision Date | 14 March 2008 |
| Docket Number | 1061170.,1061010.,1061013. |
| Parties | Ex parte A.M.P. (In re E.W.H. and S.M.H. v. A.M.P.) A.M.P. v. E.W.H. and S.M.H. W.P. and P.P. v. In the matter of the adoption of S.L.S., a minor child. |
| Court | Alabama Supreme Court |
Kathryn A. King, Cullman, for petitioner/appellant A.M.P.
Joe W. Morgan III, Birmingham, for appellants W.P. and P.P.
Timothy P. Culpepper of Cullpepper & Turner, L.L.C., for appellees E.W.H. and S.M.W.
S. Lynn Marie McKenzie, Cullman, guardian ad litem.
A.M.P., the biological mother of S.L.S. ("the mother"), filed a petition for a writ of mandamus, seeking an order setting aside the probate court's interlocutory order granting the petition of the foster parents, E.W.H. and S.M.H., to adopt S.L.S. ("the child") (case no. 1061010). While the mother's petition for the writ of mandamus was pending, the probate court entered a final order granting the adoption petition of the foster parents. Subsequently, the mother filed an appeal from the probate court's final order (case no. 1061013). W.P. and P.P., the child's maternal great-uncle and his wife, also appeal from the probate court's final order of adoption (case no. 1061170). We dismiss A.M.P.'s petition for the writ of mandamus, and we affirm the order of adoption.
The child was born in another state in December 1999. When the child was born, both the mother and the child tested positive for opiates. The mother refused drug treatment and social services, and a hearing was scheduled on the child's welfare in that state. The mother fled with the child to Alabama. In April 2000, the Alabama Department of Human Resources ("DHR") received a report of abuse or neglect from the social services department of the child's birth state regarding the child.
In May 2000, DHR took temporary custody of the child pursuant to an order of the juvenile court. The mother was allowed to maintain physical custody of the child after the mother agreed to attend a drug-treatment facility. She entered the facility but after a short time left the facility, taking the child with her. The mother returned to the child's birth state and left the child with an unrelated individual there. The mother could not be located, and a DHR employee went to the state and brought the child back to Alabama.
The child was placed in the custody of S.B., a maternal great-aunt of the child. The maternal great-aunt could not be a permanent placement for the child, and DHR allowed the great-aunt to place the child with friends of hers, E.W.H. and S.M.H. In July 2000, E.W.H. and S.M.H. became provisionally licensed as the child's foster parents. As foster parents, E.W.H. and S.M.H. signed an agreement with DHR and, as part of that agreement, agreed as follows:
(Capitalization in original.)
In January 2001, DHR developed the first of several individualized service plans ("ISP") for the child with the goal of permanent placement of the child with a relative. DHR contacted the child's putative father, who was incarcerated, on several occasions; he did not express an interest in caring for the child. The mother by this time was also incarcerated and unable to care for the child. Subsequently, both the maternal grandmother, A.T., and the maternal grandfather, D.P., who were at that time divorced from one another, filed separate petitions for custody of the child, alleging that the child was dependent. The child has three older siblings: one sibling lives with the maternal grandmother; one sibling lives with the maternal grandfather; and the third sibling lives with another relative.
In 2003, the juvenile court held a hearing on the grandmother's and grandfather's petitions. The foster parents obtained legal counsel, and counsel was allowed to participate in the juvenile court proceedings, although the foster parents had not filed a petition for custody of the child. Instead, the foster mother indicated that she did not feel that the grandfather and grandmother were suitable custodial parents for the child. In December 2003, the juvenile court denied both grandparents' petitions for custody. Both the grandmother and the grandfather filed separate appeals. On November 5, 2004, the Court of Civil Appeals affirmed the judgment of the juvenile court in each appeal, without an opinion. A.T. v. Cullman County Dep't of Human Res., 921 So.2d 478 (Ala.Civ.App. 2004) (table); D.P. v. Cullman County Dep't of Human Res., 921 So.2d 478 (Ala.Civ.App. 2004) (table). The grandfather petitioned this Court for certiorari review. On March 11, 2005, this Court denied the grandfather's petition, without an opinion. Ex parte D.P., 924 So.2d 805 (Ala.2005) (table).
Following the juvenile court's order denying the grandparents' petitions for custody of the child, DHR continued to develop an ISP for the child so that she could be placed with a relative. We note that since November 2001 the child has visited with the maternal great-grandmother, B.P., every Wednesday. In October 2004, the child began having Tuesday afternoon visits with W.P. and P.P., a maternal great-uncle and his wife, after they came forward as a relative resource for adoption, and the child began spending the first full weekend of every month with the great-uncle and great-aunt. Also in October 2004, one weekend each month, the child had weekend visitation with the maternal great-grandmother. While the child was visiting with the great-grandmother, the child also was able to visit with her sister, who resides with a relative who lives near the great-grandmother.
On March 18, 2005, the foster parents filed a petition in the probate court to adopt the child. On March 22, 2005, DHR held a meeting with the great-uncle and great-aunt and the foster parents regarding the child's ISP. On June 30, 2005, DHR was notified that the foster parents had filed a petition to adopt the child. On August 1, 2005, the probate court held a hearing on the petition and entered an interlocutory order granting the foster parents' petition.1 It appears that after the interlocutory order was entered, the foster parents stopped allowing the child to visit any of the relatives.
On September 7, 2005, the great-uncle and great-aunt filed a petition in the probate court seeking to adopt the child. Attached to their petition was a written consent signed by the mother, consenting to the adoption of the child by the great-uncle and great-aunt. On September 8, 2005, the mother filed a motion to set aside the interlocutory order granting the foster parents' petition of adoption on the ground that the foster parents had not obtained her consent to the adoption; the probate court denied the mother's motion. On September 16, 2005, the great-uncle and great-aunt filed a motion contesting the adoption and a motion to transfer the case to the juvenile court, pursuant to § 26-10A-3, for the limited purpose of terminating the parents' rights. They also moved the probate court, under § 26-10A-21, to stay the adoption proceeding because the child was the subject of related proceedings in the juvenile court.
On October 11, 2005, a hearing was held at which the foster parents, DHR, and the great-uncle and great-aunt appeared with counsel and the mother was represented by counsel. The putative father did not appear and was not represented by counsel, even though he was served with notice of the adoption by publication.2 Evidence was presented indicating that the mother had been incarcerated on and off for several years of the child's life, although the evidence was conflicting as to the total time the mother had been incarcerated. There was evidence indicating that the mother had written the child several letters and had occasionally contacted the foster parents regarding the child until sometime in 2001. Evidence was presented indicating that the mother had telephoned the child when the child was visiting with relatives. The prison ministry where the mother was incarcerated had sent the child and her siblings gifts from the mother. There was evidence indicating that the mother was released on probation in 2004 and that she was thus free for a short period but that she did not attempt to see the child during that time.
The great-aunt testified that she and her husband did not come forward sooner seeking to adopt the child because the grandfather and grandmother had both been seeking custody of the child and she thought a competing petition for adoption would cause discord in the family. There was ample evidence presented indicating that both the foster parents and the great-uncle and great-aunt would provide a loving home for the child.
On October 21, 2005, the mother filed a petition for a writ of mandamus in the Court of Civil Appeals, seeking an order compelling the probate court to set aside its interlocutory order of adoption and to transfer the foster parents' petition for adoption to the juvenile court, pursuant to § 26-10A-3. On October 25, 2005, DHR filed a motion in the probate court stating that before the foster parents could proceed with their adoption petition, they needed the consent of the parents or a termination of...
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