Ex parte W.L.K.

• Decision Date: 27 February 2015
• Docket Number: 2130890.
• Citation: 175 So.3d 652
• Parties: Ex parte W.L.K. (In re The Adoption Petition of T.C.M. and C.N.M.).
• Court: Alabama Court of Civil Appeals

175 So.3d 652

Ex parte W.L.K. (In re The Adoption Petition of T.C.M. and C.N.M.).

2130890.

Court of Civil Appeals of Alabama.

Feb. 27, 2015.

Richard L. Wyatt, Birmingham, for petitioner.

Robert E. Lusk, Jr., of Lusk Law Firm, LLC, Fairhope; and Bryan Andrew Whitmire, Jr., Birmingham, for respondents.

Opinion

PER CURIAM.

The opinion of November 7, 2014, is withdrawn, and the following is substituted therefor.

W.L.K. (“the father”) and S.F. (“the mother”) were involved in a relationship between April and July 2012; they lived together in the father's house in Middleburg, Florida, during that period. The mother became pregnant early in the relationship, and she and the father had begun preparing for the baby by purchasing baby items. However, the mother left the father in July 2012, and, after she broke into the father's house and stole several items, the father swore out a warrant against her. The mother was arrested, and, after that, the father lost contact with her. In December 2012, the father, who is in the United States Navy, contacted an attorney in the Judge Advocate General about his situation; that attorney referred the father to a nonmilitary attorney, who assisted the father by instituting a paternity and custody action in a Florida court in January 2013. The father registered with the putative father registry in Florida. The father attempted to locate the mother at nearby hospitals on January 18, 2013, the expected date of delivery. However, the father was unable to locate the mother.

On January 9, 2013, the mother gave birth to M.M. (“the child”) in Montgomery, Alabama. The mother had consented to an adoption of the child by T.C.M. and C.N.M. (“the prospective adoptive parents”), who were present at the birth and who took the child home from the hospital. On January 29, 2013, the prospective adoptive parents filed a petition to adopt the child in the Jefferson Probate Court.

The father first learned of the birth of the child in Alabama on March 1, 2013. After he was served with an amended petition to adopt the child on March 25, 2013, and upon the advice of his Florida counsel, the father sought legal counsel in Alabama. He filed a contest to the adoption petition and a motion to dismiss the adoption petition on April 11, 2013.

As required by Ala.Code 1975, § 26–10A–24(a), the probate court held a contested hearing on the father's contest to the adoption petition on September 26, 2013. At issue was whether the father had impliedly consented to the child's adoption pursuant to the theory of “prebirth abandonment,” under which consent to an adoption may be implied based on abandonment if a father fails, “with reasonable knowledge of the pregnancy, to offer financial and/or emotional support for a period of six months prior to the birth.” Ala.Code 1975, § 26–10A–9(a)(1). After hearing the testimony of the father and T.C.M., the probate court entered an order on March 19, 2014, concluding that the father had not impliedly consented to the adoption and specifically rejecting the contention that the father's conduct had amounted to an abandonment of the mother during her pregnancy. The order set a hearing for June 12, 2014, “to determine the best interest of [the] child.”

On April 1, 2014, the prospective adoptive parents filed a motion, purportedly pursuant to Rule 59, Ala. R. Civ. P., seeking to have the probate court amend its judgment. The father filed a motion seeking to have the probate court dismiss the adoption proceeding as required by § 26–10A–24(d). The probate court purported to deny both motions on July 22, 2014. Also on July 22, 2014, the probate court entered an order stating that, on its own motion, it was transferring the adoption proceeding to the Jefferson Juvenile Court pursuant to § 26–10A–24(e).

The father filed this petition for the writ of mandamus with this court on August 4, 2014, seeking an order prohibiting the transfer of the adoption proceeding to the juvenile court, an order requiring the probate court to dismiss the adoption proceeding, as required by § 26–10A–24(d), and an order requiring the probate court to vacate its interlocutory order awarding temporary custody of the child to the prospective adoptive parents.

“ ‘ “Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” ’ ”

Ex parte A.M.P., 997 So.2d 1008, 1014 (Ala.2008) (quoting Ex parte Perfection Siding, Inc., 882 So.2d 307, 309–10 (Ala.2003), quoting in turn Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995) ).

To determine whether the father's mandamus petition is the proper vehicle by which to invoke this court's review, we must first consider whether the probate court's March 19, 2014, order was a final judgment or an interlocutory order. Ex parte A.M.P., 997 So.2d at 1014 (“A petition for a writ of mandamus is an appropriate remedy for challenging an interlocutory order.”). The parties indicate in their respective filings that the March 19, 2014, order was an interlocutory order because it did not dismiss the adoption petition, determine who should have custody of the child, or enter a judgment of adoption. “A final judgment is one that completely adjudicates all matters in controversy between all the parties.” Eubanks v. McCollum, 828 So.2d 935, 937 (Ala.Civ.App.2002). The March 19, 2014, order decided the father's contest to the adoption, but it did not resolve the entire adoption proceeding. In addition, this court has explained that an order denying a petition to set aside consent to an adoption is not a final judgment capable of supporting an appeal. Fowler v. Merkle, 564 So.2d 960, 961 (Ala.Civ.App.1989). Thus, we agree that the March 19, 2014, order was, in fact, an interlocutory order.

That being determined, we note that the father did not seek mandamus relief within 14 days of the entry of the March 19, 2014, order. According to Rule 21(a)(3), Ala. R.App. P., “[t]he presumptively reasonable time for filing a petition seeking review of an order of a trial court ... shall be the same as the time for taking an appeal.” A judgment of adoption must be appealed within 14 days. Ala.Code 1975, § 26–10A–26(a). Instead of filing a petition for the writ of mandamus, the father filed a motion seeking to have the probate court enter an order dismissing the adoption proceeding in April, and he waited until the probate court entered an order purporting to deny that motion in July.¹ To the extent that the father's motion was an attempt to have the probate court reconsider its March 19, 2014, order, we note that, “ ‘unlike a postjudgment motion following a final judgment, a motion to reconsider an interlocutory order does not toll the presumptively reasonable time period that a party has to petition an appellate court for a writ of mandamus.’ ” Ex parte C.J.A., 12 So.3d 1214, 1216 (Ala.Civ.App.2009) (quoting Ex parte Onyx Waste Servs. of Florida, 979 So.2d 833, 834 (Ala.Civ.App.2007) ). Although the father's petition was not timely filed in connection with the March 19, 2014, order, the father's petition was timely filed in connection with the probate court's July 22, 2014, order transferring the adoption proceeding to the juvenile court. Thus, we will consider the petition to have timely invoked this court's jurisdiction.

The father contends that, pursuant to § 26–10A–24(d), the probate court was required to dismiss the adoption proceeding once it resolved the adoption contest in the father's favor and that it lacked jurisdiction to transfer the proceeding to the juvenile court. Indeed, the language of the statute supports that conclusion:

“(d) After hearing evidence at a contested hearing, the court shall dismiss the adoption proceeding if the court finds:

“(1) That the adoption is not in the best interests of the adoptee.

“(2) That a petitioner is not capable of adopting the adoptee.

“(3) That a necessary consent cannot be obtained or is invalid.

“(4) That a necessary consent may be withdrawn. Otherwise the court shall deny the motion of the contesting party.”

§ 26–10A–24(d) (emphasis added).

The probate court relied on § 26–10A–24(e) for its transfer order. That provision provides that, “[o]n motion of either party or of the court, a contested adoption hearing may be transferred to the court having jurisdiction over juvenile matters.” § 26–10A–24(e). The probate court, however, had already held the contested hearing when it entered its July 22, 2014, order, and transfer was therefore not proper under § 26–10A–24(e).

However, as the prospective adoptive parents point out, another statute provides a potential basis for the probate court's July 22, 2014, order transferring the adoption proceeding to the juvenile court. Section 26–10A–3, Ala.Code 1975, grants the probate court original jurisdiction over adoption proceedings, but it further states that, “[i]f any party whose consent is required fails to consent or is unable to consent, the proceeding will be transferred to the court having jurisdiction over juvenile matters for the limited purpose of termination of parental rights.” Thus, the prospective adoptive parents contend, under § 26–10A–3 the probate court properly transferred the adoption proceeding to the juvenile court for that court to consider the termination of parental rights.

At first blush, it appears that § 26–10A–24(d) and § 26–10A–3 conflict. One statute, § 26–10A–24(d), directs the probate court to dismiss the adoption proceeding if, after a contested hearing, it concludes that, among other things, “consent cannot be obtained or is invalid.” The other statute, § 26–10A–3, indicates that, when a parent “fails to consent or is unable to consent,” the proceeding should be transferred to the juvenile court for the limited purpose of considering...