Wolf v. Smith
| Decision Date | 12 May 1982 |
| Parties | Donna Milner WOLF v. Michael SMITH and Ann Smith. Civ. 3117. |
| Court | Alabama Court of Civil Appeals |
Charles W. Allen, Birmingham, for appellant.
Sam R. Shannon, Jr., and Joseph L. Boohaker, Birmingham, for appellees.
This is an adoption case.
Appellees, Michael and Ann Smith, on April 21, 1981, filed with the Probate Court of Shelby County a petition for the adoption of James Zachary Milner. Along with the petition for adoption appellees filed a consent to adopt signed by Donna R. Milner, the child's natural mother and appellant in this action.
Subsequent to the above proceedings the appellant changed her mind regarding the desirability of allowing the adoption of her child. On July 3, 1981, the appellant filed with the Probate Court of Shelby County a petition to set aside the consent to adoption and a petition to dismiss the petition for adoption.
A hearing before the probate judge was held on August 17 and 18. On December 18, 1981, the probate judge entered the following order:
1. That the petition to dismiss the petition to set aside the adoption and separately and severally the petition to set aside the consent to adoption are each separately and severally denied.
The appellant appeals from the December 18 order denying the aforementioned motions. The appellees, the persons attempting to adopt, have filed with this court a motion to dismiss the appeal.
The motion to dismiss the appeal is bottomed upon the premise that the probate court's December 18 order is not such a final order as would support an appeal. We agree and dismiss the appeal.
Unless otherwise provided by law, appeals lie only from final orders or judgments. Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975). See Davis v. Turner, 55 Ala.App. 366, 315 So.2d 602 (1975); Ala.Code § 12-22-20 (1975). Section 26-10-4 sets out the requirements for the issuance of a final order of adoption. It provides, in pertinent part, the following:
[I]f the court is satisfied that the natural parents have just cause for desiring to be relieved of the care, support and guardianship of said child, or have abandoned the child, or are morally unfit to retain its custody, that the petitioning foster parent or parents is or are financially able and morally fit to have the care, supervision and training of such child, that such child is suitable for adoption in a private family home and that such change of name and guardianship is for the best interest of such child, it shall make an interlocutory order setting forth the facts and declaring that from the date of the final order of adoption in such case, if such final order be afterwards entered as provided in this section, such child, to all legal intents and purposes, will be the child of the petitioner or petitioners and that its name may be thereby changed.... [S]uch final order of adoption shall not be granted until the child shall have lived for six months in the home of the petitioner subsequent to the...
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