175 So. 3d 652
Ala. Civ. App.2015Background
- Father (Navy) and mother lived together in Florida in 2012; mother became pregnant and left in July 2012. Father later lost contact and registered with Florida Putative Father Registry and commenced paternity/custody actions in Florida.
- Mother gave birth in Alabama on January 9, 2013; prospective adoptive parents (PAPs) were present at birth and filed to adopt in Jefferson Probate Court on January 29, 2013.
- Father first learned of the birth in March 2013, filed a contest to the adoption, and a contested hearing under Ala. Code § 26-10A-24(a) was held; probate court found on March 19, 2014 that father had not impliedly consented and rejected abandonment theory.
- After the contested hearing, probate court did not dismiss the adoption; on July 22, 2014 it denied post-hearing motions and sua sponte transferred the matter to juvenile court and had entered an interlocutory custody order awarding temporary custody to the PAPs.
- Father filed a mandamus petition asking the appellate court to: vacate the transfer to juvenile court, require dismissal under § 26-10A-24(d), and vacate the interlocutory custody order.
- The court determined the March 19 order was interlocutory but treated the petition as timely relative to the July 22 transfer order; it reviewed statutory conflict between § 26-10A-3 (mandatory transfer when consent missing) and § 26-10A-24(d) (dismissal after successful contest).
Issues
| Issue | Plaintiff's Argument (Father) | Defendant's Argument (PAPs / Probate Court) | Held |
|---|---|---|---|
| Whether probate court must dismiss adoption after it finds contest in favor of objecting parent under § 26-10A-24(d) | § 26-10A-24(d) requires dismissal when contest succeeds (no consent) | § 26-10A-3 (and § 26-10A-24(e)) authorize transfer to juvenile court for termination of parental rights | Court: § 26-10A-24(d) controls after a successful contested hearing; dismissal required and transfer improper in that posture |
| Whether transfer to juvenile court was permissible after the contested hearing | Father: transfer was improper once contest adjudicated; probate must dismiss | PAPs: § 26-10A-3 mandates transfer to juvenile court when consent missing for limited termination purpose | Court: transfer invalid — neither § 26-10A-24(e) (contested hearing transfer) nor § 26-10A-3 (transfer for termination) justified after a successful contest; ordered rescission of transfer |
| Timeliness / procedural propriety of mandamus petition | Father: petition timely as to July 22 transfer order | Respondents: argued procedural points about delay from March order | Court: petition untimely as to March 19 interlocutory order but timely as to July 22 transfer order; jurisdiction invoked |
| Whether interlocutory custody order must be vacated and child returned to father now | Father: custody order void because probate lacked jurisdiction absent consent | PAPs / Probate Court: probate retains jurisdiction over custody matters pending final disposition; custody orders may stand | Court: denied relief as to immediate vacation of custody order; probate has jurisdiction to enter custody orders pending appeal under § 26-10A-26(b); father’s request to vacate custody order denied (but transfer rescinded and dismissal ordered) |
Key Cases Cited
- Ex parte A.M.P., 997 So.2d 1008 (Ala. 2008) (mandamus appropriate to challenge interlocutory orders; discussed § 26-10A-3 transfer language)
- Eubanks v. McCollum, 828 So.2d 935 (Ala. Civ. App. 2002) (definition of final judgment)
- Fowler v. Merkle, 564 So.2d 960 (Ala. Civ. App. 1989) (order denying set-aside of consent to adoption is interlocutory)
- Ex parte C.J.A., 12 So.3d 1214 (Ala. Civ. App. 2009) (post-judgment motion on interlocutory order does not toll time for mandamus)
- Davis v. Turner, 337 So.2d 355 (Ala. Civ. App. 1976) (adoption likened to in rem proceeding; jurisdiction attaches with initial manifestation creating pre-adoptive "res")
- Stanley v. Illinois, 405 U.S. 645 (U.S. 1972) (unwed fathers entitled to hearing on fitness before child custody is removed)