An orphan is a vulnerable child left without adequate familial provision and protection from evil. There is real evil in the world – evil that will always seek to abuse, neglect, and rob vulnerable children. Orphan Law is that body of law that relates to addressing and alleviating the affliction of these vulnerable children.
This week, Alabama’s appellate courts released an unusually high number of opinions. As such, we have decided to divide the Orphan-Law Update into two parts. Look out for Part 2 early next week!
T.N. and C.N. v. I.B., 2130676 (Ala. Civ. App. February 27, 2015), is the second case before the Court of Civil Appeals (Civs) related to the parties in controversy. On January 16, 2015, the Civs reversed the probate court’s grant of adoption to T.N. and C.N. for the 4-year-old child for whom they had cared all but the first four months of the child’s life. I.B. v. T.N., 2130068 (Ala. Civ. App. January 16, 2015); See also, Orphan-Law Update, January 16, 2015. The decision released today concerns T.N. and C.N.’s appeal of the juvenile court matters in this case.
T.N. and C.N. initially commenced the appeal as a writ of mandamus against the Honorable Judge Anita Kelly, Montgomery County Juvenile Court. However, the Civs saw fit to convert the writ of mandamus into appeal. The Civs articulate the issues in the writ of mandamus as whether the Civs should order the Judge Kelly:
“(1) to refrain from interfering with their attempts to enforce a judgment entered by the Elmore Probate Court (“the probate court”) on May 8, 2014, granting T.N. and C.N.’s petition to adopt S.B. (“the child”),
(2) to vacate a judgment in which the juvenile court granted custody of the child to D.C., and
(3) to cease all proceedings relating to the child.”
The Civs ultimately dismissed this appeal, with the reasoning that, because the Civs overturned the adoption of T.N. and C.N. on January 16, 2015, issue (1) above is moot. Additional reasoning provided was that, because T.N. and C.N. were not parties to the proceeding where D.C. was granted custody, T.N. and C.N. do not have standing to raise issue (2).
The key event in the Civs reasoning was a “restraining order” entered by Judge Kelly on May 20, 2014, prohibiting T.N. and C.N. from gaining access to the child whom they adopted on May 8, 2014 (Judge Kelly previously removed the child from T.N. and C.N.’s home on December 24, 2013). The Civs concluded that their reversal of the probate court’s grant of adoption made this issue moot. Tucked away in footnote 2 of the opinion is this:
“Because the issue concerning the purported injunctive relief is now moot, we do not address the propriety of the injunctive relief ordered by the juvenile court. This opinion should not be read as an endorsement of the actions taken by the juvenile court in this matter.”
While the Civs may assert that this opinion does not provide an endorsement of the juvenile court’s steps to undermine the adoption, “actions speak louder than words.” Lamentably, this opinion will most likely have the effect of emboldening juvenile court judges who seek to nefariously subvert adoption proceedings in the probate court.
In addition, on April 21, 2014 (one day prior to the adoption hearing in the probate court), Judge Kelly vested custody of the child with a non-relative, D.C. The Civs decided to uphold Judge Kelly’s grant of custody to D.C., based on the reasoning that T.N. and C.N. were not parties to the action, and therefore could not challenge the action with the Civs. T.N. and C.N.’s well-placed counter argument is that they were never given notice of the proceedings in which D.C. sought to obtain custody. In other words, it all happened behind their back.
T.N. and C.N. argued that § 12-15-307, Code of Alabama, requires that notice of any hearing concerning a child be given to “preadoptive parents . . . with respect to a child in their care.” The Civs concluded, with far too much haste, that the child was not in the care of T.N. and C.N; thus, they were not entitled to notice of the hearing giving custody to D.C. – one day before their hearing on adopting the child. In summary, the Civs dismissed this issue on appeal because T.N. and C.N. were neither parties nor “legal representatives” (for purposes of Rule 60(b)), in an action which they knew nothing about, regarding a child they had parented for over three years and with whom they still maintained regular visitation (with said visitation continuing even after the child was removed from their home by Judge Kelly on the previous Christmas Eve).
The takeaway from this case for practitioners is . . . hard to say. It seems like the Civs have laid down rule regarding the phrase “a child in their care” as it’s used in § 12-15-307. On the other hand, the Civs didn’t elaborate much on this point. The other takeaway could relate to what issues in juvenile court are made moot by the reversal of an adoption from the probate court which concerns the same child. According to the Civs, a temporary restraining order which prevents an adoptive parent from gaining access to their child is moot when the grant of adoption is reversed by the appellate court. In other words, because the (post) adoptive parents have no more reason to seek access to the child, there is no further reason to have them restrained.
Ex parte W.L.K., 2130890 (Ala. Civ. App. February 27, 2015) is a per curiam decision of the Civs and, without a doubt, one of the most controversial adoption cases the Civs have decided in a while. In fact, this decision is the Civs second bite at the apple: the decision was released as a result of an application on rehearing and replaces its first decision on November 7, 2014.
Because the Civs’ concise rendition of the facts of this case are crucial to understanding the issues, I recount them below:
“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.”
So, in summary, an adoption contest was held and the court found that the father did not give his implied consent. The father filed a motion to have the adoption dismissed pursuant to § 26-10A-24(d). The trial court denied that motion, but ordered that the adoption proceeding be transferred to the juvenile court.
The complexity of the case arises because the adoption code is not infallible. One section seems to permit the trial court’s order transferring the case to the juvenile court (§ 26-10A-24(e) and § 26-10A-3), while another section appears to require the trial court to dismiss the action entirely (§26-10A-24(d)).
In order to resolve the apparent contradiction in the adoption code, the court applied long standing principles of statutory construction and held:
“Our consideration of the entire Alabama Adoption Code, Ala. Code 1975, § 26-10A-1 et seq., given the principles of statutory construction, convinces us that § 26-10A-3 and § 26- 10A-24(d) each have specific fields of operation. In a situation in which a probate court has resolved a contest in favor of the parent objecting to the adoption, the plain language of § 26-10A-24(d) must control. . . . Moreover, although, according to the prospective adoptive parents, § 26-10A-3 appears to require the transfer of an adoption proceeding in every situation where a parent has failed to give his or her consent, enforcing the transfer provision contained in § 26-10A-3 after a parent has successfully contested the adoption would leave no field of operation for the requirement in § 26-10A-24(d) that the adoption proceeding be dismissed after a successful contest.”
However, I must confess that I have a hard time following the Civ’s reasoning regarding the distinctive fields of influence between §§ 26-10A-24(d) and 26-10A-3:
“Enforcing § 26-10A-24(d) and requiring dismissal of an adoption proceeding after a successful contest, however, leaves room for the operation of § 26-10A-3 in those adoption proceedings in which a parent does not mount a contest to the adoption but fails to consent or is unable to do so. Such a construction of the two provisions is supported by the language used in the statutes, and it also meets our duty “‘to harmonize and reconcile all parts of a statute so that effect may be given to each and every part.'” Hays, 946 So. 2d at 877 (quoting Leath v. Wilson, 238 Ala. 577, 579, 192 So. 417, 419 (1939)).”
In the end, the Civs ordered the Jefferson County Probate Court to rescind its order transferring the adoption, and dismiss the adoption proceeding pursuant to § 26-10A-24(d).
Another significant holding of this case deals with the probate court’s ability to grant one or more parties custody of the adoptee. The father in this case asked the Civs to hold that the probate court must set aside the interlocutory decree (the temporary custody decree given to every prospective adoptive family upon filing their petition for adoption). The Civs declined to so hold.
In a shocking foreshadowing, the Civs suggest that the probate court may have the power to order that the adoptive parents are able to maintain custody of the child, after the adoption petition is dismissed. The Civs base this conclusion on § 26-10A-26(b), which allows the probate court to grant custody of a child pending an appeal, which the court assumes the adoptive parents will do after the case is dismissed by the probate court.
There are two concurrences and one dissent in this opinion, which demonstrate the historic nature of the case. The main take-away for practitioners is the holding that a probate court must dismiss an adoption after the contesting party prevails in the contest phase – simple transfer to the juvenile court is inadmissible.
In B.M. v. J.R., 2130732 (Ala. Civ. App. February 27, 2015), written by the Honorable Judge Moore, the Court of Civil Appeals reversed the juvenile court’s judgment to award physical custody of X.M. (“the child”) to J.R. (“the mother”). The child’s biological father, B.M., appealed the case from the Geneva Juvenile Court in May of last year.
The mother originally filed a petition for contempt and a motion for an emergency enforcement order. She alleged that B.M. denied her visitation with her child, and that, while staying with him, X.M. had failed to attend counseling as ordered by the juvenile court.
The father’s counterclaim for contempt included allegations that the mother had not sought medical treatment for scabies and “severe” head lice that the child had contracted while in her care, and that she had taken the child on a trip with a boyfriend and allowed said boyfriend to stay overnight without informing the biological father or attempting to seek his permission. He also alleged that the mother was not following the juvenile court’s orders.
After appearing for an initial hearing and agreeing to a continuance at a later date, and to abide by the court’s orders in the interim, the mother filed an amended petition for contempt and modification of custody in September stating that the father had disobeyed court orders, been violent towards the mother (a police report indicated that he “back handed her in the face”), and neglected the child by leaving him with others while he stayed in Florida for long periods of time. After a March hearing, the juvenile court entered an order granting primary physical custody and joint legal custody of the child to the mother in May.
On appeal, the B.M. argued that “the evidence did not support a finding that the detriment of uprooting the child was overcome by the potential benefit of doing so.” The findings of fact in the trial court were presumed to be correct due to ore tenus: “ ‘ “When evidence in a child custody case has been presented ore tenus to the trial court, that court’s findings of fact based on that evidence are presumed to be correct. The trial court is in the best position to make a custody determination — it hears the evidence and observes the witnesses.” ’ ”[1]
The following caveat, though, was crucial to the final determination in this case: “ ‘ “However, even under the ore tenus rule, ‘[w]here the conclusion of the trial court is so opposed to the weight of the evidence that the variable factor of witness demeanor could not reasonably substantiate it, then the conclusion is clearly erroneous and must be reversed. ” ’ ”[2]
Ultimately, the finding was that the conclusion of the trial court really was that far off: “Both the father and the child’s guardian ad litem argue on appeal that the evidence does not support a finding that any benefits of a change in custody will offset the inherently disruptive effect resulting from the change in custody. We agree.” The Honorable Judge Donaldson, however, dissented, stating that: “I cannot agree that the father has established that the trial court’s decision is so contrary to the law and evidence as to require reversal; thus, I respectfully dissent.” As we have discussed previously, the correct application of ore tenus is necessary to the integrity of the courts and can be controversial in its application.
In M.K. v. A.M., 2130859 (Ala. Civ. App. February 27, 2015), the case hinged on the more concrete issue of jurisdictional authority. In this case, M.K. (“the maternal grandmother”) appealed a judgment from the circuit court granting custody of her grandchild Z.S.M. to the child’s biological father, A.M. Although the child’s parents were never married, A.M.’s paternity had been established through the juvenile court, where he was ordered to pay child support.
After the mother’s death in October 2013, M.K. filed a petition in the circuit court for both custody and pendente lite (“pending the lawsuit”—meaning, temporary custody for until the full legal process of custody had finalized) custody of Z.S.M. The father filed a counterclaim to seek custody of the child himself.
The circuit court awarded custody to the father in June, and M.K. appealed, stating that the court had applied the wrong standard. The Civs, however, could not hear her appeal since the circuit lacked jurisdiction to hear the case in the first place.
Jurisdictional authority may be more concrete, but it is not necessarily simple. In this case, when the juvenile court determined the father’s child-support obligation, it “either explicitly or implicitly” awarded custody of the child to the mother. Given that, M.K.’s action in the circuit court was considered “an action to modify a prior judgment of the juvenile court awarding custody of the child to the mother” (emphasis added). This means that the juvenile court – rather than the circuit court – would have been the proper court in which to file an action regarding Z.S.M.’s custody, since the juvenile court “maintained continuing jurisdiction over the child.”
[1] Burgett v. Burgett, 995 So. 2d 907, 912 (Ala. Civ.App. 2008) (quoting Ex parte Bryowsky, 676 So. 2d1322, 1324 (Ala. 1996))
[2] B.J.N. v. P.D., 742 So. 2d 1270, 1274 (Ala. Civ. App. 1999) (quoting Jacoby v. Bell, 370 So. 2d 278, 280 (Ala. 1979))
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