In A.R., the probate court granted a stepmother’s adoption of one child. The natural mother filed a motion under Ala. R. Civ. P. 60(b), requesting that the final decree of adoption be set aside as void. The probate court denied her motion, and the mother appealed the denial of that motion. The Court of Appeals reversed the probate court’s judgment denying her Rule 60(b) motion.
The stepmother had asserted in her adoption petition that the whereabouts of the mother were unknown. The probate court authorized notice by publication. After publication notice finished running, the probate court entered a final decree of adoption.
The day before, the mother had filed her Rule 60(b) motion. She alleged that the stepmother and father fraudulently misrepresented to the court that they did not know where the mother was. The mother also stated that her counsel had been unable to locate an affidavit of the stepmother in support of her request for publication. The court denied the mother’s motion without holding a hearing.
On appeal, the mother argued that 1) “the probate court erred in denying her Rule 60(b) motion without first conducting a hearing,” and 2) “the stepmother’s failure to properly serve the mother with notice of the adoption proceedings deprived the probate court of personal jurisdiction over the mother such that the final judgment of adoption is void.”
The Court of Appeals found the first issue dispositive.
The Court discussed M.M. v. K.J.Z., 249 So. 3d 1144 (Ala. Civ. App. 2017), and explained that, generally, where the allegations in a Rule 60(b) motion, if proven, would support a determination that the movant’s due-process rights were violated, the court’s failure to conduct a hearing on the Rule 60(b) motion is reversible error.
In her 60(b) motion, the mother asserted and presented affidavit testimony that she did not receive notice of the adoption, “that the father and the stepmother had known her address and whereabouts at all times,” that the mother could present proof of contact, including via text messages, she had with the father after the filing of the adoption.
The Court concluded that if the mother’s allegations were proven true, it “would support a determination that her due-process rights were violated, that any consent implied by her failure to appear in the adoption action was invalid, and that she should be permitted to appear in the adoption action and to contest the adoption.”
The Court also explained that although the mother did not expressly request a hearing in her motion, she “specifically offered to present evidence” to support her assertions. The probate court therefore “should have considered that offer as a request for an evidentiary hearing.” Further, caselaw does not require a movant to explicitly request an evidentiary hearing on a Rule 60(b) motion.
Ultimately, “the mother presented arguments and evidence in support of her Rule 60(b) motion that, if proven, would render the probate court’s adoption judgment void.”
The Court instructed the probate court to hold a hearing on the Rule 60(b) motion “to determine…whether service on the mother by publication was proper in the adoption action.”
Moral of the story: Although the Court did not rule on whether the mother’s assertions were true or believable, it is important to note that getting notice right in an adoption is of utmost importance. You are not safe upon receiving a final decree of adoption if notice was not done correctly. Failure to properly give notice to all who are entitled to it can render a final decree of adoption void – meaning it never properly came into existence. It is a nullity. A party who does not receive proper notice can still challenge the adoption after it has been granted – they can still get their day in court, and they can win.
Dependency As To One Parent