Opinion
CL-2023-0027 CL-2023-0093
06-23-2023
EX PARTE J.D.J. and J.L.H.J. (In re: The Matter of the Adoption Petition of J.D.J. and J.L.H.J.) J.D.J. and J.L.H.J. v. M.J.B.
Amber Yerkey James, Chuck Warren, and Allie Thompson of New Beginnings Family Law, P.C., Huntsville, for petitioners/appellants. Sharon Doviet, Huntsville, for respondent M.J.B. Samuel J. McLure and Gretchen N. Hedke, Montgomery, for appellee M.J.B.
Amber Yerkey James, Chuck Warren, and Allie Thompson of New Beginnings Family Law, P.C., Huntsville, for petitioners/appellants.
Sharon Doviet, Huntsville, for respondent M.J.B.
Samuel J. McLure and Gretchen N. Hedke, Montgomery, for appellee M.J.B.
EDWARDS, Judge.
On October 3, 2022, J.D.J. and J.L.H.J. ("the prospective adoptive parents") filed in the Madison Probate Court ("the probate court") a petition seeking to adopt S.R.B. ("the child"). The prospective adoptive parents attached to the petition a consent to the adoption of the child executed by the child’s mother, M.J.B. ("the mother"), which was dated September 12, 2022. In compliance with Ala. Code 1975, § 26-10A-18, the probate court, on October 13, 2022, entered an interlocutory order of adoption, awarding custody of the child to the prospective adoptive parents pending the conclusion of the adoption proceeding or further order of the probate court. Also on October 13, 2022, the mother, at that time acting pro se, filed with the probate court a letter in which she stated that she desired to withdraw her consent to the adoption. The prospective adoptive parents challenged the mother’s attempt to withdraw her consent as coming too late. See Ala. Code 1975, § 26-10A-13(b) (stating that an express consent to adoption may be withdrawn within 14 days of its execution or of the birth of the child, whichever comes last, "if the court finds that the withdrawal is reasonable under the circumstances and consistent with the best interest of the child").
The interlocutory order of adoption also scheduled a dispositional hearing to take place on January 10, 2023, at 10:00 a.m. The probate court entered two subsequent orders on October 31, 2022, and December 12, 2022, "amending" the interlocutory order of adoption to change the time of and the date of the dispositional hearing. Those subsequent orders do not substantively amend the interlocutory order of adoption, so we refer solely to the October 13, 2022, order in our discussion.
The mother secured legal counsel and filed, on October 21, 2022, a formal motion seeking to withdraw her consent to the adoption on the basis of fraud under Ala. Code 1975, § 26-10A-14(a)(2). She contended that the prospective adoptive parents were being investigated by the Federal Bureau of Investigation for wire fraud and that they had promised that the adoption would be "open" but had cut off contact between her and the child after she expressed her desire to withdraw her consent to the adoption. In that motion, the mother specifically requested a hearing. The prospective adoptive parents responded to the mother’s motion on November 10, 2022.
On November 23, 2022, the mother’s sister, E.B., and her husband, N.B. ("the maternal aunt and uncle"), filed in the pending adoption proceeding a verified petition seeking to adopt the child. The prospective adoptive parents objected to the adoption petition filed by the maternal aunt and uncle. They specifically requested that the petition filed by the maternal aunt and uncle be denied.
We find no provision in the Alabama Adoption Code permitting a second set of prospective adoptive parents to file a petition to adopt a child in an extant adoption proceeding. To the extent that such a procedure might be permitted under Rule 24, Ala. R. Civ. P., we note that the maternal aunt and uncle did not seek to intervene in the adoption proceeding.
On January 5, 2023, the mother filed another motion seeking to withdraw her consent and also seeking to have the interlocutory order of adoption set aside. In that motion, the mother again requested a hearing. She also filed, on the same day, a motion for a contested hearing, pursuant to Ala. Code 1975, § 26-10A-24(a), specifically indicating that she desired to establish a basis to withdraw her executed consent to the adoption of the child. The mother further filed a motion requesting the appointment of a guardian ad litem for the child.
On January 5, 2023, the same day the mother filed her renewed motion to withdraw her consent and to set aside the interlocutory order of adoption and her motions to contest the adoption and for the appointment of a guardian ad litem, the probate court entered separate orders "granting" each of the mother’s motions. That is, without holding an evidentiary hearing, the probate court permitted the mother to withdraw her executed consent to the adoption of the child, set aside the interlocutory order of adoption, granted the mother’s request to "contest" the adoption, and granted the mother’s request for the appointment of a guardian ad litem for the child. After the prospective adoptive parents filed both a motion to reconsider the January 5, 2023, order setting aside the interlocutory order of adop- tion and a separate motion to alter, amend, or vacate the January 5, 2023, order permitting the mother to withdraw her consent to the adoption of the child, the probate court entered an order on January 10, 2023, denying those motions but setting a contested hearing on the adoption for March 28, 2023. The protective adoptive parents filed a notice of appeal to our supreme court on January 18, 2023, and a petition for the writ of mandamus with this court on January 19, 2023. The supreme court transferred the appeal to this court because it falls within our original appellate jurisdiction. See Ala. Code 1975, § 12-3-10 (including within this court’s original appellate jurisdiction all appeals from adoptions). We consolidated the mandamus petition and the appeal.
The record is not clear regarding with whom the child was placed after the entry of the January 5, 2023, order setting aside the interlocutory order of adoption.
[1] First, we note that, insofar as the prospective adoptive parents’ petition for the writ of mandamus challenges the probate court’s January 5, 2023, order permitting the mother to withdraw her consent to the adoption of the child, the petition is not the appropriate vehicle for that challenge. Instead, because § 26-10A-14(e) provides that any order entered on a motion to withdraw consent to an adoption is "deemed a final order for the purpose of filing an appeal," the proper vehicle to seek review of the January 5, 2023, order permitting the mother to withdraw her consent is the appeal the prospective adoptive parents commenced on January 18, 2022. Accordingly, to the extent that the petition for the writ of mandamus seeks review of the January 5, 2023, order permitting the mother to withdraw her consent to the adoption of the child, the petition is dismissed.
[2] The petition is, however, the appropriate vehicle to seek redress from the January 5, 2023, order setting aside the interlocutory order of adoption. See Alabama Dep’t of Pensions & Sec. v. Johns, 441 So. 2d 947, 948 (Ala. Civ. App. 1983) (indicating that a party must seek review of an interlocutory order entered in an adoption proceeding by way of a petition for the writ of mandamus). We note that the interlocutory order of adoption was initially entered on October 13, 2022, in compliance with § 26-10A-18, which requires the entry of an interlocutory order "delegating" to the prospective adoptive parents custody of a child and the responsibility for the care, maintenance, and support of the child. Although § 26-10A-18 indicates that such an interlocutory order shall remain in effect "pending further order of the court," nothing in § 26-10A-18 or the Comment thereto indicates how or why a probate court might rescind an interlocutory order of adoption other than at the conclusion of a successful adoption contest, after which the adoption proceeding must be dismissed. See § 26-10A-24(d). Because the appeal concerns the propriety of the January 5, 2023, order permitting the mother to withdraw her consent, we will first examine that issue, the resolution of which bears on the resolution of the interlocutory-order issue.
[3] In the appeal, the prospective adoptive parents first argue that the probate court erred by allowing the mother to withdraw her consent to the adoption of the child without holding an evidentiary hearing on that issue. The prospective adoptive parents rely on § 26-10A-24(a) and (d) as support for their argument that the probate court was required to hold a hearing on the mother’s motion to withdraw her consent. They also argue that the probate court’s failure to hold a hearing negatively impacted their rights to due process.
Section 26-10A-24, Ala. Code 1975, provides, in pertinent part:
"(a) Whenever a motion contesting the adoption is filed, the court shall set the matter for a contested hearing to determine:
"….
"(4) Whether a consent or relinquishment may be withdrawn,
"….
"(d) After hearing evidence at a contested hearing, the court shall dismiss the adoption proceeding if the court finds:
"….
"(4) That a necessary consent may be withdrawn,"
The mother responds to the arguments of the prospective adoptive parents by contending that § 26-10A-14, which governs the withdrawal of consent to an adoption, does not "explicitly require a hearing." Instead, she says, she was required only to "establish the facts necessary to withdraw the consent … by a preponderance of the evidence." § 26-10A-14(d). According to the mother, she did so by virtue of the allegations she made in her verified motions and other documentary evidence that the probate court had before it, like the homestudy report and "acknowledged documents." She also contends specifically that all the documentary evidence before the probate court supports her allegation that the prospective adoptive parents had promised her that the adoption would be
Section 26-I0A-14, Ala. Code 1975, provides, in pertinent part:
"(a) The consent or relinquishment, once signed or confirmed, may not be withdrawn except:
"….
"(2) At any time until the final decree upon a showing that the consent or relinquishment was obtained by fraud, duress, mistake, or undue influence on the part of a petitioner or his or her agent or the agency to whom or for whose benefit it was given. After one year from the date of final decree of adoption is entered, a consent or relinquishment may not be challenged on any ground, except in cases where the adoptee has been kidnapped.
"….
"(d) In adjudicating a petition to withdraw a consent or relinquishment, the person seeking to withdraw the consent or relinquishment shall establish the facts necessary to withdraw the consent or relinquishment by a preponderance of the evidence. The court shall not apply any presumption or preference in favor of the natural parents in reviewing an action brought under this section."
"open" and that they would continue to facilitate contact between her and the child. We note, however, that the mother did not file a motion for a summary judgment on the issue of the withdrawal of her consent, and we do not agree that the prospective adoptive parents were required to present evidence, documentary or otherwise, in opposition to the mother’s motions to withdraw her consent.
The mother admits that "[t]here are currently no provisions in Alabama for legal open adoptions." Thus, she admits that the promise made by the prospective adoptive parents is legally unenforceable and that she and the prospective adoptive parents were operating under a mistake of law if they believed that they could create an open adoption under Alabama law. We do not consider, at this time, whether a promise of an open adoption by prospective adoptive parents is sufficient to support the withdrawal of consent to an adoption on the basis of either fraud on a natural parent or mistake.
Moreover, we agree with the prospective adoptive parents that the probate court was required to hold an evidentiary hearing before determining whether the mother could withdraw her executed consent to the adoption of the child. Section 26-10A-24 governs contested hearings in adoption proceedings. By its plain language, § 26-10A-24 mandates that the probate court hold a contested hearing when a party contests an adoption and that, at such a hearing, the probate court must determine "[w]hether a consent … may be withdrawn." § 26-10A-24(a)(4). See Ex parte Stinson, 532 So. 2d 636, 639 (Ala. Civ. App. 1988) (construing a portion of the former adoption statute "by giving the language its natural, plain, ordinary, and commonly understood meaning"). Section 26-10A-14(d) merely establishes the burden of proof that a parent seeking to withdraw a consent to adoption must meet. When read in pari materia with the entirety of the Alabama Adoption Code, Ala. Code 1975, § 26-10A-1 et seq., see Ex parte A.M.P., 997 So. 2d 1008, 1019 (Ala. 2008) (construing sections of the Alabama Adoption Code together because the provisions were in para materia); McCausland v. Tide-Mayflower Moving & Storage, 499 So. 2d 1378, 1382 (Ala. 1986) (explaining that, when construing a statute, a court should examine the statute "as a whole and, if possible, every section should be given effect" and that "subsections [that are in para materia] should be construed together to ascertain the meaning and intent of each"), § 26-10A-14(d) supports the conclusion that a parent seeking to withdraw his or her consent after the expiration of the five-day period during which consent may be withdrawn for any reason, see § 26-10A-13(a), must establish the facts necessary to permit the withdrawal of consent in a contested hearing. Thus, the probate court erred by permitting the mother to withdraw her consent without holding a contested hearing and receiving evidence bearing on the issue from both the mother and the prospective adoptive parents, and we therefore reverse the January 5, 2023, order granting the mother’s motion to withdraw her consent.
[4] In their brief on appeal, the prospective adoptive parents also argue that the probate court’s appointment of a guardian ad litem contemporaneously with the issuance of the January 5, 2023, order permitting the mother to withdraw her consent "prevented an advocate for the minor child from participating in the hearings that should have been held, thus frustrating the very purpose of a guardian ad litem." The prospective adoptive parents make no argument that a guardian ad litem should not be appointed but only that the appointment came too late to permit the participation of the guardian ad litem in the determination whether the mother should be permitted to withdraw her consent to the adoption. The January 5, 2023, order appointing the guardian ad litem is an interlocutory order and cannot support an appeal. Wolf v. Smith, 414 So. 2d 129, 131 (Ala. Civ. App. 1982) (explaining that an interlocutory order entered in an adoption proceeding cannot support an appeal); Davis v. Turner, 55 Ala. App. 366, 369, 315 So. 2d 602, 605 (1975) (same). Thus, insofar as the prospective adoptive parents challenge the January 5, 2023, order appointing a guardian ad litem, we dismiss that portion of their appeal. See Anderson v. Hetherington, 550 So. 2d 1014, 1015 (Ala. Civ. App. 1989) (dismissing an appeal taken from an interlocutory order entered in an adoption proceeding because it had not been taken from a final judgment). [5] The prospective adoptive parents also raise as an issue in the appeal the propriety of the January 5, 2023, order setting aside the interlocutory order of adoption that had been entered by the probate court in October 2022 in compliance with § 26-10A-18. Because the adoption proceeding is still pending in the probate court, the January 5, 2023, order setting aside the interlocutory order of adoption is an interlocutory order not capable of supporting an appeal. See Wolf, 414 So. 2d at 131. Insofar as the appeal seeks review of the January 5, 2023, order setting aside the interlocutory order of adoption, the appeal must be dismissed. See Anderson, 550 So. 2d at 1015. However, as noted above, the prospective adoptive parents raised the same issue in their petition for the writ of mandamus, so we may address the issue.
We could, of course, consider this issue as if it had been brought before us in the petition for the writ of mandamus. See Alabama Dep’t of Pensions & Sec. v. Johns, 441 So. 2d 947, 948 (Ala. Civ. App. 1983) ("opt[ing] to treat [an] appeal [from an interlocutory order entered in an adoption proceeding] as being a petition for a writ of mandamus in order to reach the issues of the case upon the merits"). However, because we presume that the guardian ad litem will participate in the contested hearing on the mother’s motions to withdraw her consent to the adoption that the probate court will hold after the issuance of this opinion, we see no reason to do so.
[6] As previously noted, § 26-10A-18 requires the probate court to enter an interlocutory order "delegating" custody of a child and the responsibility for the care, maintenance, and support of the child to the petitioning party or parties once an adoption proceeding has been commenced. Section 26-10A-18 further states that such an interlocutory shall remain in effect "pending further order of the court," which appears to indicate that an interlocutory order of adoption may be revisited by the probate court. The Comment to § 26-10A-18 states that
"[t]he final language, ‘pending further order of the court,’ makes it clear that the adopting parents’ custody of the minor is subject to the continuing supervision of the [probate] court until a final decree of adoption is entered. … If [a party contesting the adoption under § 26-10A-24] is successful, the court shall dismiss the adoption proceedings."
The probate court’s decision to set aside the interlocutory order of adoption at the same time it granted the mother’s motion to withdraw her consent may appear to be logical under the circumstances existing on January 5, 2023, because, without the mother’s consent, the adoption could not proceed. However, the probate court did not dismiss the adoption proceeding and instead set the adoption proceeding for a contested hearing. See § 26-10A-24(d) (requiring a probate court to "dismiss an adoption proceeding if the court finds … [t]hat a necessary consent may be withdrawn"). Because we have determined that the January 5, 2023, order permitting the mother to withdraw her consent must be reversed because the probate court failed to hold the required contested hearing on the issue, the prospective adoptive parents remain petitioners in an adoption proceeding and, pursuant to § 26-10A-18, are entitled to an interlocutory order of adoption placing the child in their custody and placing upon them the responsibility for the care, maintenance, and support of the child. Accordingly, we direct the probate court to reinstate the October 13, 2022, interlocutory order of adoption, pending the entry of further orders of the probate court following the conclusion of the contested hearing.
CL-2023-0027 — PETITION DISMISSED IN PART AND GRANTED IN PART; WRIT ISSUED.
CL-2023-0093 — APPEAL DISMISSED IN PART; REVERSED AND REMANDED WITH INSTRUCTIONS.
Thompson, P.J., and Moore, Hanson, and Fridy, JJ., concur.