Ex parte H.W.

1

Ex parte H.W. and K.W. In re: In the matter of N.R.S.W.

No. CL-2024-0382

Alabama Court of Civil Appeals

August 2, 2024

(Lee Juvenile Court JU-17-515.07)

PETITION FOR WRIT OF MANDAMUS

FRIDY JUDGE

H.W ("the father") and K.W. ("the mother") (collectively "the parents") filed a petition for a writ of mandamus asking this court to direct the Lee Juvenile Court ("the juvenile court") to set aside its May 9, 2024, order finding that they had impliedly consented to the adoption of their child N.R.S.W. ("the child"). They also ask that we direct the juvenile court to dismiss the petition that Br.P. and T.P. ("the prospective adoptive parents") filed seeking to adopt the child. For the reasons discussed herein, we deny the petition.

Background

The materials submitted in support of and in opposition to the parents' mandamus petition indicate that, in late 2017 when the child was three years old, the father left the child and a sibling of the child with his mother ("the paternal grandmother"). The mother, who at that time was involved in dependency actions in Birmingham concerning some of her other children, knew that the child and the sibling were with the paternal grandmother. In December 2017, the paternal grandmother filed a dependency petition in the juvenile court.

According to the materials before us, the evidence presented at the trial in the dependency matter indicated that the child and the sibling had been exposed to domestic violence and substance abuse in the parents' home, that the parents "were both being erratic and not focused on the children and their needs, and that the parents had failed to provide for their basic food, shelter, and healthcare." Based on the evidence, the juvenile court found the child and the sibling dependent and awarded the paternal grandmother custody of the child and the sibling who had been left in her care. The juvenile court awarded the mother supervised visitation and directed the father to file a petition to obtain visitation. The juvenile court also created a list of goals for the parents to meet to be reunified with the child and the sibling.

According to the juvenile court's order regarding the parents' consent to the adoption, the parents failed to work toward meeting their assigned goals. The paternal grandmother was having a difficult time finding a preschool in her area that could meet the child's specialized preschool needs. The paternal grandmother knew the prospective adoptive parents and they agreed that the child should live with the prospective adoptive parents, one of whom was an educator in LaGrange, Georgia, so that the child would have access to greater educational resources. The child began living with the prospective adoptive parents on June 1, 2018. The juvenile court was not told of the move.

As time went on, the mother failed to comply with many of the requirements that the juvenile court had set forth in the dependency order, and her visits with the child were few and far between. The father failed to maintain a relationship with the child. In May 2021, the prospective adoptive parents filed a petition in the Lee Probate Court ("the probate court") seeking to adopt the child. In the adoption petition, the prospective adoptive parents alleged that, among other things, the parents had abandoned the child and that they had impliedly consented to the adoption because, the prospective adoptive parents said, the parents had failed to maintain a significant parental relationship with the child for a period of six months.

On June 30, 2021, the mother filed a motion to dismiss the adoption petition and an objection to the adoption. The father filed a motion to dismiss and an objection to the adoption on July 20, 2021. The materials before us indicate that, on July 30, 2021, the probate court entered an order continuing a hearing it had scheduled for an unidentified purpose "so as not to conflict with any ongoing Juvenile Court proceedings."

On June 16, 2022, nearly a year after the parents filed their motions and objections to the adoption petition, the prospective adoptive parents filed a motion to transfer the adoption proceeding to the Lee District Court ("the district court"). As authority for their request, the prospective adoptive parents cited § 12-12-35, Ala. Code 1975, which provided that "[a]doption proceedings, primarily cognizable before the probate court, may be transferred to the district court on motion of a party to the proceeding in probate court."^[1] In their motion to transfer, the prospective adoptive parents stated that, because of the delay in the probate court proceeding, the child had not been granted permanency and they had not been permitted to advocate for the child's best interest. On June 24, 2022, the probate court, which also cited § 12-12-35, entered an order transferring the adoption proceeding to the district court "to determine whether the adoption should be permitted to proceed in the face of pending matters in the juvenile court regarding the subject child." The case appears subsequently to have been transferred to the juvenile court.^[2] On July 12, 2022, the mother filed a motion to dismiss in the juvenile court, asserting that the probate court had improperly transferred the adoption action to the juvenile court. The juvenile court denied the mother's motion on October 17, 2022. On April 27, 2023, the juvenile court entered another order in which it stated that the mother had withdrawn her objection to the transfer of the adoption action from the probate court to the juvenile court and her related motion to dismiss. However, the juvenile court said, the mother had filed a previous motion to dismiss (apparently the motion filed June 30, 2021) that it would consider. The materials before us do not contain an order regarding the mother's first motion to dismiss.

On June 12, 2023, the father filed in the probate court an amended motion to dismiss the adoption petition, asserting that the probate court retained jurisdiction of the adoption proceeding to determine whether "the necessary consents have been obtained," whether the prospective adoptive parents were entitled to adopt the child, and whether adoption was in the best interest of the child. He then set forth several grounds as to why the adoption petition was due to be dismissed, concluding that "[e]verything about this adoption proceeding is fraudulent and illegal" and pointing out that the prospective adoptive parents did not have legal custody of the child. The materials before us do not contain an order regarding the father's motions to dismiss.

After an evidentiary hearing held over two days in July and December 2023, the juvenile court entered an order on May 9, 2024, determining that there had been at least one six-month period where the parents had voluntarily failed to maintain a significant parental relationship with the child, that they had impliedly consented to the child's adoption, and that that consent was valid and could not be withdrawn. The order stated that further hearings regarding adoption would be set by separate order. A transcript of the evidentiary hearing is not included in the materials before us.

On May 23, 2024, the parents filed their petition for a writ of mandamus to this court.

Analysis

A writ of mandamus can be issued only when the petitioner has shown there is "(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995). "The burden of establishing a clear legal right to the relief sought rests with the petitioner." Ex parte Metropolitan Prop. &Cas. Ins. Co., 974 So.2d 967, 972 (Ala. 2007). In reviewing a mandamus petition, this Court considers "only those facts before the trial court." Ex parte Baker, 459 So.2d 873, 876 (Ala. 1984).

We note that this case is governed by the Alabama Adoption Code, § 26-10A-1 et seq., Ala. Code 1975. Although the Alabama legislature repealed the Alabama Adoption Code and replaced it with the Alabama Minor Adoption Code, § 26-10E-1 et seq., Ala. Code 1975, see Ala. Acts 2023, Act No. 2023-92, the repeal was not effective until January 1, 2024, when the Alabama Minor Adoption Code became effective, and the new adoption code applies only to adoption proceedings commenced on or after that date, see C.S. v. Morgan Cnty. Dep't of Hum. Res., [Ms. CL-2022-1246, Jan. 31, 2024] ___So. 3d ___(Ala. Civ. App. 2024).

The mother and the father first appear to challenge the jurisdiction of both the probate court and the juvenile court. They contend that the probate court erred in failing to grant their motions to dismiss, which were based, at least in part, on their argument that the prospective adoptive parents do not have legal custody of the child and their argument that the prospective adoptive parents and the child, who has lived with the prospective adoptive parents in Georgia since June 2018, did not meet the residency requirements to file the adoption petition in an Alabama court.

We first note that the materials before us do not indicate that either the probate court or the juvenile court has entered an order regarding the mother's first motion to dismiss or the two motions to dismiss that the father filed. Those motions appear to have remained pending when the mother and the father filed their petition for a writ of mandamus. In their petition, they fail to discuss why they believe this issue is properly before us or, if it is properly before us whether it is timely. Nonetheless, insofar as the parents appear to challenge the jurisdiction...