T.C.M. v. W.L.K.

237 So.3d 238

T.C.M. and C.N.M.

v.W.L.K.

T.C.M. and C.N.M.

v.W.L.K.

2160031

2160131

Court of Civil Appeals of Alabama.

April 28, 2017

Robert E. Lusk, Jr., of Lusk Law Firm, LLC, Fairhope; Bryant Andrew Whitmire, Jr., Birmingham; and Marcus A. Jones III, Birmingham, for appellants T.C.M. and C.N.M.

Richard L. Wyatt, Homewood; and Robert Echols, Jr., Birmingham, for appellee W.L.K.

THOMAS, Judge.

This is the seventh time these parties—W.L.K. ("the father") and T.C.M. and C.N.M. ("the prospective adoptive parents")—have appeared before this court seeking review of one or another court's orders respecting the custody of M.M. ("the child"). See Ex parte W.L.K., 175 So.3d 652 (Ala. Civ. App. 2015) (plurality opinion) (" W.L.K. I"); T.C.M. v. W.L.K. (No. 2130936, February 27, 2015), 206 So.3d 593 (Ala. Civ. App. 2015) (table) (appeal dismissed); Ex parte T.C.M. (No. 2140717, June 30, 2015), 212 So.3d 241 (Ala. Civ. App. 2015) (table) (petition denied); Ex parte W.L.K., 222 So.3d 357 (Ala. Civ. App. 2015) (" W.L.K. II") (ordering the Jefferson Probate Court to enter an order dismissing the adoption action in compliance with W.L.K. I ); T.C.M. v. W.L.K., 208 So.3d 39 (Ala. Civ. App. 2016) (" T.C.M. II") (determining that the Jefferson Juvenile Court could not enter a pickup order directing that the child be removed from the custody of the prospective adoptive parents); Ex parte T.C.M., 231 So. 3d 330 (Ala. Civ. App. 2016) (table) (petition dismissed as moot); and T.C.M. v. W.L.K., 231 So.3d 238 (Ala. Civ. App 2016) (released today).

Facts and Procedural History

The facts underlying this controversy were outlined in T.C.M. II, 208 So.3d at 40–43 :

"The father and S.F. (‘the mother’), who were residents of Florida, were involved in a relationship between April and July 2012. W.L.K. I, 175 So.3d at 654. They conceived the child during that period. Id. The relationship ended before the birth of the child, and the father lost contact with the mother. Id. The father registered with the putative father registry in Florida. Id. He sought the advice of an attorney and instituted a paternity action in Florida in January 2013. Id. He also attempted to locate the mother at nearby hospitals on January 18, 2013, the expected date of delivery. Id. However, the father was unsuccessful in his efforts at locating the mother and the child. Id. at 655.

"On January 9, 2013, the mother gave birth to the child in Montgomery, Alabama. Id. The mother had consented to an adoption of the child by the prospective adoptive parents. Id. The prospective adoptive parents were present at the birth and took the child home from the hospital. Id. They instituted an adoption action in the Jefferson Probate Court (‘the probate court’) on January 29, 2013. Id. As required by Ala. Code 1975, § 26–10A–18, the probate court entered an interlocutory custody order awarding the prospective adoptive parents custody of the child pending the final judgment in the adoption action.

"The father learned in March 2013 that the child had been born in Alabama. Id. He was served with the adoption petition, and, upon the advice of his Florida counsel, the father sought legal counsel in Alabama. Id. He then filed a contest to the adoption and a motion to dismiss the adoption action. Id.

"The probate court held a trial on the father's adoption contest. Id.‘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." ’ Id. (quoting Ala. Code 1975, § 26–10A–9(a) ). On March 19, 2014, the probate court entered a judgment determining that the father had not impliedly consented to the adoption. Id. However, instead of dismissing the adoption action as required by Ala. Code 1975, § 26–10A–24(d), the probate court, on July 22, 2014, entered an order stating that, on its own motion, it was transferring the adoption action to the Jefferson Juvenile Court (‘the juvenile court’) pursuant to § 26–10A–24(e). Id. The father filed a petition for the writ of mandamus challenging the probate court's order transferring the adoption action to the juvenile court. Id. This court determined that the probate court could not transfer the adoption action and instead that the probate court was required to dismiss the adoption action under § 26–10A–24(e). W.L.K. I, 175 So.3d at 658.

"Despite our instructions in W.L.K. I, the probate court did not enter an order dismissing the adoption action pursuant to § 26–10A–24(e). W.L.K. II, 222 So.3d at 359. The father again filed a petition in this court seeking a writ of mandamus to compel the probate court to enter the order dismissing the adoption action. Id. We granted that petition. Id. After we overruled their application for rehearing, the prospective adoptive parents filed a petition for certiorari review of that decision in the Alabama Supreme Court; their certiorari petition was granted on March 2, 2016 ....¹

"Meanwhile, in November 2014, the prospective adoptive parents filed a dependency and termination-of-parental-rights action in the juvenile court; that action was assigned case no. JU–14–2361 (‘the TPR action’). The juvenile court set a trial in the TPR action for July 2015, and the prospective adoptive parents sought a stay of the proceedings in the TPR action in the juvenile court. The juvenile court denied the motion for a stay, and the prospective adoptive parents filed in this court a petition for the writ of mandamus seeking an order requiring the juvenile court to stay the proceedings based on Ala. Code 1975, § 6–5–440, which bars a party from prosecuting two actions for the same cause against the same party in the courts of this state.² We denied the petition by order. Ex parte T.C.M. (No. 2140717, June 30, 2015), 212 So.3d 241 (Ala. Civ. App. 2015) (table). The TPR action was later dismissed by the juvenile court on the motion of the prospective adoptive parents.

"In October 2015, the father filed a petition in the juvenile court seeking to establish his paternity of the child and requesting an award of sole custody of the child; that action was assigned case no. CS–15–901120 (‘the custody action’). The father named as a defendant only the mother. The juvenile court held a trial in the custody action, after which it entered a judgment on November 3, 2015, determining paternity and awarding the father custody of the child. On that same day, the juvenile court also entered a pickup order, which directed law enforcement to take into custody the child, who the order stated was residing with the prospective adoptive parents, and to deliver the child to attorneys for the father so that the child could be transported to the father's residence.

"The prospective adoptive parents filed in the custody action a motion that they entitled ‘Motion to Alter, Amend, or Vacate; Motion to Stay.’ That motion indicated that counsel for the prospective adoptive parents was making a limited appearance to contest jurisdiction. The prospective adoptive parents alleged that they had custody of the child by virtue of the interlocutory order awarding custody to the prospective adoptive parents entered by the probate court in the adoption action. They argued in their motion that the juvenile court lacked jurisdiction over them because they had not been parties to the custody action and that the juvenile court therefore lacked jurisdiction to ‘make any orders affecting them or the ... child, specifically including, but not limited to, ordering them to relinquish custody of the ... child.’ The juvenile court denied the prospective adoptive parents' motion and declined to stay enforcement of its pickup order. The prospective adoptive parents then filed a petition for the writ of prohibition or, in the alternative, mandamus and a request for a stay in this court on October 29, 2015. In their petition, the prospective adoptive parents sought a writ directed to the juvenile court requiring it to vacate its custody order and the pickup order and to acquire jurisdiction over the prospective adoptive parents before entering further orders affecting the custody of the child. This court granted a stay of the juvenile court's pickup order on October 30, 2015.

"_____________________

"¹ Rule 21(e)(3), Ala. R. App. P., provides that, if a party to a petition for the writ of mandamus seeks rehearing of the decision issued on the petition in a court of appeals, review of the decision must be by petition for the writ of certiorari under Rule 39, Ala. R. App. P. Rule 41(b), Ala. R. App. P., states that ‘[t]he timely filing of a petition for certiorari in the Supreme Court shall stay the issuance of the certificate of judgment by the courts of appeals, which stay shall continue until the final disposition by the Supreme Court.’ It is well settled that a trial court (or, in the present case, the probate court) lacks jurisdiction to enter any order or judgment in a matter under review until after an appellate court issues its certificate of judgment. SeeVeteto v. Yocum, 792 So.2d 1117, 1119 (Ala. Civ. App. 2001). Thus, the interlocutory custody order of the probate court vesting custody in the prospective adoptive parents still remains in effect.

"² Section 6–5–440 reads:

" ‘No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pendency of the former is a good defense to the latter if commenced at different times.’ "^[1]

In T.C.M. II, we first considered whether the petition for the writ of mandamus filed by the prospective adoptive parents was the appropriate vehicle for review of the...