Opinion
2210248
03-04-2022
Ex parte C.D. In re: In the Matter of the Adoption of K.C.C.
Shelby Probate Court, PR-19-942
PETITION FOR WRIT OF MANDAMUS
EDWARDS, JUDGE.
C.D.C. ("the mother"), the biological mother of K.C.C. ("the child"), has filed a petition for the writ of mandamus in this court. This is the fourth time that the adoption proceedings arising from the petition for the adoption of the child, which was filed in the Shelby Probate Court ("the probate court") by J.B.O. and J.H.O. ("the prospective adoptive parents"), have been at issue in this court. See C.D. v. J.B.O., [Ms. 2200485, Oct. 8, 2021] __So. 3d__ (Ala. Civ. App. 2021) ("C.D. III"); C.D. v. J.B.O. (No. 2200195, Jan. 28, 2021), __So. 3d__ (Ala. Civ. App. 2021) (table); and C.D. v. J.B.O. (No. 2190755, Sept. 29, 2020), __So. 3d__ (Ala. Civ. App. 2020) (table). We explained the lengthy procedural history of the adoption proceedings in our opinion in C.D. III:
"After she was served with the [adoption] petition, [the mother] filed an answer contesting the adoption and stating that she did not consent to the adoption. ... [T]he probate court entered an order on June 12, 2020, concluding that the mother had impliedly consented to the adoption under Ala. Code 1975, § 26-10A-9(a)(3). That order also set the matter for a final dispositional hearing to be held on June 23, 2020.
"On June 17, 2020, the mother filed a motion requesting that the probate court reconsider its June 12, 2020, order concluding that the mother had impliedly consented to the adoption ('the implied consent order'). The probate court set a hearing on the mother's motion for the same date and time as the dispositional hearing. However, on the motion of the mother, the June 23, 2020, hearing was reset to July 8, 2020.
"On June 26, 2020, the mother filed in the probate court a notice of appeal to the Shelby Circuit Court; that notice of appeal indicated that she was seeking review of the implied-consent order. The Shelby Circuit Court transferred the mother's appeal to this court on June 29, 2020; this court
docketed the appeal as case number 2190755. This court dismissed that appeal on September 29, 2020, after concluding that the implied-consent order was not a final judgment capable of supporting an appeal. C.D. v. J.B.O. (No. 2190755, Sept. 29, 2020), __So. 3d__ (Ala. Civ. App. 2020) (table). Our certificate of judgment in appeal number 2190755 issued on October 20, 2020.
"Before the issuance of this court's certificate of judgment in appeal number 2190755, the probate court entered an order on September 30, 2020, denying the mother's motion to reconsider the implied-consent order and stating that a final dispositional hearing would be set by separate order within seven days. The following day, on October 1, 2020, the probate court entered an order setting the final hearing for 2:00 p.m. on October 1, 2020.1 Later on October 1, 2020, the probate court purported to enter a final judgment of adoption.
"On November 17, 2020, the mother filed a motion seeking reconsideration of the October 1, 2020, judgment of adoption. The probate court denied the mother's motion on November 18, 2020. The mother filed a notice of appeal to this court on November 30, 2020; that appeal was assigned case number 2200195.
"On January 28, 2021, this court dismissed the mother's appeal from the judgment of adoption. C.D. v. J.B.O. (No. 2200195, Jan. 28, 2021), So.3d (Ala. Civ. App. 2021) (table). In our order dismissing the appeal, we specifically determined that the judgment of adoption was void, and we cited Raybon v. Hall, 17 __So. 3d__ 673, 675 (Ala. Civ. App. 2009), to provide guidance on the basis for our conclusion. As explained in Raybon, a court lacks jurisdiction to take any action in a case that is the subject of an appeal until this court issues its certificate of judgment. 17 So.3d at 675; see also
Portis v. Alabama State Tenure Comm'n, 863 So.2d 1125, 1126 (Ala. Civ. App. 2003) (holding that a trial court is without jurisdiction to enter a judgment in a case in which an appeal has been filed until the appellate court issues the certificate of judgment in that case). In fact, in a case that has been the subject of an appeal, a judgment or order entered by a lower court before the issuance of an appellate court's certificate of judgment is void. Id.; see also Ex parte Citizens Bank, 879 So.2d 535, 538 (Ala. 2003). Thus, our dismissal of the mother's appeal was based on the fact that the October 1, 2020, judgment of adoption was void because of the probate court's lack of jurisdiction over the matter until our certificate of judgment issued on October 20, 2020. Our dismissal of the mother's appeal in case number 2200195 was not based in any manner on the subject-matter jurisdiction of the probate court over the adoption action before the mother filed her notice of appeal or after the issuance of our certificate of judgment; that is, our dismissal was grounded solely on the fact that the probate court lacked jurisdiction to issue a judgment of adoption on October 1, 2020, because our certificate of judgment in appeal number 2190755 had not issued. Our dismissal did not declare void any other order of the probate court.
"After our certificate of judgment in appeal number 2200195 issued on February 16, 2021, the mother filed in the probate court a motion to dismiss or, in the alternative, to transfer the adoption action. In her motion, the mother contended that, based on this court's determination that the judgment of adoption was void, the implied-consent order was also void. Thus, she argued that the probate court should either dismiss the adoption action or transfer the matter to the Shelby Juvenile Court for it to conduct a termination-of-parental-rights trial. See Ala. Code 1975, § 26-10A-3 ('If any party whose consent is required fails to consent or is unable to
consent, the proceeding will be transferred to the court having jurisdiction over juvenile matters for the limited purpose of termination of parental rights.').
"The prospective adoptive parents filed a response to the mother's motion. In that response, they contended that the probate court had jurisdiction over the adoption action and that no need for a termination-of-parental-rights trial existed because the probate court had previously determined that the mother had impliedly consented to the adoption. In addition, the prospective adoptive parents contended that the implied-consent order was still effective and that 'the time [to] appeal ... the June 12, 2020, [implied-consent] order has passed.'2
"On March 1, 2021, the probate court entered a lengthy order detailing the procedural history of the adoption action. The probate court correctly construed our January 28, 2021, dismissal order in appeal number 2200195 as having dismissed the mother's appeal from the October 1, 2020, judgment of adoption based on the probate court's lack of jurisdiction to enter that judgment because our certificate of judgment had not yet issued in appeal number 2190755. The probate court denied the mother's motion to dismiss or, in the alternative, to transfer. After referencing the fact that it had previously determined that the mother had impliedly consented to the adoption, the probate court stated: '[T]his court expressly directs entry of this judgment as a final judgment pursuant to Ala. R. Civ. P., Rule 54(b), as this court has determined that there is no just reason for delay in the entry of a final judgment.'
"On April 6, 2021, the mother filed in this court a petition for the writ of mandamus directed to the March 1, 2021, order. After review of the materials attached to the petition, this court determined that the petition should be converted to an
appeal because the mother was appealing from an order expressly made final pursuant to Rule 54(b). See Ex parte W.H., 941 So.2d 290, 298 (Ala. Civ. App. 2006) (treating a petition for the writ of mandamus directed to a final judgment as a notice of appeal)."
" We note that the October 1, 2020, order setting the hearing for that same date indicates that it was copied solely to the attorney for the prospective adoptive parents
"__So. 3d__ at .
The prospective adoptive parents are incorrect. We dismissed the appeal in case number 2190755 because the implied-consent order was not a final judgment. See Ex parte W.L.K., 175 So.3d 652, 656 (Ala. Civ. App. 2015) (explaining that an order resolving an adoption contest but not resolving the entire adoption proceeding was an interlocutory order); see also Fowler v. Merkle, 564 So.2d 960, 961 (Ala. Civ. App. 1990) (holding that the denial of a motion to set aside consent to an adoption was not a final judgment). Therefore, the mother may challenge the implied-consent order in an appeal from any valid adoption judgment that might be entered in this matter."
In C.D. III, we again dismissed the mother's appeal. After explaining that the mother's mandamus petition, which this court had converted to an appeal, had been filed more than 14 days after entry of the March 1, 2021, order that the probate court had certified as a final judgment and, thus, was untimely, we explained that the probate court's certification of the March 1, 2021, order was improper and did not render that order a final judgment because the March 1, 2021, order denying the mother's motion to dismiss or, in the alternative, to transfer did not dispose of any claim. __So. 3d at__ (explaining that a court may certify as final only an order dismissing a claim or claims or a party or parties but not an order disposing of only a portion of a claim). We further noted that the certification of the March 1, 2021, order could not have served as a certification of the June 2020 implied-consent order, because the mother's contest to the adoption was also not a separate claim. Id. at___.
After the issuance of our opinion and our certificate of judgment in C.D. III, the mother filed in the probate court a "Renewed Motion to Transfer and, in the Alternative, Motion for Entry of Final Order for Purposes of Appeal." In that motion, she recounted the procedural history of the case and her various petitions and appeals in this court. She pointed out that we had observed in C.D. III that the issue of adoption remained not fully adjudicated. Thus, the mother requested that the probate court transfer the adoption action to the juvenile court for the limited purpose of termination of the mother's parental rights, see Ala. Code 1975, § 26-10A-3, or "issue an order of proper finality for the purposes of allowing [the mother] to obtain appellate review of [the] previous finding of implied consent."
On November 18, 2021, the probate court denied the mother's motion. On December 2, 2021, the mother filed a petition for the writ of mandamus in this court. In her petition, she argues that the probate court abused its discretion by failing to transfer the proceeding to the Shelby Juvenile Court ("the juvenile court") for the limited purpose of termination of the mother's parental rights or by refusing to enter a final judgment of adoption in order for the mother to seek appellate review of the June 2020 order determining that she had impliedly consented to the adoption of the child. As directed, the prospective adoptive parents answered the mother's mandamus petition.
In that portion of her petition relating to the probate court's denial of her request that the adoption action be transferred to the juvenile court for termination of her parental rights, the mother advances an argument regarding the sufficiency of the evidence presented to the probate court in the June 4, 2020, hearing on her contest to the adoption. She complains that the probate court lacked sufficient evidence to conclude that she had impliedly consented to the adoption of the child. However, we cannot reach this issue. As we have previously observed, and as appears to remain the case, no valid final judgment of adoption has been entered by the probate court. The implied-consent order is an interlocutory order that, even assuming it could be properly reviewed on a petition for the writ of mandamus, could not be reviewed on this petition, which was filed 18 months after the entry of the June 2020 implied-consent order. See Ex parte K.R., 210 So.3d at 1111 (concluding "that the presumptively reasonable time for filing a mandamus petition challenging an order in an adoption proceeding is 14 days"). Thus, we cannot entertain the mother's first issue.
We can and do reach the mother's second issue, in which she requests that we direct the probate court to enter a final judgment in the adoption proceedings so that she can seek appellate review of the probate court's conclusion that she impliedly consented to the adoption of the child. This court indicated in our order issued in appeal number 2200195 and in our opinion in C.D. III that the probate court's October 1, 2020, adoption judgment is void and stated in C.D. III that the adoption claim had not been adjudicated fully. __So. 3d at__. As we observed in C.D. III, "the mother may challenge the implied-consent order in an appeal from any valid adoption judgment that might be entered in this matter." __So. 3d at__ n.2. Of course, she cannot challenge that order until the probate court enters a valid adoption judgment, which, based on the materials before this court, has not yet occurred, despite the mother's request." 'Mandamus is an extraordinary remedy and will lie to compel the exercise of discretion, but not to compel its exercise in a particular manner except where there is an abuse of discretion.'" Ex parte Showers, 812 So.2d 277, 281 (Ala. 2001) (quoting State v. Cannon, 369 So.2d 32, 33 (Ala. 1979)). The probate court is therefore directed to enter a final judgment on the prospective adoptive parents' adoption petition as soon as practicable, but in no event later than 28 days after the issuance of this opinion.
PETITION GRANTED IN PART AND DISMISSED IN PART; WRIT ISSUED.
Thompson, P.J., and Moore, Hanson, and Fridy, JJ., concur.