Opinion
CL-2023-0261
07-07-2023
EX PARTE T.E.B. and D.K.G. (In re: In the matter of the Adoption Petition of T.E.B. and D.K.G. for B.B.A.)
Samuel J. McLure and Gretchen N. Hedke, Montgomery, for petitioners. Vicky U. Toles, Montgomery, guardian ad litem.
Samuel J. McLure and Gretchen N. Hedke, Montgomery, for petitioners.
Linda Braye Bulls, Tuskegee Institute, for respondent Judge J.C. Love III.
Vicky U. Toles, Montgomery, guardian ad litem.
EDWARDS, Judge.
T.E.B. and D.K.G. ("the prospective adoptive parents") have filed in this court a petition for the writ of mandamus seeking an order directing the Montgomery Probate Court ("the probate court") to enter an interlocutory order of adoption, see Ala. Code 1975, § 26-10A-18, granting them custody of B.B.A. ("the child"), who they have filed a petition to adopt. The mandamus petition and the answers filed by C.A.A. ("the biological mother"), Vicky Toles, who is the guardian ad litem for the child, and the probate-court judge, together with the materials appended to the petition and answers, reveal the following procedural history and relevant facts.
In July 2022, the biological mother, who was then pregnant with the child, met with Sarah Strength, a licensed independent clinical social worker, regarding the biological mother’s potential intent to place the child for adoption with the prospective adoptive parents. Strength does not work for a particular adoption agency but is instead engaged by adoption agencies to perform birth-mother interviews. Strength explained the adoption process to the biological mother and reviewed with her the provisions of the Alabama Adoption Code, Ala. Code 1975, § 26-10A-1 et seq., regarding consent to adoption and the withdrawal of that consent. See Ala. Code 1975, § 26-10A-13 (providing that a consent executed by parent may be withdrawn within five days of the birth of the child or the execution of the consent, whichever comes last, and that a consent executed by a parent may be withdrawn within 14 days of the birth of the child or the execution of the consent, whichever occurs last, "if the court finds that the withdrawal is reasonable under the circumstances and consistent with the best interest of the child"). During the interview, which took about one and a half hours, Strength also accumulated information relating to the biological mother’s health history. Strength testified that she does not take pre-birth consent from birth mothers and that she instead notarizes consents to adoptions executed by birth mothers after the birth of their infant.
Strength likely does not notarize pre-birth consents of birth mothers because her notarization would not be sufficient. See Ala. Code 1975, § 26-10A-12(a) (providing that the pre-birth consent of a natural mother "shall be signed or confirmed before a judge of probate").
On August 12, 2022, the biological mother gave birth to the child at a hospital in Birmingham. On that same date, and only a few hours after the child’s birth, the biological mother contacted Strength regarding her decision to place the child for adoption. According to Strength, the biological mother requested that Strength come to the hospital so that the biological mother could complete the consent form and leave the hospital to go home to attend to her 16-year-old son ("the biological mother’s son"). Strength testified that the biological mother was upset when she arrived at the hospital, which Strength indicated was a typical reaction of a birth mother who was considering executing a consent to adoption, and that Strength communicated to the biological mother that she could take all the time she desired to execute the consent and that, if she decided she was not ready to execute the consent form, Strength would leave. Strength explained that she consulted with the biological mother’s nurse and inquired whether the biological mother had been administered narcotic pain medication within the previous four hours; Strength said that the nurse confirmed that the biological mother had not been provided narcotic pain medication within the previous four hours. Although the biological mother did not immediately execute the consent upon Strength’s arrival, she did execute the consent that same evening. The biological mother then left the hospital against medical advice. In addition, on or about August 16, 2022, the biological mother returned to the hospital at the request of the hospital staff to execute a document permitting the prospective adoptive parents to take the child home from the hospital. See Ala. Code 1975, § 26-10A-15(a) (explaining that a health-care facility may not release a child into the custody of any person other than specified entities or a "parent, relative by blood or marriage, or person having legal custody, unless such surrender is authorized in a writing executed after the birth of the adoptee by one of the adoptee’s parents or agency or the person having legal custody of the adoptee").
On or about August 18, 2022, the biological mother sent a message to Strength, indicating that she was having second thoughts about giving the child up for adoption. According to Strength, she reminded the biological mother that she had until 14 days after the child’s birth to file a motion with the probate court seeking to withdraw her consent to the adoption. In fact, Strength testified that she had sent the biological mother a photograph of § 26-10A-13 to confirm the periods the biological mother had to file a petition to withdraw her consent. On August 19, 2022, Amy Osborne, the attorney for the prospective adoptive parents, mailed to the probate court a petition to adopt the child and the necessary supporting documents. The probate court docketed the adoption petition on August 23, 2022. The probate court did not immediately enter an interlocutory order of adoption. See § 26-10A-18.
Section 26-10A-18 provides:
"Once a petitioner has received the adoptee into his or her home for the purposes of adoption and a petition for adoption has been filed, an interlocutory [order] shall be entered delegating to the petitioner (1) custody, except custody shall be retained by the Department of Human Resources or the licensed child placing agency which held custody at the time of the placement until the entry of the final [judgment of adoption] and (2) the responsibility for the care, maintenance, and support of the adoptee, including any necessary medical or surgical treatment, pending further order of the court, This interlocutory [order] shall not stop the running of time periods prescribed in [Ala. Code 1975, §] 26-10A-9."
On August 24, 2022, the biological mother filed with the probate court a letter and a withdrawal-of-consent form that she had executed on August 22, 2022. In response to the biological mother’s filing, which the probate court properly treated as a petition to withdraw her consent, the probate court, on September 19, 2022, set a hearing for October 12, 2022. The probate court did not enter an interlocutory order of adoption at any time before the date of the October 12, 2022, hearing.
Adoptions should be expedited. In fact, Ala. Code 1975, § 26-10A-25(a), requires that certain adoptions be completed, when possible, within 90 days, providing specifically that, when a pre-placement investigation has been completed and approved, which had occurred in this mutter, an adoption petition "shall be set for a dispositional hearing as soon as possible or no later than 90 days after the filing of the petition."
At the October 12, 2022, hearing, Osborne apparently made a representation that either the Montgomery County Department of Human Resources ("MCDHR") or the Jefferson County Department of Human Resources ("JCDHR") was involved with the biological mother and that one of those entities had entered a pickup order relating to the child. This representation, and information indicating that the child had been born with drugs in his system based on a test of his meconium, prompted the probate court to continue the proceeding for 30 days for Toles to investigate potential involvement of MCDHR or JCDHR and to serve the State Department of Human Resources with notice of the proceedings so that it could participate in the adoption proceeding if it so chose. However, at the conclusion of the hearing, Osborne was unable to provide information regarding either MCDHR’s or JCDHR’s involvement, prompting the probate court to enter an order on October 13, 2022, setting a hearing for October 14, 2022, to determine whether Osborne had violated the Rules of Professional Conduct by making a false statement regarding the pickup order to the probate court and to Toles and Debra Bush, the probate court’s staff attorney. [1] The October 13, 2022, order entered by the probate court did not determine whether the biological mother’s request to withdraw her consent was reasonable under the circumstances and consistent with the best interest of the child, see § 26-10A-13(b), and, thus, the biological mother’s petition to withdraw her consent remained pending. Moreover, the probate court had yet to enter an interlocutory order of adoption in compliance with § 26-10A-18. Instead, the probate court concluded its order with the following statement: "In the event this Court finds that no pick-up order was entered and that [the child] is improperly in the custody of [the prospective adoptive parents], then the Court shall instanter issue an order directing them to immediately turn over custody of [the child to the biological mother]."
Information revealed through later testimony indicated that, although JCDHR had placed the biological mother’s son into a safely plan when it learned that the child’s meconium had tested positive for methamphetamine and amphetamine, JCDHR had not entered a pickup order for the child, who had been in the physical custody of the prospective adoptive parents in Montgomery. JCDHR did visit the home of the prospective adoptive parents to perform a "welfare check" on the child.
The State Department of Human Resources should have already received notice of the adoption petition because Ala. Code 1975, § 26-10A-17(a)(9) requires that the adoption petition be served on that entity.
As previously noted, the biological mother had executed a consent to the adoption of the child, which the probate court had yet to decide could be withdrawn, and had executed an undisputed surrender of custody in favor of the prospective adoptive parents under Ala. Code 1975, § 26-10A-15. Thus, the child’s placement with the prospective adoptive parents was not "improper."
Osborne employed attorney David Simpson to represent her at the October 14, 2022, "show cause" hearing. Before the commencement of that hearing, Osborne — apparently both on behalf of herself and on behalf of the prospective adoptive parents - Toles, and the biological mother entered into an agreement requiring Osborne to make an apology to the probate court; to pay Toles’s guardian ad litem fees, incurred for preparing for and attending the October 14, 2022, hearing; and providing the mother visitation every Sunday for two hours in Birmingham. The mother’s petition to withdraw her consent remained unadjudicated and the probate court did not enter an interlocutory order of adoption, but the probate court set a hearing on the mother’s petition to withdraw her consent for November 17, 2022.
Although testimony and argument began on November 17, 2022, it did not conclude on that date. Instead, testimony and argument resumed on November 18, 2022, and again on November 21, 2022. Based on the information contained in the petition and answers, the probate court did not enter an order permitting the mother to withdraw her consent and did not enter an interlocutory order of adoption after the conclusion of the November 2022 hearing. Notably, the probate court commented more than once during the November 2022 hearing that it had not been provided legal authority indicating that it could enter an interlocutory order of adoption after the mother had "withdrawn" her consent.
[2] Of course, the mother had filed only a petition seeking to be permitted to withdraw her consent, which could not be accomplished without the probate court finding that the biological mother had established that (1) her request to withdraw her consent was reasonable under the circumstances and (2) permitting a withdrawal of consent was consistent with the best interest of the child. See § 26-10A-13(b) and § 26-10A-14(d) (providing that the person seeking to withdraw his or her consent "shall establish the facts necessary to withdraw the consent … by a preponderance of the evidence"). Repeatedly throughout the November 2022 hearing, the probatecourt judge, Toles, and, to a lesser degree, Osborne and Simpson, appeared to be operating under the impression that, without the entry of the interlocutory order of adoption, the placement of the child with the prospective adoptive parents was improper. However, the biological mother’s consent remains valid, because it has not yet been withdrawn, and the biological mother executed a surrender of custody in favor of the prospective adoptive parents at the hospital. We further note that Toles interjected into the November 2022 hearing the issue whether the biological mother’s consent was valid because she had given birth only a few hours before its execution and had been given medication during the birth process.
The biological mother did not make that argument in her motion to withdraw consent, nor did she file a contest to the adoption challenging the validity of her consent.
[3] The probate court also indicated during the November 2022 hearing that the placement of the child with the prospective adoptive parents should never have occurred before the entry of an interlocutory order of adoption entered pursuant to § 26-10A-18. The probate court stated that "I don’t think the prospective adoptive parents get the child until after the issue of consent is settled." A reading of § 26-10A-18 dispels this notion. An interlocutory order of adoption cannot be entered by a probate court until after a petition for adoption is filed, and the plain language of § 26-10A-18 indicates that one of the prerequisites for the entry of an interlocutory order of adoption is that "a petitioner has received the adoptee into his or her home for the purposes of adoption."
[4, 5] In addition, during the November 2022 hearing, the probate court and the attorneys for the parties discussed whether the failure of the probate court to properly enter the interlocutory order of adoption somehow prevented the probate court from acquiring subject-matter jurisdiction. At one point, Simpson stated that, apparently because of this potential lack of jurisdiction, "the child should always have been in Jefferson County." The law is clear that the probate court acquired jurisdiction over the child pursuant to the petition for adoption and that the biological mother’s petition to withdraw her consent, alone, does not terminate the probate court’s jurisdiction. See Ala. Code 1975, § 26-10A-3; Davis v. Turner, 337 So. 2d 355, 361 (Ala. Civ. App. 1976) (considering a challenge to jurisdiction under former Title 27, Section 3, Code of Alabama 1940, and concluding that "[t]he natural parent’s initial consent followed by placement of the child with the adoptive parents creates a res, a pre-adoptive relationship, over which the trial court maintains jurisdiction until adoption is finally decreed or denied. Since it is this res, not the consent agreement per se, which furnishes jurisdiction, repudiation of consent does not withdraw jurisdiction"). The probate court’s error in failing to properly enter the interlocutory order of adoption did not serve to deprive the probate court of subject-matter jurisdiction.
None of the materials before this court contain any order that the probate court may have entered as a result of the November 2022 hearing. However, in its amended statement of facts in its answer, the probate court indicates that it had ordered that the child be returned to the mother at some point during the November 2022 hearing. Although it is not entirely clear from the mandamus petition, other information contained in the materials before this court indicate that the child was voluntarily relinquished by the prospective adoptive parents to the custody of the biological mother after the close of that part of the November 2022 hearing occurring on November 18, 2022. In either event, the materials establish that the child has been residing with the biological mother for approximately seven months. The prospective adoptive parents have apparently had visitation with the child, but that visitation must have been granted via an agreement, as opposed to an order of the probate court, because the materials do not demonstrate that the probate court ever entered an order relating to visitation.
In January 2023, the prospective adoptive parents filed what they entitled as a "Renewed Motion for an Interlocutory [Order of Adoption]." Although the materials before this court are somewhat incomplete, it appears that the probate court either held a hearing or otherwise considered the prospective adoptive parents’ motion in February 2023. In an order dated February 13, 2023, the probate court ordered that the prospective adoptive parents provide a letter brief citing authority for the proposition that the probate court "can enter an interlocutory order under … § 26-10A-18 … when a withdrawal of consent has been filed by a birth parent pursuant to … § 26-10A-13(b)." The February 13, 2023, order also provided that the biological mother and the guardian ad litem should file a response to any letter brief filed by the prospective adoptive parents.
The probate court held yet another hearing on April 5, 2023. At issue at that hearing was a motion by the prospective adoptive parents to reopen the evidence (presumably the evidence admitted at the November 2022 hearing) for the potential admission of medical records relating to the child's birth. After protracted argument on the admissibility of the medical records and any testimony from an expert on the medical records, the prospective adoptive parents withdrew the request to admit the records and stated that they did not intend to present the testimony of an expert.
At the April 5, 2023, hearing, the probate court also entertained further argument on the issue of the request for entry of an interlocutory order of adoption. Although Osborne read § 26-10A-18 to the probate court, the probate court again stated its opinion that the child should not have been placed in the home of the prospective adoptive parents until after the entry of an interlocutory order of adoption. Toles continued to contest the validity of the biological mother’s consent and agreed with the probate court that the child should not have been placed with the prospective adoptive parents.
In an order entered on or about April 13, 2023, the probate court recounted the procedural history of this adoption proceeding. The probate court denied the prospective adoptive parents’ motion to reopen the evidence. In addition, the probate court denied the prospective adoptive parents’ renewed request for an interlocutory order of adoption. The April 13, 2023, order does not address the merits of the biological mother’s still-pending petition to withdraw her consent to the adoption.
[6] As mentioned in the opening paragraph of this opinion, the prospective adoptive parents seek a writ of mandamus directing the probate court to enter an interlocutory order of adoption. Although we conclude that the prospective adoptive parents are correct that the probate court was required by § 26-10A-18 to enter an interlocutory order of adoption in response to the filing of the adoption petition and that the fact that the biological mother filed a petition to withdraw her consent to the adoption had no bearing on the initial issuance of the interlocutory order of adoption, we can provide only a hollow victory because we are unable to grant their petition and order the probate court to enter an interlocutory order of adoption.
[7] The petition for the writ of mandamus was filed on April 27, 2023, within 14 days of the April 13, 2023, order of the probate court. Thus, at first blush, the petition appears to be timely. See Rule 21(a)(3), Ala. R. App. P. (indicating that a petition for the writ of mandamus is presumptively timely if filed within the time period for taking an appeal had the order being challenged been a final judgment); Ex parte K.R., 210 So. 3d 1106, 1111 (Ala. 2016) (concluding "that the presumptively reasonable time for filing a mandamus petition challenging an order in an adoption proceeding is 14 days"). However, the Committee Comments to Amendments to Rule 21(a) and 21(e)(4) Effective September 1, 2000, clearly envision that this court may determine that a petition that is otherwise presumptively timely under Rule 21(a)(3) is untimely based on the surrounding circumstances. Under the circumstances of this particular adoption proceeding, we cannot conclude that the prospective adoptive parents have timely sought extraordinary relief.
The prospective adoptive parents included a statement of circumstances constituting good cause for consideration of their petition despite its potentially being untimely because the probate court had attempted to enter its judgment on April 5, 2023, by use of the term "nunc pro tunc" before the date. Upon our initial review of the petition, we agreed with the prospective adoptive parents that the probate court could not retroactively make the April 2023 order effective as of April 5, 2023, by use of a "nunc pro tunc" order, and we accepted the petition as having been timely filed from the entry of the April order, which had been e-mailed to the prospective adoptive parents on April 13, 2023.
The prospective adoptive parents could have filed a petition seeking the entry of an interlocutory order of adoption in October 2022, after the probate court indicated in its October 13, 2022, order that it believed that the child had been improperly placed in the home of the prospective adoptive parents because of the lack of any order giving them custody, or in late November 2022 or early December 2022, after three days of hearings failed to yield an interlocutory order of adoption or an order resolving the mother’s petition to withdraw her consent. Instead, the prospective adoptive parents acquiesced to the probate court’s clearly communicated belief that the child had been improperly placed with them and returned the child to the custody of the biological mother either voluntarily or as directed by an order of the probate court before continuing to file motions in the probate court, in what could only have been expected to be a vain attempt to secure an interlocutory order of adoption and compel a return of the child to their custody.
[8, 9] Because the prospective adoptive parents included a statement of good cause within their petition, see note 8, supra, we have before us some argument concerning whether to consider the prospective adoptive parents’ petition despite its untimeliness. When considering whether to entertain a petition that is untimely, for whatever reason, we are to
"weigh factors such as the prejudice to the petitioner of the court’s not accepting the petition and the prejudice to the opposing party of the court’s accepting it; the impact on the timely administration of justice in the trial court; and whether the appellate court has pending before it other proceedings relating to the same action, and as to which the jurisdiction of the appellate court is unchallenged."
Committee Comments to Amendments to Rule 21(a) and 21(e)(4) Effective September 1, 2000. The prospective adoptive parents argue that no prejudice will befall the biological mother if we consider and grant their petition because, they say, she retains the right to be heard on her petition to withdraw consent at some future date. The prospective adoptive parents also assert that the timely administration of justice will not be impacted by our consideration of the petition for the writ of mandamus and possible order requiring entry of the interlocutory order of adoption at this late date, again because they envision a future hearing on the mother’s petition to withdraw her consent. Although we agree with them that the probate court’s failure to enter the interlocutory order of adoption in August 2022 prejudiced their pre-adoptive relationship with the child, we cannot agree that the child would not be prejudiced by this court’s consideration of their petition for the writ of mandamus.
At this point in the adoption proceedings and under the circumstances existing at this time, the child will most certainly be severely impacted by any order from this court requiring that the probate court enter an interlocutory order of adoption. The child lived with the prospective adoptive parents for approximately three months and was then placed into the custody of the biological mother, with whom he has now resided for seven months. This court cannot consider granting this petition, not only regardless of the fact that the probate court erred by failing to enter the interlocutory order of adoption in August 2022, but also because of that fact. We are constrained to dismiss the petition as having been untimely filed.
[10] We would be remiss if we did not point out that the probate court has yet to resolve the only actual issue raised by the biological mother’s petition to withdraw her consent — namely, whether the biological mother established that withdrawal of her consent was reasonable under the circumstances and consistent with the best interest of the child. One reading of the materials before this court supports the conclusion that, despite its failure to enter an order on the issue, the probate court has effectively determined that the biological mother’s consent could be withdrawn. In order to expedite the conclusion of this lengthy adoption proceeding, the probate court is directed to enter an order resolving that issue within seven days of the issuance of this opinion.
The biological mother alone bore the burden of proving that she should be permitted to withdraw her consent. See Ala. Code 1975, § 26-10A-14(d).
PETITION DISMISSED WITH INSTRUCTIONS.
Thompson, P.J., and Fridy, J., concur.
Moore, J., concurs in the result, without opinion.
Hanson, J., recuses himself.