Opinion
2190109
02-12-2021
J.D. v. DEKALB COUNTY DEPARTMENT OF HUMAN RESOURCES
Angela Cochran Morgan, Fort Payne, for appellant. Steve Marshall, att'y gen., and Felicia M. Brooks, chief legal counsel, and Karen P. Phillips, asst. att'y gen., Department of Human Resources, for appellee.
Angela Cochran Morgan, Fort Payne, for appellant.
Steve Marshall, att'y gen., and Felicia M. Brooks, chief legal counsel, and Karen P. Phillips, asst. att'y gen., Department of Human Resources, for appellee.
MOORE, Judge.
J.D. ("the alleged father") appeals from an order of the DeKalb Juvenile Court ("the juvenile court") terminating his parental rights to E.B.D. ("the child"). Because the order appealed from in the present case is not a final judgment, we dismiss the appeal.
On October 18, 2018, the DeKalb County Department of Human Resources ("DHR") filed in the juvenile court a petition to terminate the parental rights of the alleged father, R.S. ("the presumed father"), and of A.D. ("the mother") to the child. The petition alleged, among other things, that the mother and the presumed father had been married until they were divorced by a judgment entered by the Marshall Circuit Court on February 16, 2017; that the divorce judgment stated that no children had been born of the marriage and that none were expected; that, because the child had been born within 300 days of the entry of the divorce judgment, the presumed father is presumed to be the father of the child, pursuant to § 26-17-204(a), Ala. Code 1975; that the presumed father had executed a consent to the relinquishment of his parental rights to the child; and that the alleged father is the alleged biological father of the child. On November 15, 2018, DHR filed a motion requesting an order requiring the alleged father to submit to a DNA test for the purpose of determining the paternity of the child; the juvenile court granted that motion on November 16, 2018, and directed the alleged father to submit to a DNA test.
The termination-of-parental-rights trial commenced on March 7, 2019, resumed on April 2, 2019, and was completed on October 3, 2019. During the proceedings on March 7, 2019, the alleged father's attorney asserted that neither the alleged father nor the presumed father had been adjudicated as the child's father at that time. At the April 2, 2019, continuation of the trial, the alleged father's attorney again raised the issue of the paternity of the child, objecting to proceeding in the case until the results of a DNA test were submitted. In response, DHR's attorney stated: "Judge, I don't think we have to have a DNA test in the case. We've got a -- we've got a presumed father. Technically, I don't even know if [the alleged father] has standing to be here, but he is." At that time, the juvenile court overruled the objection raised by the alleged father's attorney, noting that the proceeding would move forward but that the juvenile court would address the issue of the paternity of the child in its judgment. On October 15, 2019, the juvenile court entered an order terminating the parental rights of the alleged father and of the mother to the child and vesting custody of the child in DHR. The juvenile court, however, failed to adjudicate the child's paternity in its order, although it referred to the alleged father throughout its order as "the father."
The alleged father filed his notice of appeal to this court on October 29, 2019. DHR filed a motion to dismiss the alleged father's appeal, asserting that the alleged father "lacks standing to be deemed [the child's] legal father or to assert such a position" based on the legal presumption that the presumed father is the child's father and the juvenile court's purported lack of jurisdiction over the alleged father. On January 13, 2021, this court entered an order directing the parties to submit letter briefs regarding (1) whether the juvenile court's October 15, 2019, order, or any other order entered by the juvenile court, disposed of DHR's petition to the extent that it sought to terminate the parental rights of the presumed father, (2) whether, if no order of the juvenile court has disposed of DHR's petition insofar as it sought to terminate the parental rights of the presumed father, the juvenile court's October 15, 2019, order is a final judgment that will support the alleged father's appeal, and (3) whether, if the juvenile court's October 15, 2019, order is not a final judgment that will support the alleged father's appeal, DHR's motion to dismiss the appeal is due to be denied as moot. DHR responded to this court's order, stating that the juvenile court's October 15, 2019, order does not dispose of its request to terminate the presumed father's parental rights; that, as a result, the juvenile court's October 15, 2019, order is not a final judgment capable of supporting an appeal; that this court has a duty to dismiss the appeal filed by the alleged father; and that DHR's motion to dismiss the appeal is due to be denied as moot.
In Miller v. Jones, 122 So. 3d 1285, 1286-87 (Ala. Civ. App. 2013), this court stated, in pertinent part:
"As a threshold matter, we must determine whether we have jurisdiction to review the purported final judgment.
" ‘Subject to limited exceptions not applicable in this case, " ‘ " ‘an appeal
will lie only from a final judgment.’ " ’ " Busby v. Lewis, 993 So. 2d 31, 33 (Ala. Civ. App. 2008) (quoting Owens v. Owens, 739 So. 2d 511, 513 (Ala. Civ. App. 1999), in turn quoting Taylor v. Taylor, 398 So. 2d 267, 269 (Ala. 1981) ).
" ‘ " ‘ "A final judgment is one that completely adjudicates all matters in controversy between the parties.
" ‘ " ‘ "... An order that does not dispose of all claims or determine the rights and liabilities of all the parties to an action is not a final judgment. In such an instance, an appeal may be had ‘only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.’ See Rule 54(b), Ala. R. Civ. P." ’ "
" ‘ Busby v. Lewis, 993 So. 2d at 34 (quoting Adams v. NaphCare, Inc., 869 So. 2d 1179, 1181 (Ala. Civ. App. 2003), in turn quoting Eubanks v. McCollum, 828 So. 2d 935, 937 (Ala. Civ. App. 2002) ).’
" Pike v. Reed, 3 So. 3d 201, 203 (Ala. Civ. App. 2008)."
In its petition, DHR sought to terminate the parental rights of the presumed father, of the alleged father, and of the mother. The juvenile court's October 15, 2019, order does not address DHR's petition insofar as it sought to terminate the parental rights of the presumed father. Thus, it fails to determine the rights and liabilities of all the parties to the action and, therefore, is not a final judgment. Because a nonfinal judgment will not support an appeal, the alleged father's appeal is due to be dismissed. See Osburn v. Osburn, 238 So. 3d 60, 61-62 (Ala. Civ. App. 2017). In light of this court's determination that the appeal is due to be dismissed as having been taken from a nonfinal judgment, DHR's motion to dismiss the appeal is denied as moot.
APPEAL DISMISSED.
Thompson, P.J., and Edwards, Hanson, and Fridy, JJ., concur.