L.C.S. v. J.N.F.
L.C.S. v. J.N.F.
Concurring Opinion
concurring in the result as to case number 2030567 and concurring as to case number 2031028.
I agree with the main opinion that our affirmance of the judgment of adoption of the probate court in case number 2031028 makes the separate appeal from the juvenile court’s judgment of paternity moot. I disagree as to the reason this is so, however.
Insofar as the appeal of the paternity judgment is concerned, the relief requested would amount to an adjudication by this court that would deprive the father of any parental rights to the child. The appeal seeking that adjudication is moot, not because the party prosecuting that appeal has lost her own parental rights,
. I am concerned that the main opinion's focus upon the mother’s loss of parental rights has the effect of a holding that a mother who has lost her parental rights has no standing to contest the father’s parental status. The correctness of such a result might be argued (the ability of a party to contest a father's paternity action or to seek the termination of a parent’s parental rights is not dependent on that party's status as a parent of the child), and the mootness of the appeal of the paternity judgment does not, in my opinion, turn on this issue.
Opinion of the Court
These two appeals involve a child, C.L.S. (hereinafter “the child”), who is currently
“In March 2002, the [maternal grandparents] filed their petition in the Eto-wah Probate Court, seeking to adopt the child; the petitioners identified the mother as being the only known person ‘from whom consents and relinquish-ments to th[e] adoption are required by law and they alleged that the child had resided in their home since her birth. The mother gave written consent to the adoption of the child by the petitioners, and the probate court entered an order on March 26, 2002, awarding pendente lite custody of the child to the petitioners and setting a ‘dispositional hearing’ for June 19, 2002. The probate court further directed that notice of the proceedings be served in the manner prescribed by § 26-10A-17, Ala.Code 1975, which provided, at the time of the probate court’s order, that ‘notice of pen-dency of [an] adoption proceeding shall be served by the petitioner on,’ among other persons, ‘[t]he father and putative father of the adoptee if made known by the mother or otherwise known by the court.’ Section 26-10A~17(a)(10). Section 26-10A-17(c) provides for service ‘by publication, by posting, or by any other substituted service’ upon a putative father ‘[i]f the identity or whereabouts of the parent is unknown, or if the one parent fails or refuses to disclose the identity or whereabouts of the other parent.’
“On April 10, 2002, the probate court directed that notice to ‘the unknown or undisclosed parent of [the child]’ of the June 19, 2002, adoption proceedings be published at the expense of the petitioners. The notice of adoption was published for four consecutive weeks in a newspaper of general circulation in Etowah County; it was last published on May 8, 2002. On June 4, 2002, within 30 days of the final publication date of the notice of adoption, an attorney filed in the probate court a notice of his appearance on behalf of a man claiming to be the child’s father, J.N.F....; [J.N.F.] also filed an ‘objection’ to the adoption, averring that he was a ‘fit and proper person’ to have custody of the child and that DNA testing should be ordered to ascertain the child’s paternity.
“The record does not reflect what transpired at the June 19, 2002, hearing on the adoption petition; however, the parties in the briefs to this court contend that the probate court gave them permission to file exhibits. On June 20, 2002, [J.N.F.] filed a number of documents in the probate court, including a calendar that, [J.N.F.] alleged, reflected the number of days the child had spent in [J.N.F.] home, a pediatric-clinic record signed by the mother identifying [J.N.F.] as the child’s father, and documents indicating expenditures by [J.N.FJ’s family on behalf of the child for day care and medical care. On June 21, 2002, the petitioners filed copies of papers that, they alleged, concerned the circumstances of [J.N.F.] separation from military service. Finally, on June*976 25, 2002, [J.N.F.] submitted additional financial documents that he claimed showed day-care expenditures made by him on behalf of the child.
“... In its judgment, the probate court stated, in pertinent part:
“‘This above-styled cause is now properly before the Court for disposition; and it now appears that an Interlocutory Order has been entered in this matter ...; that due and proper notice of these proceedings has been perfected on those entitled; that all required consents to the adoption have been placed of record; and that all other requisites of law have been met; and on motion the Court proceeds; and
“ ‘The Court being satisfied from clear and convincing evidence adduced that the facts alleged in said petition are true; that the adoptee has been in the actual physical custody of the Petitioner^) for a period of sixty (60) days or more; that there has been no contest or objections brought in this cause; that the Petitioner(s) is/are suitable to be the parent(s) of said adoptee and he/she/they desires to establish a pareni/child relationship with the adoptee; that the best interest of the adoptee will be served by granting the petition; and that a change [of name of the adoptee and a change] of guardianship to the Petitioner(s) is proper.
“ ‘It is therefore ORDERED, ADJUDGED AND DECREED by the Court that the Petition for leave to adopt ... be and the same is hereby granted....”’
866 So.2d at 582-84 (emphasis and footnotes omitted).
On appeal from that judgment, this court reversed. Although no single opinion garnered enough votes to amount to a majority opinion of this court, a reading of the three separate opinions offered by the judges voting to reverse the judgment indicates that the probate court’s judgment was reversed because J.N.F. had filed a timely contest of the proposed adoption and, therefore, the contest should have been addressed by the probate court on its merits. See J.N.F. I, 866 So.2d at 584 (main opinion); 866 So.2d at 585 (Murdock, J., concurring in the result); 866 So.2d at 585 (Yates, P.J., concurring in the result in part and dissenting in part, joined by Crawley, J.).
On July 2, 2002, the day before filing a notice of appeal from the probate court’s adoption judgment, J.N.F. filed a complaint in the Etowah Juvenile Court (“the juvenile court”) seeking a determination that he was the father of the child and an award of custody as to the child.
Once J.N.F. I was decided, proceedings resumed in both courts. J.N.F. moved that the adoption proceedings be transferred to the juvenile court pursuant to Ala. Code 1975, § 26-10A-24(e); however, the probate court entered an order denying that motion, and this court denied, as untimely filed, a petition for a writ of mandamus challenging that order. Ex parte J.N.F. (No. 2020959, July 22, 2003), 891 So.2d 451
In February 2004, the juvenile court held an ore tenus proceeding on J.N.F.’s paternity and custody action; at that time, an attorney purporting to represent the mother filed a motion to dismiss that action, contending that the juvenile court had no jurisdiction to act. The juvenile court entered a judgment on March 5, 2004, denying the motion to dismiss and declaring J.N.F. to be the father of the child; although the juvenile court denied J.N.F.’s custody request, J.N.F. was awarded visitation with the child and was directed to pay child support as to the child. The mother filed a postjudgment motion to alter, amend, or vacate that judgment; however, that motion was denied. The mother filed a timely notice of appeal from the juvenile court’s judgment.
In July 2004, after the appeal had been taken from the juvenile court’s judgment, J.N.F. filed in the probate court a motion to dismiss the adoption proceedings, alleging, in pertinent part, that the original adoption application had been defective and/or fraudulent in a number of respects; he also filed a response in support of the mother’s earlier motion to transfer the adoption proceedings to the juvenile court. However, the mother, upon attaining the age of majority, appeared through counsel and withdrew the motion to transfer that her guardian ad litem had filed. The probate court then held an ore tenus proceeding on the maternal grandparents’ adoption petition; after that proceeding, the mother filed a written consent to the proposed adoption. On July 30, 2004, the probate court entered a judgment granting the maternal grandparents’ adoption petition; in that judgment, the probate court concluded, among other things, that J.N.F.’s consent to the adoption, which is required under AIa.Code 1975, § 26-10A-7, “may be implied by [his] actions and/or inactions ... pursuant to Section 26-10A-9.” J.N.F. timely appealed from that judgment, and this court granted his motions to stay that judgment pending further orders of this court and to incorporate the appellate record from J.N.F. I into the record in the appeal from the probate court’s judgment of adoption.
Ala.Code 1975, § 12-15-120(a), provides that an appeal to a circuit court from a judgment of a juvenile court may be taken within 14 days of the entry of the juvenile court’s judgment and that appeals “under this chapter” are to “take precedence over
J.N.F. argues that the probate court did not have the power to determine whether the adoption should be allowed during the pendency of the appeal from the juvenile court’s judgment of paternity. We disagree; we perceive no legal impediment to the probate court’s exercise of its statutory jurisdiction to determine whether a man may be deemed to have consented to an adoption petition simply because a dispute exists concerning the validity of another court’s judgment declaring that that man is, in fact, the father of the proposed adoptee. The probate court’s power to grant an adoption under the AAC is expressly conditioned upon the existence of the consent of the appropriate parties. The probate court’s jurisdiction over the adoption petition was thus correlative of, not in conflict with, the juvenile court’s jurisdiction to declare J.N.F. to be the child’s biological father. Cf. Ex parte C.L.C., 897 So.2d 234, 237 (Ala. 2004) (holding that a probate court retained “exclusive jurisdiction over the issue of whether or not to grant or deny [a] petition to adopt” a child notwithstanding the juvenile court’s jurisdiction to terminate parental rights of child’s father).
We next address whether, as J.N.F. argues, the probate court could not grant the maternal grandparents’ petition because, he says, the petition was “a fraud upon the Probate Court” in that the child’s father’s identity and location were falsely alleged by the maternal grandparents to be unknown. J.N.F.’s argument overlooks the decision of this court in J.N.F. I, which occurred after the filing of the original petition for adoption in this cause; we reversed the probate court’s original judgment and directed that court, on remand, to consider J.N.F.’s contest of the adoption in deciding whether to grant the maternal grandparents’ adoption petition. In effect, J.N.F. I held that the probate court could, and should, consider whether the requested adoption should take place despite any misstatements appearing in the maternal grandparents’ petition. The failure of the maternal grandparents to file an amended adoption petition after this court’s remand in J.N.F. I or after the probate court’s ore tenus proceeding does not affect the power of the probate court to award the maternal grandparents the relief to which the probate court deemed them to be entitled under the evidence. See Rules 15(b) and 54(c), Ala. R. Civ. P.
“(1) Abandonment of the adoptee. Abandonment includes, but is not limited to, the failure of the father, with reasonable knowledge of the pregnancy, to offer financial and/or emotional support for a period of six months prior to the birth.
“(2) Leaving the adoptee without provision for his or her identification for a period of 30 days.
“(3) Knowingly leaving the adoptee with others without provision for support and without communication, or not otherwise maintaining a significant parental relationship with the adoptee for a period of six months.
“(4) Receiving notification of the pen-dency of the adoption proceedings under Section 26-10A-17 and failing to answer or otherwise respond to the petition within 30 days.”
However, as the main opinion and Judge Thompson’s dissenting opinion in J.N.F. I noted, the Legislature enacted Act No. 2002-417 in April 2002, while this case was pending, which added “[flailing to comply with Section 26-10C-1” as a fifth basis upon which a parent’s implied consent to an adoption may be predicated. Section 26-10C-1, Ala.Code 1975, in turn, provides for registration of unmarried fathers of children with the Alabama Putative Father Registry as a prerequisite to claiming parental rights. Moreover, Act No. 2002-417 added a second subsection to § 26-10A-9 under which implied consent to an adoption “may not be withdrawn by any person.”
It is undisputed that J.N.F. did not comply with § 26-10C-1. That section provides that a person filing a notice of intent to claim paternity of a child shall file a form with the State Department of Human Resources that includes various items of information, including the claimant’s name, Social Security number, date of birth, and current address; similar information regarding the mother (if known); the claimant’s income and financial information; the child’s name and place of birth (if known); and the possible dates of sexual intercourse. Ala.Code 1975, § 26-10C-l(c). Since 1999, § 26-10C-l(i) has provided that any person claiming to be the biological father of a child who fails to file a proper notice of intent to claim paternity with the Registry within 30 days of the birth of any child out of wedlock “shall be deemed to have given an irrevocable implied consent in any adoption proceeding.” The child in this case was born on June 10, 2001; however, J.N.F. did not file a notice of intent to claim paternity with the Putative Father Registry within the 30-day period specified in § 26-10C-l(i).
Interestingly, although the main opinion in J.N.F. I alluded to potential constitutional concerns regarding the retroactive application of Act No. 2002-417 in pending adoption litigation (while indicating that such concerns should be addressed by the probate court in the first instance), see 866 So.2d at 585, J.N.F. has not contended, at trial or on appeal, that the retroactive application of Act No. 2002-417 violates the United States or Alabama Constitutions in any manner. It is well settled that in the absence of a valid constitutional challenge, the judicial branch is bound to enforce the will of the Legislature. As the Supreme Court stated in Beasley v. Bozeman, 294 Ala. 288, 290, 315 So.2d 570, 571 (1975), “[t]he Legislature’s power should not be interfered with unless it is exercised in a manner which plainly conflicts with some higher law.”
In this case, the probate court’s conclusion that J.N.F. impliedly consented to the adoption of the child is amply supported by the record and by the law of this state.
Our conclusion regarding the appeal from the probate court’s judgment allowing the adoption directly affects the viability of the mother’s appeal from the juvenile court’s judgment of paternity. As we stated in Young’s Realty, Inc. v. Brabham, 896 So.2d 581, 583 (Ala.Civ.App. 2004):
“ ‘ “The general rule is that an appeal is subject to dismissal if, pending the appeal, an event occurs which makes a determination of the appeal unnecessary.” ’ Board of Adjustment of Montgomery v. Priester, 347 So.2d 530, 531 (Ala.Civ.App. 1977) (quoting Moore v. Cooke, 264 Ala. 97, 100, 84 So.2d 748, 749-50 (1956)). One such event is an elimination of a justiciable controversy between the parties pending appeal. See Water Works & Sewer Bd. of Birmingham v. Petitioners Alliance, 824 So.2d 705, 708 (Ala. 2001) (dismissing appeal from action seeking declaratory relief on the basis that ‘a present controversy between any of the parties’ did not exist).”
During the pendency of the mother’s appeal from the juvenile court’s judgment declaring J.N.F.’s paternity, she gave un
2030567 — APPEAL DISMISSED.
2031028 — AFFIRMED.
CRAWLEY, P.J., and MURDOCK and BRYAN, JJ., concur.
THOMPSON, J., concurs in the result, without writing.
. The caption of that action (In re: C.S.) did not bear an adversarial style, and because the maternal grandparents were served with process in the action (apparently because of the mother's minority), they initially attempted to appear and to file motions in the case; however, the juvenile court later ruled that the maternal grandparents were not parties to the paternity action and ordered all papers filed by the maternal grandparents struck from the case file.
. If neither the AAC nor statutes specifically applicable to probate courts speak to a partic
. Although J.N.F. testified in the probate court that he had filed with the Putative Father Registry during the month of April after the child's birth, the record in the appeal from the juvenile court's judgment contains a
. We need not reach the maternal grandparents' alternative contention that J.N.F. "abandoned” the child by unilaterally enlisting in the armed services after the birth of the child.
Reference
- Full Case Name
- L.C.S. v. J.N.F. J.N.F. v. A.S., C.S., and L.C.S.
- Cited By
- 6 cases
- Status
- Published