T.C.M. and C.N.M.
W.L.K. T.C.M. and C.N.M.
from Jefferson Juvenile Court (CS-15-901120)
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),
___ So.3d ___ (Ala. Civ. App. 2015) (table) (appeal
dismissed); Ex parte T.C.M. (No. 2140717, June 30,
2015), ___ So.3d ___ (Ala. Civ. App. 2015) (table) (petition
denied); Ex parte W.L.K., [Ms. 2140874, December 4,
2015] ___ So.3d ___(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. (No. 2150935, September 16, 2016), ___
So.3d ___(Ala. Civ. App. 2016) (table) (petition dismissed as
moot); and T.C.M. v. W.L.K., [Ms. 2160032, April 28,
2017] ___ So.3d ___ (Ala. Civ. App 2016) (released today).
and Procedural History
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
"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
"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
"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,
___ So.3d at ___. 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
"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), ___ So.3d ___(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.
"1Rule 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. See Veteto v. ...