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K.L.R. v. K.G.S.

Alabama Court of Civil Appeals

March 9, 2018

K.L.R.
v.
K.G.S.

         Appeal from Mobile Probate Court (2014-2396)

         On Application for Rehearing

          DONALDSON, JUDGE.

         This court's opinion of December 1, 2017, is withdrawn, and the following is substituted therefor.

         K.L.R. ("the birth mother") appeals the summary judgment entered by the Mobile Probate Court ("the probate court") on August 24, 2016, denying her contest challenging the adoption of a child ("the child") by K.G.S. ("the adoptive mother") and finding that the birth mother's belated attempt to withdraw her consent to the adoption was ineffective. We affirm the summary judgment. The birth mother also challenges the probate court's order entered on August 9, 2016, prohibiting her from making certain communications and requiring her to perform certain actions. We determine that the probate court lacked subject-matter jurisdiction to enter the August 9, 2016, order. Accordingly, we dismiss the appeal insofar as it relates to that order.

         Facts and Procedural History

         In October 2014, the birth mother discovered that she was pregnant. On December 5, 2014, the birth mother contacted Donna Ames and requested help with placing the unborn child for adoption. Ames was an attorney and also the president of Adoption Rocks, Inc., a nonprofit entity that aids in facilitating adoptions of unborn children. Ames arranged a meeting between the birth mother and the adoptive mother, after which the birth mother chose the adoptive mother to be the adoptive parent for the child. Ames was the adoptive mother's counsel during that time. The expected date of birth for the child was June 17, 2015.

         I. The Birth Mother's Prebirth Consent to Adoption

         On December 30, 2014, the adoptive mother filed in the probate court a motion for a hearing on the birth mother's prebirth consent to the adoption and a petition for preapproval of payments from the adoptive mother to the birth mother for maternity-related expenses. See § 26-10A-34(a), Ala. Code 1975 (allowing payments for "maternity-connected medical or hospital and necessary living expenses of the mother preceding and during pregnancy-related incapacity as an act of charity, as long as the payment is not contingent upon placement of the minor for adoption, consent to the adoption, or cooperation in the completion of the adoption"). On February 6, 2015, the birth mother, the adoptive mother, and Ames appeared before Probate Judge Don Davis in a hearing on both of those matters. In a closed portion of the hearing with only the birth mother present, the probate judge explained to the birth mother the contents of the prebirth-consent form and the consequences of consenting to the adoption of the child, including that her consent could become irrevocable. Among other things, the probate judge explained that, after the birth of the child, the birth mother could withdraw her consent within 5 days for any reason and within 14 days if the court determined that the withdrawal was reasonable under the circumstances and consistent with the best interests of the child. See § 26-10A-13(a) and (b), Ala. Code 1975. The probate judge also explained that, after the 5-day and 14-day periods and before the entry of a final decree of adoption, the birth mother could withdraw her consent if she established that the consent had been procured by fraud, duress, mistake, or undue influence. See § 26-10A-14(a)(2), Ala. Code 1975. After this explanation, the birth mother testified that she wanted to give her prebirth consent to the adoption and that she understood each part of the prebirth-consent form as well as the applicable periods, conditions, and procedures for executing a withdrawal of her consent. She also testified that both Ames and one of her parents, who was an attorney, had reviewed the prebirth-consent form with her. After the birth mother executed the prebirth-consent form, the following discussion took place between the birth mother and the probate judge:

"Q. [By the probate judge:] Okay, ... I'm handing to you now the original and two copies of the document that you and I just signed and it's your responsibility to deliver those to [the adoptive mother] or to [the adoptive mother's] lawyer if you so choose, okay?
"A. So I need to give all these to Donna [Ames]?
"Q. Well, that's up to you. I can't give you advice about that. That's your call, okay?
"A. Okay."

         After the closed portion of the hearing, the birth mother, followed by the adoptive mother, testified regarding payments that had been made from the adoptive mother to the birth mother that the adoptive mother characterized as charitable payments for expenses. Later on February 6, 2015, the probate court entered an order approving the adoptive mother's payments for the birth mother's expenses.

         On April 1, 2015, the biological father of the child executed a form giving his prebirth consent to the adoption of the child. The biological father has not been a party to any further proceedings in this case.

         On May 23, 2015, Ames filed a motion to withdraw from further representation of the adoptive mother. The adoptive mother obtained representation by another attorney.

         The child was born in a hospital on May 28, 2015, before the expected date of birth. The birth mother did not relinquish custody of the child to the adoptive mother; instead, she left the hospital with the child. The birth mother did not execute a withdrawal of her prebirth consent to the adoption within either the 5-day period or the 14-day period after the child's birth, as prescribed by § 26-10A-13(a) and (b).

         II. The Contest to the Adoption

         On June 15, 2015, the adoptive mother filed in the probate court a petition to adopt the child. See § 26-10A-16, Ala. Code 1975. On the same day, the adoptive mother filed an emergency motion seeking an order from the probate court directing that the child be immediately placed in her custody. On June 16, 2015, the adoptive mother filed a petition in the Mobile Juvenile Court ("the juvenile court") alleging that the child was dependent and requesting immediate custody of the child. The juvenile court entered a pickup order and ordered the immediate transfer of the child's custody to the adoptive mother. On June 17, 2015, law-enforcement personnel picked up the child pursuant to the juvenile court's order. On June 19, 2015, the probate court entered an interlocutory order granting custody of the child to the adoptive mother. On July 8, 2015, the juvenile court entered a judgment dismissing the case before it based on a lack of subject-matter jurisdiction over the custody of the child, noting that it had received a copy of the probate court's June 19, 2015, order. The birth mother appealed the juvenile court's judgment, specifically challenging the orders that it had entered before the dismissal of the action. On January 8, 2016, this court dismissed the appeal as moot because, we held, the juvenile court's judgment dismissing the action for lack of subject-matter jurisdiction had dissolved its prior orders. K.L.R. v. K.G.S., 201 So.3d 1200, 1203 (Ala. Civ. App. 2016).

         On June 19, 2015, the same day the probate court entered its interlocutory order granting the adoptive mother custody of the child, the birth mother filed in the probate court a notice of withdrawal of her consent to the adoption of the child and a motion contesting the adoption. In her motion, the birth mother alleged that the adoptive mother had obtained the birth mother's prebirth consent to the adoption by fraud, duress, mistake, or undue influence. See § 26-10A-14(a)(2). The birth mother specifically alleged that she had acted under the belief that Ames had represented her in connection with the prebirth-consent proceedings and that Ames had stated to her that the adoption would not proceed until "final paperwork" was completed at the hospital after the child was born.

         On July 14, 2015, the birth mother filed a motion to reconsider the June 19, 2015, order granting the adoptive mother custody of the child. The birth mother argued, among other things, that because she had filed a notice of withdrawal of her consent to the adoption, her due-process rights had been violated by the entry of the order granting the adoptive mother pendente lite custody of the child without an evidentiary hearing having been held on the issues of her consent to the adoption and her fitness as a parent. The birth mother asserted that she had filed her notice of withdrawal of her consent to the adoption before the interlocutory order was entered later in the day on June 19, 2015. The birth mother also argued that her due-process rights had been violated when, she asserts, the probate judge failed to disclose to the birth mother that she was not being represented by counsel during the prebirth-consent hearing and that Ames was representing the adoptive mother. The adoptive mother filed a response arguing that the birth mother's due-process rights were not implicated because, she asserted, the birth mother had not filed a contest to the adoption before the probate court entered its interlocutory order.

         On July 15, 2015, the birth mother filed a motion stating that, although she was not alleging any impropriety, "Judge Davis should recuse [himself] from this matter to avoid the appearance of impropriety and bias" as a result of his serving as an advisory board member for Adoption Rocks, Inc. On July 21, 2015, Judge Davis entered an order recusing himself from the proceedings.

         After Judge Davis's recusal, the clerk of the probate court assigned J. Michael Druhan, an attorney, to preside over the proceedings. On July 22, 2015, the birth mother filed a motion requesting that Druhan recuse himself from the proceedings because he had not been properly appointed as a temporary judge. On the same day, the probate court entered an order denying the motion.[1] Also in the July 22, 2015, order, the probate court, among other rulings, denied the birth mother's July 14, 2015, motion to reconsider the June 19, 2015, interlocutory order granting the adoptive mother custody of the child.

         On August 20, 2015, the birth mother filed a petition for a writ of mandamus with this court seeking to vacate the orders entered by Druhan. On August 24, 2015, this court denied the petition in part and dismissed the petition in part on the basis that it had been untimely filed. Ex parte K.R. (No. 2140951), 217 So.3d 881 (Ala. Civ. App. 2015) (table).[2]On August 27, 2015, the birth mother filed a petition for a writ of mandamus with our supreme court. In Ex parte K.R., 210 So.3d 1106, 1113 (Ala. 2016), the supreme court granted the petition in part and issued the writ, holding that "Druhan was never properly appointed as a temporary probate judge. Accordingly, Druhan had no authority to enter the orders he entered, and any order entered by Druhan is void."

         On June 15, 2016, the presiding judge of the Mobile Circuit Court appointed James C. Wood as the special probate judge in this case.

         On June 23, 2016, the adoptive mother filed a motion for a summary judgment regarding the birth mother's contest of the adoption.[3] In her motion, the adoptive mother asserted that the birth mother had not filed a withdrawal of consent to the adoption within the required 5-day or 14-day periods provided in § 26-10A-13(a) and (b). Regarding the substance of the birth mother's adoption contest, the adoptive mother argued that the birth mother's withdrawal of consent was not effective because, the adoptive mother asserted, the prebirth consent was not obtained by fraud, duress, mistake, or undue influence as required by § 26-10A-14(a). The adoptive mother also argued that no fraudulent misrepresentation had induced the birth mother to consent to the adoption or had led to the untimely filing of her notice of withdrawal of that consent.

         On August 18, 2016, the birth mother filed a response to the motion for a summary judgment. As one of her arguments, the birth mother claimed that the sections of the Alabama Adoption Code authorizing a prebirth consent from a biological mother are unconstitutional both facially and as applied to her. The birth mother also argued that the doctrine of equitable tolling applied to her otherwise untimely filing of her withdrawal of consent to the adoption under § 26-10A-13(a) and (b) and that her withdrawal of consent was effective under § 26-10A-14(a)(2) because of fraud or undue influence on the part of Ames in procuring her consent.

         On August 18, 2016, the birth mother served a notice of her constitutional challenge to the Alabama Adoption Code on the Alabama Attorney General. See § 6-6-227, Ala. Code 1975.

         On August 24, 2016, the probate court entered a summary judgment in favor of the adoptive mother.[4] In the summary judgment, the probate court found, "as a matter of fact and as a matter of law, based on the undisputed material evidence to this dispositive motion, that on February 6, 2015, [the birth mother] freely, voluntarily and with full knowledge of its terms, and under oath, executed her pre-birth consent to this adoption, which was not obtained by fraud, duress, mistake or undue influence on the part of [the adoptive mother] or her agent, including attorney Donna Ames." The probate court addressed the birth mother's contention that she had not complied with the 5-day or 14-day statutory periods for executing a withdrawal of her consent to the adoption because of a conversation involving the birth mother, the adoptive mother, and Ames in April 2015, finding:

"[The birth mother] and Ames both testified about a conversation between [the adoptive mother] and Ames in April 2015, that took place when they met [the birth mother] after a doctor's checkup. [The adoptive mother] asked Ames a logistical question about what would take place at the hospital when the baby was born and what would happen next. The conversation between [the adoptive mother] and Ames in [the birth mother's] presence did not concern the withdrawal of consent procedure nor did the discussion concern any issue of what would happen if [the birth mother] should change her mind. That was not the subject of that conversation. The statements by Ames were true.
"Regarding the logistics at the hospital, Ames told [the adoptive mother] that Ames would visit the hospital and [the birth mother] would sign documents that allowed [the adoptive mother] to take the baby home. Alabama Code § 26-10A-15 references that 'no healthcare facility shall surrender the physical custody of an adoptee' to an adoptive parent without the authorization of a birth parent executed after the birth. Regarding what would happen next, Ames told [the adoptive mother] that the Judge would schedule a final hearing. The Final Decree and dispositive hearing under § 26-10A-25 is typically not done until 60 days or more after the adoptee has been in the physical custody of the adoptive parent. This is true whether the baby goes home from the hospital with the adoptive parent or initially with the birth mother for subsequent delivery to the adoptive parent. These sections and the proceedings which occur after a birth do not concern the requirements under § 26-l0A-13 for execution and delivery of the withdrawal of consent document that [the birth mother] received and understood."

         The probate court found that the doctrine of equitable tolling did not apply in this case to the 5-day or 14-day statutory periods. The probate court further found that the best interests of the child would be served by granting the adoption and that the birth mother had not presented any evidence to contradict that finding. On August 24, 2016, the probate court entered a "Final Decree of Adoption."[5]

         III. The Protective Order

         On July 8, 2015, the adoptive mother filed a motion seeking an order requiring the birth mother to show cause why she should not be held in contempt.[6] As grounds, the adoptive mother asserted that the birth mother had posted false and slanderous statements about the adoption proceedings on the Internet. The adoptive mother sought an order requiring the birth mother to pay for the adoptive mother's legal fees relating to the contempt issues, to remove the postings on the Internet, and to cease from making any statements about the adoption proceedings in any public medium. Also on July 8, 2015, the adoptive mother filed a motion seeking the probate court's permission to speak to the media, alleging that the adoptive mother's counsel had been contacted by a media outlet about the birth mother's postings on the Internet. On July 10, 2015, the adoptive mother filed a motion seeking an order requiring the birth mother and other people associated with her to remove postings on social media that, the adoptive mother asserted, violated statutory provisions regarding the confidentiality of adoption proceedings, and she also filed a motion seeking permission to publicly post the transcript of the prebirth-consent hearing conducted on February 6, 2015. On July 10, 2015, the probate court entered an order denying the adoptive mother's motion seeking to publicly post the transcript of the prebirth-consent hearing and setting a hearing on July 22, 2015, regarding the adoptive mother's motions to show cause and seeking the removal of postings on the Internet and social media. On July 21, 2015, the adoptive mother filed a brief in support of her pending motions, arguing that the birth mother's public disclosures of the adoption matters violated § 26-10A-31, Ala. Code 1975.

         While Druhan was the appointed probate judge in the case, the probate court conducted the scheduled hearing on July 22, 2015.[7] At the hearing, the adoptive mother submitted exhibits showing a Web page from Facebook, a social-media Web site with postings by the birth mother and others regarding the adoption proceedings, an account on a fund-raising Web site, and news articles. The exhibits contained the names of the people involved in the case, including the child, details of the adoption proceedings, and descriptions and discussions of events at issue in the adoption contest. On July 22, 2015, the probate court entered an order denying the adoptive mother's motion to show cause but granting in part the adoptive mother's motion to remove social-media postings. In the July 22, 2015, order, the probate court "enjoined [the parties and counsel for the parties] from discussing or referencing this adoption case with the public, social media, news media, or the like, pending further proceedings."

         On July 23, 2015, the adoptive mother filed a motion for contempt, asserting that, during the hearing on July 22, 2015, the birth mother had stated under oath that she would follow the probate court's order prohibiting the parties from making references to this case on social media and would request that her friends not post such materials on social media. The adoptive mother then asserted that, on July 23, 2015, the birth mother's close friend and roommate had posted an article on Facebook that characterized the adoption proceedings as a kidnapping and a forced adoption, mentioned the names of the parties and the child, and discussed events at issue in the adoption contest. After a hearing on the motion, the probate court entered an order on July 27, 2015, denying the adoptive mother's July 23, 2015, motion for contempt.

         On July 31, 2015, the birth mother filed a motion seeking to alter, amend, or vacate the July 22, 2015, order enjoining the parties from publicly referencing the adoption proceedings. In the motion, the birth mother argued that the order was an impermissible prior restraint on speech in violation of the First Amendment to the United States Constitution. The adoptive mother filed a response arguing that the July 22, 2015, order followed the confidentiality requirements mandated by § 26-10A-31. After a hearing, the probate court entered an order on August 10, 2015, denying the birth mother's motion to alter, amend, or vacate the July 22, 2015, order.

         On August 10, 2015, the adoptive mother filed a motion seeking an order finding the birth mother in contempt and restraining the birth mother and those acting on her behalf or direction from violating the July 22, 2015, order. The adoptive mother asserted that the birth mother had continued to violate the July 22, 2015, order through postings on Facebook and other social media. The adoptive mother submitted an exhibit showing a Facebook account named "Auburn Tigers" with postings regarding the adoption proceedings. In one post, the person behind the account claims to have sent messages to 31 of the adoptive mother's friends and to have placed a prayer request at the adoptive mother's church for her to return the child to the birth mother.

         On August 13, 2015, the adoptive mother filed a motion seeking a temporary restraining order, pursuant to Rule 65(b), Ala. R. Civ. P., against the mother of the birth mother and the mother of the birth mother's roommate. The adoptive mother asserted that social-media postings by them had violated the July 22, 2015, order and § 26-10A-31. On August 25, 2015, the birth mother filed a response arguing that the adoptive mother's motion should be denied because the probate court lacked subject-matter jurisdiction to enter a temporary restraining order against nonparties. After a hearing, the probate court entered an order on October 2, 2015, denying the adoptive mother's motion for a temporary restraining order but granting her motion for contempt, fining the birth mother in the amount of $500.

         On October 5, 2015, the birth mother filed a motion for contempt against the adoptive mother, arguing that the adoptive mother had violated the July 22, 2015, order by having had communications with family and friends about the adoption proceedings and through her counsel's having obtained information from the child's biological father. The adoptive mother filed a response arguing that the nature of her communications with family and friends were not public disclosures that violated the confidentiality of the proceedings and that her counsel had permissibly communicated with the child's biological father, who, she asserted, was a potential witness in the case. After a hearing, the probate court entered an order on October 15, 2015, denying the birth mother's motion for contempt.

         On July 13, 2016, the adoptive mother filed a "Motion for Further Protective Order and Injunctive Relief." In the motion, the adoptive mother asserted that, since July 2015, the probate court had made clear that the birth mother and her counsel were not authorized to speak to the media but that a news article regarding the adoption proceedings had been published on June 15, 2016, that included statements by the birth mother and her counsel. The adoptive mother also asserted that the birth mother had continued to discuss the adoption proceedings in July 2016 postings on Facebook promoting fund-raising efforts for the litigation and that, on the night of the child's first birthday, the adoptive mother's front yard had become littered with signs at the direction of the birth mother. The adoptive mother requested another order directing the birth mother to stop making statements to the media, to stop posting information regarding the adoption proceedings on the Internet, and to stop having any contact with the adoptive mother or her residence.

         After Judge Wood was appointed as the probate judge in this case, the probate court conducted a hearing on the adoptive mother's "Motion for Further Protective Order and Injunctive Relief." On August 9, 2016, the probate court entered an "Order of Further Protection" ("the protective order"), ordering that the birth mother:

"1. Cease and desist from any contact or communications with [the adoptive mother] or her home whether direct or indirect.
"2. Cease and desist all media and social media communications or postings related to this child, his adoption, [the adoptive mother] or these proceedings, including photographs taken when the baby was in her custody, or reference to her pregnancy with this child, including but not limited to the following sites:
"[List of Facebook pages, social-media services, and other Web sites.]
"3. [The birth mother] is ordered to remove, within forty-eight (48) hours of this Order, all of her social media postings concerning this child, this adoption and the parties thereto including photographs of the child.
"4. [The birth mother] is further ordered to within in 48 hours, direct her 'team, ' including the 'administrator' of [a Facebook page], to remove and shutdown [the Facebook page], [a] Twitter [social-media] account, and other similar outlets as referenced in Paragraph 2; to remove their postings from social media concerning this adoption and the parties thereto, including any photographs of [the adoptive mother] or the child; and to cease communications with any media of any type now and in the future regarding this adoption and the parties thereto. [The birth mother] is ordered to place her demand for these actions in writing to said persons and to produce a copy of said writings and their communications to said persons to [the adoptive mother's] counsel. [The birth mother] is further ordered to refrain from any direct communications or private messaging with such persons or through third parties, that in any way contravenes her written instruction to them, including private Facebook messaging.

         "The following language is approved for the communications by [the birth mother] referenced in Paragraph 4 above:

"'I want to thank each and every one of you for your kind words, thoughts and prayers. It has meant a lot to me and has helped me through this time. Alabama law states that adoption proceedings are confidential. Please stop any further postings on this or any other social media site that in anyway concerns this child, the adoption matter, or the adoptive parent. Also I am asking you to remove all of your prior postings to this and other sites. I further direct that you agree to my request that [the Facebook page], [the Twitter account], and all internet or blog sites referencing this adoption and its contest, be shut down so they are no longer on the internet.'"

         On August 23, 2016, the birth mother filed a motion seeking to modify the protective order. In the motion, the birth mother asserted that "[n]ow that the case is no longer pending, there are aspects of the Protective Order that are due to be lifted." Specifically, the birth mother asserted that she had the right to disclose publicly her pregnancy and the adoption of the child and the right to seek assistance with her legal expenses. The adoptive mother filed a reply asserting that the August 9, 2016, order prohibits the birth mother from making social-media and Internet postings concerning the adoption but that she did not object to the birth mother's seeking private assistance from family or close friends already aware of the matter.

         On September 1, 2016, the adoptive mother filed a motion for protective relief. In the motion, the adoptive mother requested permission to send a copy of the August 9, 2016, order to the administrators of Facebook and other Internet sites, asserting that the birth mother had continued to not comply with the order and that those sites had not removed postings regarding the adoption proceedings.

         On September 6, 2016, the probate court entered an order denying the pending motions regarding the protective order filed by ...


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