from Shelby Probate Court (PR-16-760)
("the stepfather") appeals from an order of the
Shelby Probate Court ("the probate court") that,
among other things, granted the contest of K.P.R. ("the
father") to the proposed adoption of C.A.R. ("the
child") by the stepfather, denied the stepfather's
petition to adopt the child, and dismissed the adoption
proceeding. Based on the current interpretation of §
26-10A-26, Ala. Code 1975, the appeal was required to be
filed within 14 days of the entry of the order. Because the
appeal was filed more than 14 days after the entry of the
order, this court is without jurisdiction and we dismiss the
appeal. Rule 2(a)(1), Ala. R. App. P.
and Procedural History
facts pertinent to the disposition of this appeal are as
follows. On October 24, 2016, the stepfather filed a petition
in the probate court seeking to adopt the child. The father
filed an answer to the stepfather's petition in which he
contested the adoption. On May 8, 2017, after a hearing at
which ore tenus testimony was taken, the probate court
entered a detailed final order in which it, among other
things, found that the father had not impliedly consented to
the adoption, granted the father's contest to the
adoption, denied the stepfather's adoption petition, and
dismissed the adoption proceeding.
18, 2017, the stepfather filed a motion seeking to alter,
amend, or vacate the May 8, 2017, order. On June 9, 2017, the
probate court entered an order setting the stepfather's
postjudgment motion for a hearing on August 2, 2017. On
August 10, 2017, the probate court entered an order denying
the stepfather's postjudgment motion. The stepfather
filed his notice of appeal to this court on August 21, 2017.
This court has appellate jurisdiction of appeals from
adoption proceedings pursuant to § 12-3-1, Ala. Code
reaching the merits of the stepfather's arguments, we
must determine whether the stepfather's notice of appeal
was timely filed because "an untimely filed notice of
appeal results in a lack of appellate jurisdiction."
Parker v. Parker, 946 So.2d 480, 485 (Ala. Civ. App.
2006). See also Rule 2(a)(1), Ala. R. App. P. ("An
appeal shall be dismissed if the notice of appeal was not
timely filed to invoke the jurisdiction of the appellate
brief, the father asserts that the stepfather's notice of
appeal was not timely and that, therefore, this court should
dismiss the stepfather's appeal. In response, the
stepfather filed a motion asking this court to deem his
appeal to have been timely filed, to which he attached a
memorandum in support.
stepfather argues that the order from which he appealed is
not a "final decree of adoption" that must be
appealed within 14 days pursuant to § 26-10A-26(a), Ala.
Code 1975. The stepfather cites J.B.M. v. J.C.M.,
142 So.3d 676 (Ala. Civ. App. 2013), in support of his
position. In J.B.M., this court held that "the
period for filing a notice of appeal from the denial of a
Rule 60(b)[, Ala. R. Civ. P., ] motion pertaining to an
adoption proceeding before the probate court is 42 days
pursuant to Rule 4(a)(1), Ala. R. App. P." 142 So.3d at
682. A motion filed pursuant to Rule 60(b), Ala. R. Civ. P.,
however, "does not bring up for review the merits of the
underlying judgment and is instead a collateral attack on the
judgment." Ex parte R.S.C., 853 So.2d 228, 233
(Ala. Civ. App. 2002). Further, a motion filed pursuant to
Rule 60(b) "does not affect the finality of a judgment
or suspend its operation, " and the motion "is not
deemed denied by operation of law ...." Id. at
233-34. Accordingly, J.B.M. is inapplicable to the
supreme court, in considering the interplay between Rule
21(a)(3), Ala. R. App. P., and § 26-10A-26(a), has held
that it is "clear that the presumptively reasonable time
for filing a mandamus petition challenging an order
in an adoption proceeding is 14 days." Ex parte
K.R., 210 So.3d 1106, 1111 (Ala. 2016)(emphasis added).
The supreme court's application of the 14-day appeal
period in § 26-10A-26(a) to an interlocutory
order--which is not a "final decree of
adoption"--demonstrates that final orders entered in
adoption proceedings, whether granting or denying adoption
petitions, must be appealed within 14 days.
stepfather also argues that the Code of Alabama and the
Alabama Rules of Civil Procedure do not contemplate a 14-day
period pertaining to the filing of, and the ruling on,
postjudgment motions. This court has held that the 14-day
period for appeals from adoption judgments is applicable to
postjudgment practice in adoption proceedings. See, e.g.,
Ex parte W.L.K., 175 So.3d 652 n. 1 (Ala. Civ. App.
2015); see also R.W.S. v. C.B.D., [Ms. 2160344, Aug.
11, 2017] ___So. 3d, (Ala. Civ. App. 2017). The stepfather
asks this court to "correct" what he asserts is
"bad dicta" in a footnote in Ex parte
W.L.K. "as being contrary to the plain language of
the applicable laws and rules set out in the Code of Alabama
and the Alabama Rules of Civil Procedure."
Ex parte W.L.K., however, this court relied on
Ex parte A.M.P., 997 So.2d 1008');">997 So.2d 1008 (Ala. 2008), which
included several appeals and a petition for a writ of
mandamus that had been consolidated and in which our supreme
court explained that the appellants in that case had filed a
postjudgment motion within 14 days of the entry of the
adoption judgment, that that motion had been denied by
operation of law 14 days after its filing, and that the
appellants' notice of appeal, which had been filed within
14 days of the denial by operation of law of the postjudgment
motion, was timely. Id. at 1013. It is well settled
that "this court is bound by the decisions of our
supreme court. Ala. Code 1975, § 12-3-16. We are not at
liberty to overrule or modify those decisions. Thompson
v. Wasdin, 655 So.2d 1058 (Ala. Civ. App. 1995)."
TenEyck v. TenEyck, 885 So.2d 146, 158 (Ala. Civ.
probate court entered its final order on May 8, 2017.
Although the stepfather timely filed his postjudgment motion
within 14 days of the entry of the order (on May 18, 2017),
that motion was denied by operation of law 14 days later--on
June 1, 2017. Therefore, the stepfather's notice of
appeal was due to be filed no later than 14 days after the
date his postjudgment motion was denied by operation of
law--June 15, 2017. Because the stepfather did not file his
notice of appeal until August 21, 2017, it was not timely
filed and, as a result, this court lacks jurisdiction to
consider the stepfather's appeal. See Ex parte
A.M.P., 997 So.2d at 1013; and K.P. v. Madison Cty.
Dep't of Human Res., [Ms. 2160414, July 21, 2017]
___So. 3d ___, ___ (Ala. Civ. App. 2017)("The Rules ...