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C.Z. v. B.G.

Alabama Court of Civil Appeals

September 21, 2018

C.Z. and J.Z.
v.
B.G.

          Appeal from Elmore Probate Court (A2017-40)

          MOORE, JUDGE.

         C.Z. and J.Z., the prospective adoptive parents of A.L.G. ("the child"), appeal from a judgment entered by the Elmore Probate Court ("the probate court") that, among other things, dismissed their petition for adoption. We affirm the judgment.

         Procedural History

         On October 16, 2017, the prospective adoptive parents filed in the probate court a petition to adopt the unborn child of J.W. ("the mother"), an unmarried woman. In support of that petition, the prospective adoptive parents filed affidavits of the mother and T.B., who asserted he was the biological father of the child, both of whom consented to the adoption of the child. The child was born on October 23, 2017, and was named "K.I.Z." on his birth certificate. The Alabama Department of Human Resources ("DHR") reported to the probate court on December 18, 2017, that no man had registered with the Alabama Putative Father Registry ("the putative-father registry") claiming paternity of the child. The probate court entered a final judgment of adoption on December 19, 2017.

         On January 25, 2018, DHR notified the probate court that, in fact, B.G. ("the father") had registered with the putative-father registry in October 2017, claiming paternity of the child, and that DHR had, in its December 2017 report, erroneously failed to notify the probate court of his registration. Based on that disclosure, the probate court vacated the final judgment of adoption on its own motion on January 26, 2018. The probate court subsequently ordered genetic testing of the father, T.B., and the child on February 16, 2018, which, after being conducted several months later, revealed a 99.99% probability that B.G. is the father of the child and excluded T.B. as the father of the child. On March 29, 2018, while awaiting the genetic testing, the probate court ordered the prospective adoptive parents to serve the father with notice of their petition for adoption, which they did on May 1, 2018. On May 25, 2018, the father filed with the probate court an objection to the petition for adoption.

         On June 28, 2018, the prospective adoptive parents moved the probate court to "dismiss" the father's objection to the petition for adoption because of the alleged failure of the father to properly register with the putative-father registry. On July 2, 2018, the father moved the probate court to dismiss the adoption petition on the ground that he did not consent to the adoption of the child. The prospective adoptive parents filed an affidavit of the mother in support of their opposition to the motion to dismiss filed by the father. The probate court held a hearing on the motions on July 9, 2018, at which the father, his mother, T.B., and J.Z. testified.

         On July 13, 2018, the probate court entered a judgment dismissing the petition for adoption. In its judgment, the probate court determined that the mother had defrauded the probate court by identifying T.B. as the putative father of the child and concealing her relationship with the father and his paternity of the child; that the father had substantially complied with the registration requirements of the Alabama Putative Father Registry Act ("the APFRA"), § 26-10C-1 and § 26-10C-2, Ala. Code 1975; that DHR had erroneously failed to disclose that the father had registered with the putative-father registry, claiming paternity of the child; that the father had not consented to the adoption; and that the final judgment of adoption had been properly vacated and was not due to be reinstated. The probate court dismissed the adoption petition, ordered that the father be identified as the father of the child on the child's birth certificate, ordered that the name of the child be changed to "A.L.G." on his birth certificate, and ordered the prospective adoptive parents to turn over the child to the father within 10 days. The probate court subsequently purported to transfer the case to the Elmore Juvenile Court for further paternity and custody proceedings, but the Elmore Juvenile Court declined the transfer.

         The prospective adoptive parents filed a notice of appeal on July 27, 2018. On August 3, 2018, this court granted a motion to stay that part of the final judgment requiring the transfer of the custody of the child to the father.

         Facts

         In its final judgment, the probate court set forth extensive findings of fact. The record indicates that the probate court conducted several hearings in this case, during which it received oral testimony, but none of the hearings were recorded or transcribed. The parties to this appeal elected not to submit a statement of the evidence pursuant to Rule 10, Ala. R. App. P. Accordingly, this court conclusively presumes that the probate court's findings of fact, which are substantially set forth below, are supported by sufficient evidence. See Ex parte Lucas, 165 So.3d 618, 621 (Ala. Civ. App. 2014).

         The mother and the father were involved in an intimate dating relationship for approximately one year, during which the mother became pregnant with the child. On March 19, 2017, the mother posted on her Facebook social-media page that "We found out on March 9th that we are expecting a baby!" On April 3, 2017, the father transported the mother to an appointment for an ultrasound test. The mother and the father obtained paper copies of the test results, and, on April 4, 2017, the mother posted on her Facebook page that "we saw baby [G.] yesterday for the first time," referring to her unborn child with the surname of the father. Thereafter, the father transported the mother to two other prenatal doctor appointments, and he purchased clothes, bottles, and other supplies for his forthcoming child. The mother resided in the home of the father from March 2017 through July 2017, during which time the father provided her both financial and emotional support. On July 25, 2017, the mother and the father held a gender-reveal party at their home, holding themselves out as the prospective parents of the child and displaying the initials "A.L.G." on the clothes purchased for the child. At that party, the mother impliedly and expressly acknowledged that the father was the biological father of the child.

         Four days after the gender-reveal party, the mother privately met with J.Z. to discuss the possibility of J.Z. and C.Z. adopting the child. The mother did not inform the prospective adoptive parents of the father's possible or probable paternity of the child. The mother and the father ended their relationship approximately one month later. The mother informed the father that he could be involved in the life of the child, but, contrary to her representation, the mother avoided all contact and communication with the father despite his attempts to contact her.

         On September 14, 2017, the mother appeared before the probate court for the purpose of executing a prebirth consent to the adoption of the child. At that hearing, the mother, who was under oath, swore that T.B. was the biological father of the child. The mother did not reveal to the probate court any information regarding her relationship with the father, with whom she had been cohabiting at the time of the conception of the child and during a large part of her pregnancy, or any information regarding the father's paternity of the child. On the same date as the hearing, the prospective adoptive parents filed an affidavit from T.B. in which he asserted his paternity of the child and consented to the adoption of the child. On October 16, 2017, when the prospective adoptive parents filed their prebirth petition to adopt the child, they alleged that T.B. was the biological father of the child and submitted affidavits from the mother and T.B. stating that they had received nothing of value to obtain their consent to the adoption. The prospective adoptive parents also filed a notice indicating that the mother had consented to the removal of the child from the hospital by the prospective adoptive parents.

         The child was born on October 23, 2017, and was given the name K.I.Z. The name of the father was left blank on the birth certificate for the child. The father learned of the birth of the child indirectly. The father and his mother traveled to the hospital, but, at the request of the mother, they were both removed by security guards, and, thus, the father was not allowed to see the child.

         While at the hospital, the father saw the prospective adoptive parents, which alerted him to the possibility that the child had been placed for adoption. The father attempted to register with the putative-father registry at the hospital, but hospital staff directed him to contact DHR directly. The next day, the father took a substantially completed "Alabama Department of Human Resources Putative Father Intent To Claim Paternity Registration" form ("the APFRA form") to DHR, leaving blank his and the mother's Social Security numbers and leaving blank a line requesting the possible dates of sexual intercourse between the two. The APFRA form, which was filled out in more than one person's handwriting, described the child as "unborn," and the notary acknowledgment was dated October 21, 2017. Inconsistently, the APFRA form listed the date of the birth of the child, "October 23, 2017, per call," and identified the child both as "Baby Boy [W.]" and as "A.L.G." The probate court found that different persons had completed different parts of the APFRA form at different times. A Rule 32, Ala. R. Jud. Admin., child-support-obligation income statement/affidavit was also attached by the father to the APFRA form. By a letter dated October 27, 2017, DHR confirmed to the father that he had been officially registered on the putative-father registry as of October 21, 2017. The notice informed the father that, in the event DHR received notice of an adoption proceeding regarding the child, DHR would notify the father.

         On October 27, 2017, the father commenced a paternity action in the Elmore Juvenile Court. In his petition, the father explained that it would be in the best interests of the child for him to obtain custody of the child because, he alleged, the mother "is giving the child up for adoption against my will." On March 9, 2018, the paternity action was dismissed for failure to state a cause of action. The probate court later determined that the dismissal by the juvenile court had not been a ruling on the merits and denied a motion by the prospective adoptive parents to give the dismissal order res judicata effect in the adoption proceedings. When the prospective adoptive parents amended their adoption petition on November 14, 2017, they did not refer to the father or the pending paternity action of which they were unaware.

         On December 14, 2017, DHR issued the acknowledgment letter indicating that no man had filed a notice of intent to claim paternity of the child on the putative-father registry, which the probate court duly noted and filed in its records on December 18, 2017. The next day, the probate court entered the final judgment of adoption. The father learned of the probate court's error and contacted DHR in an effort to rectify the situation. In response, DHR issued the January 25, 2018, amended acknowledgment letter identifying the father as the putative father of the child and informed the probate court that the father had been officially registered on the putative-father registry as of October 21, 2017.

         The probate court vacated its final judgment of adoption and ordered genetic testing. The probate court explained that it had ordered the genetic testing solely to judicially determine whether T.B. was the biological father of the child as had been repeatedly asserted and whether T.B. had validly consented to the adoption of the child. The probate court stayed the order for genetic testing until after the father had been properly served with notice of the adoption proceedings. On May 4, 2018, the father filed a letter with the probate court, urging the probate court to proceed with the testing and advising the probate court that he was "prepared to be a full time Dad." The father attached photographs of himself as a baby and of the child at approximately the same age, which the probate court observed were "remarkably similar." On June 11, 2018, the laboratory issued the results of its genetic testing; those results were provided to the probate court and all of the parties, none of whom disputed the results.

         Discussion

         I. The Jurisdiction of the Probate Court to Vacate an Adoption Judgment Procured by Fraud Upon the Court

         The probate court vacated the final judgment of adoption on January 26, 2018. The probate court indicated in its order that it was acting within 30 days of the entry of the final judgment of adoption, but its order actually was entered 38 days after entry of the final judgment of adoption. The prospective adoptive parents argue that the probate court lacked jurisdiction to vacate the final judgment of adoption on its own motion after the expiration of 30 days. Cf. R.W.S. v. C.B.D., 244 So.3d 987, 990 (Ala. Civ. App. 2017) (holding that a postjudgment motion must be filed within 14 days of a final adoption judgment and may remain pending for only 14 days before being denied by operation of law).

         In its judgment dismissing the adoption petition, the probate court indicated that it had vacated the final judgment of adoption primarily due to fraud upon the court committed by the mother. Formerly, a probate court, as a court of law with no equity jurisdiction, lacked the authority to vacate its judgments due to fraud upon the court because that remedy classically was considered equitable in nature. See Ex ParteO.S., 205 So.3d 1233, 1243 (Ala. 2014) (Murdock, J., dissenting). Under Rule 60(b), Ala. R. Civ. P., probate courts now have the same authority as do other Alabama courts to vacate their own judgments for fraud upon the court. Id. Additionally, the legislature has expressly recognized the jurisdiction of probate courts to vacate a ...


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