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B. V. v. J.M.

Alabama Court of Civil Appeals

October 4, 2019

B. V.
v.
J.M. and T.M.

          Appeal from Calhoun Probate Court (18-113)

          EDWARDS, JUDGE.

         On March 22, 2018, J.M. and T.M. ("the prospective adoptive parents") commenced in the Calhoun Probate Court ("the Alabama court") an action ("the adoption action") seeking to adopt S.G. ("the child"), who was born on February 10, 2018, in Texas. On March 27, 2018, the prospective adoptive parents amended their adoption petition to indicate that B.V. ("the alleged biological father") had initiated a paternity and custody action relating to the child in Texas. On May 2, 2018, the alleged biological father made a limited appearance in the adoption action, seeking the dismissal of that action because, he asserted, the Alabama court lacked jurisdiction to entertain the adoption action under the Paternal Kidnapping Prevention Act ("the PKPA"), 28 U.S.C. § 1738A. The alleged biological father presented to the Alabama court a copy of the complaint he had filed on March 7, 2018, in the District Court of Hays County, Texas ("the Texas court"), in which he sought an adjudication of his paternity and an award of custody of the child, and orders subsequently entered by the Texas court.[1] The Alabama court denied the alleged biological father's motion to dismiss and set the adoption action for a trial on his contest to the adoption, which was held on November 16, 2018. After the conclusion of the trial on the alleged biological father's contest, the Alabama court entered an order on March 25, 2019, denying the alleged biological father's contest; the Alabama court explicitly determined that the alleged biological father had impliedly consented to the child's adoption under Ala. Code 1975, § 26-10A-9. The alleged biological father filed a notice of appeal on April 8, 2019.

         As a preliminary matter, we agree with the prospective adoptive parents that the alleged biological father has appealed from an interlocutory order. The order resolving his contest to the adoption does not contain the necessary language to serve as a final judgment of adoption and, in fact, contains certain information that is not permitted to be included in an adoption judgment. See Ala. Code 1975, § 26-10A-25(c) (indicating, among other things, that an adoption judgment should contain the new name of the adoptee and order that the adoptee shall be the child of the petitioners from the date of entry of the judgment and not contain any other name by which the adoptee has been known or the names of the natural parents). Thus, we agree with the prospective adoptive parents that the appeal, at least insofar as it concerns the resolution of the alleged biological father's contest to the adoption, is not properly before this court, and we dismiss his appeal as to that issue.

         However, we disagree with the prospective adoptive parents regarding whether this court may treat the alleged biological father's appeal, insofar as he asserts arguments relating to the jurisdiction of the Alabama court to entertain the adoption action, as a timely filed petition for the writ of mandamus. We first note that this court has the discretion to treat an appeal as a petition for the writ of mandamus when appropriate. See, e.g., Fowler v. Merkle, 564 So.2d 960, 961 (Ala. Civ. App. 1990). Although we understand that the alleged biological father did not timely seek review of the initial denial of his motion to dismiss, the alleged biological father's jurisdictional arguments concern the subject-matter jurisdiction of the Alabama court under the PKPA. See Ex parte D.B., 975 So.2d 940, 946 (Ala. 2007). Our supreme court has held that this court may entertain an otherwise untimely petition for the writ of mandamus when the issue pertains to subject-matter jurisdiction. Ex parte K.R., 210 So.3d 1106, 1112 (Ala. 2016). We therefore exercise our discretion and treat the alleged biological father's notice of appeal as a petition for the writ of mandamus insofar as he asserts that the Alabama court lacked jurisdiction over the adoption action.

"'"Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court."'"

Ex parte A.M.P., 997 So.2d 1008, 1014 (Ala. 2008) (quoting Ex parte Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala. 2003), quoting in turn Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995)).

         The issue before this court is whether the alleged biological father has established a clear legal right to the dismissal of the adoption action. Relying on Ex parte D.B., 975 So.2d 940 (Ala. 2007), the alleged biological father argues that Texas is the home state of the child under the PKPA and, therefore, that the adoption action must be dismissed under 28 U.S.C. § 1738A(g), which, he says, prohibits the exercise of jurisdiction by the Alabama court because the Texas court was already exercising its jurisdiction. The prospective adoptive parents disagree, contending that Texas is not the home state of the child.[2] Based upon our review of the language of the PKPA and Ex parte D.B., we conclude that Alabama could not properly assert jurisdiction over the adoption action after the initiation of the alleged biological father's paternity and custody action in Texas.

         In pertinent part, the PKPA reads as follows:

"(b) As used in this section, the term --
"(1) 'child' means a person under the age of eighteen;
"(2) 'contestant' means a person, including a parent or grandparent, who claims a right to custody or visitation of a child;
"(3) 'custody determination' means a judgment, decree, or other order of a court providing for the custody of a child, and includes permanent and temporary orders, and initial orders and modifications;
"(4) 'home State' means the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old, the State in which the child lived from birth with any of such persons. Periods of temporary ...

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