B.V.
v.
J.M. and T.M.
Appeal
from Calhoun Probate Court (18-113)
On
Application for Rehearing
EDWARDS, JUDGE.
This
court's opinion of October 4, 2019, is withdrawn, and the
following is substituted therefor.
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 Parental 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 absence
of any of such persons are counted as part of the six-month
or other period;
"....
"(6) 'person acting as a parent' means a person,
other than a parent, who has physical custody of a child and
who has either been awarded custody by a court or claims a
right to custody;
"(7) 'physical custody' means actual possession
and control of a child;
"(8) 'State' means a State of the United States,
the District of Columbia, the Commonwealth of Puerto Rico, or
a territory or ...