J.B. v. F.B.

929 So. 2d 1023
CourtCourt of Civil Appeals of Alabama
DecidedNovember 18, 2005
Docket2040448
StatusPublished
Cited by7 cases

This text of 929 So. 2d 1023 (J.B. v. F.B.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
J.B. v. F.B., 929 So. 2d 1023 (Ala. Ct. App. 2005).

Opinion

PITTMAN, Judge.

J.B. appeals from a judgment of the Etowah Probate Court granting an adoption petition as to S.E.E., a child born on August 2, 2002. This is the second appeal to come before this court arising out of a dispute between the same parties over the custody of S.E.E. See J.B. v. A.B., 888 So.2d 528 (Ala.Civ.App.2004) (“J.B. I”).

A brief factual summary will establish the procedural posture of this appeal. C.E. (“the mother”) was married to S.E. (“the former husband”) for approximately nine years until their divorce in 1998. Following the divorce, C.E. had sexual relations with several men, including J.B. The mother gave birth to S.E.E. (“the child”) on August 2, 2002; the father’s name was listed as “unknown” on the child’s birth certificate.1 Around the time of the child’s [1024]*1024birth, the mother and the former husband began cohabiting again; the couple have purportedly established a common-law marriage since that time. The mother, the former husband, J.B., and the child all live in Missouri.

On December 11, 2002, A.B. (the former husband’s sister) and F.B. (A.B.’s husband), both of whom are residents of Eto-wah County, filed a petition in the Etowah Juvenile Court “for [a] change of custody by consent.” The petition was signed by A.B., F.B., and their adult son, C.B.; the child’s mother had signed the petition on December 4, 2002. The Etowah Juvenile Court issued an order declaring the child to be dependent and awarding A.B. and F.B. temporary custody of the child on December 11, 2002. A.B. traveled to Missouri to pick up the child on December 14, 2002, and the child has remained with A.B. and F.B. since that time. The results of a blood test conducted in December 2002 indicated that J.B., rather than the former husband, was the biological father of the child. J.B. filed a petition to determine paternity, child custody, and child support in Missouri on December 31, 2002.

In April 2003, after learning of the child’s relocation to Alabama, J.B. filed a motion pursuant to Rule 60, Ala. R. Civ. P., requesting that the Etowah Juvenile Court vacate the custody award of the child to A.B. and F.B. That motion was denied, and J.B. appealed. On February 27, 2004, this court dismissed the appeal with instructions to the juvenile court, holding that the December 11, 2002, order awarding custody to A.B. and F.B. was void because of the juvenile court’s lack of jurisdiction over the child. See J.B. 12

While J.B. I was pending on appeal, J.B. also pursued the paternity, child-custody, and child-support action that he had filed in Missouri in December 2002. On October 30, 2003, the Circuit Court of Johnson County, Missouri, entered a judgment establishing J.B. as the biological father of the child. In addition, that Missouri judgment determined that that court “has personal jurisdiction over each of the parties and jurisdiction over the subject matter.” However, the Missouri court specifically denied J.B.’s requests for an award of child custody and child support.

In March 2004, J.B. again filed a petition in the Missouri court requesting that that court order the return of the child to the State of Missouri and award custody of the child to J.B. pending further proceedings. However, the record reflects that in July 2004 the Missouri court set a hearing date of September 30, 2004, to hear arguments regarding a “motion for preliminary designation of home state of child.” In addition, the record reflects that the Etowah Juvenile Court entered an order on September 23, 2004, specifically staying further proceedings regarding the child until a decision could be made by the Missouri court.

On August 17, 2004, F.B. and A.B. filed a petition for adoption in the Etowah Probate Court (“the probate court”). In that petition, the father’s identity was not provided. The only attempt to serve the natural parents of the child was by publication in an Etowah County newspaper.

The Missouri court held a hearing regarding the home state of the child on [1025]*1025November 24, 2004. During that hearing, A.B. recited a time line summarizing the two years of litigation surrounding the child; that time line included the filing of the Alabama adoption petition. That testimony was the first notice to J.B. of the adoption pending in Alabama.

On November 30, 2004, while specifically declining to submit to the jurisdiction of Alabama courts, J.B. filed a “notice of contest to adoption” in the probate court. In that notice, the J.B. indicated that the probate court should stay its adoption proceedings until the Missouri court could make a determination concerning the child’s domicile. However, on December 22, 2004, the probate court conducted an adoption hearing at which J.B., A.B., and F.B. were represented by legal counsel. Following the hearing, on January 5, 2005, the probate court entered a final judgment granting the petition to adopt the child and denying J.B.’s contest of the adoption.

The probate court’s judgment determined that J.B. had failed to file with the Alabama Putative Father Registry and had, therefore, given his irrevocable implied consent pursuant to § 26 — 10C—1 (i), Ala.Code 1975. In addition, the probate court noted that J.B. had not established a significant parental relationship with the child to overcome the implied consent to adoption. The adoption judgment concluded that the best interests of the child would be served by granting the adoption petition, and it ordered that the child’s name be changed to reflect A.B. and F.B.’s surname. Following the denial of his post-judgment motion, J.B. filed this appeal.

J.B. asserts that the probate court abused its discretion when it failed to stay the adoption proceedings until the Missouri court had made a determination regarding the child’s home state. Secondarily, J.B. asserts error in the probate court’s determination that he had failed to establish a significant parental relationship with the child. Finally, the father contends that the probate court improperly applied Alabama’s Putative Father Registry Act, § 26-10C-1 et seq., Ala.Code 1975, to this case. We conclude that J.B.’s first contention is dispositive and mandates reversal in this case.

As discussed more completely in J.B. I, Alabama’s Uniform Child Custody Jurisdiction and Enforcement Act (“the UC-CJEA”), § 30-3B-101 et seq., Ala.Code 1975, sets forth the criteria for deciding which state’s courts will have jurisdiction to make a child-custody determination. Except in certain exceptional circumstances not present here, § 30-3B-201(a), Ala.Code 1975, a part of the UCCJEA, provides that a court of this state has jurisdiction to make an initial custody determination only if:

“(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
“(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207 or 30-3B-208, and:
“a.

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929 So. 2d 1023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jb-v-fb-alacivapp-2005.