J.R. v. J.H.R. and J.F.R. ( 2022 )

REL: December 9, 2022
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2022-2023
_________________________
CL-2022-0544
_________________________
J.R.
v.
J.H.R. and J.F.R.
Appeal from St. Clair Probate Court
(N-21-530)
EDWARDS, Judge.
On December 2, 2021, J.H.R. and J.F.R. ("the prospective adoptive
parents") filed a petition in the St. Clair Probate Court seeking to adopt
J.R. ("the child"). Notice of the adoption action was served on J.R. ("the
CL-2022-0544
father").1 On December 13, 2021, the father filed a contest to the
proposed adoption in the probate court, and, on March 10, 2022, the
probate court held a hearing pursuant to Ala. Code 1975, § 26-10A-24,
after which it entered an order on March 22, 2022, denying the father's
adoption contest. On April 5, 2022, the father filed a notice of appeal
from the order denying his adoption contest. We dismiss the appeal.
We have previously explained that an order denying an adoption
contest is not a final judgment capable of supporting an appeal. See Ex
parte W.L.K., 175 So. 3d 652, 656 (Ala. Civ. App. 2015) (explaining that
an order resolving an adoption contest but not resolving the entire
adoption proceeding was an interlocutory order); see also Fowler v.
Merkle, 564 So. 2d 960, 961 (Ala. Civ. App. 1989) (holding that the denial
of a motion to set aside consent to an adoption was not a final judgment).
As we recently explained in Ex parte C.D., [Ms. 2210248, Nov. 18, 2022]
___ So. 3d ___, ___ (Ala. Civ. App 2022):
"This court has, in the past, [reviewed the denial of an
adoption contest] on mandamus review, typically after
converting an appeal to a petition for the writ of mandamus.
See, e.g., Fowler v. Merkle, 564 So. 2d 960, 961 (Ala. Civ. App.
1989); Smith v. Jones, 554 So. 2d 1066, 1067 (Ala. Civ. App.
1The child's mother is deceased.
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1989); Kinkead v. Lee, 509 So. 2d 247, 248 (Ala. Civ. App.
1987); Ex parte Department of Hum. Res., 502 So. 2d 771, 772
(Ala. Civ. App. 1987); Alabama Dep't of Pensions & Sec. v.
Johns, 441 So. 2d 947, 948 (Ala. Civ. App. 1983); see also Ex
parte Fowler, 564 So. 2d 962, 964 (Ala. 1990) (treating petition
for the writ of certiorari as a petition for the writ of
mandamus). However, mandamus is an extraordinary writ,
and a mandamus petition is not a proper vehicle for review of
every type of interlocutory order. See Ex parte Spears, 621
So. 2d 1255, 1258 (Ala. 1993); Ex parte U.S. Bank Nat'l Ass'n,
148 So. 3d 1060, 1064 (Ala. 2014) (listing those types of
interlocutory orders for which mandamus is an appropriate
remedy); see also Ex parte M.A.D., 830 So. 2d 751, 753 (Ala.
Civ. App. 2002). More recently, this court has consistently
reviewed orders concluding that a parent had impliedly
consented to adoption on appeal from the final judgment of
adoption. See, e.g., S.P. v. J.R., 206 So. 3d 637 (Ala. Civ. App.
2016); J.D.S. v. J.W.L., 204 So. 3d 386 (Ala. Civ. App. 2016);
and I.B. v. T.N., 194 So. 3d 221 (Ala. Civ. App. 2015)."
An adoption contestant is entitled to challenge the order denying
the contest in an appeal from any valid adoption judgment that might be
entered. Thus, mandamus review is not appropriate in this case because
the father has an adequate remedy by way of an appeal. However, at this
stage of the proceedings, because the father has appealed from a nonfinal
judgment, his appeal must be dismissed. See Wolf v. Smith, 414 So. 2d
129, 130 (Ala. Civ. App. 1982) (dismissing an appeal from an
interlocutory order of the probate court and explaining that an appeal
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lies only from a final judgment of adoption that met the requirements of
Ala. Code 1975, former § 26-10-4).
APPEAL DISMISSED.
Thompson, P.J., and Moore, Hanson, and Fridy, JJ., concur.
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