One of the best aspects of being a lawyer is being a part of an adoption. Sometimes a step-parent is adopting a child or a grandparent is adopting a grandchild for various reasons. This is an adoption proceeding from Tuscaloosa County, Alabama, probate court, in the case of D.T. v. W.G. In 2013, the probate court granted a judgment that approved the adoption of a child by the maternal grandmother (“the adoptive parent”). In July 2015, the paternal grandmother filed a petition to the probate court seeking an award of grandparent visitation rights pursuant to Code of Alabama, 1975, § 26-10A-30.
The paternal grandmother did not request that the adoptive parent be served with the petition by certified mail as required by Alabama Rules of Civil Procedure 4. Instead, the paternal grandmother served the petition on the adoptive parent by mailing a copy of the petition to the attorney who represented the adoptive parent counsel in the adoption proceeding. The adoptive parents did not attend a scheduled hearing on the visitation issue and the probate court entered an Order on November 2, 2015, awarding visitation to the paternal grandmother.
Following the granting of visitation, on November 20, 2015, the adoptive parent filed a motion to set aside the November 2, 2015, award of visitation, arguing that the probate court lacked jurisdiction to entertain a petition for grandparent visitation after the adoption is granted. Also, the adoptive parent argued that the judgment was void because the paternal grandmother’s failure to properly serve the petition upon her violated her due process rights.
The Court of Civil Appeals dismissed the appeal.
Under Code of Alabama, 1975, section 26-10A-30, a grandparent of an adoptee who is adopted by a relative is allowed to receive visitation rights. The statute goes on to further state that the visitation rights may be granted “at any time prior to or after the final order of adoption…” Therefore, the Court rejected the first argument furthered by the adoptive parent.
Secondly, the Court addressed the due process issue. The Court ruled that the adoptive parent was deprived of due process by way of the paternal grandmother failing to properly serve the adoptive parent. The paternal grandmother in this case operated under the notion that she could initiate a new action via filing a new motion under an already adjudicated adoption proceeding. However, the Court vigorously refuses that notion.
Here, no action was pending when the paternal grandmother filed her motion; the paternal grandmother’s request was not a motion but, in fact, a petition. Accordingly, the petition must have been served to the adoptive parent. The paternal grandmother’s failure to properly serve the adoptive parent deprived the probate court of its jurisdiction and rendered the judgment void. Therefore, the Court held that the appeal from the void judgment is due to be dismissed.
It is well known law that petitions must be properly served to the opposing party. Process serving is an essential building block in a Court proceeding which allows the defendant in the case to be put on notice. The U.S. Constitution requires that no defendant be deprived of life, liberty, or property without due process of the law, and making sure a defendant is aware of the fact that he or she has to come to court is an important part of due process.
Even though this rule of law may sound straightforward, it can easily be misconstrued and applied improperly, which is illustrated in the case above.
If you are considering adopting a step-child or grandchild, contact Birmingham Adoption Attorney Joseph A. Ingram or at (205) 335-2640.