Ex parte D.C.H. PETITION FOR WRIT OF MANDAMUS

Rel: April 21, 2023

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-2022-0617
_________________________

Ex parte D.C.H.

PETITION FOR WRIT OF MANDAMUS

(In re: J.D.

v.

E.C.H. and D.C.H.)

(Madison Circuit Court, DR-20-305.80)

HANSON, Judge.

D.C.H. ("the father") petitions this court for a writ of mandamus

directing the Madison Circuit Court ("the circuit court") to vacate its

March 23, 2022, order bifurcating the consolidated trials of the adoption
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and grandparent-visitation claims in this case and retransferring

D.P.D.'s ("the husband") adoption petitions to the probate court.

Facts and Procedural History

This is the second time that the grandparent visitation issues and

the petitions for adoption involving these parties have been before this

court. J.D. v. D.P.D., 348 So. 3d 423 (Ala. Civ. App. 2021). A recitation

of the facts and procedural history underlying the petitions is necessary.

The father and E.D. ("the mother") are the natural parents of S.H.,

born in 2011, and E.H., born in 2013 ("the children"). In 2016, the mother

and father divorced in Virginia following the father's arrest for and

conviction of crimes related to the sexual abuse of several minor victims

(not including the children). The father was sentenced to 50 years in

prison. The Virginia divorce judgment ("the Virginia judgment")

awarded sole legal and physical custody of the children to the mother,

but it also incorporated an agreement that awarded visitation rights to

the father's mother, J.D. ("the grandmother"), who had intervened in and

been made a party to the Virginia divorce action. In 2018, the mother

married D.P.D. ("the husband"), and the mother, the husband, and the

children have resided in Alabama since that time. On November 4, 2019,

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the husband filed petitions in the Madison Probate Court ("the probate

court") seeking to adopt the children. In his petitions, the husband

alleged that the father had impliedly consented to the adoptions by virtue

of his criminal conviction and the resulting 50-year prison sentence. The

husband's petitions also recognized the grandmother's visitation rights

with the children but requested limitation of the grandmother's

continued visitation and of her communication with the children

following the adoptions.

The father was served with notice in the federal penitentiary where

he is incarcerated, and the grandmother was served in Ohio where she

resides. On December 16, 2019, the father, pro se, answered the petition,

stating that he was contesting the adoption petitions. The grandmother

filed an answer and requested a hearing. The probate court set a hearing

on the husband's adoption petitions for June 30, 2020. The father

claimed that he filed a motion to appear via "Video Teleconference" in

February 2020; however, that motion was not in the record in the

previous appeal. On June 9, 2020, the father filed a "motion for a ruling"

on his request to appear via "video teleconference." J.D. v. D.P.D., 348

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So. 3d at 427. No ruling on any motion filed by the father was included

in the record.

On June 22, 2020, the grandmother initiated an action in the circuit

court against the mother seeking to formally register the Virginia

judgment pursuant to § 30-3B-305, Ala. Code 1975, and to enforce and/or

modify the visitation rights granted in the Virginia judgment. That

same day, the grandmother filed in the probate court a "petition to

enforce" her visitation rights as provided in the Virginia judgment. On

June 29, 2020, the husband filed a motion to dismiss the grandmother's

"petition to enforce."

On June 30, 2020, the probate court held a contested hearing on the

husband's adoption petitions and entertained arguments on the

husband's motion to dismiss the grandmother's "petition to enforce." The

grandmother appeared via videoconferencing software, and her counsel

appeared personally at the hearing. There is no transcript from the

probate court's hearing. The grandmother, however, contends that she

was not permitted to testify at the hearing and that, following oral

arguments as to whether her "petition to enforce" was procedurally

proper, the probate court ruled from the bench that it was not proper;

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invited the grandmother's counsel to leave the hearing; and disconnected

the grandmother from the videoconferencing broadcast of that hearing.

J.D. v. D.P.D., 348 So. 3d at 428. It appears that the mother and the

husband thereafter testified in support of the husband's adoption

petitions. The father did not appear for the hearing and was not

represented by counsel at the hearing.

On June 30, 2020, the probate court issued judgments in the

adoption proceedings granting the husband's petitions to adopt the

children, and it also dismissed the grandmother's "petition to enforce" her

visitation rights with the children. Regarding the grandmother's

"petition to enforce," the probate court issued the following order:

" 'This cause came to be heard on a purported Petition to
Enforce [a] Judgment ... filed by the ... grandmother; [the
husband's] motion to dismiss same; and the ... grandmother's
response to [the husband's] Motion to Dismiss. Said hearing
was held on June 30, 2020. [The husband] was physically
present along with his attorney of record; the ... grandmother
was present via Zoom also with her attorney of record who
was physically present. Upon consideration of said petitions,
motion and response as well as the arguments of counsel ore
tenus, this Honorable Court does hereby Order, Adjudge and
Decree as follows:

" '1. [The husband's] Motion to Dismiss the
Petition to Enforce [the] Judgment ... is, hereby,
granted.

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" '2. The ... grandmother was not properly
before this Court.

" '3. The ... grandmother's petition and
amended petition were not timely filed.

" '4. The ... grandmother failed to state a
claim upon which relief could be granted.

" '5. As such, both the Petition to Enforce ...
and Amended Petition to Enforce [the] Judgment
... are dismissed."

J.D. v. D.P.D., 348 So. 3d at 428.

Regarding the husband's petitions to adopt the children, the

probate court entered identical judgments granting the husband's

petitions, making the following findings:

"All contests have been resolved in favor of [the
husband]. The court is satisfied from clear and convincing
evidence that the ... father impliedly consented to [these]
adoption[s] by failing to provide the adoptee[s] with any
financial support in almost six (6) years; and failing to
communicate with the adoptee[s] in any manner in almost
three (3) years such that he knowingly and voluntarily left the
adoptee[s] with others without provision for support and
without communication, and failed and refused to maintain a
significant parental relationship with the adoptee[s] for a
period of at least three (3) years. The court is satisfied from
clear and convincing evidence the best interest of the
adoptee[s] will be served by granting the petition[s] to adopt:
said evidence including, in part, that the adoptee[s'] biological
father will not be released from prison until the adoptee[s are]
... adult[s]; that the adoptee[s have] been in the actual
physical custody of [the husband] since June of 2018; that the

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... mother has consented to [the] adoption[s] both in writing
and in the presence of this Honorable Court; that [the
husband] is suitable to be the parent[ ] of [the] adoptee[s] and
has acted in that capacity for the past two (2) years,
developing a significant parental relationship with the
adoptee[s]; that the adoptee[s have] thrived in [the husband]'s
care; and that [the] adoption[s] by [the husband are] proper."

J.D. v. D.P.D., 348 So. 3d at 429.

The probate court also awarded a monetary judgment, pursuant to

§ 26-10A-24(i), Ala. Code 1975, in favor of the husband and against the

father in the amount of $6,033.65, representing the legal costs, including

attorney's fees, allegedly expended by the husband in responding to the

father's adoption contest.

The father, through new counsel, and the grandmother each filed

postjudgment motions in the probate court. The postjudgment motions

were denied by operation of law, and both the grandmother and father

filed timely notices of appeal from the probate court's judgments.

On August 11, 2020, the mother moved the circuit court to dismiss

the grandmother's action in that court on the ground that the circuit

court lacked subject-matter jurisdiction. Specifically, the mother argued

that, under § 30-3-4.2(j), Ala. Code 1975, the "probate court's orders of

adoption [had] superseded the [Virginia judgment's] custody and

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visitation provisions, rendering them null and void," and that the probate

court had exclusive jurisdiction over postadoption grandparent-visitation

rights pursuant to § 26-10A-30, Ala. Code 1975. J.D. v. D.P.D., 348 So.

3d at 429. In support of the motion to dismiss, the mother submitted

copies of the adoption judgments entered by the probate court. The

mother also moved for an award of attorney's fees. On August 25, 2020,

the circuit court entered a final judgment summarily dismissing the

grandmother's action and awarding the mother an attorney's fee in the

amount of $2,740. The grandmother timely appealed from the circuit

court's judgment to this court.

Regarding the father's appeals from the judgments of the probate

court granting the husband's petitions to adopt the children, this court

held that the judgments were void because they had been entered in a

manner inconsistent with due process. J.D. v. D.P.D., 348 So. 3d at 431-

32. We noted that the probate court hearing had been conducted during

the COVID-19 pandemic and that, in response to the pandemic, our

supreme court had issued administrative orders encouraging telephone

and videoconferencing as a complete substitute for in-person court

proceedings. We held that, in light of our supreme court's orders

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authorizing and encouraging alternate methods by which a party could

participate and testify at trial, the probate court's failure to consider the

father's motion to testify by means of videoconferencing technology

pursuant to the administrative orders of our supreme court was

erroneous and was inconsistent with due process. See McConico v.

Culliver, 872 So. 2d 872, 875 (Ala. Civ. App. 2003) (holding that a court

denies an inmate "equal access to the courts" when it dismisses his or her

claims based on a failure to appear "when that inmate has filed

appropriate motions to proceed with the litigation"); Feagin v. Stokes,

837 So. 2d 857, 860 (Ala. Civ. App. 2002) (reversing judgment dismissing

prisoner's civil action when trial court failed to consider prisoner's

request to testify via written deposition and noting that such failure

"effectively thwarted [the prisoner] from following the 'proper course'

specifically laid out by our Supreme Court for prisoners who need to

present evidence on their own behalf in order to prosecute their civil

claims"). J.D. v. D.P.D., 348 So. 3d at 431-32. Our conclusion was

bolstered by the fact that, despite having failed to act on one or more

motions requesting leave for the father to appear virtually via

videoconferencing technology, the probate court had permitted the

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grandmother to appear virtually at the hearing. Accordingly, we

concluded that the adoption judgments were entered in a manner

inconsistent with due process and were, therefore, void. We dismissed

the father's appeals with instructions that the probate court set aside the

adoption judgments and conduct further proceedings consistent with our

opinion and that the probate court specifically address any motions filed

by the father seeking leave to participate in, and to testify at, any trial

held by the probate court as to the husband's adoption petitions.1

Regarding the grandmother's appeal from the circuit court's

judgment, this court concluded that the circuit court's judgment

dismissing her action seeking enforcement or modification of an existing

visitation award arising out of the Virginia judgment was in error. The

circuit court had subject-matter jurisdiction to consider the

1InJ.D. v. D.P.D., 348 So. 3d 423 (Ala. Civ. App. 202), we recognized
that the specific relief requested by the father in the probate court -- that
he be permitted to appear and testify at trial via videoconferencing
technology -- may no longer be an available method for offering live trial
testimony. Nevertheless, we concluded that, to the extent that remote
appearance by the father via telephone or videoconferencing technology
may no longer constitute an available or practical means for receiving the
father's testimony, fairness requires that the father be permitted to
request that his testimony be provided by way of oral or written
deposition as provided by Rules 30 and 31, Ala. R. Civ. P., or by other
alternative means. 348 So. 3d at 433.
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grandmother's request to modify and enforce the Virginia judgment

under the Uniform Child Custody Jurisdiction Enforcement Act

("UCCJEA"), § 30-3B-101 et seq., Ala. Code 1975, because the children's

home state is Alabama, where they and the mother have resided since

2018, and no parent of the children or person acting as a parent continues

to live in Virginia. J.D. v. D.P.D., 348 So. 3d at 436.

Finally, in J.D., we held that the probate court's judgments

dismissing the grandmother's "petition to enforce" that she filed in that

court should be reversed. This court concluded that the grandmother was

a proper party to the stepparent adoption petitions filed by the husband

because the grandmother, pursuant to the Virginia judgment, had

visitation rights as to the children. Also, the husband had named the

grandmother as a party and sought relief concerning her visitation

rights. This court determined that the grandmother's claims seeking

enforcement of the Virginia judgment were cognizable in probate court

because, pursuant to § 26-10A-30, the probate court had jurisdiction to

grant or maintain grandparent-visitation rights when a child is adopted

by a stepparent or another suitably close relative, and the adoption

petitions in these cases included an express claim requesting a more

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limited award of visitation to the grandmother than what was set forth

in the Virginia judgment.

On September 15, 2021, this court entered certificates of judgment

in the five consolidated appeals addressed in J.D. See 348 So. 3d at 423.

On remand, the circuit court had before it the grandmother's action

seeking to enforce visitation awarded in the Virginia judgment (case

number DR-20-305), and the probate court had before it the husband's

adoption petitions (cases numbers 8325-A and 8326-A). On November

30, 2021, the grandmother filed a motion in the probate court seeking to

transfer the adoption petitions to the circuit court, pursuant to § 26-10A-

21, Ala. Code 1975, and to have them consolidated with her action

seeking to enforce visitation. On December 20, 2021, the probate court

signed an order transferring the adoption petitions to the circuit court.

However, the probate court's order was filed in the Madison Juvenile

Court on December 28, 2021, and the adoption petitions were given

juvenile-court case numbers. On December 29, 2021, the juvenile court

entered an order noting that the probate court had ordered that the

adoption petitions be transferred to the circuit court. The juvenile court's

order stated that "there is currently pending before the circuit court case

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number [DR-20-305] involving the same parties and it appears to this

Court to be filed on the same issues as are presented in this present case.

Therefore, this cause is to be consolidated with case number [DR-20-

305]."

On March 18, 2022, the husband filed, in the circuit court, a "Motion

to Bifurcate and Transfer Adoption Proceedings to Probate Court. The

husband argued that the adoption petitions should be retransferred to

the probate court. He argued that adoption proceedings are "primarily

cognizable" in probate court, citing § 12-12-35, Ala. Code 1975. The

husband argued that § 26-10A-21 is inapplicable here as it allows for a

discretionary transfer from a probate court to a circuit court when a

dispute is pending in another court involving the custody of a child, and,

he argues, the circuit court in this case has before it an issue of

grandparent visitation. The husband stated, in pertinent part:

"8. Custody of children is a matter of common law.
Grandparent visitation which is what is at issue here - is not.
'The right of grandparent visitation did not exist at common
law but was instead created by legislative act.' Sanders v.
Wright, 772 So. 2d 470, 471 (Ala. Civ. App. 2000), quoting C.Y.
v. C.L., 726 So. 2d 733, 734 (Ala. Civ. App. 1999). Ex parte
R.D., [313 So. 3d 1119 (Ala. Civ. App. 2020)]. The rights of
grandparents to visit are exclusively dependent upon
statutory law. As such, they must be treated differently than

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the custody rights of natural parents. See Ex parte D.W.,
8[3]5 So. 2d [186] at 191 [(Ala. 2002)].

"9. The adoptees' mother was awarded full custody of
them years ago. No one is now challenging that award of
custody.

"10. Alabama law directs that these cases be bifurcated
and tried separately. It also provides that the adoption
proceedings be heard prior to the visitation-issue trial:

" 'Subject to certain exceptions, a claim
setting an award of grandparent visitation is
generally to be brought in the circuit court. §30-3-
4.2 [Ala. Code 1975]. One of those exceptions is
the grant of jurisdiction to the probate court to
resolve claims for grandparent visitation when the
child at issue has been adopted by a [stepparent].
As our supreme court observed when discussing
another statute granting jurisdiction over a matter
to the probate court, the statute at issue here, §30-
3-4.2(i), 'is an affirmative grant of subject-matter
jurisdiction to the probate court when the
circumstances described in that Code section are
met.' "

"Ex parte R.D., 313 So. 3d 1119 (Ala. Civ. App. 2020), quoting
Russell v. Fuqua, 176 So. 3d 1224 (Ala. 2015). ...

"11. While the Alabama Court of Civil Appeals finding
in R.D., supra, allows for both cases to be transferred back to
the probate court should this Honorable Court deem that
appropriate, it requires the adoption decision be made first:
the disposition of the adoption case dictates whether or not a
justiciable claim for grandparent visitation even exists.

"12. As such, by ·its very nature, the issue of the
adoptees' adoption by their stepfather is best decided first in

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the probate court, separate and apart from the visitation
issue.

"13. Proceeding with these adoptions, post haste, is in
the children's best interests; [The grandmother] does not
contest the adoptions; [The husband] is the only father the
adoptee-children know; [the father] is in prison for the sexual
predation of young girls; and [the father] is unable to be either
a safe or available father to the adoptee-children as he will be
incarcerated until they are in their forties (40s).

"14. Further delay of their adoptions only harms the
adoptees. As one example, the adoptees have no right to
inherit from the estate of their stepfather -- a fully-employed
person earning an income and realizing benefits -- until they
are adopted by him. In the meantime, they have the right to
inherit from Defendant who has no estate and cannot accrue
one due to his incarceration."

On March 23, 2022, the circuit court purported to grant the motion

and retransfer the adoption petitions to the probate court. On April 7,

2022, the grandmother filed a motion to vacate the order retransferring

the adoptions to the probate court. She argued that she was not afforded

a hearing on the matter nor was she given time to respond, as required

by Rule 6, Ala. R. Civ. P., before the motion was granted. The

grandmother also asserted that the husband had misrepresented the

facts, caselaw, and statutes in his motion. She argued that this court's

opinion in J.D. v. D.P.D. clearly states that the Virginia judgment

awarding her grandparent visitation "is a 'child-custody determination'

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as defined by the Uniform Child Custody Jurisdiction and Enforcement

Act ('UCCJEA'), § 30-3B-101 et seq., Ala. Code 1975, and that pursuant

to the UCCJEA, such a judgment 'must be recognized and enforced by

Alabama courts.' See G.P. v. A.A.K., 841 So. 2d 1252, 1255 (Ala. Civ.

App. 2002)." J.D., 348 So. 3d at 434. She argued that the circuit court

has the authority under § 26-10A-21, Ala. Code 1975, to address both the

adoption petitions and the visitation issues. The grandmother further

argued that the husband's arguments that the Alabama Grandparent

Visitation Act, § 30-3-4.2, Ala. Code 1975, or Ex parte R.D., 313 So. 3d

1119 (Ala. Civ. App. 2020), are controlling contradicts the law of the case

as set out in J.D. v. D.P.D., wherein this court held that the provisions of

the Alabama Grandparent Visitation Act did not apply to the Virginia

judgment.

On April 8, 2022, the father filed a motion opposing bifurcation,

arguing that there is no law requiring the adoption to be heard first and

that it would be better if one judge heard all the relevant issues involving

the children. On April 11, 2022, the circuit court denied the

grandmother's motion. On April 22, 2022, the father filed a notice of

appeal. On October 14, 2022, this court entered an order treating the

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father's appeal as a timely filed petition for writ of a mandamus. See Ex

parte Montgomery Cnty. Dep't of Hum. Res., 291 So. 3d 1193 (Ala. Civ.

App. 2019) (holding that an appellate court may elect to treat an appeal

from an interlocutory order as a petition for a writ of mandamus), and Ex

parte K.R., 210 So. 3d 1106 (Ala. 2018) (holding that lack of subject-

matter jurisdiction may be raised at any time, even in an otherwise

untimely mandamus petition). On November 16, 2022, this court ordered

the filing of answers and briefs.

Standard of Review

" 'The standard governing our review of an
issue presented in a petition for the writ of
mandamus is well established:

" ' "[M]andamus 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 Cupps, 782 So. 2d 772, 774-75 (Ala. 2000) (quoting
Ex parte Edgar, 543 So. 2d 682, 684 (Ala. 1989))."

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Ex parte Webber, 157 So. 3d 887, 891 (Ala. 2014). A petition for writ of

a mandamus is an appropriate procedural vehicle to challenge an

erroneous transfer. Ex parte C.P., 253 So. 3d 401 (Ala. Civ. App. 2017).

Discussion

The father argues that the circuit court erred in retransferring the

adoption proceedings to the probate court. The husband argues that the

circuit court had the discretionary authority under Rule 21, Ala. R. Civ.

P., to retransfer the adoptions to the probate court.2

Before we can address the circuit court's order purporting to

retransfer the adoption petitions to probate court, we must address the

probate court's order signed and dated December 20, 2021. That order

was entered based on the grandmother's motion to transfer the adoption

petitions to the circuit court pursuant to § 26-10A-21, which allows for

the transfer of an adoption proceeding to be consolidated with a custody

proceeding pending in any court in this state. As this court noted in the

2Rule 21, Ala. R. Civ. P., provides: "Misjoinder of parties is not
ground for dismissal of an action. Parties may be dropped or added by
order of the court on motion of any party or of its own initiative at any
stage of the action and on such terms as are just. Any claim against a
party may be severed and proceeded with separately."
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previous appeal, the Virginia judgment awarding the grandmother

visitation was a custody proceeding under the UCCJEA:

"[T]he grandmother's visitation rights were created and
defined in a final judgment entered by a Virginia trial court.
There is no dispute that the Virginia trial court had
jurisdiction to enter that judgment, and, as explained above,
that judgment is therefore entitled to full faith and credit
under federal law and the UCCJEA. See, e.g., § 30-3B-303(a),
Ala. Code 1975 ('A court of this state shall recognize and
enforce a child custody determination of a court of another
state [with jurisdiction to enter such an award].'); 28 U.S.C. §
1738A(a) ('The appropriate authorities of every State shall
enforce according to its terms ... any custody determination or
visitation determination made consistently with the
provisions of this section by a court of another State.'); art. IV,
§ 1, United States Constitution (requiring that states give full
faith and credit to judicial proceedings of other states)."

J.D. v. D.P.D., 348 So. 3d at 435.

The grandmother's motion to transfer and consolidate the adoption

petitions with the visitation proceeding pending in the circuit court was

based on § 26-10A-21, and the probate court's order clearly states that

the adoption petitions were being transferred to the circuit court.

However, the probate court's order was inadvertently directed to the

juvenile court. The juvenile court, recognizing that the probate court

intended for the adoption petitions to be transferred to the circuit court,

transferred the adoption petitions to the circuit court, and the

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inadvertent transit of the adoption petitions through the juvenile court

did not divest the circuit court of jurisdiction over the transferred cases.

Adoption petitions are within the original jurisdiction of the

probate court. It is well established that once an adoption petition is filed

in the probate court, there are four statutory provisions allowing for

transfer of either the entire proceeding or a specified part thereof to

another court: § 12-12-35, Ala. Code 1975; § 26-10A-21, Ala. Code 1975;

§ 26-10A-3, Ala. Code 1975; and § 26-10A-24, Ala. Code 1975.

Section 12-12-35, which predates the Alabama Adoption Code, §

26-10A-1 et seq., Ala. Code 1975, but was not affected by it, allows a party

to an adoption proceeding to initiate a transfer. The decision as to

whether to grant or deny the transfer is within the discretion of the

probate court. If the motion to transfer is granted, the entire adoption

proceeding is transferred to the juvenile court. See C.Z. v. B.G., 278 So.

3d 1273 (Ala. Civ. App. 2018) (explaining that transfer to juvenile court

under § 12-12-35 is within the discretion of the probate court even though

the juvenile court has jurisdiction over cases involving the Alabama

Uniform Parentage Act, § 26-17-101 et seq., Ala. Code 1975); R.L. v.

J.E.R., 69 So. 3d 898 (Ala. Civ. App. 2011) (holding that the juvenile

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court's judgment granting the adoption was void since no party to the

adoption had filed a motion to transfer under § 12-12-35 and the probate

court transferred the case to juvenile court for the limited purpose of

addressing termination of the mother's parental rights).

Section 26-10A-21 provides that upon a motion made by a party or

upon the probate court's own motion, the probate court may stay an

adoption proceeding while a custody action is pending in another court.

See J.B. v. F.B., 929 So. 2d 1023 (Ala. Civ. App. 2005) (holding that the

probate court had abused its discretion when it failed to stay the adoption

proceedings until the Missouri court had made a determination of the

child's home state and the probate court's subsequent grant of the

adoption petition was void). Under § 26-10A-21, an adoption proceeding

may be transferred and consolidated with a custody proceeding in any

court in this state. See Ex parte A.M.P., 997 So. 2d 1008 (Ala. 2008)

(transfer and consolidation of an adoption with a pending custody

proceeding is discretionary).

Section 26-10A-24 provides for a limited transfer of a contested

adoption. Upon request of a party, the court may transfer the "contested

adoption proceeding" to the juvenile court. Alabama Dep't of Human

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Res. v. B.V., 59 So. 3d 700 (Ala. Civ. App. 2010) (holding that simply

because a probate court may transfer a contested adoption to juvenile

court does not mean that it must do so). If the juvenile court denies the

contest, the case is remanded to the probate court for a continuation of

the adoption proceeding. If the juvenile court upholds the contest, the

case is remanded to the probate court for dismissal or denial of the

adoption.

Section 26-10A-3 provides for a transfer of an adoption proceeding

to a juvenile court for the limited purpose of determining whether the

parental rights of a nonconsenting parent should be terminated. See Ex

parte C.L.C., 897 So. 2d 234 (Ala. 2004) (holding that the probate court

kept exclusive jurisdiction over the issue of whether to grant or deny the

petition to adopt when the probate court transferred the case to juvenile

court for the limited purpose of addressing termination of parental

rights).

In this case, the probate court's order transferring the adoption

petitions to the circuit court was inadvertently filed in the juvenile court.

The inadvertent filing in juvenile court was a ministerial error. Cf.

Oliver v. Shealey, 67 So. 3d 73 (Ala. 2011) (holding that when a notice of

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appeal is filed in the wrong appellate court, the court to which the appeal

has been wrongly taken shall treat the designation as a clerical mistake).

The grandmother sought a transfer under § 26-10A-21; the probate court

ordered that the adoption petitions be transferred to the circuit court;

and the juvenile court recognized the error when the case was misfiled in

that court. Although a juvenile court may entertain an adoption

proceeding under § 26-10A-21 if a custody proceeding is pending in that

court, in this case, the visitation proceedings were pending in the

domestic relations division of the circuit court. The juvenile court's

transfer of the adoption petitions to the circuit court was proper. See Ex

parte N.G., 321 So. 3d 655, 659 (Ala. 2020) ("Promoting judicial economy,

§ 12-11-11 allows courts lacking subject-matter jurisdiction to transfer

claims to an appropriate court within the same county rather than

dismissing those claims to the detriment of the parties. Under § 12-11-

11, courts within the same county have the authority to transfer cases

both 'horizontally' to courts of like jurisdiction and 'vertically' to 'lower'

and 'higher' courts."); Ex parte E.S., 205 So. 3d 1245, 1249 (Ala. 2015)

(holding that a petition to set aside an adoption based on fraud upon the

court that had been mistakenly filed in the Walker Circuit Court should

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not have been dismissed for lack of subject matter jurisdiction but should

have been transferred to Walker Probate Court in accordance with § 12-

11-11).

We now turn to the issue of whether the circuit court erred in

retransferring the adoption petitions to the probate court. We find the

reasoning in Ex parte C.P., 253 So. 3d 401 (Ala. 2017), to be persuasive

and fully applicable here. In Ex parte C.P., the mother commenced a

protection-from-abuse action in the Houston Circuit Court. Three days

later, the father commenced a paternity action in the Lee Circuit Court.

The mother filed in the Lee Circuit Court a motion to transfer the

paternity action to the Houston Circuit Court. The Lee Circuit Court

granted the motion and transferred the paternity action to the Houston

Circuit Court, where the case was docketed. The father then filed a

motion in the Lee Circuit Court seeking reconsideration of the transfer

order, which the Lee Circuit Court purported to grant. He also filed a

motion in the Houston Circuit Court seeking transfer of the paternity

action back to the Lee Circuit Court. The Houston Circuit Court

purported to grant the father's motion. This court, citing Ex parte

Sawyer, 873 So. 2d 166, 167 (Ala. 2003), and Ex parte MedPartners, Inc.,

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820 So. 2d 815, 821 (Ala. 2001), held that once the transferor court (the

Lee Circuit Court) had granted the motion to transfer the case and the

file had been sent to, and docketed by, the transferee court (the Houston

Circuit Court), the transferor court could not then change its mind and

vacate or set aside its transfer order or order the case returned, nor could

the judge of the transferee court consider a motion to retransfer the case

to the county in which it was originally filed. An aggrieved party's sole

remedy in such a case is a petition for a writ of mandamus directed to the

transferor court. This court ordered the Lee Circuit Court to set aside all

orders entered in the paternity action after the entry of the transfer order

and ordered the Houston Circuit Court to set aside its order purporting

to transfer the paternity action back to the Lee Circuit Court.

"Once the transferor court has granted the motion to
transfer the case and the file has been sent to, and docketed
by, the transferee court, the transferor court cannot then
change its mind and vacate or set aside its transfer order or
order the case returned. Ex parte Morrow, 259 Ala. 250, 66
So. 2d 130 (1953). Furthermore, the trial judge of the
transferee court may not consider a motion to retransfer the
case to the county in which it was originally filed. Ex parte
Tidwell Indus., Inc., 480 So. 2d 1201 (Ala.1985). The
aggrieved party's sole remedy in such a case is a petition for
writ of mandamus directed to the transferor court."

Ex parte MedPartners, Inc., 820 So. 2d 815, 821 (Ala. 2001).

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In the present case, the circuit court erred in retransferring the

adoption petitions to the probate court. Section 26-10A-21, which allowed

the probate court to transfer the adoption petitions to the circuit court

where the visitation proceedings were pending, does not provide for a

"retransfer" of an action. That is, the discretionary transfer of the

adoption proceeding to another court in this state under § 26-10A-21 only

goes one way. Based on Ex parte C.P., the circuit court could not consider

the husband's motion to retransfer the case to the probate court where it

was originally filed. 3 Accordingly, the father's petition for a writ of

mandamus is granted and the circuit court is directed to set aside its

order retransferring the adoption petitions to the probate court.

PETITION GRANTED; WRIT ISSUED.

Moore, Edwards, and Fridy, JJ., concur.

Thompson, P.J., concurs in the result, without opinion.

3We note that the husband's motion to retransfer the adoption
petitions contradicted the law of the case set out in J.D. v. D.P.D. Also,
although the husband argues on appeal that Rule 21, Ala. R. Civ. P.,
allows for such a transfer, Rule 21 generally applies to misjoinder or non-
joinder of parties, not claims, and should be considered in pari materia
with Rules 18, 19, and 20, Ala. R. Civ. P.
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