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RULE 60 MOTION - CAPACITY TO CONTEST ADOPTION: M.M. AND R.F. V. K.J.Z. AND E.M.Z.

M.M. and R.F. v. K.J.Z. and E.M.Z., [Ms. 2160520 & 2160521, Sept. 29, 2017] __ So. 3d __ (Ala. Civ. App. 2017). In this unanimous decision by Judge Thomas (Thompson, P.J., Pittman, Moore, and Donaldson, JJ., concur), the court reverses the Jefferson Circuit Court’s denial of Rule 60 motions filed by the father and the paternal great-grandmother seeking to set aside a final judgment of adoption of the minor children. The father had been served by publication and the paternal great-grandmother, who had been awarded custody of the children by the juvenile court, was not served in the adoption proceeding. The probate court denied the Rule 60 motions on the ground that they were untimely because they were filed outside the 14-day appeal time following a final judgment of adoption, and on the ground that the paternal great-grandmother lacked “standing” to contest the adoptions. Ms. *7.

The court first explained that the concept of standing is best confined to public-law cases. The court held that the pertinent inquiry was whether the great-grandmother had a cognizable claim in the adoption action such that she had a right to be made a party to or to challenge the adoptions. Ms. *11. The court concluded that “[a]s a person having a right to custody or visitation with the children, the paternal great-grandmother was entitled to receive notice of the pendency of the adoption action pursuant to Ala. Code 1975 § 26-10A-17(a)(6).” Ms. *11. The court held that the failure to give the great-grandmother notice of the adoption proceeding violated her due process rights, and that the adoption judgments accordingly were void. Ms. *12-13.

The court also rejected the probate court’s conclusion that the Rule 60 motions were untimely insofar as they alleged the judgments were procured by fraud. Rule 60(b) requires such motions be filed within four months, and the subject motions were filed by the great-grandmother and the father within 30 days of the judgment. Ms. *8. The court also noted that a Rule 60(b)(4) motion asserting that a judgment is void due to lack of service may be filed at any time. Ms. *8-9.

In regard to the father’s contention that the adoptive mother perpetrated fraud on the father as well as the probate court because she had means to provide him actual notice of the proceedings, the court concluded that the probate court had erred in rejecting that contention without affording the father a hearing. The court reversed with instructions to provide notice of the adoption proceeding to the great-grandmother, and to conduct a hearing on the father’s contention that “the adoptive mother was in contact with him when she stated in her affidavit regarding perfection of service that she ‘had exhausted all known means to locate ... the father.’” Ms. *17. The court noted that “failure to exercise due diligence in perfecting personal service of process preclude[s] notice by publication.” Ms. *18 (internal quotation marks omitted).

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