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REL: 11/16/2007

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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2007-2008 _________________________ 2060741 _________________________ D.B. and E.B. v. J.E.H., Jr., and L.H. Appeal from Etowah Probate Court (A-72) THOMAS, Judge.
D.B. and E.B. ("the custodians") appeal from the denial of their request by to transfer Jr., the and adoption L.H. ("the proceeding maternal

instituted

J.E.H.,

2060741
grandmother") to adopt M.H. ("the child") to the juvenile court. The child was born in March 2002. Her mother, San.H.,

signed a consent to adoption form in November 2002, granting her consent-to-adoption of the child by the custodians.

Instead of filing an adoption petition, the custodians filed an action in juvenile court requesting that they be given custody pursuant to the consent form until a one-year period had elapsed so that they could then petition for adoption. The juvenile court granted the custodians custody of the child on November 21, 2002. The mother filed a petition to set aside the November 2002 custody judgment in January 2007. As grounds, the mother

alleged that she desired to withdraw her consent to adoption and that she was incapable of consenting to the adoption of the child in November 2002 because she was abusing cocaine and marijuana at that time. The juvenile court denied the

mother's petition without a hearing; in its order, however, the juvenile court stated that it would set a hearing on the merits if the mother so requested. Instead of requesting the

hearing, the mother appealed the denial of her petition to set

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aside the judgment to the circuit court. On March 5, 2007,

the circuit court dismissed the mother's appeal, citing as reasons that the mother could have requested a hearing in the juvenile court and that an adequate record of the juvenile proceedings had been made and therefore the appeal should have been filed in this court. The mother then filed a petition

for the writ of mandamus in this court; in that mandamus petition the mother argued that the circuit court should be ordered to hold a hearing and determine whether the November 2002 custody judgment should be set aside. This court denied

the mother's petition without an opinion on April 10, 2007. Meanwhile, the paternal grandmother and her husband,

J.E.H., Jr., filed a petition for adoption of the child in the probate court on February 2, 2007. The mother and Sac.H. Notice of the

("the father") filed consents to the adoption.

adoption proceeding was given to the custodians, who filed "an objection" to the adoption, which the probate court treated as a contest to the adoption. The custodians also requested that

the probate court transfer the adoption proceeding to the juvenile court; the probate court declined to do so. probate court held a hearing on the custodians' The

adoption

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contest, after the which it denied court the custodians' a final contest. decree of

Ultimately, adoption.

probate

entered

On appeal, the custodians argue only that the probate court abused its discretion in failing to transfer the

adoption proceeding to the juvenile court. cite no relevant caselaw pertaining to

The custodians request to The

their

transfer the adoption proceeding to the juvenile court. 1

custodians are correct insofar as they argue that the probate court had the authority to transfer the adoption proceeding and that, by statute, the probate court had the discretion to determine whether a transfer was appropriate. See Ala. Code

1975,

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