author: PER CURIAM. MURDOCK, Judge, BRYAN, Judge,

text:
    Evelyn HAYS v. Mavis HAYS.
    2040482.
    Court of Civil Appeals of Alabama.
    June 23, 2006.

      John R. Campbell of Kettell & Campbell, L.L.P., Huntsville, for appellant.
    Jerry Wayne' Baker, Jr., Albertville, for appellee.
   PER CURIAM.

Evelyn Hays (“the mother”) appeals a judgment entered by the Marshall Probate Court that granted the petition of Mavis Hays (“the stepmother”) to adopt Ashley Christine Hays (“the daughter”), the biological daughter of - the mother. We, reverse and remand.

The stepmother was married to the daughter’s biological father, Steven Hays (“the father”), from 1987 until his death in April 2004. On June 15, 2004, the stepmother filed a petition to adopt the daughter, and the daughter filed a motion to consent to the adoption with the probate court. The daughter attained the age of majority on June 17, 2004. The probate court set September 2, 2004, as the hearing date for the adoption petition. On July 14 and July 29, 2004, the mother filed objections with the probate court contesting the adoption. The daughter executed a written consent to the adoption on September 2, 2004, pursuant to § 26-10A-6, Ala.Code 1975.

The probate court entered a judgment on September 17, 2004, granting the stepmother’s petition to adopt the daughter. The mother filed a postjudgment motion in which she argued, among other things, that the stepmother could not adopt the daughter pursuant to § 26-10A-6(2)c. because, she argued, the daughter was no longer “a stepchild by marriage” upon the death of the father. That motion was subsequently denied by operation of law. The mother timely appealed.

On appeal, the mother argues that the probate court erred in granting the stepmother’s petition to adopt the daughter.

The Alabama Adoption Code (“the AAC”), codified at § 26-10A-1 et seq., Ala. Code 1975, establishes statutory criteria for adoption proceedings. On August 1, 2004, the legislature amended § 26-10A-6 of the AAC to extend the scope of adult adoptions.

Pursuant to § 26-10A-6(2)c., Ala.Code 1975, Alabama law now permits adult adoptions when an adult “consents in writing to be adopted and is related in any degree of kinship, as defined by the intestacy laws of Alabama, or is a stepchild by marriage.” , (Emphasis added.)

“In Alabama, the right of adoption is purely statutory and in derogation of the common law, ... and unless the statute by express provision or necessary implication confers the right of adoption, such right does not exist.” Evans v. Rosser, 280 Ala. 163, 164-65, 190 So.2d 716, 717 (1966) (citing Doby v. Carroll, 274 Ala. 273, 147 So.2d 803 (1962)). Furthermore, “[w]e have always required strict adherence to the statutory requirements in adoption proceedings.” McCoy v. McCoy, 549 So.2d 53, 57 (Ala.1989) (citing Ex parte Sullivan, 407 So.2d 559 (Ala.1981)).

.We narrowly decide this case by examining the legal relationship of a stepparent and a stepchild and the plain-language definition of a “stepchild by marriage.” In order to determine whether the daughter qualified as a “stepchild by marriage” pursuant to § 26-10A-6(2)c., we must first examine the familial relationship of a stepparent and a stepchild. The stepparent-stepchild relationship is one that is created through affinity. See Black’s Law Dictionary 63 (8th ed.2004) (defining “affinity” as “[a]ny familial relation resulting from a marriage”). Additionally, affinity is extinguished upon the termination of the very means that created it, that is, the marriage of the natural parent and the stepparent. See Pomerantz v. Rosenberg, 593 S.W.2d 815, 817 (Tex.App.1980) (“This [affinity] relationship is also terminated upon the death of a spouse .... ”); see also Orellana v. Escalante, 228 A.D.2d 63, 66, 653 N.Y.S.2d 992, 993 (N.YApp.Div. 1997) (“By definition, however, a relation of affinity is based upon marriage (see, Black’s Law Dictionary 59 [6th ed.1990]) and divorce destroys the foundation of that relation. Thus, the relation of affinity between stepparent and stepchildren terminates upon the divorce of the parent and stepparent....”); Cliffords, v. Superior Court, 38 Cal.App.4th 747, 752, 45 Cal. Rptr.2d 333, 335-36 (1995) (“A person becomes a stepparent by marrying the natural biological parent and loses stepparent status should the marriage be terminated.”); and 41 Am.Jur.2d Husband and Wife § 4 (2005) (“Affinity relationships arise out of marriage and are always terminated by divorce. The relationship is also terminated by the death of a spouse.... ”).

Because a stepparent’s affinity relationship with his or her stepchild is extinguished upon the death of the stepchild’s natural parent, the legal relationship between the stepparent and the stepchild is also extinguished. See Newman v. Newman, 667 So.2d 1362, 1366 (Ala.Civ.App. 1994) (concluding that a stepfather’s legal relationship to' his stepchild was extinguished upon the death of his spouse, who was the natural custodial parent); see also Shoemaker v. Shoemaker, 563 So.2d 1032, 1034 (Ala.Civ.App.1990) (“the legal severance of the stepparent-natural parent relationship would also sever any legal relationship of the stepparent-stepchild for all practical purposes”).

Furthermore, “ ‘[i]t is an ingrained principle of statutory construction that “[t]he Legislature is presumed to be aware of existing law and judicial interpretation when it adopts a statute. Ex parte Louisville & N.R.R., 398 So.2d 291, 296 (Ala. 1981).” Carson v. City of Prichard, 709 So.2d 1199, 1206 (Ala.1998).’ ” Holcomb v. Carraway, 945 So.2d 1009, 1020 (Ala.2006). Because the legislature is presumed to possess knowledge of existing caselaw regarding the termination of the stepparent-stepchild relationship upon the death of the natural parent, see Newman and Shoemaker, supra, we will not impute a contrary legislative intent.

In addition, a plain-language analysis of the phrase “a stepchild by marriage” as stated in § 26-10A-6(2)c. produces a consistent result.

‘“Words used in [a] statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is clear and unambiguous, then there is no room for judicial construction and the clearly expressed intent of the Legislature must be given effect.’ ”

Ex parte Prudential Ins. Co. of America, 721 So.2d 1135, 1138 (AIa.1998) (quoting Tuscaloosa County Comm’n v. Deputy Sheriffs’ Ass’n of Tuscaloosa County, 589 So.2d 687, 689 (Ala.1991)). According to Merriam-Webster’s Collegiate Dictionary 170 (11th ed.2003), “by” is defined as “through or through the medium of’; “during the course of’; and “through the agency or instrumentality of.” Based on a plain-language interpretation, “a stepchild by marriage” connotes a relationship that is established through the marriage or during the course of the marriage. When the marriage is no longer in existence, the stepparent-stepchild relationship is likewise extinguished.

Therefore, based upon (1) the absence of an express provision providing otherwise, (2) the plain language of the statute, and (3) the aforementioned legal principles, we are constrained to hold that the daughter, at the time of the purported adoption, was not a “stepchild by marriage” of the stepmother pursuant to § 26-10A-6(2)c. Consequently, we reverse the judgment granting the stepmother’s petition to adopt the daughter and remand the case for further proceedings consistent with this opinion. Because we reverse the judgment, we pre-termit a discussion of the mother’s remaining arguments in support of the reversal of the probate court’s judgment granting the adoption petition.

REVERSED AND REMANDED.

CRAWLEY, P.J., and THOMPSON and PITTMAN, JJ., concur.

MURDOCK and BRYAN JJ., concur specially, with writings.

MURDOCK, Judge,

concurring specially.

I concur with the main opinion, but I write separately to express what I believe to be more fundamental grounds on which the trial court erred to reversal.

I. Constitutional Concerns

First and foremost, Evelyn Hays (“the mother”) argues that the purported adoption of her daughter without her consent violates her fundamental due-process rights under the Fourteenth Amendment of the United States Constitution. I agree. The United States Supreme Court, as well as this court, has repeatedly recognized the fundamental right of the parent in the parent-child relationship. See generally, e.g., Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Michael H. v. Gerald D., 491 U.S. 110, 123-24, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989); Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979); Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Stanley v. Illinois, 405 U.S. 645, 658-59, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 396-99, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Beck v. Beck, 865 So.2d 446, 451 (Ala.Civ. App.2003) (Murdock, J., concurring in the result); G.P. v. A.A.K., 841 So.2d 1252 (Ala.Civ.App.2002); L.B.S. v. L.M.S., 826 So.2d 178, 187-88 (Ala.Civ.App.2002) (Mur-dock, J., concurring in the judgment of reversal only); and R.S.C. v. J.B.C., 812 So.2d 361 (Ala.Civ.App.2001).

Indeed, the right of a parent in the parent-child relationship is “perhaps the oldest of the fundamental liberty interests recognized by [the United States Supreme] Court.” Troxel, 530 U.S. at 65, 120 S.Ct. 2054. The rights of both parents and children vis-á-vis the parent-child relationship are a function of the importance that western culture and our jurisprudence places on family. See, e.g., Trimble v. Gordon, 430 U.S. 762, 769, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) (noting that the “family unit” is “perhaps the most fundamental social institution of our society”); and Lehr v. Robertson, 463 U.S. 248, 257 n. 13, 103 5.Ct. 2985, 77 L.Ed.2d 614 (1983). Family relationships do not end merely because a child reaches the age of majority. It is true that a child naturally acquires certain rights upon attaining the age of majority. Consistent both with this fact and with the constitutional rights of a child’s parents, I see no constitutional impediment to a state adding, as Alabama evidently has done, to the procedures for the adoption of a competent adult child a requirement that the adult child must consent to his or her adoption. The fundamental nature of the parent-child relationship and the importance of the family in our society, however, belie the notion that a child, merely by turning 19 years of age, can, without the consent of his or her parent, unilaterally sever the parent-child relationship.

II. Statutory Construction

Second, however, purely as a matter of statutory construction, I do not think the Alabama Adoption Code (“the AAC”), Ala. Code 1975, § 26-10A-1 et seq., may properly be interpreted to authorize children to unilaterally terminate their legal relationship with their parents upon reaching the age of majority. A proper interpretation of the AAC, in my opinion, must begin with a comparison of the purposes of § 26-10A-6, Ala.Code 1975, and § 26-10A-7, Ala.Code 1975. Thereafter, a more direct examination of § 26-10A-11 and particularly § 26-10A-ll(b), Ala.Code 1975, within the context of the other provisions of the AAC, is required.

A. Who May Sé Adopted; Who Must Consent

Section 26-10A-6 is entitled “Who may be adopted” and serves the purpose of merely setting out a list of those categories of persons who are amenable to adoption under Alabama law. It by no means purports to set out all of the requirements that must be satisfied in order for a person falling within one of the stated categories to be lawfully adopted.

The five categories of persons who may be adopted under Alabama law, as stated in § 26-1OA-6, are as follows:

(1) a minor, § 26-10A-6(l);

(2) an adult who is totally and permanently disabled, § 26-10A-6(2)a.;

(3) an adult who is determined to be mentally retarded, § 26-10A-6(2)b.;

(4) an adult who consents in writing to be adopted and is related in any degree of kinship, as defined by the intestacy laws of Alabama, to the adopting party, or is a stepchild of the adopting party by marriage, § 26-10A-6(2)c.; and

(5) an adult who consents in writing to be adopted by an adult man and woman who are husband and wife, § 26-10A-6(2)d.

It is not § 26-10A-6, but § 26-10A-7 and subsequent sections of the AAC, that prescribe the various requirements that must be satisfied in order for there to be a lawful adoption of a person who falls into one of the categories described in § 26-10A-6.

Among the requirements stated in § 26-10A-7 is that, if the prospective adoptee is 14 years of age or older, he or she must consent to the adoption. § 26-10A-7(a)(1). Moreover, § 26-10A-7(a)(2) and (a)(3) clearly require, without any restriction of this requirement to prospective adoptees of any particular age, that the prospective adoptee’s mother and, under certain circumstances, the presumed father, give their consents to the adoption. These requirements are in accord with the constitutional protection of the parent-child relationship discussed in section I above.

In this case, the mother has not given her consent to the adoption of her daughter by another woman. Yet, it is the consent requirement of § 26-1 OA-7 that prevents one adult in Alabama from adopting the child of another adult without the latter adult’s, i.e., the natural parent’s, consent. There is nothing in the structure or wording of § 26-10A-7 that prescribes any different application of its consent requirements based on which of the various categories of prospective adoptees listed in § 26-10A-6 is at issue. If we may ignore the consent requirements of § 26-10A-7(a) as to a prospective adoptee who falls within the category described in § 26-10A-6(2)c., then nothing would prevent us from ignoring the consent requirements of § 26-10A-7(a) as to a prospective adoptee who falls within one of the other categories described in § 26-10A-6, including the category described in § 26-10A-6(l), i.e., an adoptee who is simply “a minor.”

In analyzing these provisions of the AAC, several' fundamental rules of statutory construction should be noted: (1) “[a]U statutes relating to the same subject or having the same general purpose [must] be read together to constitute one law,” Florence v. Williams, 439 So.2d 83, 87 (Ala. 1983); (2) a court construing a statute must look not only to the language of the statute, but also to the “purpose and object of the enactment, and its relation to other laws and conditions which may arise under its provisions,” Siegelman v. Folmar, 432 So.2d 1246, 1249 (Ala.1983); and (3) in construing a statute, a court’s duty is to “ascertain and effectuate the legislative intent expressed in the statute, which may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to be obtained,” Bama Budweiser of Montgomery, Inc. v. Anheuser-Busch, Inc., 611 So.2d 238, 248 (Ala. 1992). Although all of these principles support my reading of the statutes as discussed above, it is really only necessary to take note of the most basic principle stated in the foregoing three rules, namely, that the meaning of a statute should be “gleaned from the language used” when that it possible. As our Supreme Court stated in IMED Corp. v. Systems Engineering Associates Corp., 602 So.2d -344, 346 (Ala. 1992): “Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says.” The plain meaning of the language used in § 26-10A-6 is merely to describe the categories of children, whether they be minors or adults, who are amenable to adoption under Alabama law provided that all the necessary conditions to a valid adoption are met. The plain meaning of the language used in § 26-10A-7 is that the consent of a child’s natural parent must be given in order for that child to be adopted. Section 26-10A-7 does not distinguish between minor and adult children in imposing this consent requirement.

B. The 1998 and 2001 Amendments to the AAC

I turn now to a more specific discussion of changes made to the AAC by the Alabama Legislature in 1998 and 2004. In 2004, the legislature amended the AAC to provide for the adoption of consenting adults by persons to whom the adoptee “is related in any degree of kinship,” by a stepparent, and by “an adult man and woman who are husband and wife.” Ala. Code 1975, §§ 26-10A-6(2)c. and 26-10A-6(2)d.; see also Act No. 2004-528, Ala. Acts 2004. The addition of these categories of potential adoptees is the only change to the AAC made by Act No. 2004-528. That act did not purport to change the substance of the amendments made by the legislature in 1998 to the AAC. In particular, Act No. 2004-528 did not purport to alter the meaning of § 26-10A-11(b). To understand the intended meaning and application of § 26-10A-ll(b), its historical context should be considered.

Adoption laws, including the AAC, are in derogation of common law, are in derogation of the rights of natural parents, and therefore are to be strictly construed. K.L.B. v. W.M.F., 864 So.2d 333 (Ala.Civ. App.2002) (plurality opinion). See also S.C.W. v. C.B., 826 So.2d 825, 832 (Ala.Civ. App.2001) (“It is well settled that, because adoption is purely statutory, strict compliance with the statutes is required.”); and Neal v. Neal, 856 So.2d 766, 782 (Ala.2002) (quoting Doby v. Carroll, 274 Ala. 273, 274, 147 So.2d 803, 804 (1962)) (“ ‘In Alabama the right of adoption is purely statutory and in derogation of the common law, ... and unless the statute by express provision or necessary implication confers the right to adoption, such right does not exist.’ ”).

As to no other aspect of the AAC is respect for the foregoing principle more critical than to the requirement of parental consent:

“ ‘The adoption of a child was a proceeding unknown to the common law. The transfer of the natural right of the parents to their children was against its policy and repugnant to its principles. It had its origin in the civil law and exists ... only by virtue of the statute which ... expressly prescribes the conditions under which adoption may be legally effected.
“ ‘Consent lies at the foundation of statutes of adoption, and under our law this consent is made absolutely essential to confer jurisdiction on the ... court to make an order of adoption, unless the conditions ... exist specially provided by the statute itself and which render such consent of the parents unnecessary. Unless such consent is given, or, for the exceptional causes expressly enumerated is dispensed with, the court has no jurisdiction in the matter.... The power of the court in adoption proceedings to deprive a parent of his child being in derogation of his natural right to it, and being a special power conferred by the statute, such statute must be strictly construed, and in order to warrant the exercise of the special power ... in opposition to the wishes and against the consent of the natural parent, on the ground that conditions prescribed by statute exist which make that consent unnecessary, the existence of such conditions must be clearly proven ... [and] if the statute is open to construction and interpretation, it should be construed in support of the right of the natural parent.’ ”

McGowen v. Smith, 264 Ala. 303, 305, 87 So.2d 429, 430-31 (1956) (quoting In re Cozza, 163 Cal. 514, 522-24, 126 P. 161, 164 (1912)).

Before the 1998 amendments to the AAC, see Act No. 98-101, Ala. Acts 1998, the AAC provided only for one category of persons who lawfully could be adopted: minors. See Act No. 90-554, § 6, Ala. Acts 1990 (“Any minor may be adopted.”) (see predecessor to current § 26-10A-6). In 1998, the Alabama Legislature passed Act No. 98-101, amending the AAC and extending the right to be adopted to two additional categories of persons: adults who are “totally and permanently disabled,” Ala-Code 1975, § 26-10A-6(2)a„ and adults who are “determined to be mentally retarded,” Ala.Code 1975, § 26-10A-6(2)b.

As suggested by the additions made by Act No. 98-101 to § 26-10A-6, the reason for the passage of Act No. 98-101 was to address the issue of whether and under what conditions disabled and mentally retarded adults would be adoptable in Alabama. That this was the whole purpose of the act is evidenced by the manner in which the title of the act describes the act, namely, as “[a]n Act ... [t]o amend Sections 26-10A-4, 26-10A-5, 26-10A-6, 26-10A-7, 26-10A-11, and 26-10A-12, Code of Alabama 1975; to provide for the adoption of an adult who is disabled or mentally retarded.” In fulfilling this purpose, Act No. 98-101 amended various sections of the AAC to prescribe conditions that must be met to allow for the adoption of a disabled or mentally retarded adult. This included the amendments made by the act to § 26-10A-7, Ala.Code 1975, including particularly the addition of subsection (b) to that section, and the amendment to 26-10A-11, including particularly the addition of subsection (b) to that section.

Before 1998, § 26-10A-7, entitled “Persons whose consents or relinquishment are required,” stated, in part:

“(a) Consent to the petitioner(s)’ adoption ... shall be required of the following:
“(1) The adoptee, if 14 years of age or older, except where the court finds that the adoptee does not have the mental capacity to give consent; •
“(2) The adoptee’s mother;
“(3) The adoptee’s presumed father, regardless of paternity, [under certain prescribed conditions]:
“(4) The agency to which the adop-tee has been relinquished or which holds permanent custody and which has placed the adoptee for adoption, except that the court may grant the adoption without the consent of the agency if the adoption is in the best interests of the adoptee and there is a finding that the agency has unreasonably withheld its consent; and
“(5) The putative father if made known by the mother or is otherwise made known to the court provided he responds within 30 days to the notice he receives under Section 26-10A-17(a)(10).”

(Emphasis added.) See also Act. No. 90-554, § 7, Ala. Acts 1990.

Consistent with the fact that the purpose of Act No. 98-101 was to address the adoption of disabled and mentally retarded adults, the act added a new subsection to a section in which the legislature had previously prescribed the categories of persons or entities who must give their consent to an adoption. This new subsection, designated by the act itself to be § 26-10A-7(b), states:

“(b) A petition to adopt an adult may be granted only if written consent to adopt has been executed by the adult seeking to adopt and his or her spouse or by the guardian or conservator of the adult sought to be adopted pursuant to the requirements of Sections 26-10A-6 and 26-10A-11.”

Section 26-10A-7(b) is additive in its effect. Conspicuously absent from it is any language to the effect that it was intended to displace the consent requirements of § 26-10A-7(a). Specifically, the statute requires the consent of (1) the adopting party, and his or her spouse, or, (2) in the event the adult adoptee is incompetent, presumably due to his disability or retardation, a guardian or conservator. (Subsection (b) requires the consent of “the guardian or conservator of the adult sought to be adopted pursuant to the requirements of § 26-10A-6 and 26-10A-11.” The latter section specifically requires the consent of a guardian or conservator for an incompetent adult adoptee.)

Unlike §§ 26-10A-6 and 26-10A-7, at the time of the enactment of Act No. 98-101, § 26-10A-11 clearly was limited in its focus to procedural requirements, namely, a description of the content of ' a valid consent (including such matters as the date, place, and time of execution; dates of birth; prior relationships, if any, of the parties involved; and other acknowledgments required to be included in the consent). Section 26-10A-11 was limited to this purpose and contained no language suggesting any encroachment into the purpose of § 26-10A-7, i.e., prescribing who must give consent to an adoption.

Again, it was in the course of providing for the adoption of disabled and mentally retarded adults in Act No. 98-101 that the legislature added subsection (b) to § 26-10A-11. Although the first sentence of § 26-10A-ll(b), read in isolation, could be construed as supportive of the trial court’s judgment granting the adoption, I submit that the actual meaning of the first sentence of § 26-10A-ll(b) can only be discerned when it is read in the context of the sentences that immediately follow it in § 26-10A-ll(b), and when all of these sentences are in turn read in the context of the very purpose of Act No. 98-101.

Section 26-10A-ll(b) states:

“When the person sought to be adopted is an adult, only the sworn, written consent of the adult person sought to be adopted shall be required and no order of reference or any home studies need be issued. If the adult person to be adopted has been adjudicated incompetent, the written consent of the adult person’s guardian or conservator shall be required. If the adult person is without a spouse, guardian, or conservator and the court has reason to believe that the adult person is incompetent to give consent, the court shall appoint a guardian ad litem who shall investigate the adult person’s circumstances and that guardian ad litem shall give or withhold consent. The guardian ad litem shall file a written report stating the basis for the decision and the court shall afford a hearing to all parties to present evidence as to the best interest of the adult person, and if the court determines upon clear and convincing evidence that the decision to withhold consent by the guardian ad litem is arbitrary and is not in the best interests of the incompetent adult person, it may proceed to make any other orders it deems necessary for the adult person’s welfare, including granting the petition for adoption.”

(Emphasis added.)

This court must consider statutory provisions in the context of the entire statutory scheme, rather than in isolation. Siegelman v. Alabama Ass’n of School Bds., 819 So.2d 568, 582 (Ala.2001). In ascertaining legislative intent, we must look to the entire act instead of isolated phrases or clauses. Lambert v. Wilcox County Comm’n, 623 So.2d 727, 729 (Ala.1993). Moreover, it is “the duty of the Court to harmonize and reconcile all parts of a statute so that effect may be given to each and every part: conflicting intentions in the same statute are never to be supposed or so regarded unless forced on the Court by unambiguous language.” Leath v. Wilson, 238 Ala. 577, 579, 192 So. 417, 419 (1939). When construing the language of a statute, this court must presume “‘“that every word, sentence, or provision was intended for some useful purpose, has some force and effect, and that some effect is to be given to each, and also that no superfluous words or provisions were used.” ’ ” Ex parte Uniroyal Tire Co., 779 So.2d 227, 236 (Ala.2000) (quoting Sheffield, v. State, 708 So.2d 899, 909 (Ala.Crim.App.1997)). These principles of statutory 'construction, especially when coupled with the principle of strict construction of adoption statutes because they are in derogation of the rights of natural parents, requires that we not read the first sentence of subsection (b) of § 26-10A-11 in isolation from the remaining provisions of that subsection, from the purpose of Act No. 98-101, and from the other provisions of the AAC.

Á view that § 26-10A-ll(b) renders all consents, except that of the prospective adoptee, superfluous creates an unnecessary conflict between the express terms of that section and • § 26-10A-7(a) and (b). First, if, when the legislature enacted Act No. 98-101 in 1998, it intended that § 26-10A-ll(b) narrow to only the adoptee himself or herself the list of persons whose consent is required for his or her adoption if he or she is an adult, it directly conflicts with the express, unqualified provisions of § 26-10A-7(a), which the act could have, but did not, directly amend. Further, if, in enacting Act No. 98-101, the legislature intended with its addition of subsection (b) to § 26-10A-11 to displace the otherwise clear and unmodified consent requirements of § 26-10A-7(a),. it did so in a way that also contradicts another provision of Act No. 98-101, ■ itself, namely, the provision adding subsection (b) to § 26-10A-7. (Again, that subsection specifically requires for . the adoption of an adult, assuming it is a competent adult not in need of the consent of a guardian or conservator as provided in the latter half of that subsection, the written consent of the adult seeking to adopt, as well as his or her spouse, executed in the form outlined in § 26-10A-ll(a).)

Thus, an understanding of § 26-10A-11(b) as supplying the only set of consent requirements applicable to adult adoptees would necessarily lead to the conclusion that, in adopting Act No. 98-101, the legislature (1) intended to insert a provision in § 26-10A-11 governing who must give a consent to the adoption of an adult, even though before that insertion § 26-10A-11 had no provisions addressing who was required to execute a consent to adoption (nor was it a section devoted to the issue of adult adoptions) but, instead, before 1998, was merely procedural in its focus, stating the content and execution requirements for written consents; (2) intended to enact § 26-10A-ll(b) to displace the consent requirements otherwise applicable to adult adoptions in § 26-10A-7(a), and intended to do this in the same act in which it specifically added a subsection (b) to § 26-10A-7 to address the issue of who must consent to an adult adoption; and (3) amended § 26-10A-11 in a way that conflicts with the provisions of § 26-10A-7(a) and, indeed, with the requirement in § 26-10A-7(b) that the adopting adult and his or her spouse must give written consents.

III. Conclusion

What is, in my opinion, a more straightforward and reasonable understanding of the various provisions of Act No. 98-101 and the manner in which it amended the AAC, and an approach that is in fact consistent with the above-discussed principles of statutory construction, is as follows: As would be expected by the insertion of subsection (b) in § 26-10A-7, and the fact that it was added to § 26-10A-7 by an act concerned with prescribing the conditions under which disabled and mentally retarded adults could be adopted, § 26-10A-7(b) was simply enacted as a provision to prescribe additional consent requirements (without amending or altering the existing consent requirements found in § 26-10A-7(a)), when the adoptee is a disabled or mentally retarded adult. Certainly, based on a plain reading of § 26-10A-7(b), there simply is nothing to suggest that its provisions were intended to displace the requirements of § 26-10A-7(a). Indeed, the language used in § 26-10A-7(b) does not in any way purport to be exclusive, i.e., it does not state that only the consents described in that subsection are necessary. Section 26-10A-7(b) says merely that the consents described therein are prerequisites to the approval of a petition to adopt an adult, and it contains no language purporting to qualify the requirements otherwise stated in § 26-10A-7(a). The additional consents now required in § 26-10A-7(b) include the consent of both the petitioner and, for the first time, his or her spouse, which evidently applies if the adop-tee is competent to give his or her own consent. In the alternative, if the adult adoptee is incompetent, the second clause of § 26-10A-7(b) requires the consent of the adoptee’s guardian or conservator, specifically stating that a guardian or conservator of the adult sought to be adopted must be given “pursuant to the requirements of Sections 26-10A-6 and 26-10A-11.”

The foregoing interpretation of § 26-10A-7 is supported by the Comment to that section. The Comment states that § 26-10A-7 specifies those persons from whom consent “is required.” The Comment goes further and describes the right to consent as a substantive right, rather than as a procedural right. The Comment further states that “[i]n effect, the persons listed in section 26-10A-7 have an absolute veto power over the proposed adoption.” This Comment was not changed with the 1998 amendments to the AAC.

Reading § 26-10A-7(b) as supplying the additional consent requirements intended by the legislature to be applicable when a disabled or mentally retarded adult is to be adopted provides then the context for assessing the import of the addition in Act No. 98-101 of subsection (b) to § 26-10A-11. Read in pari materia with this understanding of § 26-10A-7(b), § 26-10A-11(b). is. more easily and rationally understood not as disruptive of what would otherwise be a complete and internally consistent list in § 26-10A-7(a) and (b) of who must consent to an adoption, but rather as a complement to the procedural requirements that are otherwise described in § 26-10A-11 and the “pre-placement investigation” requirements contained in § 26-10A-19, AIa.Code 1975.

All but the first sentence of subsection (b) of § 26-10A-11 is concerned with the procedure for obtaining a written consent from someone with a fiduciary relationship to an incompetent adult adoptee, i.e., a guardian, a conservator, or a guardian ad litem. If the first sentence of subsection (b) is read in light of the remaining provisions of that subsection, and in a manner that avoids the above-discussed conflict with § 26-10A-7(b) (requiring consents by the adopting adult and his or her spouse), it is more reasonably and easily read as simply explaining that, unlike incompetent adult adoptees as discussed in the remainder of that subsection, a competent adult adoptee can, without help from anyone else and without an “order of reference or ... home studies” specifically referenced in the first sentence, provide the necessary assurance to the state that the proposed adoption is in his or her “best interest.” In other words, the statute may simply be read as stating that “only the sworn, written consent of the adult [adoptee]” is necessary to satisfy the state’.s legitimate concern as to whether an adoption will be in the adoptee’s “best interest.” The remainder of § 26-10A-ll(b) then proceeds to prescribe safeguards deemed necessary to ensure that, in the case of an adoption of an incompetent adult, a responsible entity other than the adoptee himself of herself has determined that the adoption is in his or her best interest.

So read, the provisions of § 26-10A-11(b) complement, and are appropriately read in pari materia with, the requirement of the AAC that, in addition to the various consents that are required and that are fully described in § 26-10A-7, there must be a determination in every case, whether involving a minor adoptee or an adult adoptee, that the adoption is in the adoptee’s best interest. See Ala.Code 1975, §§ 26-10A-24(a)(l) and 26-10A-24(b)(6).

For the foregoing reasons, I conclude that the trial court’s judgment is due to be reversed.

BRYAN, Judge,

concurring specially.

I write specially to note that I agree with the majority opinion based on the principles stated therein. Because adoption is in derogation of the common law, we must exercise. absolute judicial restraint and follow the strict construction of the statute as adopted by the legislature. See Evans v. Rosser, 280 Ala. 163, 164-65, 190 So.2d 716, 717 (1966).

If, by some chance, the majority opinion and the special writings have not correctly construed the intent of the legislature, the legislature can amend the statute to clearly and concisely state its intent regarding the adoption of a child who has attained the age of majority and consents to an adoption by another adult.

Although I am certainly sympathetic to the stepmother and the daughter’s situation in that the stepmother is unable to adopt the daughter who has attained the age of majority, most assuredly no court order or the lack of a formalized judgment of adoption can deter the nonlegal relationship of love and affection between the daughter and the stepmother. Moreover, the daughter and the stepmother may accomplish many of the results they may be attempting to achieve through adoption by other legal avenues, such as utilizing wills, living wills, powers of attorney, trust agreements, and various other legal mechanisms.

      . The record does not indicate whether the hearing was actually held.

      . The daughter executed a‘written consent to the adoption on September 2, 2004, which was after § 26-10A-6(2)c. became effective on August 1, 2004.

      . Judge Murdock, in his special concurrence, maintains that the AAC allows for the adoption. of adults only upon the written consent of the prospective adoptee's natural parents. Nevertheless, whether the Alabama Legislature intended such a strict construction of the AAC remains to be determined at a later date or is a matter for the legislature to clarify.

      . The mother also argues that the purported adoption of her daughter violates her due-process rights under Art. 1, § 13 of the 1901 Constitution of the State of Alabama.

      . There is a split among the federal Circuit Courts of Appeals as to whether a parent's relationship with his or her adult child is afforded federal constitutional due-process protection to the extent that the parent can make a claim asserting loss of companionship of the child under 42 U.S.C. § 1983. The Court of Appeals for the Seventh Circuit and the Ninth Circuit answer the inquiry in the affirmative. See, e.g., Bell v. City of Milwaukee, 746 F.2d 1205, 1245 (7th Cir. 1984) (holding that the parent’s " 'interest in the companionship, care, custody, and management' ” of the child did not disappear once the child reached adulthood); and Strandberg v. Helena, 791 F.2d 744 (9th Cir.1986) (recognizing the parent-child relationship as being so fundamental that the state cannot arbitrarily interfere with it, even when the child is an adult). Under the Ninth Circuit Court of Appeals’ decision, it is the virtue of a familial relationship that gives rise to the substantive due-process violation. Strandberg, 791 F.2d at 748 and note 1.
      The Courts of Appeals for the First, Third, Eleventh, and District of Columbia Circuits have reached a contrary conclusion but, again, in the context of a claim asserting loss of companionship. As the Eleventh Circuit Court of Appeals explained in Robertson v. Hecksel, 420 F.3d 1254 (11th Cir.2005):
      "The Third Circuit’s ultimate conclusion in McCurdy [v. Dodd, 352 F.3d 820 (3d Cir. 2003),] that 'the fundamental guarantees of the Due Process Clause do not extend to a parent’s interest in the companionship of his independent adult child,’ McCurdy, 352 F.3d at 830, appears to indicate no right exists. But the McCurdy Court also discussed the incidental nature of the injury; 'It would, therefore, stretch the concept of due process too far if we were to recognize a constitutional violation based on official actions that were not directed at the parent-child relationship.’ Id.; see also Russ [v. Watts], 414 F.3d [783,] 789 [(7th Cir. 2005) ] ('Under any standard, finding a constitutional violation based on official actions that were not directed at the parent-child relationship would stretch the'concept of due process far beyond the guiding principles set forth by the Supreme Court.’) (citations omitted).”
      420 F.3d at 1259 (emphasis added). See also Robertson v. Hecksel, 420 F.3d at 1258-59 (explaining the First Circuit Court of Appeals' decision in Valdivieso Ortiz v. Burgos, 807 F.2d 6, 8 (1st Cir.1986)).
      Likewise, the Robertson v. Heclcsel Court recognized that the position taken by the District of Columbia Circuit Court of Appeals is directed at not allowing recovery for "companionship” interests, not at disavowing any constitutional protection for the parent-child relationship itself;
      "In Butera [v. District of Columbia, 235 F.3d 637 (D.C.Cir.2001) ], the District of Columbia Circuit specifically noted that it had no reason to consider how the injury occurred:
      " 'Because we hold that a parent-child relationship between two independent adults does not invoke constitutional "companionship” interests, we do not reach the District of Columbia's contention that Terry Butera’s claim fails because the District of Columbia’s actions were not intentionally directed or aimed at her relationship with her son. ’

        "Butera, 235 F.3d at 656 n. 23 (citation omitted).”

        Robertson v. Hecksel, 420 F.3d at 1259 (emphasis added).

      . Of course, in addition to the analysis of the statutory text that composes the balance of this opinion, the need to avoid an interpretation that would make a portion of the AAC unconstitutional, itself, augers against such an interpretation. See discussion, supra, and note 8, infra.

      . Of course, when a natural parent’s rights vis-á-vis a child have been terminated due to the parent’s abandonment of the child or the parent’s unfitness, § 26-1 OA-7 does not operate to require that person’s consent because that person is no longer the legal parent of the prospective adoptee. In the present case, the adoption has purportedly occurred without either the consent of the child’s natural parent or the termination of her parental rights. It is true that a court in the State of Florida, in a domestic-relations judgment, ordered that the mother not have contact with the child. There is a difference between permanently and irrevocably severing a parent-child relationship, on the one hand, arid entering a modifiable order preventing a parent from having contact with a child during the period of the child’s minority, on the other hand. Cf. V.M. v. State Dep’t of Human Res., 710 So.2d 915, 921 (Ala.Civ.App. 1998) (quoting East v. Meadows, 529 So.2d 1010, 1012 (Ala.Civ.App.1988)) (noting that the termination of parental rights is a "drastic measure” and " ‘the last and most extreme disposition’ ” permitted by law).

      . In addition, a statute should be construed, when possible, in a manner that avoids rendering the statute unconstitutional. Ex parte Huguley Water Sys., 282 Ala. 633, 639, 213 So.2d 799, 805 (1968). The interpretation of § 26-10A-7 and § 26-10A-11 in .the text avoids the constitutional concerns expressed near the outset of this opinion.

      . This precise language appears nowhere else in the AAC, but it appears to be referring to the pre-placement investigation otherwise required by § 26-10A-I9.


source: Caselaw Access Project

author:
THOMPSON, Judge. BRYAN, Judge, CRAWLEY, Presiding Judge,
      MURDOCK, Judge,

license: Public Domain

text:
    Ex parte C.L.J., a minor child, by and through her guardian ad litem. (In re C.L.J., a minor child).
    2050367.
    Court of Civil Appeals of Alabama.
    June 23, 2006.

      Jacob A. Dubin of Keith & Hamm, P.C., Montgomery, for petitioners S.R. and B.R.
    Aimee C. Smith, guardian ad litem, Montgomery.
    Troy King, atty. gen., and Felicia M. Brooks, asst. atty. gen., Department of Human Resources, for petitioners.
    Larry R. Sasser, Montgomery; and Robert L. Turner, Montgomery, for respondent E.J.
    Jan Schroeder Grant, Montgomery, for respondent M.J.
    R. Autin Huffaker, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery; and J. Lisa Impson of the Chickasaw Nation Division of Justice, Ada, Oklahoma, for respondent the Chickasaw Nation.
   On Application for Rehearing

THOMPSON, Judge.

In April 2003, the Department of Human Resources (“DHR”) removed C.L.J. (“the child”) from the custody of her mother, E.J., and placed her in protective custody. At or near that time, the Montgomery Juvenile Court awarded DHR custody of the child. The child, who was almost 3 years old when she was taken into protective custody, has remained in the same foster-care placement with S.R. and B.R. (“the foster parents”).

On September 9, 2004, approximately 16 months after the child had been taken into protective custody, the child’s maternal great aunt, M.J. (“the great aunt”), filed a petition in this matter alleging that the child was dependent and seeking custody of the child. In her petition, the great aunt stated that she anticipated that DHR would soon seek to terminate the mother’s parental rights to the child.

On February 3, 2005, the Chickasaw Nation moved to intervene in the action, alleging that the child is an “Indian Child,” as that term is defined in § 1903 of the Indian Child Welfare Act (“the ICWA”), 25 U.S.C. §§ 1901 through 1963, and that the ICWA granted it the right to intervene in the action involving the child. See 25 U.S.C. § 1911(c). It does not appear that the juvenile court was informed that the child might be an “Indian child” under the ICWA before the Chickasaw Nation filed its motion to intervene. In support of its motion to intervene, the Chickasaw Nation submitted a memorandum stating that the mother was “65/256 Chickasaw/Choctaw”; the Chickasaw Nation later alleged that the child was eligible for membership in the Chickasaw Nation.

On February 8, 2005, the mother filed a motion seeking to transfer this action to the Chickasaw Nation tribal court pursuant to the ICWA. DHR, the foster parents, and the child’s guardian ad litem all filed objections to the motion to transfer the case to the tribal court; the Chickasaw Nation filed a brief in support of the mother’s motion to transfer. The child, who was born on July 11, 1999, was five and a half years old at the time the Chickasaw Nation intervened in this matter and the mother moved to transfer the case to the tribal court.

On March 29, 2005, B.R., the foster mother, petitioned for custody of the child. On April 15, 2005, DHR moved to terminate the parental rights of the mother and of K.J., the child’s alleged father. Later, the foster parents filed a motion to amend B.R.’s petition for custody, seeking to “adopt” DHR’s petition to terminate the parents’ parental rights; the juvenile court granted the foster parents’ motion.

On August 4, 2005, the juvenile court entered an order denying the mother’s motion to transfer the case to the tribal court. In that order, the juvenile court made a number of factual findings and legal determinations, including the determination that the ICWA applied to the facts of this case. Neither the mother nor the Chickasaw Nation sought appellate review of that order.

In December 2005 and January 2006, the parties submitted witness lists to the juvenile court. The great aunt filed on January 12, 2006, a motion seeking a status conference “to schedule trial witnesses.” According to the guardian ad litem’s filing in this court, the juvenile court scheduled a hearing for a scheduling conference for February 3, 2006. However, on January 26, 2006, the juvenile court entered an order canceling the hearing scheduled for February 3, 2006, and transferring this action to the tribal court.

On February X, 2006, the guardian ad litem filed a document entitled “Objection to Order Transferring Case to Tribal Court.” In that filing, the guardian ad litem argued that the juvenile court had erred in ordering that the case be transferred to the tribal court; the guardian ad litem made a number of factual allegations to support that argument and requested that the juvenile court conduct a hearing on the motion. In substance, the guardian ad litem’s February 1, 2006, filing was a postjudgment motion filed pursuant to Rule 59, Ala. R. Civ. P.; therefore, we construe that filing as a postjudgment motion filed pursuant to that rule. Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 562-63 (Ala.2005) (“This- Court will look at the substance of a motion, rather than its title, to determine how that motion is to be considered under the Alabama Rules of Civil Procedure.”). On February 2, 2006, the juvenile court denied the guardian ad litem’s February 1, 2006, postjudgment motion by entering a notation on that motion that stated, “objection noted and denied.”

On February 7, 2006, the guardian ad litem filed in this court a motion for an emergency stay of the juvenile court’s January 26, 2006, order and a “petition for a writ of mandamus” seeking an order directing the juvenile court to rescind its order transferring the action to the tribal court. On March 7, 2006, this court, in a two sentence order, granted the guardian ad litem’s “petition for a writ of mandamus” and directed the juvenile court to rescind its January 26, 2006, order. — So.2d-(table). The Chickasaw Nation filed in this court an application for rehearing in which it requested that this court clarify the March 7, 2006, order by setting forth the basis on which it was entered. We grant the application for rehearing, and we reverse the order of the juvenile court and remand the cause with instructions.

As an initial matter, we address the purpose of the ICWA and the application of that act in a state court.

“The ICWA was enacted to promote the stability and security of Indian .tribes and families through the establishment of minimum federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.
“When Congress enacted the ICWA, it had two main goals: (1) protecting the best interests of the Indian children and (2) promoting the stability and security of Indian tribes and families. See 25 U.S.C. § 1902. The act is based on the assumption that protection of the Indian child’s relationship to the tribe is in the child’s best interests. Mississippi Choctaw Indian Band v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989).
“ICWA § 1911 mandates that the Indian tribe have jurisdiction in all child custody proceedings ‘involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law.’ The ICWA does not, however, divest state courts of them jurisdiction over children of Indian descent living off the reservation. Kiowa Tribe of Oklahoma v. Lewis, 777 F.2d 587 (10th Cir. 1985), cert. denied 479 U.S. 872, 107 S.Ct. 247, 93 L.Ed.2d 171 (1986). State courts may exercise jurisdiction concurrently with the tribal courts in regard to those Indian children who do not reside and are not domiciled on their tribe’s reservation; however, a state court must refer the matter to a tribal court unless good cause is shown for the retention of state court jurisdiction. See 25 U.S.C. § 1911(b).
: “That a state court may take jurisdiction does not necessarily mean that it should do so, as the court should consider the rights of the child, the rights of the tribe, and the conflict of law principles, and should balance the interests of the state and the tribe. See Application of Bertelson, 189 Mont. 524, 617 P.2d 121 (1980).”

In re C.W., 239 Neb. 817, 825-26, 479 N.W.2d 105, 112-13 (1992) (emphasis added).

In In re C.W., supra, the Nebraska Supreme Court went on to discuss the federal guidelines pertaining to whether good cause exists for a state court to retain jurisdiction rather than transfer the matter to a tribal court:

“The Bureau of Indian Affairs has published nonbinding federal guidelines interpreting the ICWA’s definition of ‘good cause to the contrary’ as including, but not limited to, cases where (1) the proceeding is at an advanced stage when the petition to transfer is received, and the petition is not promptly filed after receipt of notice; (2) the Indian child is over the age of 12 and objects to the transfer; (3) evidence necessary to decide the case cannot be adequately presented to the tribal court without undue hardship to the witnesses and parties; and (4) the parents of an Indian child over the age of 5 are not available, and the child has had little or no contact with the child’s tribe or members of the child’s tribe. Additionally, the guidelines- specify that socioeconomic conditions and the perceived adequacy of tribal or Bureau of Indian Affairs social services or judicial systems may not be considered in determining whether good cause exists. The burden of establishing good cause shall be on the party opposing the transfer. Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67,584, 67,591 (1979) (not codified).
“The third element of the guidelines has been applied to deny transfer due to considerations of forum non conveniens, such as availability of witnesses and access to proof. See In Interest of J.R.H., 358 N.W.2d 311 (Iowa 1984)....”

239 Neb. at 826-27, 479 N.W.2d at 113 (emphasis added).

The juvenile court’s August 4, 2005, order denying the mother’s motion to transfer contained the following factual findings and legal conclusions:

“The Chickasaw Nation’s [February 3, 2005,] intervention apparently' was delayed due to the mother’s failure to inform her' attorney that she was a member of the Choctaw and Chickasaw tribes. [DHR’s] brief states that counsel for the mother submitted a letter to DHR on July 12, 2004, indicating that she wished for placement of her child to be with her relatives in Oklahoma. DHR’s brief further states that counsel for the mother did not inform DHR until on or about November 3, 2004, that the mother [had] established membership with the Choctaw and Chickasaw tribes.
“The Chickasaw Nation filed a motion to intervene shortly after receiving notice of the present proceeding as required by the ICWA. The Indian tribe of an Indian child who is eligible for membership within the federally recognized Indian tribe has a right to intervene at any point in the proceeding. (See 25 U.S.C. § 1911(c).) A motion to transfer this case to the tribal court was filed shortly thereafter.
“The Court notes that the ICWA does not preempt state court proceedings in all cases. The Alabama Court of Civil Appeals, in R.B. v. State Department of Human Resources, 669 So.2d 187 (Ala. Civ.App.1995), held that the ICWA did not divest the state courts of their jurisdiction over children of Indian descent who do not live on a reservation. The child in the present case has not lived on a reservation. State courts may exercise jurisdiction concurrently with tribal courts in regard to those Indian children who do not reside and are not domiciled on their tribe’s reservation; however, a state court must refer the matter to a tribal court ‘in the absence of good cause to the contrary’ for the retention of state court jurisdiction. See 25 U.S.C. § 1911(b).”

With regard to the issue whether there existed good cause to prevent a transfer of this matter to the tribal court, the juvenile court made the following additional factual findings and conclusions of law in its August 4, 2005, order:

“[In a filing in this court], Counsel for the Chickasaw Nation conceded that ‘the Nation filed its Motion to Transfer at an advanced stage in the proceeding.’ This ease began on April 23, 2003, following a petition for pick up order filed by DHR. The child has remained in the legal custody of DHR to date, and the child has remained in the care of foster parents for over two years. The child turned six years old on July 11, 2005.
“DHR’s submitted brief and supplemental brief make a case that a significant hardship would ensue for the witnesses should this Court grant a motion to transfer from this Court to the tribal court located in the State of Oklahoma. There are currently three pending petitions, DHR’s petition to terminate parental rights, and the petitions for custody filed by the great maternal aunt and the foster parents. Nearly all of the witnesses are within the State of Alabama, the mother’s social history as it relates to this case is in Alabama, and the child lives within this State. DHR lists more than twenty-five potential witnesses who reside in close proximity to Montgomery, Alabama.
“Upon consideration thereof, it is hereby, ORDERED, ADJUDGED AND DECREED as follows:
“1. That the Indian Child Welfare Act applies to the present case.
“2. That this case is in an advanced stage in the proceeding.
“3. That the evidence necessary to decide the case cannot be adequately presented to the tribal court without undue hardship to the witnesses and parties.
“4. That in accordance with the ICWA this Court does find good cause to the contrary to deny the motion to transfer to the tribal court.
“5. That in the child’s best interests the Motion to Transfer Case to Tribal Court is hereby DENIED.”

In its January 26, 2006, order transferring this action to the tribal court, the juvenile court addressed only one of the factors pertaining to “good cause” that it had addressed in its August 4, 2005, order. Specifically, the juvenile court concluded that because documents had been filed indicating that a number of people listed as potential witnesses by tbe mother and the Chickasaw Nation would have to travel from Oklahoma to Alabama to testify in this matter, the case should be transferred to the tribal court. The juvenile court did not conduct an ore tenus hearing regarding whether this matter should be transferred to the tribal court before it entered either of its two orders on that issue.

In this court, the guardian ad litem sought a writ of mandamus. A petition for a writ of mandamus is the appropriate method for reviewing an interlocutory order. Ex parte Turpin Vise Ins. Agency, Inc., 705 So.2d 368, 369 (Ala.1997) (“The writ of mandamus is an extraordinary writ that applies ‘where a party seeks emergency and immediate appellate review of an order that is otherwise interlocutory and not appealable.’ Rule 21(e)(4), Ala. R.App. P.”). However, the juvenile court’s January 26, 2006, order transferred jurisdiction over this matter to the tribal court; thus, after the entry of that order, there was no further action to be taken by the juvenile court with regard to this matter, so that order constituted a final judgment. Wilson v. Wilson, 53 Ala.App. 201, 205, 298 So.2d 622, 625 (Ala.Civ.App.1973) (“nothing remains to be done by the trial court as regards the rights and équities of the parties; consequently the [judgment] is final and supportive of the appeal taken”).

Further, an order dismissing an action based on the doctrine of forum non conveniens is appealable. Ex parte Ford Motor Credit Co., 772 So,2d 437, 439 (Ala. 2000). This court has observed that the ICWA allows courts to apply a version of the doctrine of forum non conveniens in determining whether to transfer an action to a tribal court under the ICWA. R.B. v. State Dep’t of Human Res., 669 So.2d 187, 189 (Ala.Civ.App.1995). See also In re. C.W., 239 Neb. at 827-28, 479 N.W.2d at 113-14 (one element in considering whether to transfer a case to an Indian tribal court is the doctrine of forum non conveniens). The Supreme Court of South Carolina has explained the version of the doctrine of forum non conveniens that is encompassed in the ICWA as follows:

“ ‘Consideration of whether or not the case can be properly tried in tribal court without hardship to the parties or witnesses was included on the strength of the section-by-section analysis in the House Report on the Act, which stated with respect to the § 1911(b), “[t]he subsection is intended to permit a State court to apply a modified- doctrine of forum non conve- niens, in appropriate cases, to insure that the rights of the child as an Indian, the Indian parents or custodian, and the tribe are fully protected.”’
“44 Fed.Reg. at 67591.
“The doctrine of forum non conve-niens is modified in the Indian child custody context so as to allow state courts to determine whether the tribal 'court is a less convenient forum. The ’ [Bureau of Indian Affairs] Guidelines acknowledge that ‘application of this criterion will tend to limit transfers to cases involving Indian children who do not live very far from the reservation.’ 44 Fed. Reg. at 67591.”

Chester County Dep’t of Soc. Servs. v. Coleman 303 S.C. 226, 230, 399 S.E.2d 773, 775 (1990).

The juvenile court’s January 26, 2006, order transferred jurisdiction to the tribal court on the basis of a version of the doctrine of forum non conveniens; therefore, that order constituted a final judgment from which an appeal would lie. Although the guardian ad litem filed in this court a “petition for a writ of mandamus,” this court elects to treat the filing as an appeal of the January 26,-2006, order. See Ex parte Woodward, 738 So.2d 322, 323 (Ala.1998) (treating a petition for a writ of mandamus from a preliminary injunction as an appeal); Ex parte Alabama Dep’t of Human Res., 719 So.2d 194, 196 (Ala.1998) (treating a filing styled as a petition for a writ of certiorari as a petition for a writ of mandamus); and Ex parte Health Care Mgmt. Group of Camden, Inc., 522 So.2d 280, 281 (Ala.1988) (treating a petition for a writ of mandamus from a preliminary injunction as an appeal of that order).

Whether the ICWA applies to the facts of this case

The guardian ad litem contends in her brief submitted to this court that the ICWA does not apply in this case. The ICWA governs a child-custody proceeding involving - an “Indian child.” 25 U.S.C. § 1911; In re C.W., supra. In its August 4, 2005, order, the juvenile court found that the ICWA applies in this case because

“the prerequisites have been fulfilled to invoke the ICWA to the present case: the child in question is an Indian child as defined by the ICWA; the Chickasaw Nation verified that the child is eligible for membership into the tribe; the present case is' a child-custody proceeding involving foster-care placement of an Indian child [ (and, later, a petition for the termination of parental rights to that child) ].”

We note that no party has maintained that the child is not an “Indian child” under the ICWA; therefore, this court may not address that issue. Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) (“When an appellant fails to argue an issue in its brief, that issue is waived.”); Gary v. Crouch, 923 So.2d 1130, 1136 (Ala.Civ.App. 2005) (“this court is confined in its review to addressing the arguments raised by the parties in their briefs on appeal; arguments not raised by the parties are waived”); and Brown v. Wal-Mart Stores, Inc., 864 So.2d 1100, 1104 (Ala.Civ.App. 2002) (“We will not reverse a trial court’s judgment based ... on arguments not made to this court.”). Instead, the guardian ad litem asserts that the, child does not have sufficient contacts with the Chickasaw Nation to justify the application of the ICWA. The guardian ad litem points out, among other things, that the mother did not become affiliated with an Indian tribe until well after the child was removed from her custody and it was clear that DHR would proceed with the termination of her parental rights. The guardian ad litem also points out that the child has had little to no contact with the Chickasaw Nation.

The guardian ad litem cites S.A. v. E.J.P., 571 So.2d 1187, 1190 (Ala.Civ.App. 1990), in support of her argument. In S.A v. E.J.P., supra, the child was born to a non-Indian mother and a father who was 1/8 Cherokee Indian. The father objected to an adoption petition filed by maternal relatives when the child was approximately four years old. The father argued that the trial court erred in determining that the adoption would be in the child’s best interests; he contended that the trial court erred in failing to, apply the ICWA. In rejecting that argument, this court recognized the “Existing Indian Family” exception to the applicability of the ICWA. That exception is based upon “the overall concern of the ICWA to [prevent] the unwarranted removal of Indian children from an existing Indian family unit and the resultant breakup of the Indian family.” S.A. v. E.J.P., 571 So.2d at 1189. The “Existing Indian Family” exception applies when the child at issue is “illegitimate ... [and has] never been a member of an Indian family or culture.” S.A. v. E.J.P., 571 So.2d at 1189. However, as this court noted in S.A. v. E.J.P., that exception has been applied only “to those fact situations involving the voluntary relinquishment of an illegitimate Indian child by its non-Indian mother.” 571 So.2d at 1189.

In this case, the guardian ad litem appears to argue that the “Existing Indian Family” exception to the ICWA should be applied to a case in which the child has had, or is alleged to have had, little contact with the tribe to whom the transfer is sought; in other words, where it is alleged that the child at issue is not a part of “an existing Indian family unit.”

Based on evidence presented in- this matter, it does not appear that the child at issue has been a part of an Indian family or has been significantly exposed to Indian culture. However, as noted previously, the “Existing Indian Family” exception has been applied only in those situations in which a non-Indian mother relinquishes her child. See S.A. v. E.J.P., supra. In this case, the mother is an Indian, although she has only recently joined the Chickasaw Nation. Given the only argument presented to this court on this issue, we may not extend the “Existing Indian Family” exception to encompass situations in which the child’s mother is an Indian but the child is alleged to have had little to no contact with an Indian tribe; therefore, we must conclude that the guardian ad litem has failed to demonstrate that the juvenile court erred in applying the ICWA.

Whether the juvenile court exceeded its discretion in transferring this matter to the tribal court

The guardian ad litem also maintains that the juvenile court exceeded its discretion in transferring jurisdiction of this matter to the tribal court. The guardian ad litem maintains that good cause existed to prevent the transfer. See In re C.W., supra. The guardian ad litem points out that although in its August 4, 2005, order, the juvenile court addressed several of the factors for the consideration of the existence of good cause set forth in the nonbinding federal guidelines, it addressed only one of those factors in reaching its January 26, 2006, order transferring the case. The guardian ad litem argues that the juvenile court should have considered the other factors in reaching its January 26, 2006, decision. The guardian ad litem also maintains that the implicit determination in the juvenile court’s January 26, 2006, order that the difficulties facing the long list of proposed Oklahoma witnesses outweigh those of the Alabama witnesses in traveling to Oklahoma is not supported by the record.

As a part of her argument on this issue, the. guardian ad litem points out that in this case the juvenile court failed to conduct a hearing on whether good cause existed that might constitute an exception to the general rule that this matter should be transferred to the tribal court. In the other cases evaluated by this court in its consideration of this case, the state trial courts conducted evidentiary hearings to consider the issue of the existence of good cause or received evidence pertaining to that issue in resolving the ultimate issue before the court. See, e.g., In re Wayne R.N., 107 N.M. 341, 757 P.2d 1333 (Ct.App. 1988) (after conducting an evidentiary hearing, the state trial court denied a motion to transfer pursuant to the ICWA, finding good cause for the trial court to retain jurisdiction); In re Brittany C., 13 Neb.App. 411, 693 N.W.2d 592 (2005) (affirming, based on the evidence, the state trial court’s decision to deny a motion to transfer when the trial court conducted a hearing on the motion to transfer); and In re Mahaney, 146 Wash.2d 878, 51 P.3d 776 (2002) (the state trial court considered the applicability of the ICWA as part of its hearing on the issue of custody).

In In re C.W., supra, the state trial court terminated the mother’s parental rights to her four children, but it transferred the matter to the tribal court of the Indian tribe of which the mother and the children were members for the disposition of the children. On appeal, the Supreme Court of Nebraska rejected the mother’s arguments that the entire proceeding should have been transferred to the tribal court, concluding, among other things, that good cause existed to deny the transfer of the entire matter. Among other things, the court concluded:

“In determining whether the doctrine of forum non conveniens should be invoked, the trial court should consider practical factors that make trial of the case easy, expeditious, and inexpensive, such as the relative ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the ability to secure attendance of witnesses through compulsory process.”

In re C.W., 239 Neb. at 828, 479 N.W.2d at 113 (citing In re Wayne R.N., supra). In In re C.W., supra, the Nebraska Supreme Court noted that the evidence in that case demonstrated that

“[Ijargely by their mother’s choice, the children involved in this situation have had little exposure to their Indian culture, and the value of transfer to the tribe with future exposure to the Indian ways of life must be balanced first against the detrimental consequences these children will suffer due to the separation from the psychological parents to whom the children have bonded and become attached. Secondly, we must consider the cultural adjustments that these children, who have not lived in an Indian environment, would have to make and their individual abilities to make those adjustments, as established by the testimony of qualified expert witnesses. See In Interest of J.R.H., 358 N.W.2d 311 (Iowa 1984).”

239 Neb. at 834-35, 479 N.W.2d at 117 (emphasis added). Therefore, after considering the specific facts of that ease, the Nebraska Supreme Court concluded that good cause existed for the state trial court to retain jurisdiction of the termination-of-parental rights proceeding.

In In re Wayne R.N., supra, the father was a member of two Indian tribes and the mother was not an Indian. At the beginning of a termination-of-parental-rights proceeding, the parents moved to transfer the matter from the New Mexico trial court to a tribal court in Oklahoma. The trial court conducted a hearing on the issue of the proposed transfer, and it ultimately determined that good cause existed for it to retain jurisdiction. Among other things, the evidence presented to the trial court indicated that the witnesses who could testify regarding the parents’ conduct and its effects on the children were in New Mexico; an attorney for the tribes indicated that the tribes opposed the transfer; and the tribes’ social worker testified regarding tribal child-rearing customs, which “minimized the danger that the [parents’] rights would be terminated on the basis of conduct that would have been acceptable to the Tribes.” In re Wayne R.N., 107 N.M. at 344, 757 P.2d at 1336. The appellate court, relying on the modified version of the doctrine of forum non conveniens found in the guidelines promulgated by the Bureau of Indian Affairs, affirmed the trial, court’s denial of the motion to transfer, concluding that good cause existed for the trial court to retain jurisdiction of the matter. In re Wayne R.N., supra.

In Chester County Department of Social Services v. Coleman, 296 S.C. 355, 372 S.E.2d 912 (Ct.App.1988), the state trial court, after conducting a placement hearing, ordered that the dependency-type action be transferred to a tribal court; the children appealed the ruling. The Court of Appeals of South Carolina reversed, concluding that the trial court had erred in failing “to consider the various factors which may constitute ‘good cause’ under the [ICWA].” Chester County Dep’t of Soc. Seros, v. Coleman, 296 S.C. at 359, 372 S.E.2d at 915. The court stated that

“[w]hat little we are able to glean from the record indicates that a biological parent of the two older girls', both of whom are over five years of age, may be unavailable; that none of the children has had any contact with the tribe or has resided on the reservation for a significant period of time; and that the material witnesses and evidence relating to placement are in South Carolina, not South Dakota. These factors, together with evidence that removal of the children would be disruptive and detrimental to their best interests, may well constitute ‘good cause’ for the family court to retain jurisdiction of the case.
“Because we are unable to make this factual determination on the record before us, we reverse and remand for a[ ] determination of the issue.”

Id.

In this case, the parties dispute whether there exists “good cause” to deny a transfer under the third of the listed, nonbinding guidelines, specifically, whether “evidence necessary to decide the case can[ ] be adequately presented to the tribal court without undue hardship to witnesses and parties.” In re C.W., 239 Neb. at 827, 479 N.W.2d at 113. See also Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67,584, 67,591 (1979) (not codified). As already established, that element of the nonbinding federal guidelines creates a modified version of the doctrine of forum non conveniens. With regard to that factor, the mother and the Chickasaw Nation insist in their briefs submitted to this court that the Alabama witnesses are unnecessary before the tribal court. We disagree. The ultimate issues before the juvenile court, or before the tribal court if the matter is transferred to that court, are the resolution of DHR’s petition to terminate the mother’s parental rights and the two custody petitions filed in this matter. Thus, many, if not all, of the Alabama witnesses will provide evidence material to those issues. See In re Wayne R.N., 107 N.M. at 344, 757 P.2d at 1336 (considering the fact that the witnesses who could testify regarding the parents’ actions and the effect of those actions on the children at issue were in New Mexico and not in the same state as the tribal court); and Chester County Dep’t of Soc. Servs. v. Coleman, 296 S.C. at 359, 372 S.E.2d at 915 (noting that it appeared that the “material witnesses” were in South Carolina rather than in South Dakota, where the tribal court was located).

The allegations before this court and the juvenile court reflect that the child has had little to no contact with the Chickasaw Nation or with members of the Chickasaw Nation. The mother asserts in her brief before this court that the child “knows” the great aunt, and the Chickasaw Nation asserts that the child “has had contact with and has bonded with her Chickasaw family.” However, the guardian ad litem alleged in her postjudgment motion that the child has met the great aunt on only three occasions, all of which were during visitations supervised by DHR. The guardian ad litem also alleges other facts that, if established, would indicate that the child has had little to no contact with the Chickasaw Nation or its members and that the mother and the great aunt had not joined the tribe until just before the Chickasaw Nation intervened in this action.

In this case, it is clear that the juvenile court changed its decision regarding the transfer of this matter to the tribal court “in light of the numerous witnesses and parties who would be required to come from the State of Oklahoma to the State of Alabama.” The juvenile court reached its decision based on lists of witnesses submitted by the parties. There is little evidence before this court, and there was little to no evidence before the juvenile court, relevant to the issue whether there is good cause for the juvenile court to retain jurisdiction of the matter rather than to transfer the case to the tribal court.

Some state courts have held that a hearing is required when a party files a motion seeking to transfer a case under the ICWA. See In re G.L.O.C., 205 Mont. 352, 357, 668 P.2d 235, 237 (1983) (“[A] hearing [on a motion to transfer under the ICWA] is required whenever the Indian children live outside of a reservation.”); In re Wayne R.N., 107 N.M. at 343, 757 P.2d at 1335 (“Once a petition to transfer a matter to tribal court is filed as contemplated by the [ICWA], the state court must hold a hearing on the petition, and determine whether or not to transfer the matter.”); and People in the Interests of M.C., 504 N.W.2d 598 (S.D.1993) (a hearing must be provided in order to allow the parties to be heard on the issue of a potential transfer to a tribal court).

Other jurisdictions, although not specifically stating that a hearing on a motion to transfer is required, have held that the decision whether to transfer is dependent upon the facts of each particular case. “The determination of whether good cause not to transfer the proceedings exists will necessarily be made on . a case-by-case basis, after a careful consideration of all the circumstances of the case.” In re Wayne R.N., 107 N.M. at 344, 757 P.2d at 1335. See also People in Interest of J.L.P., 870 P.2d 1252, 1256 (Colo.Ct.App. 1994); In re J.W., 528 N.W.2d 657, 660 (Iowa Ct.App.1995) (“Ultimately, the determination whether good cause not to transfer exists is made on a case-by-case basis, after a careful consideration of all the circumstances of the case.”); Matter of Dependency and Neglect of A.L., 442 N.W.2d 233, 235 (S.D.1989) (the determination whether a petition to transfer pursuant to the ICWA is timely must be made on a case-by-case basis); and. Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152, 163 (Tex.Ct.App.1995) (“A good cause determination is necessarily made on a case-by-case basis after consideration of all the circumstances involved.”).

In this case,' .the juyenile court ordered that the case be transferred to the tribal court based solely on the witness lists submitted by the mother and the Chickasaw Nation; those witness lists contain names of a significant number of proposed witnesses who are from Oklahoma. There is no indication what, if any, knowledge those witnesses might have regarding the child or the facts of this case. There is no evidence regarding any hardship that any of the prospective witnesses might incur in traveling to, another state. In this case, the juvenile court has not taken an opportunity to balance the degree of difficulty of travel between the material witnesses, or the interests .of the child, the child’s parent, and the Chickasaw Nation. Therefore, we reverse the juvenile court’s order transferring the action to the tribal court and remand this matter for the juvenile court to conduct a hearing and receive evidence in compliance with this opinion. See Chester County Dep’t of Soc. Serys. v. Coleman, supra.

In so holding, we note that this court has not been asked to define for the purposes of Alabama caselaw the concept of “good cause” under the ICWA. In his special writing, Presiding Judge Crawley, relying on reasoning by the Texas Court, of Appeals,' advocates disregarding any consideration of the best interests of the child in determining whether to transfer a case to a tribal court under the ICWA. See Yavapai-Apache Tribe v. Mejia, supra; see also In re J.L.P., 870 P.2d 1252, 1258 (Colo.Ct.App.1994); and In re C.E.H., 837 S.W.2d 947, 954 (Mo.Ct.App.1992). .We note that a number of jurisdictions take a different approach and consider the best interests of the child, in some form, as one element of a good-cause determination. See In re Maricopa County Juvenile Action No. JS-8287, 171 Ariz. 104, 828 P.2d 1245, 1251 (Ct.App.1991); and In re N.L., 754 P.2d 863, 869 (Okla.1988); see also In re Adoption of S.W., 41 P.3d 1003, 1011 (OMa.Civ.App.2001) (noting that “when the best interests standard is used, care must be taken to avoid a purely Anglo-American point of view” (footnote omitted)). We conclude that, at the current procedural posture of this case, it would be premature for this court to attempt to resolve the issues of how this court might define “good cause” under the ICWA and whether the best interests of the child should, in some form, be considered in deciding whether to transfer a case under the ICWA. Such a determination would be more appropriately made after parties with a stake in such a decision have had an opportunity to advocate their positions to, and have those positions thoroughly considered by, the juvenile court.

Whether the great aunt is an extended family member under the ICWA

The ICWA provides that “in the absence of good cause to the contrary,” preference for foster-care placement for an Indian child is with, among others, a member of the Indian child’s “extended family” or a foster home approved by the Indian tribe; preference for an adoptive placement of an Indian child under the ICWA is with, among others, a member of the child’s “extended family” or other members of the tribe. 25 U.S.C. § 1915(a) and (b); see also In re A.E., 572 N.W.2d 579, 583 (Iowa 1997); and In re C.W., 239 Neb. at 825-26, 479 N.W.2d at 112-13. The guardian ad litem argues that the definition of an “extended family member” contained in the ICWA does not encompass the great aunt. Therefore, she maintains, the great aunt is not a preferred placement for the child under the ICWA and that the great aunt’s petition for custody of the child “has no greater weight” than the petition filed by the foster parents.

The juvenile court has not made a determination concerning whether the great aunt is an “extended family member” under the ICWA. Therefore, it is not appropriate for this court to consider that issue. Whether the great aunt fits within the definition of “extended family member” is a question for the juvenile court to resolve following remand.

We reverse the juvenile court’s order transferring the action to the tribal court and remand this matter to the juvenile court for it to conduct an evidentiary hearing on the motion to transfer pursuant to the ICWA. Therefore, we pretermit a discussion of the guardian ad litem’s argument that the juvenile court erred in refusing to conduct the hearing she requested on her postjudgment motion.

APPLICATION GRANTED; REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN, J., concurs.

BRYAN, J., concurs in the rationale in part and concurs in the result, with writing.

CRAWLEY, P.J., concurs in the result, with writing.

MURDOCK, J., concurs in the judgment of reversal only, with writing.

BRYAN, Judge,

concurring in the rationale in part and concurring in the result.

I concur with the main opinion as it relates to the applicability of the Indian Child Welfare Act (“the ICWA”), 25 U.SiC. § 1901 et seq. I also concur with the analysis in the main opinion requiring the juvenile court to conduct a hearing and receive evidence as to whether good cause exists to deny the transfer of this case. I conclude that the holding in In re C.W., 239 Neb. 817, 819, 479 N.W.2d 105 (1992), is particularly applicable to the current fact situation as presented to this Court.

“Largely by their mother’s choice, the children involved in this situation have had little exposure to their Indian culture, and the value of transfer to the tribe with future exposure to the Indian ways of life must be balanced first against the detrimental consequences these children will suffer due to the separation from the psychological parents to whom the children have bonded and become attached. Secondly, we must consider the cultural adjustments that these children, who have not lived in an Indian environment, would have to make and their individual abilities to make those adjustments, as established by the testimony of qualified expert witnesses. See In Interest of J.R.H., 358 N.W.2d 311 (Iowa 1984).”

239 Neb. at 834-35, 479 N.W.2d at 117 (emphasis added). Thus, I conclude that the juvenile court must consider the principles outlined above in making its decision to transfer or retain jurisdiction of this case.

I agree with the main opinion solely insofar as it determines that the issue whether the great aunt is an “extended family member” under the ICWA is not ripe for appellate review.

CRAWLEY, Presiding Judge,

concurring in the result.

I respectfully disagree with the main opinion’s reliance on cases that have blurred the line between jurisdictional issues and substantive determinations. More specifically, I disagree with the rationale in the main opinion indicating that a child’s “best interests” is a factor to consider when determining whether to transfer jurisdiction to an American Indian tribal court. As noted by the court in Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152, 168-69 (Tex.Ct.App.1995):

“The ‘best interest of the child’ is the backbone of American family law when custody is an issue. However, we find that consideration of the best interest of the child in determining whether good cause exists under section 1911(b) is improper because: (1) it defeats the very purpose for which the ICWA was enacted, in that, it allows Anglo cultural biases into the analysis; and (2) questions of ‘best interest’ are appropriate to issues of placement, not jurisdiction.”

(Citations and footnote omitted.) Ultimately, the Mejia court joined other jurisdiction that have rejected the best-interests standard for determining jurisdiction. Id. (citing In re J.L.P., 870 P.2d 1252, 1258 (Colo.Ct.App.1994); In re Armell, 194 Ill. App.3d 31,141 Ill.Dec. 14, 550 N.E.2d 1060 (1990), appeal denied, 132 Ill.2d 545, 144 Ill.Dec. 255, 555 N.E.2d 374 (1990), cert. denied, 498 U.S. 940, 111 S.Ct. 345, 112 L.Ed.2d 310 (1990); In re B.W., 454 N.W.2d 437 (Minn.Ct.App.1990); In re C.E.H., 837 S.W.2d 947 (Mo.Ct.App.1992); and In re Ashley Elizabeth R., 116 N.M. 416, 863 P.2d 451 (Ct.App.1993)).

Also, I disagree with the portion of the main opinion that concludes that, because this case involves the potential termination of parental rights and two separate custody petitions, “many, if not all, of the Alabama witnesses will provide evidence material to those issues.” This is not necessarily the case, as the juvenile court’s evidentiary hearing on remand may reveal.

However, I agree with the result in this case requiring the juvenile court to conduct an evidentiary hearing before deciding whether to transfer this case to the tribal court in Oklahoma.

MURDOCK, Judge,

concurring in the judgment of reversal only.

I believe the juvenile court’s August 4, 2005, order was properly entered. I conclude that the Indian Child Welfare Act is not applicable in this case. Even if it were, I conclude that “good cause” has been shown, “for the retention of state court jurisdiction,” see In re C.W., 239 Neb. 817, 826, 479 N.W.2d 105, 112 (1992), and that the child’s great aunt does not qualify as an “extended family member” under the act. Accordingly, as this court effectively did in its initial March 7, 2006, order in this case, I would reverse the trial court’s January 26, 2006, order without remanding the cause for any further hearing.

      . Arthur Ellsworth was also named as a potential intervenor in that motion. The materials before this court do not indicate the manner in which Ellsworth is connected with the Chickasaw Nation.

      . K.J. did not participate in the proceedings in the juvenile court and has not filed a brief in this court.

      .Before filing the motion to amend, S.R., the foster father, had not filed a petition for custody of the child, and he does not appear to have joined B.R.’s March 29, 2005, petition. We construe the juvenile court’s order granting the motion to amend the March 29, 2005, petition as also adding S.R. as a party to the action.

      . A motion filed pursuant to Rule 59, Ala. R. Civ. P., may be taken only from a final judgment. Momar, Inc. v. Schneider, 823 So.2d 701, 704 (Ala.Civ.App.2001). As discussed later in this opinion, we conclude that this matter is properly before this court as an appeal of a final judgment rather than as a petition for a writ of mandamus.

      . The January 26, 2006, order provides, in pertinent part:-
      “This matter comes before the Court upon its own review of the file of the above-named minor after numerous filings were docketed since this Court's Order of July 28, 2005. The Court notes that on April 5, 2005, the District Court of the Chickasaw Nation agreed to accept transfer of this case. In this Court’s Order of [August 4,] 2005, this Court based its findings for this Court to maintain jurisdiction on the fact that there would be no undue hardship on any of the witnesses or parties.
      "Since that Order numerous pleadings have been filed, including witness lists supplied by the parties, which lists show multiple witnesses and parties who live in the State of Oklahoma. In light of the fact that the Indian Child Welfare Act applies to this case and must be strictly construed, and after reviewing the multiple pleadings, and especially in light of the numerous witnesses and parties who would be required to come from the State of Oklahoma to the State of Alabama, it is ORDERED as follows:

        "1. That the present case is hereby transferred to the jurisdiction of the District Court of the Chickasaw Nation in the State of Oklahoma.”

      . In In re the Adoption of Baby Boy L, 231 Kan. 199, 643 P.2d 168 (1982), the Supreme Court of Kansas further explained the "Existing Indian Family” exception to the ICWA. Among other things, that court noted that the purpose of the ICWA "was not to dictate that an illegitimate infant who has never been a member of an Indian home or culture, and probably never would be, should be removed from its primary cultural heritage and placed in an Indian environment over the express objections of its non-Indian mother.” 231 Kan. at 206, 643 P.2d at 175.

      . The Chickasaw Nation contends in its brief to this court that "[t]he only reason the child has not been in an 'Indian family environment' is because DHR removed the child from her mother’s custody and placed her in a 'non-Indian' foster home.” The Chickasaw Nation alleges that DHR took that action in spite of its knowledge of the child’s heritage as an Indian. The allegations contained in the guardian ad litem's postjudgment motion dispute those allegations. Among other things, the guardian ad litem has alleged that the great aunt and the mother had only recently joined the Chickasaw Nation, that the mother’s family has not participated in any Indian culture, and that the mother did not advocate placing the child with the great aunt until the filing of the termination petition was imminent.

      . The guardian ad litem also argues, as a separate issue, that the juvenile court erred in failing to conduct a hearing on her post-judgment motion filed in that court. We address that argument later in this opinion.

      . The court stated that it reached its decision based on
      "the 8-year history of the case, including the facts that the [mother] opposed [an earlier proposed transfer to another tribe], ... and that in 1982 the [other tribe] approved of placement of two of the children in non-Indian homes. Not only was the petition for transfer filed at an advanced stage in the proceedings, but all of the evidence was located in Lancaster County. To transfer the proceedings to the tribal court, located in South Dakota, would pose an undue hardship to the witnesses and parties

        In re C.W., 239 Neb. at 830, 479 N.W.2d at 115.

      . This appeal preceded the appeal in Chester County Department of Social Services v. Coleman, 303 S.C. 226, 399 S.E.2d 773 (1990), cited earlier in this opinion.


author: CRAWLEY, Presiding Judge.

text:
    P.B. v. P.C.
    2050280.
    Court of Civil Appeals of Alabama.
    June 30, 2006.
    Tameria S. Driskill, Gadsden, for appellant.

      James D. Walker, Albertville, for appel-lee.
   CRAWLEY, Presiding Judge.

P.B. (“the father”) appeals from a pen-dente lite order entered in a dependency and custody dispute with P.C., the maternal grandmother (“the maternal, grandmother”) of the father’s 11-year-old child in this case, M.S.B. (“the child”). The maternal grandmother initiated this action by filing in the juvenile court on June 3, 2005, a petition seeking grandparental-visi-tation rights, pursuant to § 30-3-4.1, Ala. Code 1975.

The father and mother of the child in this case were previously married, but they divorced in 1997. The father was granted custody of the child, who was approximately three years old at the tirpe of the divorce. In 2002 the mother of the child died.

The maternal grandmother testified at a June 2005 hearing that for many years following the divorce of the child’s parents she was able to have a close relationship with the child. In 2004, however, the maternal grandmother’s visitation with the child ceased. Evidently, the cause of the abrupt end to the maternal grandmother’s visitation with the child involved the maternal grandmother’s being told in the summer of 2004, by the child, that her father had sexually molested her. Following the child’s statement to her, the maternal grandmother contacted the police, who in turn contacted the Alabama Department of Human Resources (“DHR”). That same day, a DHR caseworker contacted the maternal grandmother and told her to take the child to a hospital for an' examination. When the maternal grandmother did so, a DHR caseworker interviewed the child and a doctor examined the child. The maternal grandmother testified that the emergency-room doctor who examined the child found no physical evidence of sexual penetration and that the DHR caseworker did not believe the child had been sexually abused. .

The next day the maternal grandmother returned the child to the father by leaving her with the paternal grandmother. The maternal grandmother told the paternal grandmother about the child’s allegations of abuse and the ensuing investigation. In the following months, the father did not return the maternal grandmother’s telephone calls, and the child did not have any contact with the maternal grandmother.

In May 2005, a visit was arranged between the child and the maternal grandmother; during the visit, the maternal grandmother testified, she spoke to the child out of earshot from the father and paternal grandmother. According to. the maternal grandmother’s testimony, the child told her that she had told the truth about being abused.

At the June 2005 hearing, the father denied that he had abused the child, but he testified that the child had told him that she had told the maternal grandmother that he had sexually abused her. The father testified that he has not taken the child for any counseling after she made the allegations of abuse.

On July 31, 2005, the juvenile court determined that it lacked subject-matter jurisdiction over the proceeding and transferred the case to circuit court. The maternal grandmother then amended her petition to allege that the child was dependent. Based upon the maternal grandmother’s new allegations of dependency, the circuit court entered an order on November 9, 2005, transferring the case back to the juvenile court.

Finally, on December 14, 2005, a pen-dente lite hearing was held by the juvenile court. At the time of the hearing the maternal grandmother again amended her petition to comply with § 12-15-50, Ala. Code 1975, by verifying the petition before a juvenile-intake officer. Following the hearing, on December 23, 2005, the juvenile court entered a pendente lite order stating, in part:

“The [guardian ad litem] spoke with the minor child; and after said conversation, disclosed that he did believe that the minor child had been sexually abused and a number of people’s names had been mentioned. He was unable to ascertain from the child specific details.”

(Emphasis added.) The juvenile court’s pendente lite order also included the following instructions:

“1. That the Child Advocacy Center is to investigate with the District Attorney’s office the allegations regarding sexual abuse of the minor child in this case.
“2. That the Marshall County Department of Human Resources (DHR) is to conduct home studies of the homes of the father, [P.B.], and the [maternal] grandmother, [P.C.].
“3. That the Executive Director of the Court Appointed Juvenile Advocate Program (CAJA) of Marshall County is to appoint a volunteer or volunteers to expeditiously conduct an investigation in this matter, and thereafter, report any and all findings and conclusions to this Court.
“4. That the [maternal] grandmother is awarded visitation with the minor child on the third weekend of each month from Saturday 9:00 a.m. until Sunday 6:00 p.m. with the exchange of the child to take place in the parking lot across the street from the Albertville Police in front of the Magistrate’s office.
“5. That the case shall be set on March 2, 2006, 9:00 a.m. for status hearing and review of compliance of the parties with the Court’s orders.”

The father filed a notice of appeal on January 3, 2006, appealing the juvenile court’s December 2005 pendente lite order; he subsequently petitioned this court for a stay of the December 2005 pendente lite order and a stay of a later May 2006 pendente lite visitation order. However, we are unable to reach the merits of this appeal because the father’s appeal is premature. The December 2005 pendente lite order requires several agencies to conduct investigations into this matter, and a status hearing and a review of the compliance of the parties had been set for March 2, 2006.

It is well-settled law that jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu. See, e.g., Pace v. Utilities Bd. of Foley, 752 So.2d 510, 511 (Ala.Civ.App.1999). “An appeal ordinarily will lie only from a final judgment — i.e., one that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.” Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990). A pendente lite order is one made pending the litigation. C.L. v. D.H., 916 So.2d 622, 624 (Ala.Civ.App.2005).

As this court has stated before, whether to grant a pendente lite order is in the trial court’s discretion, and our review of the trial court’s exercise of such discretion is by way of a petition for the writ of mandamus, because a pendente lite order is not a final judgment. Sizemore v. Sizemore, 423 So.2d 239, 241 (Ala.Civ.App. 1982).

This appeal is from a nonfinal judgment. The underlying issues involved in this case have not been adjudicated by the juvenile court. The proper method of review of pendente lite orders is by a petition for the writ of mandamus. B.W.C. v. State Dep’t of Human Res., 582 So.2d 579, 580 (Ala.Civ.App.1991). The father has not sought a writ of mandamus in this case. Thus, this appeal must be dismissed. See B.W.C., 582 So.2d at 580 (dismissing an appeal from a pendente lite award of child custody); see also S.S. v. T.R.A, 716 So.2d 719, 720 (Ala.Civ.App. 1998) (stating that, because the father did not seek a writ of mandamus, his appeal must be dismissed).

Furthermore, we deny the father’s motion to stay the various pendente lite orders of the juvenile court.

MOTION DENIED; APPEAL DISMISSED.

THOMPSON, PITTMAN, MURDOCK, and BRYAN, JJ., concur.