Alabama court voids adoption, orders child returned to Georgia

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http://www.ledger-enquirer.com/mld/l...s/10228054.htm

Alabama court voids adoption, orders child returned to Georgia

PHILLIP RAWLS

Associated Press


MONTGOMERY, Ala. - An Alabama appeals court voided an adoption by a Huntsville
couple Friday and ordered a 1 1/2-year-old child returned to the biological
mother in Georgia who had given her up for adoption.

In a 4-1 decision, the Alabama Court of Civil Appeals said a lower court erred
in approving the adoption because the biological father had not given his
consent.

The appeals court said the child must be returned to the biological mother,
pending further proceedings in the case, because in Alabama the mother of a
child born out of wedlock has a superior right to custody.

The court record identifies the parties only by their initials because a child
is involved.

The case involves a girl born May 4, 2003, in Gwinnett County, Ga., to a couple
that had been engaged, but never married because the woman broke off the
relationship. The biological father said he set up a bank account for the child
and tried to be involved, but was stopped by his former girlfriend's mother.

The biological mother said she received no phone calls from the biological
father for three weeks after the child was born, and at that point, she agreed
to an adoption.

A Huntsville couple picked up the child on May 27, 2003, and the probate court
in Madison County, Ala., awarded them custody on June 30, 2003. On July 14,
2003, the biological father received notice of the pending adoption and began
taking legal steps to get custody of the child.

On April 26, the probate court approved the adoption and rejected the
biological father's claim to the child, ruling that he had failed to maintain a
significant relationship with the child.

In a decision written by Republican Judge John Crawley, the majority of the
Court of Civil Appeals said the lower court erred because the biological father
was pursuing his parental rights through legal action.

In dissent, Republican Judge Glenn Murdock said filing court papers does not
equate to building human relationships with children.

"They are loved. And they love back. And bonds are formed - but not by a
biological father who has absented himself from the child's life," Murdock
wrote.

Andrew Whitmire, the attorney for the adoptive parents, declined comment on the
decision Friday.

Jim Gaines, attorney for the biological father, did not immediately return a
phone message seeking comment.



-------------------------
A good friend will come and bail you out of jail . . . but, a true friend will
be sitting next to you saying, "Damn . . . that was fun!"
-----Unknown

[J.]

In the court's version:

A meddling mother?

Check the last paragraph of the opinion, in which the dissenting judge
essentially says that challenging the adoption is not enough to show you
haven't abandoned the child. A Tin Man argument, I think: more heart than
brains.

J.



Court of Civil Appeals of Alabama.
K.W.J.
v.
J.W.B. and K.E.M.B.
2030805.
Nov. 19, 2004.

Appeal from Madison Probate Court (Case No. 5525-A).


CRAWLEY, Judge.
*1 K.W.J. ("the biological father") appeals from a judgment of the Madison
Probate Court denying his contest to the adoption of E.C.B., an infant girl
("the child"), by J.W.B. and K.E.M.B. ("the adoptive parents"). We reverse and
remand on the authority of Ex parte F.P., 857 So.2d 125 (Ala.2003).

The child was born on May 4, 2003, in Gwinnett County, Georgia. The biological
father and E.M.M. ("the birth mother"), who are both residents of Georgia, had
been dating for several months when they learned, in October 2002, that the
birth mother was pregnant. Initially, the biological parents decided to marry
and raise the child together. The birth mother, however, broke off the
engagement and, three weeks after the child was born, gave her consent to the
child's adoption by the adoptive parents, who are residents of Madison County,
Alabama.

The evidence was in conflict with regard to the amount of prebirth support the
biological father provided for the birth mother and the unborn child. The
biological father testified that he purchased food and maternity clothes for
the birth mother, baby clothes for the child, and nursery furniture, including
a crib and a chair, for the child's room. He said that he spent approximately
$200 per month on the birth mother during her pregnancy. He stated that he had
established a bank account for the child and that he had arranged for her to be
included under his health insurance coverage. The birth mother testified that,
with the exception of three co-payments the father made to cover her prenatal
care and a few meals he paid for on "dates," the biological father provided no
financial support before the child's birth.

It is undisputed that the biological father was at the hospital with the birth
mother when she went into labor; he was not present, however, for the birth of
the child. The biological father testified that he wanted to stay at the
hospital for the birth of the child, but, he said, the birth mother's mother
("the maternal grandmother") told him he was not the father of the child and
ordered him to leave the hospital because he was upsetting the birth mother.
The birth mother testified that she had wanted the biological father to be with
her for the birth of the child, and, she said, when he could not be located in
response to her request, she thought he had abandoned her and the baby.

The biological father testified that he tried to reach the birth mother
numerous times every day for three weeks after the birth of the child but that
the birth mother did not return his telephone calls or acknowledge the messages
he had left on her answering machine. The birth mother testified that she had
received no telephone calls or messages from the biological father for three
weeks after the child's birth and that, during that time, she decided to
consent to the child's adoption by a couple from Huntsville, Alabama. She
explained that, although she had been introduced to the adoptive parents by a
woman from her church the day after the child's birth, it had taken her three
weeks to conclude that adoption was the best option for her.

*2 On May 27, 2003, the birth mother signed a form giving her consent to the
adoption and the adoptive parents took the child to Huntsville. On June 25,
2003, the adoptive parents filed in the Madison Probate Court a petition to
adopt the child. On June 30, 2003, the probate court entered an interlocutory
order awarding custody of the child to the adoptive parents pending a final
dispositional hearing to be conducted on August 29, 2003. The biological father
stated that sometime in June 2003 he saw the maternal grandmother and inquired
where the child was; the maternal grandmother replied that the child was "with
family." On July 14, 2003, the biological father received notice of the
adoption petition . [FN1] The biological father testified that the birth mother
had never mentioned the idea of adoption to him. He stated that not only had he
been unaware before receiving the notice that the child had been placed with
adoptive parents but also that he had no idea the child had been removed from
the state of Georgia.


FN1. Section 26-10A-17(a)(10), Ala.Code 1975, requires that notice of the
pendency of an adoption proceeding shall be served on
"[t]he father and putative father of the adoptee if made known by the mother or
otherwise known by the court unless the court finds that the father or putative
father has given implied consent to the adoption, as defined in Section
26-10A-9."

On July 15, 2003, the biological father filed in the Superior Court of Gwinnett
County, Georgia, a petition for legitimation, a motion for genetic tests, and a
request for custody of the child. On July 23, 2003, the biological father filed
an objection to the adoption in the Madison Probate Court, requesting that the
adoption be held in abeyance until the completion of the genetic testing. DNA
test results obtained on August 25, 2003, established that the probability of
the biological father's paternity of the child was 99 .998 percent.
On September 11, 2003, the adoptive parents filed in the Superior Court of
Gwinnett County, Georgia, a motion to intervene and a motion to dismiss the
legitimation proceeding. On October 6, 2003, the Georgia court granted the
adoptive parents' motions to intervene and to dismiss, ruling that it had no
jurisdiction, pursuant to the Uniform Child Custody Jurisdiction and
Enforcement Act ("the UCCJEA"), to determine paternity or child custody
because, it held, Alabama was the child's "home state" and an Alabama court had
already made an "initial child custody determination." See § 30-3B-102(8) and §
30-3B-201(a)(1), Ala.Code 1975. The biological father did not appeal the
Georgia court's ruling, and he does not contest the jurisdiction of the Madison
Probate Court.

It is undisputed that the biological father was not asked by the birth mother
or by the adoptive parents to provide any financial support for the child after
the child's birth. It is also undisputed that the biological father did not
offer to provide, nor did he actually provide, any financial support for the
child after her birth. The biological father saw the child only once before the
trial of the adoption contest. In August 2003, after all parties had learned
the results of the DNA paternity test, the adoptive parents, who were on their
way to Florida for a vacation, detoured through Georgia to see the biological
father. On that occasion, the adoptive parents suggested the idea of an "open
adoption" to the biological father. When the biological father rejected the
suggestion, stating that he would agree to nothing less than full custody of
the child, the adoptive parents became upset and left. The biological father
testified that he had asked the adoptive parents to allow him to visit the
child during Christmas 2003 and that the adoptive parents had refused. It is
undisputed that the birth mother visited the child during Christmas 2003 and at
other times.

*3 The probate court conducted a hearing on the adoption contest on January 29,
2004, and February 11, 2004. On April 26, 2004, the probate court entered a
judgment, which included the following pertinent findings and conclusions:

"1. That the contest filed by [the biological father] is hereby denied.

"2. That this Court finds that [the biological father] has failed to maintain a
significant relationship with the minor child, the subject of this matter; and
the said [biological father] has not been prevented from maintaining a
significant parental relationship with said minor child; [the biological
father] has not provided or offered to provide any financial or emotional
support for said minor child; the failure of [the biological father] to
maintain a significant parental relationship was for a period in excess of six
months during which [the biological father] had full knowledge of the name and
location of the legal representative of [the adoptive parents] in whose custody
the minor child has resided.

"That this Court having considered all of the testimony adduced at trial finds
that there is clear and convincing evidence that the consent of [the biological
father] to the adoption is implied pursuant to the Code of Alabama Section
26-10A-9 due to the failure of [the biological father] to maintain a
significant parental relationship with said minor child for a period of six
months.

"3. [The biological father] also acknowledged that Alabama had full
jurisdiction.

"4. It would be in the best interest of the minor child to deny the contest of
[the biological father] and to grant the adoption."

As can be seen from the foregoing order, the probate court determined that the
biological father, by failing to maintain a significant parental relationship
with the child for a period of six months or more, had impliedly consented to
the adoption of the child . [FN2]


FN2. Section 26-10A-9, Ala.Code 1975, provides, in pertinent part:

"(a) A consent or relinquishment required by Section 26-10A-7 may be
implied by any of the following acts of a parent:

"....

"(3) Knowingly leaving the adoptee with others without provision for support
and without communication, or not otherwise maintaining a significant parental
relationship with the adoptee for a period of six months."


In F.P. v. J.K.M., 857 So.2d 110 (Ala.Civ.App.2001), the juvenile court denied
a biological father's petition for custody of a child born out of wedlock,
terminated the biological father's parental rights to the child, and granted
the petition of a couple to adopt the child based on its finding that the
biological father had impliedly consented to the adoption by failing to support
the child and by failing to maintain a significant parental relationship with
the child. This court affirmed the judgment of the juvenile court. Presiding
Judge Yates, joined by Judge Crawley, dissented. The Alabama Supreme Court
reversed this court's judgment, adopting Judge Yates's dissent. Ex parte F.P.,
857 So.2d 125 (Ala.2003). The supreme court held that the biological father,
who had never seen his child before the trial of the adoption petition and who
had not provided any support to the mother or to the adoptive parents after the
birth of the child, could, nevertheless, not be deemed to have impliedly
consented to the adoption of the child pursuant to § 26-10A-9(a)(1)(abandonment
of the child) or § 26-10A-9(a)(3)(failure to maintain a significant parental
relationship with the child) because, before the child's birth, he took the
following steps to pursue his parental rights through legal action: he
petitioned the juvenile court for a determination of the father-child
relationship; he registered with the Putative Father Registry; he requested a
blood test to determine paternity; and he moved for a stay of the adoption
proceedings pending the paternity determination. The Alabama Supreme Court held
that, "[p]ostbirth, the father had a justifiable excuse for failing to
establish a relationship with the child--the adoptive parents did not wish to
allow him to do so." Ex parte F.P., 857 So.2d at 138.

*4 In the present case, the biological father took the same steps that the
biological father in Ex parte F.P. took (with the exception of registering with
the Putative Father Registry [FN3]) to pursue his parental rights through legal
action. One day after he received notice of the pending adoption, the
biological father filed a legitimation action in Georgia, seeking genetic
testing and custody of the child. Two and one-half months after the child's
birth, he contested the adoption and asked for a stay of the adoption
proceedings pending the outcome of the paternity testing. As in Ex parte F.P.,
the biological father had a "justifiable excuse for failing to establish a
relationship with the child--the adoptive parents did not wish to allow him to
do so." 857 So.2d at 138. In short, there is no principled distinction between
this case and Ex parte F.P.


FN3. Section 26-10A-7(a)(5), Ala.Code 1975, a part of the Alabama Adoption
Code, provides that consent to an adoption is required of various parties,
including

"[t]he putative father if made known by the mother or is otherwise made known
to the court provided he complies with Section 26-10C-1 [The Putative Father
Registry Act] and he responds within 30 days to the notice he receives under
Section 26-10A-17(a)(10)."

All parties concede that the Alabama Putative Father Registry Act is not
applicable to this case because the child was born in Georgia and both
biological parents are Georgia residents.

Accordingly, we conclude that the Madison Probate Court erroneously applied the
law to the facts. That court's judgment approving the adoption and denying the
adoption contest is, therefore, reversed. Because the birth mother signed a
consent to have the child adopted by named individuals (J.W.B. and K.E.M.B.)
and because the adoption by those individuals cannot proceed in the absence of
the biological father's consent, we conclude that custody of the child will
revert to the birth mother pending any further proceedings. See generally Ex
parte D.J., 645 So.2d 303, 307 (Ala.1994)(stating that " '[t]here is a strong
presumption in Alabama, which has not been modified or abolished either
judicially or legislatively, that the mother of a child born out of wedlock has
a superior right of custody over all other persons, absent good cause that
custody should not be vested in her' ")(quoting Rainer v. Feldman, 568 So.2d
1226, 1227 (Ala.1990)).
REVERSED AND REMANDED.

YATES, P.J., concurs.

THOMPSON and PITTMAN, JJ., concur in the result, without writing.

MURDOCK, J., dissents, with writing.

MURDOCK, Judge, dissenting.
This is a difficult case on the facts and on the law. I have come to the
conclusion, however, that I cannot agree with the main opinion when it quotes
from Ex parte F.P., 857 So.2d 125, 138 (Ala.2003), to state that the biological
father in this case had a " 'justifiable excuse for failing to establish a
relationship with the child--the adoptive parents did not wish to allow him to
do so.' " --- So.2d at ----. The trial court conducted an ore tenus hearing
and, based on conflicting evidence, found that the biological father did not
have a justifiable excuse for failing to establish a relationship with the
child. The record contains substantial evidence to support the trial court's
finding. It should take more than the "wish" of prospective adoptive parents to
prevent a fit and loving father from seeing his daughter and establishing a
relationship with her. Indeed, the trial court could have found from the
evidence presented that the biological father did not make a meaningful effort,
with or without the help of the courts, to visit, or engage in an actual
relationship with, his daughter during the pendency of this litigation.

*5 It is not necessary for a parent to intend, or set out, to abandon a child
in order to do so. All that is required is that the child, in fact, be
abandoned. It is true that an "abandonment" may be intentional--that is, a
parent may intend to physically, emotionally, and/or financially abandon a
child. Such purposeful conduct is only one type of abandonment recognized by
statute. Alabama's Child Protection Act, Ala.Code 1975, § 26-18-1 et seq. ("the
CPA"), defines abandonment as
"[a] voluntary and intentional relinquishment of the custody of a child by a
parent, or a withholding from the child, without good cause or excuse, by the
parent, of his presence, care, love, protection, maintenance or the opportunity
for the display of filial affection, or the failure to claim the rights of a
parent, or failure to perform the duties of a parent."
Ala.Code 1975, § 26-18-3(1) (emphasis added). The clauses following the
disjunctive "or" describe an abandonment that is not so much a matter of
purpose as a matter of simply engaging or failing to engage in certain conduct.
Such conduct can be the basis for the termination of parental rights under the
CPA. See Ala.Code 1975, 26-18-7(1); D.M.P. v. State Dep't of Human Res., 871
So.2d 77 (Ala.Civ.App.2003)(plurality opinion). See also Ex parte F.P., 857
So.2d at 143-46

(Stuart, J., dissenting).

This case does not involve a claim for termination of parental rights, per se,
under the CPA. The same definition of abandonment found in the CPA, however, is
found in Alabama's Adoption Code. See Ala.Code 1975, § 26-10A-2(1). Thus, as in
the case of the CPA, abandonment for purposes of the Adoption Code is not
necessarily a function of the biological parent's intent. With respect to the
Adoption Code, however, a finding of abandonment, or failure to maintain a
parental relationship, is only dispositive to the extent that it, in turn, is
found to imply a consent to adoption on the part of a biological parent. See
Ala.Code 1975, § 26-10A-9(a). Despite the formal legal position taken in this
case by the biological father, the trial court found that the father's
subsequent acts and omissions spoke louder than his words, and implied the
necessary consent under the Adoption Code. Given the conflicting evidence and
the ore tenus presumption, I have not been persuaded that this court should
overturn that finding in the present case. [FN4]


FN4. As I read it, Ex parte F.P. is not inconsistent with this conclusion. In
large part, the focus in Ex parte F.P. was on the effect of certain postbirth
legal positions taken by the biological father upon his alleged prebirth
implied consent to the adoption of the child and whether, if there was a
prebirth implied consent, the postbirth legal positions of the biological
father could operate to revoke that consent. Prebirth abandonment and consent
are not at issue in the present case. As to the issue of postbirth abandonment
and consent to adoption, I do not read Ex parte F.P. as holding that the taking
of legal positions alone necessarily serves to insulate a biological parent
from claims that he or she thereafter has abandoned and consented to the
adoption of his or her child. Rather, the Supreme Court appears to have
disposed of the claim in Ex parte F.P., that the biological father had
abandoned his child after the child's birth, by stating that the biological
father had a justifiable excuse for the absence of a postbirth relationship
with his child. The facts of every case obviously are different in this
respect, and, in this
case, I would uphold the trial court's finding based on conflicting ore tenus
evidence that the lack of a physical and emotional relationship between the
biological father and the child was not justified.


We should not equate the filing of "court papers" and the taking of legal
positions with the establishment of human relationships. A child can be
abandoned just as surely when papers have been filed with a court as when they
have not been. While those papers sit in a folder in the courthouse, children
grow. They are read to and tucked in at night. They are nursed to health. They
are taught. They are nurtured. They are loved. And they love back. And bonds
are formed--but not by a biological father who has absented himself from the
child's life. See generally R.K. v. R.J ., 843 So.2d 774 (Ala.Civ.App.2002).
Ala.Civ.App.,2004.
K.W.J. v. J.W.B.



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