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  • Alabama court voids adoption, orders child returned to Georgia

    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, "**** . . . that was fun!"
    -----Unknown

  • #2
    Alabama court voids adoption, orders child returned to Georgia

    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.



    Reply to jmhjmd at aol.


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