Opinion
No. 1981316.
Decided November 17, 2000.
Appeal from Tuscaloosa Circuit Court, DR-96-1083, JU-97-534.01, Probate No. 97-52; Court of Civil Appeals, 2970889.
We granted C.V.'s petition for a writ of certiorari to determine whether the Court of Civil Appeals erred in affirming the decision of the trial court to terminate his parental rights. We reverse the judgment of the Court of Civil Appeals and render a judgment for C.V.
Facts
N.G. (the birth mother) and C.V. (the father), Florida residents, began an exclusive relationship in February 1995. The birth mother became pregnant in July 1995. In August 1995, the father and the birth mother became engaged and moved into an apartment together.
On August 20, 1995, the birth mother called the Pinellas County Sheriff's Department. She reported that the father had pushed her down and hit her, that she had then hit the father with a "hanger," that the father had grabbed her by the throat, that she had gotten away and had run to the front door of their apartment, that the father had again pushed her down, and that she had hit her head on the couch. Based upon the birth mother's complaint, Pinellas County sheriff's deputies arrested the father for assault. The father told the deputies that the birth mother had bitten him earlier that day and that the birth mother had dislocated her shoulder when he held onto her arm as the birth mother attempted to jump out of his truck while the truck was traveling at 55 miles per hour. The birth mother did not seek medical treatment. No criminal charges were brought against the father.
In October 1995, the birth mother called the Pinellas County Sheriff's Department and reported that she "was having a verbal argument with [the father]." She also reported being scared that he might do her harm. The father left the apartment before deputies arrived at the apartment. The deputies took no action against the father.
On January 3, 1996, the birth mother and the father argued while in the father's truck on the way to a Lamaze class. The birth mother called the Pinellas County Sheriff's Department and reported that the father had assaulted her. The birth mother told a responding deputy that the father had grabbed her arm when she tried to exit the father's truck. She stated also that the father had not slapped or hit her. The deputy reported that the birth mother was uninjured and that she was unwilling to press charges against the father because she believed that the father grabbed her arm to keep her from exiting the truck while the truck was moving. The birth mother secretly "contacted" a private Florida adoption agency to arrange for the adoption of the unborn child. In late January 1996, the birth mother secretly took money from the adoption agency, left the father, and went to Colorado without informing the father of her plans. In February 1996, after the father refused to give his consent to the adoption of the unborn child, the adoption agency refused to work with the birth mother. During this time, the father searched without success for the mother.
The birth mother returned to Florida, but did not notify the father of her return. She then arranged for Adoption By Choice, Inc. (ABC), another private Florida adoption agency, to place her unborn child for adoption. She lied to ABC about the identity of the father of her unborn child. The birth mother told ABC that she did not know who was the father. After the father received a letter from the first adoption agency, but before the birth mother gave birth, the father hired an attorney. This occurred on March 11, 1996. The birth mother relinquished her parental rights to ABC on March 12, 1996, before the birth. She delivered Baby Boy G. in Pinellas County, Florida, on March 19, 1996.
On March 22, 1996, upon receipt of $17,400, ABC placed Baby Boy G. with J.M.J. and T.F.J. (the prospective adoptive parents), an Alabama couple, for the purposes of a final adoption. The prospective adoptive parents accepted Baby Boy G. with written acknowledgement that their adoption of Baby Boy G. was "at risk" because the father had not consented to the adoption. On March 25, 1996, the prospective adoptive parents returned with Baby Boy G. to the couple's home in Tuscaloosa, Alabama.
In April 1996, the birth mother tearfully told the father that their son had been stillborn. The father asked the birth mother for a death certificate or documents to prove that their child had been stillborn. The birth mother did not have and could not produce any documents to support her statement that their child had been stillborn. On April 10, 1996, in the Circuit Court of Pinellas County, Florida, the father filed a paternity and custody action against the birth mother. He asserted paternity of Baby Boy G. and sought custody of Baby Boy G. On May 22, 1996, in the Circuit Court of Hillsborough County, Florida, ABC petitioned the court to terminate the "unknown" father's paternal rights to Baby Boy G. During a hearing in the Pinellas County Circuit Court in June 1996, the birth mother admitted that she had given birth to a live baby boy, Baby Boy G., that the father had fathered Baby Boy G., and that she had lied to the father and to ABC about Baby Boy G. On July 9, 1996, the Pinellas County Court determined the father to be Baby Boy G.'s biological father.
On August 12, 1996, the father petitioned the Pinellas County Circuit Court for an expedited determination of the temporary custody of Baby Boy G. On August 26, 1996, the prospective adoptive parents anonymously moved to intervene in ABC's Hillsborough County action to terminate the father's parental rights. The same day, in the Hillsborough County Circuit Court, the prospective adoptive parents also anonymously filed a declaratory judgment action asserting the theory of prebirth abandonment by the father as implied consent to the adoption of Baby Boy G.
On October 18, 1996, the Pinellas County Circuit Court stayed the father's paternity and custody action pending the resolution of ABC's and the prospective adoptive parents' actions in the Hillsborough County Circuit Court. On November 15, 1996, the Hillsborough County Circuit Court dismissed with prejudice the prospective adoptive parents' declaratory judgment action on the grounds that they lacked standing and that the issue of prebirth abandonment was more appropriate in an adoption proceeding. The prospective adoptive parents appealed the dismissal of their declaratory judgment action to the District Court of Appeal of Florida, Second Circuit.
On November 27, 1996, following a hearing, the Pinellas County Circuit Court entered an emergency temporary custody order finding ABC to be Baby Boy G.'s legal guardian, awarding the father temporary custody of Baby Boy G., ordering ABC to retrieve Baby Boy G. from the prospective adoptive parents, and ordering ABC to deliver Baby Boy G. to the father. The prospective adoptive parents were anonymously represented by counsel at the hearing, although they had not attempted to intervene in the father's paternity and custody action.
On December 2, 1996, the Hillsborough County Circuit Court dismissed ABC's petition to terminate the father's parental rights and denied the prospective adoptive parents' motion to intervene. ABC did not appeal the dismissal. The prospective adoptive parents appealed the denial of their motion to intervene in ABC's action.
On December 16, 1996, in the Tuscaloosa County Circuit Court, ABC filed a motion seeking full-faith-and-credit enforcement of the November 27, 1996, emergency temporary custody order of the Pinellas County Circuit Court in order for ABC to comply with the requirement that it retrieve Baby Boy G. from the prospective adoptive parents and return him to his father.
On January 13, 1997, the prospective adoptive parents moved to intervene in the Tuscaloosa County Circuit Court action. On January 21, 1997, the Tuscaloosa County Circuit Court granted intervention and appointed a guardian ad litem to represent the interests of Baby Boy G. On January 22, 1997, the prospective adoptive parents filed an adoption action in the Tuscaloosa County Probate Court. At this time, for the first time, the father learned where Baby Boy G. lived and who had physical custody of Baby Boy G. The Tuscaloosa County Probate Court transferred the prospective adoptive parents' adoption action, pursuant to § 26-10A-24(e), Ala. Code 1975, to the Tuscaloosa County Juvenile Court. Once the father learned that the prospective adoptive parents had custody of Baby Boy G., the father attempted to see Baby Boy G. and to send him gifts. However, the prospective adoptive parents rebuffed his overtures.
On April 15, 1997, the Tuscaloosa County Circuit Court denied ABC's motion for full-faith-and-credit enforcement of the November 27, 1996, emergency temporary custody order entered by the Pinellas County Circuit Court. The Tuscaloosa County Circuit Court held that the Pinellas County Circuit Court lacked jurisdiction to enter the November 27, 1996, emergency temporary custody order. Additionally, the Tuscaloosa County Circuit Court ordered DNA testing to determine the parentage of Baby Boy G. and awarded the prospective adoptive parents temporary custody of Baby Boy G.
In July 1997, the father petitioned the Court of Civil Appeals for a writ of mandamus ordering the Tuscaloosa County Circuit Court to give full-faith-and-credit enforcement to the November 27, 1996, emergency temporary custody order of the Pinellas County Circuit Court. On July 30, 1997, the Pinellas County Circuit Court entered an order declining to continue exercising jurisdiction over the father's paternity and custody action.
On October 17, 1997, in the Tuscaloosa County Juvenile Court, the prospective adoptive parents petitioned the court to terminate the parental rights of the birth mother and the father. As grounds for the termination of the father's parental rights, the prospective adoptive parents asserted that the father had abandoned Baby Boy G. and had committed "other egregious actions against the birth mother." Upon the prospective adoptive parents' motion, the actions in the Tuscaloosa County Circuit Court, the Tuscaloosa County Juvenile Court, and the Tuscaloosa County Probate Court were consolidated into one action in the Tuscaloosa County Circuit Court.
On November 5, 1997, the District Court of Appeal of Florida, Second Circuit, issued an opinion affirming the dismissal of the prospective adoptive parents' declaratory judgment action and the denial of their motion to intervene in ABC's action to terminate the parental rights of the father in the Hillsborough County Circuit Court. The Florida District Court of Appeal agreed with the two Hillsborough County Circuit Court judges that the prospective adoptive parents lacked standing (1) to bring the declaratory judgment action to determine the consent of the father and (2) to intervene in ABC's action to terminate the parental rights of the father. On November 7, 1997, the Alabama Court of Civil Appeals denied the father's petition for a writ of mandamus on the ground that the Pinellas County Circuit Court had declined jurisdiction over the father's paternity and custody petition. Ex parte C.V., 707 So.2d 249 (Ala.Civ.App. 1997).
On February 24, 1998, the Tuscaloosa County Circuit Court permitted the prospective adoptive parents, over the objection of the father, to amend their petition to terminate the father's parental rights. On April 28, 1998, the Tuscaloosa County Circuit Court terminated the parental rights of the birth mother and the father. The court stated:
"The Court is now presented with the challenge to correctly and fairly apply the Alabama laws regarding adoptions and termination of parental rights to the facts particular to this case. Furthermore, all attorneys acknowledge, that there has been one issue raised (the issue of whether or not a biological father can abandon his child prior to the child's birth for purposes of vitiating his consent for adoption) which has apparently not been previously addressed by an appellate court of this state. In order to reach its conclusions and render a final decision on the merits, it is incumbent upon this Court to make a determination as to exactly the basis of the [prospective adoptive parents'] request for relief and further, to make extensive findings of fact from the evidence presented.
"SUMMARY OF LEGAL ARGUMENTS
"1. [The prospective adoptive parents] acknowledge that they must meet their burden of proof by providing clear and convincing evidence to the Court in support of their positions.
"2. [The prospective adoptive parents basically assert two legal theories in support of their requested relief that this Court approve their petition for the adoption of Baby Boy [G.]. In summary, those legal theories are as follows:
"(A) That [the father's] consent for adoption pursuant to [§ 26-10A-7, Ala. Code 1975] is either implied based upon his alleged actions as they regard [Baby Boy G.], or that this consent is no longer necessary in the facts of this case. In support of this legal position, the [prospective adoptive parents'] assert that evidence regarding [the father's] alleged pre-birth abandonment is relevant to prove abandonment of [Baby Boy G.] pursuant to the Alabama laws regarding adoptions, and therefore, his consent is not required or implied.
"The attorneys for the [prospective adoptive parents] acknowledge that no Alabama appellate court has previously recognized their theory of pre-birth abandonment. They cite to the Court two Florida Supreme Court cases as the primary basis for this theory: [The Adoption of Doe], 543 So.2d 741 (Fla. 1989), and [The Adoption of E.A.W.], 658 So.2d 961 (Fla. 1995).
"(B) Alternatively, the [prospective adoptive parents] assert that [the father's] parental rights are due to be terminated by this Court pursuant to [§ 26-18-7, Ala. Code 1975].
"3. [The guardian ad litem] also asserts these legal theories in support of her position on behalf of the [Baby Boy G.].
"4. [The father] asserts in response to the [prospective adoptive parents'] claims that pre-birth abandonment is not recognized under the current [law] of Alabama. Additionally, [the father] asserts that the [prospective adoptive parents] cannot meet the burden of proof required to terminate his parental rights and allow the adoption to proceed.
". . . .
"FINDINGS OF FACT
"1. From the undisputed and the disputed evidence presented at trial, the Court hereby makes the following findings of fact. Pertinent facts as presented by [the father are] almost exactly opposite from [the birth mother's] version of the facts about relevant incidents. In resolving the questions of disputed facts, the Court has considered all relevant factors including, but not limited to, the motivation of the parties, the demeanor and presentation of the witnesses, and the ability or inability of the witnesses to recall with some degree of detail the various events. This is an ore tenus proceeding.
"2. Baby Boy [G.] was born on March 19, 1996 in the city of Tarpon Springs, County of Pinellas, State of Florida. . . .
"3. After a careful review of the relevant adoption laws, the Court can find nothing which would prevent consideration of [the father's] pre-birth conduct in making a determination whether or not [the father] has `abandoned' Baby Boy [G.] Furthermore, upon consideration and reflection of the Florida cases mentioned above, this Court cannot find any reason whatsoever why the logic used by the Florida Supreme Court would not be applicable to Alabama adoption cases. . . .
". . . .
"5. Even without the finding by this Court that the requirement for [the father's] consent to the adoption by the [prospective adoptive parents] was not waived or implied by [the father's] conduct toward [the birth mother], there was ample evidence (clear and convincing) presented to allow this Court to conclude that [the father's] parental rights are otherwise due to be terminated. Clearly [the father's] actions have led to [Baby Boy G.] being a dependent child. Abandonment and the failure of [the father] to provide even minimal support and necessities also factor into this conclusion. Upon careful consideration of the expert trial testimony of Dr. James Calvert, the Court concludes that, under the fact[s] presented in this case, there is no alternative to the termination of [the father's] parental rights.
"6. The Court finds that [the birth mother] has executed a consent for Baby Boy [G.] to be adopted by the [prospective adoptive parents]. Said consent was filed with the Probate Court of Tuscaloosa County, Alabama, as a [part] of the initial petition for adoption. [The father] has not consented to allow said adoption.
"7. The Court finds from the evidence that [the father] is, in fact, the biological father of Baby Boy [G.]. The genetics test results received into evidence are virtually conclusive on this issue.
"8. The Court finds that . . . [the] Guardian ad litem . . . strongly advocates that [the father's] parental rights as to Baby Boy [G.] should be terminated and that the child should be adopted by [the prospective adoptive parents].
"9. [ABC] has recommended that the [prospective adoptive parents] be allowed to adopt [Baby Boy G.] conditioned upon [the father's] rights being terminated. Furthermore, [ABC] has granted its consent for the adoption of [Baby Boy G.] by [the prospective adoptive parents].
". . . .
"11. The Court finds from the evidence that [the father] totally abused and abandoned [the birth mother], physically, emotionally, and financially, during her pregnancy with Baby Boy [G.]. [The father] failed to provide any financial support for [the birth mother], although he testified he worked throughout most of the relationship. He did not pay apartment rent, he did not pay the utility bills, he did not pay any of [the birth mother's] prenatal medical bills, and he did not provide food and the basic necessities of life for the mother of his unborn child. . . .
". . . .
CONCLUSIONS
". . . .
"Clearly, upon the evidence presented, it would amount to a violation of Baby Boy [G.'s] constitutional due process rights to remove him from the only home and only parents he has ever known solely on the basis of biology. As stated by Dr. Calvert, to remove the child from the [prospective adoptive parents'] home at this point in time would be tantamount to the psychological trauma he would experience from the death of both of his parents. The [prospective adoptive parents] have become this child's parents. To deny the child the benefit of his relationship without some substantial rational basis is a violation of his constitutional rights.
" IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:
"(1) The Court finds from clear and convincing evidence that [the father's] conduct as it relates to [Baby Boy G.] and to the birth mother prior to and after [Baby Boy G.'s] birth constitutes abandonment as defined in the Alabama Adoption Code. Therefore, [the father's] consent for the adoption of Baby Boy [G.] is either implied or not required.
"(2) The Court finds from clear and convincing evidence that there is ample evidence to meet the two-pronged test set forth in Ex parte Beasley[, 564 So.2d 950 (Ala. 1990)], in order for the Court to grant the [prospective adoptive parents'] petition to terminate [the father's] parental rights. The Court finds that [Baby Boy G.] is dependent and that all viable alternatives to a termination of parental rights have been considered and excluded. Furthermore, the Court finds that said termination of parental rights is consistent with the welfare and best interest of said minor child.
"(3) The Court further finds from clear and convincing evidence that constitutional due process considerations on behalf of [Baby Boy G.] clearly dictate that [the father's] parental rights should be terminated and the child permanently placed with [the prospective adoptive parents]."
(Emphasis added.) The Tuscaloosa County Circuit Court granted the prospective adoptive parents' petition for adoption and ordered the prospective adoptive parents and the father jointly to pay the guardian ad litem a fee of $9,850.
The father appealed the judgment of the Tuscaloosa County Circuit Court to the Alabama Court of Civil Appeals. On February 12, 1999, the Court of Civil Appeals affirmed the judgment of Tuscaloosa County Circuit Court. C.V. v. J.M.J., [Ms. 2970889, February 12, 1999] ___ So.2d ___ (Ala.Civ.App. 1999). Although recognizing that there is no statutory authority in Alabama for prebirth abandonment as a ground for the termination of parental rights, the Court of Civil Appeals specifically held that the trial court properly had considered the father's actions or inactions before the birth of Baby Boy G. in determining that the father had abandoned Baby Boy G. and that he had impliedly consented to the adoption of Baby Boy G. The Court of Civil Appeals denied the father's application for rehearing on April 30, 1999, with an opinion.
When the trial court is presented evidence ore tenus, its findings of fact are presumed correct and its judgment on those findings of fact will not be reversed unless it is clearly erroneous, manifestly unjust, without supporting evidence, or against the great weight of the evidence. Odom v. Hull, 658 So.2d 442 (Ala. 1995). However, where the question presented on appeal is one of law, the ore tenus rule has no application. Ex parte Perkins, 646 So.2d 46, 47 (Ala. 1994).
A parent has a fundamental liberty interest in the care, custody, and management of his or her child. Santosky v. Kramer, 455 U.S. 745 (1981). "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Prince v. Massachusetts, 321 U.S. 158, 166 (1944). "`The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, . . . [ 262 U.S. 390,] at 399 [(1923)] . . ., the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, . . . [ 316 U.S. 535,] at 541 [(1942)] . . ., and the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 496 . . . [(1965)] (Goldberg, J., concurring).'" Hodgson v. Minnesota, 497 U.S. 417, 447-48 (1990) (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)).
Choice of Law
Both the prospective adoptive parents and the trial court chose to apply Alabama law; the father does not challenge their choice of law. The prospective adoptive parents, the trial court, and the Court of Civil Appeals found Florida caselaw persuasive, but not controlling, on the issue of prebirth abandonment.
Alabama law is controlling in this case. See Fitts v. Minnesota Min. Mfg. Co., 581 So.2d 819 (Ala. 1991). However, in interpreting Alabama statutory law, we do not find Florida caselaw persuasive on the issue whether prebirth abandonment can be a ground for consent to an adoption. The Florida cases cited by the prospective adoptive parents, the trial court, and the Court of Civil Appeals are Adoption of Baby E.A.W., 658 So.2d 961 (Fla. 1995), and Adoption of Doe, 543 So.2d 741 (Fla. 1989). In Adoption of Doe, the Florida Supreme Court interpreted the statutory term "abandoned," defined in the Florida Adoption Code, to permit the Florida judges in an adoption proceeding to consider a father's prebirth conduct toward the mother as a factor in determining whether the father had abandoned his child. The Florida Legislature subsequently codified the Florida Supreme Court's interpretation into the Adoption Code. See Fla. Stat. Ann. § 63.032(14) (West. Supp. 1997). InAdoption of E.A.W., supra, the Florida Supreme Court relied upon § 63.032(14) in affirming the judgment of the trial court finding that the father had abandoned his child. The Court does not find Florida statutory criteria for determining whether a father has abandoned his child persuasive in interpreting differently written Alabama statutes regarding abandonment by a parent. Therefore, the controlling issues in this case are whether in 1997 Alabama recognized "prebirth abandonment" by a father as a ground for terminating parental rights and whether in 1997 Alabama recognized "prebirth abandonment" by a father as implied consent to adoption of his child or as relinquishment of his parental rights.
Termination of Parental Rights
As a common-law state, Alabama follows the English common law that is not inconsistent with the Constitution and the laws of this State. § 1-3-1, Ala. Code 1975. "Proceedings to terminate parental rights were unknown at common law. In re Zink, 264 Minn. 500, 119 N.W.2d 731 (1963). Therefore, termination proceedings are purely statutory." In the Matter of the Termination of Parental Rights of P.A.M., 505 N.W.2d 395, 397 (S.D. 1993). See also Carroll County Dep't of Social Servs. v. Edelmann, 320 Md. 150, 577 A.2d 14 (1990); In the Matter of McDuel, 142 Mich. App. 479, 369 N.W.2d 912 (1985); Petition of Sherman, 241 Minn. 447, 63 N.W.2d 573 (1954); S.K.L. v. Smith, 480 S.W.2d 119 (Mo.Ct.App. 1972); D.J.A. v. Smith, 477 S.W.2d 718 (Mo.Ct.App. 1972);A.E. v. State, 743 P.2d 1041 (Okla. 1987); In the Matter of Edmunds, 560 P.2d 243 (Okla.Ct.App. 1977); In re A.A., 134 Vt. 41, 349 A.2d 230 (1975); Church v. Church, 24 Va. App. 502, 483 S.E.2d 498 (1997); Willis v. Gamez, 20 Va. App. 75, 455 S.E.2d 274 (1995). Because the termination of parental rights is purely statutory, statutes governing the termination of parental rights must be strictly construed. See Ex parte Sullivan, 407 So.2d 559, 563 (Ala. 1981).
"[T]he primary focus of a court in cases involving termination of parental rights is to protect the welfare of children and at the same time to protect the rights of their parents." Ex parte Beasley, 564 So.2d 950, 952 (Ala. 1990). See § 26-18-7(a)(1), Ala. Code 1975. Termination of parental rights is a drastic measure and once done cannot be undone. "[A] court should terminate parental rights only in the most egregious of circumstances. Moreover, the age-old principle that, as against a challenge by a nonparent, a parent who is neither unfit nor guilty of forfeiting his or her parental rights is entitled to custody has been strengthened by the 1984 adoption of the Uniform Child Protection Act[, § 26-18-1 et seq., Ala. Code 1975]." Ex parte Beasley, 564 So.2d at 952.
When a nonparent is the petitioner seeking to terminate the parental rights of a parent, the petitioner must present clear and convincing evidence that (1) the child is dependent, (2) one of the grounds in § 26-18-7 exists, and (3) no viable alternative to termination of the parental rights exists. Ex parte Beasley, supra. Clear and convincing evidence is
"[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt."
§ 6-11-20(4), Ala. Code 1975 (emphasis added).
"In viewing the `dependency' issue in the context of [a nonparent's] attempt to terminate parental rights, the [nonparent] would have standing only where both parents are found to be unfit or otherwise unable to discharge the responsibilities of parenthood." Ex parte Beasley, 564 So. at 954 (emphasis added). "The Legislature . . . [in § 26-18-7, Ala. Code 1975] has established specifically the grounds upon which a court must base any order to terminate parental rights." Id. at 953. Those grounds are:
"(a) If the court finds from clear and convincing evidence, competent, material and relevant in nature, that the parents for the child are unable or unwilling to discharge their responsibilities to and for said child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in the cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:
"(1) That the parents have abandoned the child, as herein defined;
"(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for the needs of the child;
"(3) That the parent has tortured, abused, cruelly beaten or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat or otherwise maltreat the child, or the said child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by such treatment of a sibling;
"(4) Conviction of and imprisonment for a felony;
"(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent;
"(6) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.
"(b) Where a child is not in the physical custody of its parent or parents appointed by the court, in addition to the foregoing, shall consider, but is not limited to the following:
"(1) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of its support, where the parent is able to do so.
"(2) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the department, or any public or licensed private child care agency, and agreed to by the parent;
"(3) Failure by the parents to maintain consistent contact or communication with the child;
"(4) Lack of effort by the parent to adjust his circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.
"(c) In any case where the parents have abandoned a child as herein described and such abandonment continues for a period of six months next preceding the filing of the petition, such facts shall constitute a rebuttable presumption that the parents are unwilling or unable to act as parents."
The prospective adoptive parents assert that the father abandoned Baby Boy G. and the birth mother by neglecting and abusing the birth mother, by failing to provide financial support to the birth mother before the birth of Baby Boy G., and by failing to provide support to the prospective adoptive parents for Baby Boy G. They assert also that the father's abandonment continued "for a period of six months next preceding the filing of [their adoption] petition." Abandonment is
"[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."
§ 26-18-3(1). This definition does not contemplate abandonment of an unborn child by a father, because a father cannot have custody of the unborn child. Simply put, § 26-18-7(a)(1) does not authorize a trial court to terminate parental rights for "prebirth abandonment" by a father. While the father's prebirth conduct towards the birth mother and his alleged lack of financial support of the birth mother could be relevant to his fitness as a parent, the father's prebirth conduct towards the birth mother was not relevant to whether the fatherabandoned Baby Boy G., a child. Moreover, the prospective adoptive parents did not prove that the father intentionally and voluntarily relinquished his rights to Baby Boy G. after Baby Boy G.'s birth. Indeed, the evidence of the father's continual efforts to find and to recover his child is compelling. Therefore, the prospective adoptive parents failed to prove by clear and convincing evidence that the father abandoned Baby Boy G. Thus the Tuscaloosa County Circuit Court erred in holding that the father had abandoned Baby Boy G.
The Tuscaloosa County Circuit Court further considered the father's prebirth conduct in determining Baby Boy G. to be a dependent child. In January 1997, the Alabama Legislature had not enacted a statute requiring a putative father to support his unborn child and authorizing Alabama courts to consider the putative father's prebirth support or lack thereof in determining whether the father had abandoned his child. At that time, a putative father owed no duty of support to a child until his paternity of the child had been established. Ex parte State of California, 669 So.2d 884 (Ala. 1995). See Keener v. State, 347 So.2d 398 (Ala. 1977), Upton v. State, 255 Ala. 594, 52 So.2d 824 (1951), and Law v. State, 238 Ala. 428, 191 So. 803 (1939). Therefore, the father did not owe a duty to support Baby Boy G. until the Tuscaloosa County Circuit Court established his paternity as to Baby Boy G., when that court simultaneously terminated his parental rights! Noteworthily, the November 27, 1996, emergency temporary custody order of the Pinellas County Circuit Court in favor of the father was interlocutory only, and never final.
See § 26-10A-9(1), as amended effective June 11, 1999, which now requires a father to support his unborn child.
Moreover, because the prospective adoptive parents shielded their identity in the various Florida court proceedings, the father did not learn where Baby Boy G. lived or who had physical custody of Baby Boy G. until January 1997, when the prospective adoptive parents dropped their shield of anonymity and petitioned the Tuscaloosa County courts to terminate the father's parental rights and to grant their adoption of Baby Boy G. To penalize the father for not providing support to the prospective adoptive parents for Baby Boy G. while the prospective adoptive parents were hiding their identities and address and were hiding Baby Boy G. himself would violate the spirit of the "clean hands" doctrine. J M Bail Bonding Co. v. Hayes, 748 So.2d 198, 199 (Ala. 1999) ("The purpose of the clean hands doctrine is to prevent a party from asserting his, her, or its rights under the law when the party's own wrongful conduct renders the assertion of such legal rights `contrary to equity and good conscience.'" (quoting Draughon v. General Finance Credit Corp., 362 So.2d 880, 884 (Ala. 1978))). To penalize the father for failing to contribute to the prospective adoptive parents after they revealed themselves and Baby Boy G. but while they did their utmost to deny and to terminate the father's parental rights would be equally unfair.
Additionally, once prospective adoptive parents have received an adoptee into their home and have filed a petition for adoption, a court "shall [enter an interlocutory order] delegating to the [prospective adoptive parents] (1) custody, except custody shall be retained by . . . the licensed child placing agency which held custody at the time of the placement until the entry of the final decree and (2) the responsibility for the care, maintenance, and support of the adoptee, including any necessary medical or surgical treatment, pending further order of the court." § 26-10A-18. Therefore, once the prospective adoptive parents petitioned to adopt Baby Boy G. they assumed responsibility for his care and support, and, thus, relieved the father of any duty of support. Finally, while the father' prebirth conduct toward the birth mother and his alleged lack of financial support for the birth mother could be relevant to the father's fitness as a parent, the prospective adoptive parents did not allege, and the Tuscaloosa County Circuit Court did not find, the father to be unfit. Therefore, the Tuscaloosa County Circuit Court's finding of dependency is not supported by clear and convincing evidence. Because the prospective adoptive parents failed to prove dependency and any statutory ground for termination of parental rights, we do not address the issue whether there were any viable alternatives to termination.
Implied Consent to Adoption
"`Adoption is not merely an arrangement between the natural parents and adoptive parents, but is a status created by the state acting as parens patriae, the sovereign parent. Because the exercise of sovereign power involved in adoption curtails the fundamental rights of the natural parent[s], the adoption statutes must be closely adhered to.'" Ex parte Sullivan, 407 So.2d 559, 563 (Ala. 1981) (quoting Davis v. Turner, 337 So.2d 355, 360-61 (Ala.Civ.App. 1976)). "Adoption is strictly statutory. . . . Being unknown at common law, it cannot be achieved by contract. . . ." Id.
A parent may impliedly consent to an adoption or may relinquish of his or her parental rights by:
"(1) Leaving the adoptee without provision for his or her identification for a period of 30 days; or
"(2) Knowingly leaving the adoptee with others without provision for support and without communication, or not otherwise maintaining significant parental relationship with the adoptee for a period of six months; or
"(3) Receiving notification of the pendency of the adoption proceedings under Section 26-10A-17 and failing to answer or otherwise respond to the petition within 30 days."
§ 26-10A-9, Ala. Code 1975, as it read before the amendments effective June 11, 1999.
Effective June 11, 1999, § 26-10A-9(1) provides: "Abandonment includes, but is not limited to, the failure of the father, with reasonable knowledge of the pregnancy, to offer financial support for a period of six months prior to the birth." Thus, as of June 11, 1999, Alabama recognizes "prebirth abandonment" by a father as implied consent to an adoption, or as relinquishment of his parental rights. Id.
The prospective adoptive parents assert that the father impliedly consented to the adoption of Baby Boy G. by emotionally and financially abandoning the birth mother before the birth of Baby Boy G. While the father's prebirth conduct towards the birth mother and his alleged lack of financial support for the birth mother could be relevant to a determination of his fitness as a parent, the father's prebirth conduct towards the birth mother was not relevant to determining whether the father abandoned Baby Boy G. § 26-10A-2(1), Ala. Code 1975. The definition of the term "abandonment" in the Alabama Adoption Code, § 26-10A-1 et seq., Ala. Code 1975, differs from the definition in the 1984 Alabama Child Protection Act, § 26-18-3(1). Section 26-10A-2(1) in the Alabama Adoption Code defines abandonment as
"[a] voluntary and intentional relinquishment of the custody of a minor by a parent, or a withholding from the minor, 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 to perform the duties of a parent."
(Emphasis added.) A "minor" is "[a] person under the age of 19 years." § 26-10A-2(7). The only difference in the definitions of abandonment in § 28-18-3(1), as previously quoted, and § 26-10A-2(1) is that § 26-10A-2(1) uses the term "minor" rather than "child." The definition of a minor clearly envisions a child who has been born. Because adoption in Alabama is purely statutory, statutes governing adoption must be strictly enforced. Ex parte Sullivan, supra. Thus, the prebirth conduct of the father towards the birth mother was not a ground under § 26-10A-9, as it read before the amendments effective June 11, 1999, for implying consent to an adoption.
Nor does the father's conduct meet any of the criteria for implied consent stated by the plain language of the applicable version of § 26-10A-9 quoted above. The father did not leave Baby Boy G. without provision for his identification for 30 days. § 26-10A-9(1). Rather, the father filed his paternity and custody action less than 30 days after Baby Boy G.'s birth. The father did not "knowingly" leave Baby Boy G. with the prospective adoptive parents "without provision for support and without communication, or not otherwise maintain a significant parental relationship" with Baby Boy G. "for a period of six months." § 26-10A-9(2), as it read before the amendments effective June 11, 1999. The father did not learn the identity of the prospective adoptive parents and thus the whereabouts of Baby Boy G. until January 1997. As previously stated, once the prospective adoptive parents filed their adoption petition, they assumed a duty to support Baby Boy G., § 26-10A-18, and they actively rebuffed the father's efforts to establish a significant parental relationship once he located Baby Boy G. Further, since the birth of Baby Boy G., the father at all times vigorously pursued his parental rights. Finally, he did not fail "to answer or otherwise respond to the [adoption] petition within 30 days" after receiving notice. § 26-10A-9(3). Rather, he promptly and thoroughly opposed the petition.
Therefore, the prospective adoptive parents failed to present clear and convincing evidence that the father had impliedly consented to Baby Boy G.'s adoption or that the father relinquished his parental rights to Baby Boy G. Thus the Tuscaloosa County Circuit Court erred in holding that the father had impliedly consented to the adoption of Baby Boy G.
Conclusion
Accordingly, the Tuscaloosa County Circuit Court erred in terminating the father's parental rights and in awarding custody of Baby Boy G. to the prospective adoptive parents, and the Court of Civil Appeals erred in affirming the judgment of the Tuscaloosa County Circuit Court, and we reverse its judgment. Because the evidence in this case does not tend to prove any of Alabama's applicable statutory criteria for terminating the father's parental rights, judgment is rendered in favor of the father. Because of the nature of this appeal and because of the length of time custody of Baby Boy G. has been at issue, we remand this cause directly to the Tuscaloosa County Circuit Court to order the prospective adoptive parents to surrender Baby Boy G. to the father within 14 days following our issuance of our certificate of judgment.
REVERSED; JUDGMENT RENDERED; AND REMANDED WITH INSTRUCTIONS.
MADDOX, COOK, and JOHNSTONE, JJ., concur.
LYONS, J., concurs specially.
SEE, J., concurs in the result.
HOOPER, C.J., and HOUSTON, BROWN, and ENGLAND, JJ., dissent.
Section 26-10A-2(1), Ala. Code 1975, defines abandonment as:
"A voluntary and intentional relinquishment of the custody of a minor by parent, or a withholding from the minor, 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 the failure to perform the duties of a parent."
As the main opinion states, the aspect of § 26-10A-2(1) expressly referring to "custody" has no logical field of operation, at least as to a father, before a child's birth. Those portions of § 26-10A-2(1) most compatible with the concept of prebirth abandonment refer to a parent's withholding, without good cause or excuse, his or her care and maintenance, or a parent's "failure to claim rights of a parent, or the failure to perform the duties of a parent."
No matter how compelling the case for a father to be concerned with the health and well-being of his child before it is born, an interpretation of § 26-10A-2(1) that would make such concern relevant in an abandonment case conflicts with clear definitions in the Alabama Adoption Code as it stood before amendments subsequent to the commencement of this proceeding. Section 26-10A-2(9), Ala. Code 1975, defines "parent" as a "natural or legal father or mother." A father is defined as "a male person who is the biological father of the minor." § 26-10A-2(5), Ala. Code 1975. A minor is "a person under the age of 19." § 26-10A-2(7), Ala Code 1975. Since the counting of one's age does not begin until birth, I conclude that a minor cannot include a child while in its mother's womb. Therefore, for purposes of the case before us, the statute compels me to view the reference to "parent" in § 26-10A-2(1) as meaning a father of a child who has been born.
Title 26, Chapter 10A, does not define the word "child."
On similar reasoning, I find nothing in § 26-10A-9, Ala. Code 1975, the statutory definition of implied consent to, or relinquishment for, adoption, to support the concept that prebirth conduct toward the child or the mother should be a relevant consideration. The statute recites acts of a "parent" from which consent or relinquishment might be implied. Because a parent is, in the context of this proceeding, the father of a child who has been born, § 26-10A-9 has no field of operation here.
Section 26-10A-2, Ala. Code 1975, provides the definitions governing the chapter entitled "Adoption of children" and specifically defines "minor" as "a person under the age of 19." I am unable to find in that section any authority to augment that definition by whatever can be gleaned from a study of Black's Law Dictionary, see Houston, J., dissenting. Section 26-10A-2 provides that these definitions govern "except where the context clearly indicates a different meaning." That this is not such a case is borne out by the necessity to amend § 26-10A-9 in 1999 to recognize prenatal abandonment.
I agree with the main opinion's refusal to accept In re Adoption of Doe, 543 So.2d 741 (Fla.), cert. denied, 493 U.S. 964 (1989), as persuasive. The Florida statute describing abandonment (Florida Statute § 39.01) is accompanied by defined terms that the Florida court did not apply.
I agree that the trial court erred by terminating C.V.'s parental rights as to Baby Boy G. and further erred by holding that C.V.'s consent to the adoption of Baby Boy G. either was implied or was not necessary. I concur only in the result, however, because I disagree with some of the reasoning in the main opinion.
Termination of Parental Rights
As the main opinion points out, proceedings to terminate parental rights are purely statutory. There are only two statutory grounds for terminating parental rights: (1) "that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child," or (2) "that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future." Ala. Code 1975, § 26-18-7(a). The Legislature's use of the present tense in setting forth the statutory grounds indicates that the inquiry in a proceeding to terminate parental rights is whether one of those grounds exists at the time of the proceeding, not whether a ground may have existed at some time in the past.
Although this Court defers to the trial court's findings of fact under the ore tenus rule and will presume that the trial court made such findings as are necessary to support its judgment, this Court must nevertheless reverse the trial court's judgment when it is, as here, "clearly erroneous, manifestly unjust, without supporting evidence, or against the great weight of the evidence." Odom v. Hull, 658 So.2d 442, 444 (Ala. 1995). The trial court's order presents no express finding that one of the two statutory grounds is present, and the evidence is insufficient to support a finding that C.V. was, when the trial court terminated his parental rights, either unable or unwilling to take on the responsibilities of being Baby Boy G.'s father, or that his conduct or condition rendered him unable to properly care for Baby Boy G. The trial court's express findings of fact actually support the opposite conclusion, in that the trial court explicitly found that C.V. was married and had another son, and that C.V. and his wife "appear to provide adequate parenting to their child."
A presumption that the parents are "unable or unwilling to act as parents" will arise when "the parents have abandoned a child as [defined in § 26-18-3(1)] and such abandonment continues for a period of six months next preceding the filing of the petition [to terminate the parents' parental rights]." § 26-18-7(c). In this case, however, even if C.V.'s conduct before his son was born can be said to be "abandonment" within the meaning of § 26-18-3(1), this presumption did not arise. The prospective adoptive parents, on October 17, 1997, filed their petition to terminate the parental rights of Baby Boy G.'s birth parents. There was no evidence before the trial court that, for the six months preceding October 17, 1997, C.V. had abandoned Baby Boy G.; therefore, there could arise no presumption that C.V. was unable or unwilling to act as a parent.
Because there was no evidence to support a finding that, at the time the trial court terminated his parental rights, C.V. was unable or unwilling to take on the responsibilities of a father as to Baby Boy G., the trial court erred by terminating C.V.'s parental rights. I concur only in the result on this issue because I disagree with the statement of the main opinion that "the father did not owe a duty to support Baby Boy G. until the Tuscaloosa County Circuit Court established his paternity." ___ So.2d at ___. I disagree that a father has no duty of support until a court establishes his paternity. The cases cited in the main opinion for the proposition that a father owes no duty of support until his paternity has been judicially established are distinguishable from the present case. In those cases, the mother or the State was trying toenforce the father's duty of support, and this Court held that the father's duty of support was not enforceable until his paternity was established; those cases do not hold that a father owed no duty of support until his paternity was established.
Ex parte State of California, 669 So.2d 884 (Ala. 1995); Keener v. State, 347 So.2d 398 (Ala. 1977); Upton v. State, 255 Ala. 594, 52 So.2d 824 (1951); and Law v. State, 238 Ala. 428, 191 So. 803 (1939).
In Upton v. State, 255 Ala. 594, 52 So.2d 824 (1951), this Court held that the father of a child born out of wedlock owes a duty of support (1) when he voluntarily assumes parenthood, or (2) when his paternity is established. In the present case, C.V. had been trying to assume parenthood since shortly after Baby Boy G.'s birth, but his efforts were, until now, consistently thwarted. Under these circumstances, I agree with the conclusion reached in the main opinion that it would be inequitable to penalize C.V. for failing to provide support for Baby Boy G. while the prospective adoptive parents were hiding their identities and address and were concealing Baby Boy G.'s location. As the main opinion points out, at least since April 10, 1996 (about three weeks after his son's birth), when C.V. filed a paternity and custody action in a Florida court, C.V. has made continuing efforts to find and recover his son.
I also agree that, once the prospective adoptive parents filed their adoption petition and the trial court entered its interlocutory order requiring the prospective adoptive parents to support Baby Boy G., they had the duty to support Baby Boy G.
Implied Consent to Adoption
The trial court held that C.V.'s consent to the adoption of Baby Boy G. was implied from C.V.'s "conduct as it relates to the minor child and to the birth mother prior to and after the child's birth." The main opinion holds that C.V.'s prebirth conduct toward the birth mother is irrelevant to whether he abandoned Baby Boy G. I disagree. A parent can expressly consent before his child's birth to his child's adoption, see Ala. Code 1975, § 26-10A-11(2), 26-10A-13(a) and (b). I see no reason why a parent cannot also impliedly consent to his child's adoption before that child's birth. However, the Legislature has provided that, after the child's birth, a parent can withdraw his express prebirth consent to the child's adoption. See § 26-10A-13. I would apply a similar rule to implied prebirth consent and hold that C.V.'s actions after learning of the birth of his son clearly indicate the withdrawal of his implied consent to the adoption — even assuming that C.V.'s prebirth conduct amounted to abandonment of Baby Boy G. for more than six months. See Ala. Code 1975, § 26-10A-9(2) (providing that a parent who abandons a child for six months impliedly consents to that child's adoption).
As the main opinion states, a parent impliedly consents to an adoption by:
"(1) Leaving the adoptee without provision for his or her identification for a period of 30 days; or
"(2) 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; or
"(3) Receiving notification of the pendency of the adoption proceedings under Section 26-10A-17 and failing to answer or otherwise respond to the petition within 30 days."
Ala. Code 1975, § 26-10A-9 (as it read before the amendments effective June 11, 1999) (emphasis added). The emphasized language is the only language potentially applicable to this case. Thus, the issue is whether C.V. failed to "maintain a significant parental relationship with [Baby Boy G.] for a period of six months."
The trial court found that C.V. had "abused and abandoned [the birth mother] physically, emotionally, and financially, during her pregnancy with [Baby Boy G.]" by failing to provide any financial support for her, by physically abusing her during her pregnancy, and by moving out of the apartment where they lived and taking almost everything with him, including all the furniture except a bed, the food, the dishes, and the Christmas tree. Although C.V. vigorously disputes this recitation of facts, there is sufficient evidence in the record to support the trial court's findings. Because C.V.'s conduct before the birth of Baby Boy G. was inconsistent with accepting the responsibilities of fatherhood, it amounted to his implied consent to adoption. However, as explained above, C.V.'s conduct after the birth of his son effectively acted as a withdrawal of that implied prebirth consent. Accordingly, I concur only in the result reached by the main opinion.
I have pondered the main opinion, Retired Justice Beatty's opinions on original submission and on application for rehearing in C.V. v. J.M.J., [Ms. 2970889, Feb. 12, 1999, and, on rehearing, Apr. 30, 1999] ___ So.2d ___, ___, (Ala.Civ.App. 1999), Judge Crawley's dissent to the original opinion in C.V. v. J.M.J, supra, and Chapter 17, Title 26, Code of Alabama 1975 ("Alabama Uniform Parentage Act"), and I am persuaded that Retired Justice Beatty's opinion on application for rehearing in this ore tenus case is correct. I adopt that as my dissent.
I direct the Justices to Black's Law Dictionary (7th ed. 1999), where, at page 1011, the word "minor" is defined as a "child," and where, at page 232, the word "child" is defined as a "baby or fetus."
I have carefully considered the main opinion. I believe, however, that Retired Justice Beatty's opinion on application for rehearing in the Court of Civil Appeals in this ore tenus case is correct. See C.V. v. J.M.J. [Ms. 2970889, April 30, 1999] ___ So.2d ___, ___ (Ala.Civ.App. 1999). I adopt that as my dissent.