It is just a matter of time before the AP will have to give up this child.
In Ex Parte C.V. 2001 Alabama Supreme Court
CONCLUSIONS of the Trial court:
"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.
WHAT THE ALABAMA SUPREME COURT SAID
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)).
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."
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."
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.(1) 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.
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.
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
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.
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