It’s rare to see a trial court try to overcome an appeals court ruling by sheer bull-headedness, but it’s fun to see in a guilty pleasure kind of way, don’t you think?
This is a step-parent adoption case. It’s not new to the appeals court. The first time was last year, M.M. v. D.P., 10 So. 3d 605 (Ala. Civ. App. 2008). Mom and her New Hubby wanted to adopt the child, so they filed for adoption but failed to notify Dad. The Marion Probate Court obviously believed the adoption was in the child’s best interest, so it approved the adoption without Dad’s participation. Dad appealed, and the appeals court declared the probate court ruling void.
That was last year. Now fast forward to M.M. v. D.P., Case No. 2080592 (Ala. Civ. App. October 30, 2009). Mom and New Hubby filed again. Dad moved to quash the petition or consolidate it with his own petition for custody, and his motion was denied.
After a hearing, the Marion Probate Court granted Mom’s and New Hubby’s petition and approved the adoption. In doing so, the probate court seemed to treat the question as one limited to the child’s best interests:
This cause coming on to be heard before the Court and it appearing to the satisfaction of the Court that the Petition for Adoption, as amended, and for change of name of [the child], is a Petition by [the] stepfather, and the Court having determined that said minor child has resided in the home of his natural mother and stepfather for more than one year prior to the filing of this petition and it further appearing to the Court that the adoption is likely to be successful and is in the best interest of said minor child, and it further appearing to the Court that the natural mother has joined in the petition, and no valid reason being shown why said minor child should not be legally adopted, and for good cause shown, including, but not limited to the facts that neither [the father], nor none of his relatives made any attempts to contact visit or support said minor child from December 12, 2008 the date the previous adoption order was declared void by the Alabama Court of Civil Appeals until the date of hearing on February 18, 2009; and that [the stepfather] since August 26, 2006 the date of marriage to the mother of said child, has almost single-handedly supported and cared for said child, without any complaints of his manner of caring for said child from anyone; and that from the testimony of the [mother], the care and concern for said child by [the stepfather] was so superior to the care and concern ever shown by [the father], who expressed more interest in filing petitions in court than caring for said child; the Court is of the opinion that the petition in this cause, as amended, should be and is therefore allowed. M.M. at 6-8.
The appeals court began by confirming that Dad is the presumed father of the child and that no one appears to have filed any evidence that he is not. The appeals court then noted that Ala. Code § 26-10A-7 requires that no adoption may proceed without the permission, express or implied, of the presumed father. It is clear that Dad didn’t give his express consent, so the only real question is whether his consent is implied. Implied consent pursuant to Ala. Code § 26-10A-9 requires that Dad do one of several things he clearly hadn’t done or that he have offered no financial or emotional support for a period of six months. So the period of two months and one week the probate court used as its justification was clearly insufficient to support the probate court’s decision to terminate Dad’s parental rights.
Hence, we cannot conclude that the probate court properly found that the father had impliedly consented to the adoption. Rather, it appears that the probate court granted the adoption without the consent of the presumed father of the child based on its conclusion that the stepfather had been and would continue to be a better parent for the child. M.M. at 11.
Concluding that the probate court approved the adoption without jurisdiction to do so, the appeals court declared its approval void and therefore dismissed Dad’s appeal.