D.F.H. v. E.R.S.

REL: February 17, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2022-2023
_________________________

CL-2022-0770
_________________________

D.F.H.

v.

E.R.S.

Appeal from St. Clair Probate Court
(N-2021-212)

MOORE, Judge.

D.F.H. ("the presumed father") appeals from a judgment entered by

the St. Clair Probate Court ("the probate court") granting the petition of

E.R.S. ("the stepfather") to adopt I.F.H. ("the child"). We affirm the

judgment.
CL-2022-0770

Pertinent Procedural History

The child was born on August 5, 2017, during the marriage of the

presumed father to E.M.S. ("the mother"). See Ala. Code 1975, § 26-10A-

2(11) & § 26-17-204(a)(1) (characterizing the husband of the mother of a

child born during the marriage as the "presumed father" of that child).

On March 4, 2019, the St. Clair Circuit Court entered a judgment

divorcing the presumed father and the mother; the mother subsequently

married the stepfather on September 13, 2019. On May 6, 2021, the

stepfather filed a petition to adopt the child, along with, among other

things, the written consent of the mother to the adoption. The stepfather

served notice of the petition for adoption on the presumed father on June

18, 2021.

On June 30, 2021, the presumed father filed an acknowledgment of

receipt of the petition and a notice indicating that he was contesting the

adoption of the child. On July 1, 2021, the probate court appointed a

guardian ad litem for the child and set the matter for a hearing to

adjudicate the contest of the adoption. The probate court granted the

motion of the presumed father to continue that hearing, and the hearing

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was eventually held on December 13, 2021. During the hearing, the

probate court received testimony from the presumed father and the

mother and admitted several exhibits into evidence.

On February 2, 2022, the probate court entered an order ("the

contest order") denying the contest of the adoption. In the contest order,

the probate court found that the presumed father

"has failed to maintain a significant parent-child relationship
with [the child]. Furthermore, [the probate court] finds that
[the presumed father] knowingly left [the child] with others
without provision for support and without communication,
and failed to otherwise maintain a significant parent-child
relationship with [the child] for a period in excess of six (6)
months.

"Having found the foregoing by clear and convincing
evidence, [the probate court] finds that [the presumed father]
has given his implied consent to the adoption petition filed by
[the stepfather] in accordance with the provisions of § 26-10A-
9, Code of Alabama (1975)."

Although the probate court characterized the contest order as a final

judgment, the contest order was an interlocutory order because it did not

terminate the adoption proceedings. See B.V. v. J.M., 306 So. 3d 38 (Ala.

Civ. App. 2020).

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On February 14, 2022, the presumed father filed a "motion to alter,

amend, or vacate" the contest order, which was, in substance, a motion

to reconsider that interlocutory order. See generally Ex parte Troutman

Sanders, LLP, 866 So. 2d 547, 549 (Ala. 2003). The probate court held a

hearing on the motion to reconsider on February 24, 2022, and entered

an order denying that motion on February 25, 2022. The presumed

father filed a notice of appeal of the contest order on March 10, 2022. On

April 2, 2022, this court dismissed the appeal as arising from a nonfinal

judgment. See B.V. v. J.M., supra. After the dismissal of the appeal, the

probate court conducted a dispositional hearing and, on June 10, 2022,

entered a final judgment approving the adoption of the child by the

stepfather. The presumed father filed a timely notice of appeal of the

final judgment on June 22, 2022. See Ala. Code 1975, § 26-10A-26(a)

(providing that a party has 14 days to appeal from the entry of a final

judgment of adoption).

Motion to Dismiss

Before proceeding to the merits, we must first address the

stepfather's pending motion to dismiss the father's appeal. The

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stepfather has moved to dismiss the appeal on the ground that the

presumed father filed his brief in support of his appeal four days late.

Rule 31(a), Ala. R. App. P., generally requires an appellant to file the

appellant's brief within 28 days of the date of the certification of the

completion of the record on appeal. However, this court has discretion

under Rule 10(f)(1), Ala. R. App. P., to suspend the briefing schedule

when a party seeks to supplement the record after certification of the

completion of the record by the trial-court clerk. This court exercised that

discretion in this case by ordering the presumed father to file his

appellant's brief on or before October 10, 2022, following the

supplementation of the record to include a transcript of the hearing on

the motion to reconsider the contest order. The presumed father, without

requesting an extension of time, see Rule 31(d), Ala. R. App. P., did not

file his brief until October 14, 2022.

Rule 31(d), Ala. R. App. P., provides that if an appellant fails to file

a brief timely, the appellee may move to dismiss the appeal. Rule 31(d)

does not require this court to grant the motion, however. Rule 2(b), Ala.

R. App. P., allows this court to suspend the time requirements for filing

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briefs set forth in Rule 31 on its own motion for any good cause, see

Gaines v. Gaines, 472 So. 2d 1033 (Ala. 1985), including the overarching

purpose of the rules of appellate procedure "to assure the just, speedy,

and inexpensive determination of every appellate proceeding on its

merits." Rule 1, Ala. R. App. P. In this case, like in Gaines, we accept

the presumed father's explanation for the tardiness in filing the

appellant's brief and, in the absence of any claimed or demonstrated

prejudice to the stepfather, and in light of the admonition of Rule 1 to

decide appeals based on the merits, we conclude that it would be unduly

harsh to dismiss this appeal on the basis of that tardiness. Therefore,

the stepfather's motion to dismiss is denied.

Issues

On appeal, the presumed father argues that the probate court erred

in determining that he had given his implied consent to the adoption of

the child. The presumed father maintains that the probate court did not

receive sufficient evidence to sustain the factual findings made in the

contest order and that, even if it did, the probate court misapplied the

law to those facts to reach its conclusion that he had impliedly consented

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to the adoption. Therefore, the presumed father argues, the final

judgment of adoption should be reversed. We note that we may reach the

issues raised by the presumed father because his appeal of the final

judgment of adoption authorizes this court to also review the

interlocutory order adjudicating the adoption contest. See Ex parte C.D.,

[Ms. 2210248, Nov. 18, 2022] ___ So. 3d ___, ___ (Ala. Civ. App. 2022).

Analysis

Under the Alabama Adoption Code ("the AAC"), Ala. Code 1975, §

26-10A-1 et seq., the consent of a presumed father to an adoption is

ordinarily required before a probate court may grant the adoption. See

Ala. Code 1975, § 26-10A-7(a)(3). When a presumed father files a motion

contesting the adoption, the probate court must conduct an adjudicatory

hearing on the contest pursuant to Ala. Code 1975, § 26-10A-24, to

ascertain, among other things, whether the necessary consent has been

validly given. See Ala. Code 1975, § 26-10A-24(a)(3). In this case, the

probate court held the adjudicatory hearing for the express purpose of

ascertaining whether the presumed father had given his implied consent

to the adoption. Based partially on the oral testimony that it had

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received in the contest hearing, the probate court found that the

presumed father had not supported, communicated with, or maintained

a significant parent-child relationship with the child for a period in excess

of six months, and, based on those findings, determined that the

presumed father had given his implied consent to the adoption of the

child by the stepfather. The father challenges the factual findings

contained in the contest order on the ground that those findings were not

supported by the requisite clear and convincing evidence, see Ala. Code

1975, § 26-10A-25(b)(2) (requiring, among other things, clear and

convincing evidence of implied consent), but we cannot consider that

challenge. The presumed father has not provided this court with a

transcript of the testimony from the proceedings or a statement of the

evidence in compliance with Rule 10(d), Ala. R. App. P. In such

circumstances, this court conclusively presumes that the missing

testimony fully supports the factual findings of the probate court that are

contained in the contest order. See R.W.S. v. C.B.D., 244 So. 3d 987, 995

(Ala. Civ. App. 2017).

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The presumed father argues that the final judgment of adoption

should nevertheless be reversed because, he says, the probate court

misapplied the law to the facts. Section 26-10A-9(a)(3), Ala. Code 1975,

provides:

"(a) A consent or relinquishment required by [Ala. Code
1975, §] 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."

The presumed father contends that the probate court misapplied § 26-

10A-9(a)(3) in two respects. First, the presumed father maintains that

the "period of six months" referred to in § 26-10A-9(a)(3) includes only

the period before the filing of the petition for adoption. The presumed

father asserts that the probate court found that he had committed the

conduct described in § 26-10A-9(a)(3) from December 2020 to June 2021,

which, the father says, impermissibly included a period after the

stepfather had filed his adoption petition on May 26, 2021. Second, the

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presumed father claims that the probate court erroneously determined

that it was constrained by § 26-10A-9(a) to find implied consent based on

its finding of the factors set forth in § 26-10A-9(a)(3). We address each

argument in turn.

In the contest order, the probate court did not specify the dates of

the relevant six-month period, but in the oral argument on the motion to

reconsider, the probate court indicated that the evidence adduced at the

contest hearing showed that the father had not communicated with the

child between December 2020 and June 2021. Assuming, without

deciding, that the probate court considered conduct of the father

committed during that period, which would have included approximately

one month after the filing of the adoption petition, we conclude that the

probate court did not commit any legal error in this respect.

Section 26-10A-9(a)(3) does not provide that the course of conduct

described therein must have occurred during a six-month period

preceding the date of the filing of the adoption petition. The plain

language of § 26-10A-9(a)(3) requires only that the conduct be committed

over "a period of six months," without further limitation.

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"When the language of a statute is plain and unambiguous, as
in this case, courts must enforce the statute as written by
giving the words of the statute their ordinary plain meaning -
- they must interpret that language to mean exactly what it
says and thus give effect to the apparent intent of the
Legislature."

Ex parte T.B., 698 So. 2d 127, 130 (Ala. 1997). "When determining

legislative intent from the language used in a statute, a court may

explain the language, but it may not detract from or add to the statute."

Water Works & Sewer Bd. of Selma v. Randolph, 833 So. 2d 604, 607 (Ala.

2002). We find no basis in the language of § 26-10A-9(a)(3) itself that

imposes any requirement that the six-month period precede the date of

the filing of the adoption petition.

The presumed father cites two cases in support of his statutory

construction argument, J.D.S. v. J.W.L., 204 So. 3d 386 (Ala. Civ. App.

2016), and Ex parte F.P., 857 So. 2d 125 (Ala. 2003). In J.D.S., this court

reversed a judgment finding that J.D.S. had abandoned his child through

a course of conduct committed before the filing of the petition for adoption

of that child. In J.D.S., this court did not hold that only conduct that had

occurred before the adoption petition was filed could be grounds for a

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finding of implied consent under § 26-10A-9(a)(3), an issue the opinion

does not even address. In Ex parte F.P., our supreme court likewise did

not hold that the six-month period referred to in § 26-10A-9(a)(3) is

confined to the period preceding the filing of the adoption petition. Our

supreme court did recognize that a parent should not be penalized for

failing to support a child once an interlocutory order of adoption has been

entered, which ordinarily occurs soon after the filing of the petition for

adoption, see Ala. Code 1975, § 26-10A-18, because the petitioner has, at

that point, been ordered to assume that responsibility. 857 So. 2d at 134

(Ala. 2003) (citing F.P. v. J.K.M., 857 So. 2d 110 (Ala. Civ. App. 2001)

(Yates, P.J., dissenting), citing in turn Ex parte C.V., 810 So. 2d 700, 722

(Ala. 2000) (Johnstone, J., concurring)). But Ex parte F.P. does not hold

that a probate court cannot, under any circumstances, consider the

conduct committed by a parent after an adoption petition is filed when

applying § 26-10A-9(a)(3). Even reading the passage from Ex parte F.P.

broadly, as the presumed father advocates, the reasoning does not

support his argument because, in this case, the record does not contain

an interlocutory order of adoption that relieved the presumed father of

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his parental responsibilities to and for the child after the filing of the

petition. See J.E.J. v. W.I., 851 So. 2d 76, 81 (Ala. Civ. App. 2002) ("It is

the appellant's responsibility to ensure that the record on appeal

contains sufficient evidence to justify a reversal.").

We also conclude that the other provisions of the AAC do not reveal

a legislative intent to limit the reach of § 26-10A-9(a)(3) to conduct that

has occurred before an adoption petition is filed. Section 26-10A-16(a)(9),

Ala. Code 1975, requires a party who is petitioning to adopt a child to

include in the petition the name and address of a presumed father from

whom consent is required. If the presumed father has provided written

consent, the petitioner must further file that written consent with the

probate court but only before the entry of the final judgment of adoption.

See Ala. Code 1975, § 26-10A-13(c). A final judgment of adoption may be

entered only after all proper parties have been served with notice of the

adoption petition and those parties have been given an opportunity to

contest that petition. See Ala. Code 1975, § 26-10A-17 & § 26-10A-

25(b)(3). If a petitioner contends that a presumed father has only

impliedly consented to the adoption, there is no written consent to file.

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Instead, if a presumed father contests that he has given implied consent

to the adoption, the probate court must set the matter for an adjudicatory

hearing on the contest, see Ala. Code 1975, § 26-10A-24(a), which, under

§ 26-10A-24(b), may take place only after the probate court has properly

notified the parties of the date, time, and place of the hearing. The AAC

necessarily contemplates that some passage of time will occur between

the filing of the petition, the service of notice of the adoption proceedings,

and the contested hearing. If circumstances arising after the filing of the

petition and before the contested hearing are relevant to the question of

implied consent, the probate court should not be foreclosed from

considering those circumstances during its inquiry in the absence of any

provision of the AAC stating otherwise.

Finally, we address the argument of the presumed father that the

probate court found that he had given implied consent only because the

probate court determined that § 26-10A-9(a)(3) required such a finding.

Under the AAC, "consent" is defined as "[v]oluntarily agreeing to

adoption." Ala. Code 1975, § 26-10A-2(4). Section 26-10A-9(a) provides

that the consent of a parent "may be implied" from the acts of a parent

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as described therein. In K.L.B. v. W.M.F., 864 So. 2d 333, 340 (Ala. Civ.

App. 2002) (authored by Murdock, J., with Pittman, J., concurring, and

Yates, P.J., and Crawley and Thompson, JJ., concurring in the result),

Judge Murdock explained the significance of that language, stating:

"[Section] 26-10A-9[, Ala. Code 1975,] provides only that a
'consent or relinquishment ... may be implied' where a parent
has not maintained a significant parental relationship with
the child for a period of six months. Such a finding is not
required. The failure to maintain such a relationship does not
necessarily equate to an implied consent. As the Comment to
§ 26-10A-9 does explain, '[j]ust as acceptance of the terms of a
commercial contract can be implied from the conduct of a
party, so may the consent of a person to the adoption be
implied from the conduct of that individual.' (Emphasis
added.) The various types of conduct listed in § 26-10A-9 are
merely factors a court can consider in making the decision
before it, namely, whether the parent has, through his or her
conduct, communicated an implied consent to the adoption of
his or her child. The fact that one of the factors enumerated
in § 26-10A-9 might exist does not equate to a finding of
implied consent, nor even give rise to a presumption thereof.
As Justice Lyons has noted, '[the AAC] recites those acts on
the part of a "parent" from which consent to an adoption
... might be implied.' Ex parte C.V., 810 So. 2d 700, 709 (Ala.
2001) (Lyons, J., concurring specially) (emphasis added)."

864 So. 2d at 340-41. In J.D.S., supra, a majority of this court agreed

with that interpretation and maintained that the term "may," which

ordinarily refers to a permissive or discretionary act, rather than a

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mandatory act, see Ex parte Mobile Cnty. Bd. of Sch. Comm'rs, 61 So. 3d

292, 294 (Ala. Civ. App. 2010), evinces the legislative intent that a

probate court is vested with judicial discretion in determining whether a

parent has impliedly consented to the adoption of his or her natural child

under § 26-10A-9 and that a probate court is not compelled to find implied

consent even if it is convinced that all the elements of § 26-10A-9(a)(3)

have been clearly proven.

We do not agree, however, that the probate court misinterpreted

the AAC on this point. In the contest order, the probate court determined

that it had received clear and convincing evidence indicating that the

presumed father had knowingly left the child with the mother and the

stepfather without provision for child support or communication and that

he had failed to maintain a significant parent-child relationship with the

child for a period in excess of six months. Having made those

determinations, the probate court then found "that [the presumed father]

has given his implied consent to the adoption petition filed by [the

stepfather] in accordance with the provisions of § 26-10A-9." (Emphasis

added.) The emphasized language indicates that, when making its

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ultimate determination that the presumed father had given implied

consent to the adoption, the probate court followed § 26-10A-9, which, we

have explained, does not require, but only allows, a probate court to find

implied consent from, among other factors, the conduct of a parent as

described in § 26-10A-9(a)(3). The probate court is presumed to know

and follow the law in making its decisions. Ex parte Atchley, 936 So. 2d

513, 516 (Ala. 2006). Thus, we presume that the probate court exercised

proper judicial discretion when it found that the father had impliedly

consented to the adoption of the child.

The presumption that the probate court knew and followed the law

may be rebutted by evidence showing that, in fact, the probate court did

not follow the law. See Ex parte Atchley, supra. In his brief to this court,

the presumed father points to statements made by the probate court

during oral argument on his motion to reconsider to rebut that

presumption. During that oral argument, the probate-court judge

explained:

"I kept coming back to the law -- what the law says. If you go
a six-month period without making a parent-child
relationship -- making any contact with the child for six

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months, that's what the law says. And that's what I keep
coming back to. And that's my clear and convincing evidence."

We do not consider that statement, and another similar statement made

by the probate-court judge, as evidencing a mistaken belief by the probate

court-judge that § 26-10A-9(a)(3) required him to find that the presumed

father had impliedly consented to the adoption because the factors set

forth in that statute had been established. In context, the probate-court

judge was only explaining to counsel for the presumed father that he had

determined that the presumed father had given his implied consent

based on the clear and convincing evidence of the failure of the presumed

father to support, communicate, and maintain a significant parent-child

relationship for a period of six months, as authorized by § 26-10A-9(a)(3).

We find nothing in the explanation provided by the probate-court judge

that shows that he misunderstood that § 26-10A-9 vested him with the

judicial discretion to find implied consent from the conduct described in

§ 26-10A-9(a)(3) or that the probate-court judge failed to exercise that

discretion when making his determination.

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For the foregoing reasons, the judgment of the probate court is

affirmed.

MOTION TO DISMISS DENIED; AFFIRMED.

Thompson, P.J., and Hanson and Fridy, JJ., concur.

Edwards, J., concurs in the result, without opinion.

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