This appeal arises out of paternity and adoption proceedings before the Lauderdale Juvenile Court involving R.L. ("the child"), a child born to S.J.L. ("the mother") out of wedlock. The primary question presented is whether the juvenile court correctly determined that A.D.S., a man who was shown to be the biological father of the child via paternity testing initiated well after the birth of the child, is a "putative father" under now repealed provisions of the Alabama Adoption Code, § 26-10A-1 et seq., Ala.Code 1975 ("the Adoption Code"), applicable in this case so as to have had only a conditional right to object to the proposed adoption of the child by A.L.P. and D.J.P. ("the intervenors") upon compliance with pertinent provisions of the Putative Father Registry Act, Ala.Code 1975, § 26-10C-1 et seq. ("the PFRA"), or whether A.D.S. is instead a "presumed father" with an unconditional right under the Adoption Code to so object.
The record reveals that the child was born on March 28, 2008. Three days after his birth, he began residing in the home of the intervenors, who are the half brother of the mother and his wife. On April 15, 2008, the intervenors filed a petition in the Lauderdale Probate Court seeking to adopt the child. In response to the petition, the probate court issued an interlocutory order granting temporary custody of the child to the intervenors, and that court directed that notice of a final hearing to be held on April 6, 2009, just over one year after the child's birth, be given by publication to the child's "unknown father."
In June 2008, A.D.S., claiming to be the child's father, filed an objection to the intervenors' adoption petition in the probate court. One month later, A.D.S. sued the mother in the juvenile court, seeking a declaration that he was the father of the child and that he should have physical and legal custody of the child. Upon the completion of genetic testing and the publication of results indicating that A.D.S. is the child's biological father,
Ex parte R.E.C., 899 So.2d 272, 279 (Ala. 2004).
The record, viewed in a light most favorable to the juvenile court's judgment, reflects that the mother, during her minority, engaged in sexual intercourse with A.D.S. on one occasion during the summer of 2007; at that time, the mother was also involved in relationships of a sexual nature with two other males. On August 11, 2007, the mother discovered that she was pregnant through the use of an over-the-counter pregnancy test; that evening, A.D.S. was sent a telephone text message informing him of the mother's pregnancy. On the following night, the mother met with A.D.S. at a public park and informed A.D.S. that she was scared about the pregnancy and opined that she believed the child was his, after which the two discussed what to do about the pregnancy; the mother testified that A.D.S. had offered to obtain funds to pay for an abortion, whereas A.D.S. testified that he had stated that he would "be supportive" of whatever the mother's decision was. One week later, when the mother consulted an adult for advice, A.D.S. asked the mother to inquire of that adult where an abortion could be performed.
Immediately upon the child's birth on March 28, 2008, the two other males with whom the mother had had sexual relations around the time of the child's conception filed separate actions in the juvenile court in which each sought an adjudication as to the child's paternity. However, both actions were voluntarily dismissed on May 22, 2008, upon the plaintiffs' having received information that genetic-testing results had excluded them as potential fathers of the child. As we have discussed, the child, upon leaving the hospital after birth, went to live with the intervenors, and the intervenors filed an adoption petition in the probate court on April 15, 2008. During the mother's pregnancy and the 30-day period after the child's birth, A.D.S. filed nothing with the state Putative Father Registry indicating any intent to claim paternity of the child at issue, although A.D.S.'s father and the mother's half brother did have a meeting on April 24, 2008, during which A.D.S.'s father stated that A.D.S. had professed to have believed that the child was his "from the very beginning" but that he also believed that the proposed adoption was in the child's best interests. On May 30, 2008, A.D.S., in the presence of the mother, apparently informed the intervenors that he believed himself to be the child's father and requested that he be allowed to visit the child and to obtain paternity testing in exchange for not contesting the adoption; however, after A.D.S. had visited with the child five times during June 2008 in the intervenors' home, the mother's half brother discovered that A.D.S. did plan to contest the adoption, and visitation was broken off. At no time did the child visit with A.D.S. in his home.
As we noted in J.L.P. v. L.A.M., So.3d 770, 771 n. 1 (Ala.Civ.App.2008), the provisions of the Adoption Code in effect at the time that the intervenors initiated the adoption proceedings in this case "[did] not explicitly require consent of a `father' to a proposed adoption except insofar as a `father' is the `presumed father' or the `putative father' of the child to be adopted." We further discussed the crucial distinction between the two terms in this context at some length:
This appeal concerns whether A.D.S. "received the adoptee into his home and openly held out the adoptee as his own child" as that phrase is used in Ala. Code 1975, § 26-10A-7(a)(3)d., a portion of the Adoption Code. The language of that provision closely parallels that formerly used in Ala.Code 1975, § 26-17-5, a portion of the Uniform Parentage Act ("UPA") that dealt with who was a "presumed father" for purposes of determining parentage under Alabama law. Although the Adoption Code uses the conjunctive "and" to link together the reception-into-the-home and openly-holding-out elements of presumed paternity, the UPA linked those terms with a disjunctive "or," indicating either would suffice to establish a presumption of paternity. A.D.S., among other arguments, seizes upon this distinction to claim that he should be deemed to be a "presumed father" in this case based solely upon an "openly-holding-out" rationale even though, he claims, the actions of the intervenors and the juvenile court prevented him from receiving the child into his home. However, the validity of that argument assumes that the evidence adduced at trial would support only one proper conclusion: that A.D.S. openly held out the child as his own child at the legally pertinent time so as to qualify for the UPA's paternity presumption.
Under the Adoption Code, a man who has never been married to the mother of his biological child and who has not complied with the PFRA must already have "received the [child] into his home and openly held out the [child] as his own child" in order to wield veto power over a proposed adoption of the child by virtue of being a "presumed father." Ala.Code 1975, § 26-10A-7(a)(3)d. However, the evidence presented to the juvenile court indicates that, at the time that the adoption proceedings were initiated by the intervenors in the probate court, A.D.S. had done nothing to indicate that the child was his child—he had provided no material support or housing to the mother during
J.L.P., in which the biological father (whom we held to be a presumed father) had initiated a paternity action as to the pertinent child one month after that child's birth and had prosecuted that action to a successful conclusion, is distinguishable; the adoption proceedings were commenced in that case several years after the biological father's paternity had been adjudicated and he had been awarded and had exercised visitation with the child. Similarly, in M.M. v. D.P., 10 So.3d 605 (Ala.Civ.App. 2008), we concluded that the biological father was a presumed father under the Adoption Code because the evidence in that case indicated that he had been awarded (and had exercised) visitation rights with the pertinent child, including at the father's home, and had complied with an order compelling him to pay child support. In both cases, the pertinent adoption proceedings were undertaken well after the biological fathers of the children at issue had come forward and had been judicially determined to be the children's fathers and had consistently acted in a manner fully consonant with an intent to play a parental role in the lives of the children.
We derive further support for our holding from analogous authority from New Mexico, whose adoption statutes permit a man to be deemed an "acknowledged father" of a child under six months of age, so as to confer upon him the power to veto a proposed adoption of that child, when that man has "openly held out the adoptee as his own child by establishing a custodial, personal or financial relationship with the adoptee" by, among other things, having "initiated an action to establish paternity." See N.M. Stat. § 32A-5-17A.(5) & § 32A-5-3F.(4)(a)(1). In Helen G. v. Mark J.H., 143 N.M. 246, 175 P.3d 914 (2007), the New Mexico Supreme Court rejected the proposition that a man who had failed to file with that state's Putative Father Registry by the applicable deadline could nonetheless properly claim veto power over an adoption via attaining "acknowledged father" status by filing a paternity action after an adoption petition had been filed. In concluding that "a biological father must take action to become an acknowledged father before the adoption petition is filed," the New Mexico court reasoned that "[i]t defies logic that a father would be able to bypass that time-sensitive [registration] requirement, only to gain acknowledged father status months later by doing essentially the same thing, filing a paternity suit." 143 N.M. at 253, 175 P.3d at 921.
Even were we to conclude that the evidence before the juvenile court compelled a conclusion that A.D.S. held out the
We thus conclude that the juvenile court correctly determined A.D.S. to be a putative father, rather than a presumed father, under the Alabama Adoption Code based upon the facts of this case.
Based upon the foregoing facts and authorities, the juvenile court's judgment is due to be affirmed.
THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ., concur in the result, without writings.