KLB v. WMF
| Decision Date | 18 January 2002 |
| Citation | 864 So.2d 333 |
| Parties | K.L.B. v. W.M.F. |
| Court | Alabama Court of Civil Appeals |
Bert W. Rice, Atmore; and Charles E. Johns, Jr., Brewton, for appellant.
J. Milton Coxwell, Jr., of Coxwell & Coxwell, Monroeville, for appellee.
Alabama Supreme Court 1020723.
In November 1998, W.M.F. ("the stepfather") filed a petition to adopt his stepdaughter, A.B.B. Although the child's father, K.L.B. ("the father"), contested the petition, the Monroe County Probate Court approved the adoption. This court reversed that decision. See K.L.B. v. W.M.F., 757 So.2d 476 (Ala.Civ.App.2000)
("K.L.B. I") ( that the probate court and the district court had not complied with the Alabama Adoption Code). After the remand from this court and upon motion by the stepfather, the probate court transferred the case to the juvenile court, pursuant to § 12-12-35, Ala.Code 1975. The juvenile court entered a judgment finding that the father had impliedly consented to the adoption and holding that the stepfather could adopt the child.
The father appeals, arguing, among other things, that the juvenile court erred in finding that the father had impliedly consented to the adoption and in not finding that the father had withdrawn any such consent. Based on our review of the record, we agree.
This case, unlike so many that come before the courts of this state, does not involve a father who has shown little or no interest in his child.1 Compare S.W.B. v. R.C., 668 So.2d 835 (Ala.Civ.App.1995)
. The child is now 14 years of age and, except for a period of nine months in 1998, there is no question that the father has attempted to be extensively involved in his daughter's life. In addition, since the adoption petition was filed in 1998, the father has desperately fought to keep his daughter. In August 1997, however, an issue was made of the father's use of a belt to discipline his child, at which point everything began to change for the father.
The child was born in 1987. The child's mother and the father were divorced the following year, and the mother was awarded custody of the child. Both parents thereafter remarried and each has a child with his or her second spouse. The father also has two stepchildren. For nine years, the father had "continuous and regular visitation and contact" with his daughter, including every other weekend, holidays, birthdays, and extended periods in the summers. The relationship between the father and the child was good, although hindered by continuing postdivorce strife between the father and the mother. In 1993, for example, the father successfully sought relief from the trial court for the mother's not allowing the child to use the father's last name at school.2 During a scheduled visit in August 1997, the father used a belt to discipline the child. The punishment caused some bruising. The father testified that he gave the child "four licks on the rear end"; that he was not aware at the time that he was causing any bruising; and that after he had inflicted the punishment, he, the daughter, and three of her friends proceeded to enjoy an outing that day, swimming at a creek. When the child returned to the mother's home, according to the father, the mother telephoned and told the father that she (the mother) hated him. About this same time, according to the father's testimony, the stepfather told the father in a telephone conversation that "if he had been there [when the punishment was inflicted], he'd [have] killed [the father]." The mother and the stepfather hired an attorney, who wrote the father a letter telling him that "visitation under the scheduled order as it exists at the present time cannot continue."
In the wake of these events, the child did not visit the father from August 1997 to December 1998. During this time, the father did not seek judicial enforcement of his visitation privileges, and did not send the child a Christmas present in 1997. The father did continue to make his childsupport payments from August 1997 through February 1998, but for a period of nine months beginning in March 1998, the father did not comply with the divorce judgment's provisions regarding child-support payments and payment of medical expenses. The father continued attempting to telephone the child from August 1997 through January 1998 (on average, about once a month), but the child either would not speak to him or was not allowed to speak to him. The mother testified that the child was simply unwilling to talk with the father and that she could not make the child do so. The father testified that the mother was responsible for disrupting communication between him and the child.
With respect to the cessation of visitation, the father testified as follows:
The father testified that during 1998 he would park his car near, or drive by, the child's school and the child's home in the hope of at least seeing her from a distance.
From the divorce in 1988 until the trial, with the exception of nine months in 1998, the father consistently paid his child support. The father testified that he and the mother disagreed concerning the mother's unwillingness to permit visitation during the nine-month period in 1998 and her failure to take the child to preferred-care doctors, and that it was for those reasons that he withheld child-support payments from March through November 1998. The father also presented evidence indicating that the child remained covered during this time under a family cancer policy and life-insurance policy and was a contingent beneficiary of the father's retirement plan, among other things.
Alabama's Adoption Code requires that implied consent must be found on "clear and convincing evidence." Ala. Code 1975, § 26-10A-25(b)(2).3 Based on our review of the record, we do not believe that the father's conduct in the months following his August 1997 disciplining of his daughter is clear and convincing evidence indicating the father's consent to the adoption of his daughter by another man. This is particularly true when the father's conduct is viewed against the backdrop of his relationship with his daughter before August 1997 and his clearly manifested desire to be an integral part of her life.
Nor does the father's conduct since November 1998 support the trial court's judgment. In December 1998, the father paid all child-support arrearages that had accumulated during the preceding nine months. Since then, he has resumed his previous practice of timely making child-support payments every month. The mother received and accepted these payments. Following the filing of the petition for adoption by the stepfather, the father filed a petition in the circuit court to address matters concerning health-insurance payments and enforcement of his visitation rights. Since November 1998, the father has fought as zealously as any normal, loving father could be expected to fight to preserve his relationship with his child, evidently dismayed that his conduct, while admittedly not exemplary, is being construed as a consent to forever end his relationship with his daughter.4 In order to reach its conclusion that there had been an implied consent to the adoption in this case, the trial court relied upon its finding that the father did not maintain a "significant parental relationship with the [child] for a period of six months." The court then drew a legal conclusion that, as a result of the lack of a significant parental relationship for six months, "a legal presumption of the father's implied consent to the instant adoption petition thereby arose under the provisions of § 26-10A-9, Code of Alabama, 1975." (Emphasis added.) The trial court explained that its understanding that such a "presumption" arose under § 26-10A-9 was derived from the Comment to that Code section. In its judgment, the trial court stated that "[t]he Official Comment to [§ 26-10A-9] explains that the absence of such relationship for a six-month period gives rise to a rebuttable presumption that the parent has abandoned the child, and casts upon the parent the burden of effectively rebutting the presumption of abandonment and implied consent to the adoption."
The trial court erred in deriving such a presumption from the language of the Comment to § 26-10A-9. No such rebuttable presumption is found in Alabama's Adoption Code.
Section 26-10A-9(3) provides that a consent to adoption may be implied by "not... maintaining a significant parental relationship with the adoptee for a period of six months." In explaining the selection of six months as the time...
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