Decision Date03 December 1999
Citation776 So.2d 142
PartiesM.V.S. v. V.M.D.
CourtAlabama Court of Civil Appeals

George L. Simons, Mobile, for appellant.

Richard E. Shields of McCleave, Roberts, Shields & Green, P.C., Mobile, for appellee V.M.D.

J. Coleman Campbell and James E. Long, asst. attys. gen., Department of Human Resources, for appellee Attorney General Bill Pryor.

YATES, Judge.

A child, J.J.S., was born out of wedlock on February 21, 1997. On November 3, 1997, the mother, A.D.W., placed the child with the State of Alabama for adoption. On November 7, 1997, V.M.D., the adoptive mother, filed a petition in the Mobile Probate Court to adopt the child. The petition listed M.V.S. as the putative father.1 On November 10, 1997, the probate court entered an interlocutory order of adoption, granting custody to V.M.D., setting a dispositional hearing for February 19, 1998, and ordering that the putative father be served with notice, pursuant to § 26-10A-17, Ala.Code 1975.

On December 17, 1997, M.V.S. filed an objection to the adoption. Counsel for M.V.S. moved to withdraw from the case on December 30, 1997. M.V.S. subsequently retained other counsel and, on January 14, 1998, filed a motion to contest the adoption. In this motion, M.V.S. challenged the constitutionality of § 26-10C-1(i).

On January 15, 1998, the probate judge appointed a guardian ad litem for the child J.J.S. and ordered that the attorney general be given notice of the challenge to the statute.

On May 21, 1998, the probate court held a hearing, wherein M.V.S., his wife, two character witnesses for V.M.D., and A.D.W. testified. Following the hearing, the probate judge denied the contest to the adoption. M.V.S. appeals.

M.V.S. argues that § 26-10C-1 et seq., Ala.Code 1975, referred to as the "Putative Father Registry Act," is unconstitutional as to putative fathers, because, he argues, it does not afford them notice and an opportunity to be heard. M.V.S. also argues that § 26-10C-1 violates the Equal Protection Clause of the United States Constitution and equal-protection guarantees of the Alabama Constitution. He argues that putative fathers who do not file an intent to claim paternity pursuant to the Putative Father Registry are arbitrarily treated differently from putative fathers who do file an intent. Last, M.V.S. argues that the Putative Father Registry Act cannot be reconciled with the Alabama Adoption Code.

Section 26-10C-1(i) provides:

"(i) Any person who claims to be the natural father of a child and fails to file his notice of intent to claim paternity pursuant to subsection (a) prior to or within 30 days of the birth of a child born out of wedlock, shall be deemed to have given an irrevocable implied consent in any adoption proceeding."

The problem with M.V.S.'s argument is that he had actual notice of the proceeding and was given a full opportunity by the probate court to be heard in contesting the adoption before any final order of adoption was entered—in spite of his not complying with the 30-day requirement of § 26-10C-1. In fact, M.V.S. appeared, testified, and was represented by counsel at the proceeding.

A litigant cannot make for other persons constitutional arguments that do not affect him. "[A] litigant may only assert his own constitutional rights or immunities." McGowan v. Maryland, 366 U.S. 420, 429, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). "The determination as to whether due process has been complied with, as in all determinations involving issues of constitutional law, must be based on the circumstances present in the case before the court." Evans v. City of Huntsville, 580 So.2d 1323, 1325 (Ala.1991), citing United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). Accordingly, M.V.S. cannot make constitutional arguments that do not affect him.

Following the proceeding, the probate court found that M.V.S. had not established a substantial relationship with the child. In Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983), the Supreme Court addressed the rights of an unwed father in an adoption proceeding. Lehr involved an illegitimate child and its father, who objected to the child's adoption. The child was born in 1976. The mother and the father were never married. The child lived with its mother and, although the father visited the child sporadically, the child was never in his custody. The father never filed with the "putative father registry." Eight months after the child's birth, the mother married another man. When the child was two years old, the mother's husband petitioned a New York court to adopt the child.

The New York statute under review in Lehr required that notice of adoption be given to seven categories of putative fathers who, as the Court explained, were likely to have assumed some responsibility for the care of the child. Included in the categories was a putative father who had filed with the putative father registry. The Supreme Court of the United States reviewed this notice provision and found that it adequately protected the unwed father's inchoate interest in establishing a relationship with his child. The Court stated that the New York legislature's refusal to adopt a more "open-ended notice requirement" for the putative father was not arbitrary, given the state's legitimate interest in "facilitating the adoption of young children and having the adoption proceeding completed expeditiously." Lehr, 463 U.S. at 265-66, 103 S.Ct. 2985.

The Lehr court stated:

"When an unwed father demonstrates a full commitment to the responsibilities of parenthood by `com[ing] forward to participate in the rearing of his child,' Caban [v. Mohammed], 441 U.S. [380] at 392[, 99 S.Ct. 1760,60 L.Ed.2d 297 (1979)] [(1979)], his interest in personal contact with his child acquires substantial protection under the Due Process Clause.... But the mere existence of a biological link does not merit equivalent constitutional protection."

463 U.S. at 261, 103 S.Ct. 2985.

"The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child's development. If he fails to do so, the Federal Constitution will not automatically compel a State to listen to his opinion of where the child's best interests lie."

463 U.S. at 262, 103 S.Ct. 2985.

"The Court [in Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979)] made it clear ... that if the father had not `come forward to participate in the rearing of his child, nothing in the Equal Protection Clause [would] preclud[e] the State from withholding from him the privilege of vetoing the adoption of that child.'"

463 U.S. at 267, 103 S.Ct. 2985.

Lehr made it clear that a biological link with the child does not automatically give the natural father a constitutional right to withhold consent to an adoption. Instead, the natural father must have established a substantial relationship with the child to merit constitutional protection.

The probate court in the present case found that the putative father had not established a substantial relationship with the child. Again, we note that M.V.S. had notice of the proceeding, appeared, testified, and was represented by counsel at the proceeding. In regard to its finding that M.V.S. had failed to establish a relationship with the child, the probate court made the following findings of fact:

"Testimony revealed that ... M.V.S., a married man, is the father of two (2) children. Evidence disclosed that while married to S.S., M.V.S. engaged in a sexual relationship with A.D.W. who was eighteen (18) years of age and he approximately forty-three (43) at the inception of the relationship. Upon learning that A.D.W. had become pregnant, M.V.S. attempted to have A.D.W. seek an abortion. When A.D.W. refused, M.V.S. discontinued financial assistance and ended for the time his relationship with A.D.W.
"From the child's birth on February 21st, 1997, until November 1997, the child, J.J.S., lived with his birth mother, A.D.W., in the home of his maternal grandmother. Subsequently, in early November, 1997, when the birth mother, A.D.W., was twenty (20) years of age, she voluntarily relinquished custody of her child and consented to the Petitioner, V.M.D., adopting the child, J.J.S. Since then the child has resided with the Petitioner, V.M.D.
". . . .
"It was testified that during the eight and one-half months that the child resided with his natural mother, A.D.W., the Movant, M.V.S., reestablished contact with A.D.W. and visited her on approximately five (5) occasions. It was stated, however, that M.V.S. saw the child only for a few minutes on these occasions. It was also testified that on the third visit, A.D.W., the minor child, and the Movant, M.V.S., shared the same hotel room.
"Receipts submitted in evidence by the Movant, M.V.S., disclosed that the Movant had given the birth mother, A.D.W., $1,765.00 during the eight and one/half (8 ½) months while the birth mother had custody of the child. The purpose of the gift was vague. However, it was revealed that A.D.W. did return to Atlanta for a brief visit during the stated period.
"While the child was in the custody of the birth mother, A.D.W., it was testified that she discussed with the Movant, M.V.S., his need to sign an `affidavit of paternity.' It was also testified that M.V.S. never signed a paternity affidavit; failed to legitimate the child; failed to have his name added to the birth certificate as the father of the child; failed to attend the birth of the child; nor register pursuant to the Putative Father Registry Act. While the Movant, M.V.S. did not sign a consent to the adoption of J.J.S. when

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