SCW v. CB
| Decision Date | 12 January 2001 |
| Citation | 826 So.2d 825 |
| Parties | S.C.W. v. C.B. P.D. v. R.E.L. S.C.W. and S.D.H. v. C.B. |
| Court | Alabama Court of Civil Appeals |
Shirley D. Howell of Howell & Talkington, L.L.C., Montgomery, for appellant S.C.W.
Pate Debardeleben, Montgomery, for appellants S.C.W. and P.D Floyd Minor of Minor & Olszewski, L.L.C., Montgomery; and B. Andrew Whitmire, Jr., Birmingham, for appellees R.E.L., Jr., and C.A.L.
S.C.W., the putative father, appeals from a summary judgment in favor of the adoptive parents, R.E.L. and C.A.L. District Judge Phillip Wood, sitting by special appointment in this case, held that S.C.W. had failed to comply with § 26-10C-1, Ala. Code 1975, the Putative Father Registry Act, and had consented to the adoption of a child he had fathered. Judge Wood ordered S.C.W. to pay over $15,000 in attorney fees. He also sanctioned P.D. and S.D.H., S.C.W.'s attorneys, ordering them to pay a total of $7,500 under the Alabama Litigation Accountability Act. S.C.W. and his attorneys appeal.
On March 31, 1998, then 16-year-old C.B., the biological mother, discovered that she was pregnant. On that same day, unsure as to the identity of the biological father, C.B. told S.C.W. that she was pregnant, because, she says he was the last person with whom she had had sexual intercourse. C.B. had had sexual intercourse with another boyfriend a few weeks before she had sex with S.C.W. According to C.B., she and S.C.W. had discussed the option of abortion. At that point, S.C.W. had offered to help pay for an abortion if C.B. could find out the cost.
That same day, C.B. discussed her pregnancy with her best friend's mother, initially asking for her assistance in obtaining an abortion without her parents' knowledge. During this discussion, the friend's mother encouraged C.B. to tell her family. C.B. had stated during this discussion that she really did not want to have an abortion. That evening, C.B. discussed the pregnancy with her mother, T.H.; her stepfather; her family; and her pastor; she decided to place the baby for adoption. C.B. did not talk with S.C.W. again until Saturday, April 4, 1998, at a breakfast following a high-school senior prom. C.B. told S.C.W. that she had told her family that she was pregnant and that she wanted to place the baby for adoption. S.C.W. told C.B. that this was okay with him, and he asked if there was anything he needed to do.
S.C.W. told his parents, S.W. and A.W., about the pregnancy on April 5, 1998. That same evening S.C.W.'s mother, S.W., called C.B.'s mother, T.H., and asked if they could meet with her family. S.C.W. did not go with his parents to meet with C.B.'s family. A.W. and S.W. told T.H. that they wanted to rear the baby. T.H. told them that C.B. had decided to place the baby for adoption and that S.C.W. had agreed to C.B.'s decision. According to T.H., S.W. and A.W. offered money to help C.B. during the pregnancy.
On April 6, 1998, C.B. and S.C.W. talked at school and discussed the meeting between their parents. S.C.W. told C.B. that his parents did not want him to give up the baby, but he really did not want to keep the baby, because he was not ready to be a daddy. C.B. and S.C.W. talked on several occasions during the next few weeks. At no time did S.C.W. tell C.B. that he wanted to rear the child. Although S.C.W. stated in his deposition that C.B. said he could have the baby, C.B. stated that she never told him that.
According to T.H., S.W. telephoned her on two different occasions during April 1998 to ask about C.B. and to ask if "they" had decided to give "them" the baby. S.W. again offered money. T.H. told her that the baby would be placed for adoption. S.W. did not state that S.C.W. had changed his mind about C.B.'s decision to place the child for adoption. T.H. did not hear from S.W. and A.W. again until September 1998. At some point during C.B.'s pregnancy, S.W. and A.W. retained the services of a lawyer for S.C.W. The lawyer never told S.C.W. about the Putative Father Registry Act. T.H. and C.B. also retained a lawyer to advise C.B. of her legal obligations with regard to the planned adoption.
On July 21, 1998, C.B. chose R.E.L. and C.A.L. from a list of anonymous profiles to be her baby's adoptive parents. That same day, C.B. talked to C.A.L. on the telephone and arranged a meeting with R.E.L. and C.A.L. C.B., R.E.L., and C.A.L. discussed the idea of an open adoption whereby the child would know C.B. and would spend time with her, and they made plans for R.E.L. and C.A.L. to participate in the remainder of C.B.'s pregnancy and upcoming birth.1
In August 1998, C.B. returned to high school to finish her senior year. She saw S.C.W. at a party in August, but the two did not talk. On August 22, 1998, C.B. received a letter from S.C.W.'s attorney, stating that because it was known that S.C.W. was the biological father, S.C.W. wanted to participate in the birth and to assume custody of the child. C.B. did not respond to the letter, because it was not known at the time if S.C.W. was indeed the biological father. Also in August 1998, S.C.W. was arrested for possession of alcohol as a minor.
S.C.W. telephoned C.B.'s family once in September and again in October 1998, stating that he needed to get insurance and a baby-sitter for the child if the child was going home with him. A.W. telephoned T.H. on October 19, 1998, stating that "This has dragged on for eight months and we have given y'all every opportunity to talk to us and want you to understand that the actions we are about to take are going to embarrass you."
In October 1998 the child was born. On that same day, C.B., with her mother and her attorney present, executed a voluntary consent and relinquishment of custody of the child, for the purpose of placing her for adoption by R.E.L. and C.A.L.
Before the child's birth, R.E.L. and C.A.L. went to doctor's appointments and birthing classes. R.E.L. and C.A.L. were present during the birth, and the child has been in their custody and care since that day.
In Autauga County, on October 30, 1998, R.E.L. and C.A.L. filed a request for appointment of a guardian ad litem for C.B. and the child; a nomination of guardian ad litem for C.B.; an acknowledgement of minor birth parent; an affidavit of natural parent; and a consent of minor for adoption by R.E.L. and C.A.L. The probate judge appointed a guardian ad litem for C.B. and one for the child.
In Elmore County, on October 30, 1998, S.C.W. filed a notice of declaration of legitimation; a petition for a name change; and a request for an immediate hearing. Contrary to §§ 26-11-2 and -3, the Elmore County probate judge issued an ex parte order setting a hearing on November 10, 1998, on the petition for legitimation and request for a name change.
On October 31, 1998, C.B. was served through her mother, T.H., with the hearing notice from Elmore County. R.E.L. and C.A.L. were never served or made parties to the legitimation proceedings. On November 9, 1998, C.B. filed a nomination of guardian ad litem in the Elmore County proceedings. C.B. also filed an objection to the legitimation proceeding and a motion for a continuance. S.C.W. filed an objection to C.B.'s motion for a continuance.
In Autauga County, on November 10, 1998, R.E.L. and C.A.L. filed their petition for adoption, pursuant to the requirements of § 26-10A-16. The Autauga County probate judge, pursuant to § 26-10A-18, issued an interlocutory order giving R.E.L. and C.A.L. legal custody of the child pending the final order of adoption.
Also on November 10, 1998, in Elmore County, the probate judge, without having jurisdiction over R.E.L., C.A.L., or the child, and under objection of C.B.'s guardian ad litem, held a hearing on the legitimation petition. The probate judge ordered that the Autauga County proceedings be suspended and that blood tests be performed. He also made rulings on custody and visitation. The probate judge appointed G.H. as a guardian ad litem for the child.
During this proceeding, the Elmore County probate judge, contrary to § 26-10A-31, ordered that the identity of the potential adoptive parents and their residence be disclosed in open court. This information was discovered through a subpoena duces tecum, without compliance with Rule 45(a)(3)(A), Ala.R.Civ.P., because notice was not properly given. At that time, S.C.W. and his counsel were placed on notice of the Autauga County proceedings as well as the identity and the residence of the potential adoptive parents.
On November 12, 1998, C.B. filed a notice of appeal of the legitimation proceeding and a motion for a stay. She also moved to transfer the case to the Elmore County Circuit Court and for a stay of judgment.
Even though the Elmore County probate judge's order was on appeal, based on lack of jurisdiction, and there was a motion to stay and a petition for removal to the circuit court, guardian ad litem G.H. obtained an ex parte order from the probate judge to take the child to a hospital for genetic testing.
On November 13, 1998, C.B. sought and received a temporary restraining order from the Elmore County Circuit Court. The circuit court set a hearing for the appeal of the legitimation proceeding for November 23, 1998. On November 18, 1998, S.C.W. moved for custody in the legitimation appeal.
On November 23, 1998, a hearing on the legitimation proceeding was held, over the objection of C.B.'s guardian ad litem, because C.B. was not able to attend the hearing due to a physician's order that she remain in bed. The circuit judge orally ordered that S.C.W. have custody of the child. However, R.E.L., C.A.L., and the child had not been made parties to this case and had not been afforded an opportunity to be heard. Apparently, the circuit court was not aware that in Autauga County an interlocutory order of adoption had been entered awarding custody of the child to R.E.L. and C.A.L.
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