T.C.M. v. W.L.K., 2160032

• Decision Date: 28 April 2017
• Docket Number: 2160032
• Citation: 248 So.3d 1
• Court: Alabama Court of Civil Appeals
• Parties: T.C.M. and C.N.M. v. W.L.K. W.L.K. v. T.C.M. and C.N.M.

248 So.3d 1

T.C.M. and C.N.M.

v.W.L.K.

W.L.K.

v.T.C.M. and C.N.M.

2160032

Court of Civil Appeals of Alabama.

April 28, 2017

Rehearing Denied June 16, 2017

Certiorari Denied August 25, 2017

Alabama Supreme Court 1160867

Robert E. Lusk, Jr., of Lusk Law Firm, LLC, Fairhope; and Bryant Andrew Whitmire, Jr., Birmingham, for appellants/cross-appellees T.C.M. and C.N.M.

Richard L. Wyatt, Homewood; and Robert M. Echols, Jr., Birmingham, for appellee/cross-appellant W.L.K.

THOMAS, Judge.

This is the eighth time these parties—W.L.K. ("the father") and T.C.M. and C.N.M. ("the prospective adoptive parents")—have appeared before this court seeking review of one or another court's orders respecting the custody of M.M. ("the child"). See Ex parte W.L.K., 175 So.3d 652 (Ala. Civ. App. 2015) (plurality opinion) (" W.L.K. I"); T.C.M. v. W.L.K. (No. 2130936, February 27, 2015), 206 So.3d 593 (Ala. Civ. App. 2015) (table) (appeal dismissed); Ex parte T.C.M. (No. 2140717, June 30, 2015), 212 So.3d 241 (Ala. Civ. App. 2015) (table) (petition denied); Ex parte W.L.K., 222 So.3d 357 (Ala. Civ. App. 2015) (" W.L.K. II") (ordering the Jefferson Probate Court to enter an order dismissing the adoption action in compliance with W.L.K. I ); T.C.M. v. W.L.K., 208 So.3d 39 (Ala. Civ. App. 2016) (" T.C.M. II") (determining that the Jefferson Juvenile Court could not enter a pickup order directing that the child be removed from the custody of the prospective adoptive parents); Ex parte T.C.M. (No. 2150935, September 16, 2016), 231 So. 3d 330 (Ala. Civ. App. 2016) (table) (petition dismissed as moot); and T.C.M. v. W.L.K., 237 So.3d 238 (Ala. Civ. App. 2017) (released today).

The Facts and Procedural History

The basic procedural history underlying these appeals was set out in W.L.K. I, 175 So.3d at 654–55 :

"[The father] and S.F. (‘the mother’) were involved in a relationship between April and July 2012; they lived together in the father's house in Middleburg, Florida, during that period. The mother became pregnant early in the relationship, and she and the father had begun preparing for the baby by purchasing baby items. However, the mother left the father in July 2012, and, after she broke into the father's house and stole several items, the father swore out a warrant against her. The mother was arrested, and, after that, the father lost contact with her. In December 2012, the father, who is in the United States Navy, contacted an attorney in the Judge Advocate General about his situation; that attorney referred the father to a nonmilitary attorney, who assisted the father by instituting a paternity and custody action in a Florida court in January 2013. The father registered with the putative father registry in Florida. The father attempted to locate the mother at nearby hospitals on January 18, 2013, the expected date of delivery. However, the father was unable to locate the mother.

"On January 9, 2013, the mother gave birth to [the child] in Montgomery, Alabama. The mother had consented to an adoption of the child by [the prospective adoptive parents], who were present at the birth and who took the child home from the hospital. On January 29, 2013, the prospective adoptive parents filed a petition to adopt the child in the Jefferson Probate Court.

"The father first learned of the birth of the child in Alabama on March 1, 2013. After he was served with an amended petition to adopt the child on March 25, 2013, and upon the advice of his Florida counsel, the father sought legal counsel in Alabama. He filed a contest to the adoption petition and a motion to dismiss the adoption petition on April 11, 2013.

"As required by Ala. Code 1975, § 26–10A–24(a), the probate court held a contested hearing on the father's contest to the adoption petition on September 26, 2013. At issue was whether the father had impliedly consented to the child's adoption pursuant to the theory of ‘prebirth abandonment,’ under which consent to an adoption may be implied based on abandonment if a father fails, ‘with reasonable knowledge of the pregnancy, to offer financial and/or emotional support for a period of six months prior to the birth.’ Ala. Code 1975, § 26–10A–9(a)(1). After hearing the testimony of the father and T.C.M., the probate court entered an order on March 19, 2014, concluding that the father had not impliedly consented to the adoption and specifically rejecting the contention that the father's conduct had amounted to an abandonment of the mother during her pregnancy."

This court determined in W.L.K. I that the probate court had been required by Ala. Code 1975, § 26–10A–24(d), to dismiss the prospective adoptive parents' adoption petition after it had decided the father's adoption contest in his favor. 175 So.3d at 659. After the resolution of the father's first petition for the writ of mandamus in W.L.K. I, the probate court failed to enter a judgment dismissing the prospective adoptive parents' adoption petition, so the father filed a second petition for the writ of mandamus to compel the probate court to do so. W.L.K. II, 222 So. 3d at 358. This court ordered the probate court to enter a judgment awarding the prospective adoptive parents reimbursement for the costs of caring for the child in compliance with W.L.K. I and § 26–10A–24(d), id. at 360–, which the probate court did on October, 3, 2016, after the prospective adoptive parents' petition for the writ of certiorari in W.L.K. II was denied by the Alabama Supreme Court. See Ex parte T.C.M., 222 So. 3d 360 (Ala. 2016). The prospective adoptive parents have appealed the October 3, 2016, judgment, arguing that the probate court erred by not concluding that the father's consent to the adoption was irrevocably implied under Ala. Code 1975, § 26–10A–9(a)(5), by his failure to register with the Alabama Putative Father Registry, codified at Ala. Code 1975, § 26–10C–1, and that the evidence does not support the probate court's conclusion that the father did not abandon the child under § 26–10A–9(a)(1). The father has filed a cross-appeal of the probate court's October 3, 2016, judgment, seeking its reversal insofar as it assessed against him one-half of the $4,200 guardian ad litem fee and "all additional costs of court" related to the action.¹

In its judgment, the probate court recounted the history of the parents' brief relationship. The probate court found that the father and the mother had begun planning for the arrival of the child after they learned of the mother's pregnancy. The probate court found that the father was unaware of the mother's reasons for leaving the home they shared on July 5, 2012, but commented that the parties had had an argument about the mother's smoking during her pregnancy. The probate court recounted that the father had discovered that the mother had broken into the house and stolen some of his property and that, as a result, the mother was arrested.

The probate court found that the father had not had contact information for the mother after her arrest and that he had taken legal steps to safeguard his parental rights, including seeking advice from the Judge Advocate General, who referred him to a nonmilitary attorney, who instituted a paternity and custody action on the father's behalf. The probate court also found that the father had registered with the Florida Putative Father Registry. The probate court noted that the father had learned that the mother had been planning to have the child adopted by a couple from New York. In addition, the probate court found that the father, once he learned of the child's birth in Alabama and the pending adoption proceeding, had registered with the Alabama Putative Father Registry and had contacted the prospective adoptive parents to seek visitation with the child. Based on the testimony and documentary evidence, the probate court concluded that the father had not impliedly consented to the adoption of the child.

The Prospective Adoptive Parents' Appeal

The prospective adoptive parents first argue that the father's failure to timely register with the Alabama Putative Father Registry resulted in his irrevocable implied consent to the adoption under § 26–10A–9(a)(5) and Ala. Code 1975, § 26–10C–1(i), and, thus, that his consent to the adoption was not required under Ala. Code 1975, § 26–10A–7(a)(5). The prospective adoptive parents rely on the general rule that adoption statutes require strict adherence to their requirements. See Anderson v. Hetherinton, 560 So.2d 1078, 1079–80 (Ala. Civ. App. 1990). They further contend, without citation to authority, that "there is no provision ... for substantial compliance" with the Alabama Putative Father Registry.

The probate court did not expressly decide any issue related to the application of § 26–10A–7(a)(5), § 26–10A–9(a)(5), or § 26–10C–1 in its judgment. Instead, it appears that the probate court either determined that the father's registration with the Florida Putative Father Registry was substantial compliance with the requirement that the father register with the Alabama Putative Father Registry or that Florida law should control the determination of whether the father's consent was required, both of which potential legal bases were argued to the probate court. The prospective adoptive parents do not provide this court with caselaw or other legal authority regarding either of those potential bases for the probate court's judgment, and we are not required to do their research on those issues. See Legal Sys., Inc. v. Hoover, 619 So.2d 930, 932 (Ala. Civ. App. 1993) ("It is not the duty nor function of an appellate court to perform a party's legal research."). Accordingly, we will not further consider the issue whether the father's failure to timely register with the Alabama Putative Father Registry should be fatal to his contest of the adoption.

We turn now to the prospective adoptive parents' argument that the evidence presented does not support the probate court's conclusion that the father did not...