Z.W.E. v. L.B. (Ex parte Z.W.E.)

• Decision Date: 26 March 2021
• Docket Number: 1190748
• Citation: 335 So.3d 650
• Parties: EX PARTE Z.W.E. (In re: Z.W.E. v. L.B.)
• Court: Alabama Supreme Court

335 So.3d 650

EX PARTE Z.W.E.(In re: Z.W.E.

v.L.B.)

1190748

Supreme Court of Alabama.

March 26, 2021

Sheri W. Stallings, Centre, for petitioner.

Joan-Marie Sullivan of Sullivan Banks Law LLC, Huntsville, for respondent.

PER CURIAM.

Z.W.E. ("the alleged father"), the alleged father of a child ("the child") of L.B. ("the mother"), petitioned this Court for a writ of certiorari to review the Court of Civil Appeals’ decision in Z.W.E. v. L.B., 335 So. 3d 634 (Ala. Civ. App. 2020), affirming the Jackson Juvenile Court's dismissal of the alleged father's petition to establish the paternity of the child. We granted certiorari review to consider, as an issue of first impression, whether the term "child," as used in § 26-17-204(a)(5), Ala. Code 1975, a part of the Alabama Uniform Parentage Act ("the AUPA"), § 26 - 17 - 101 et seq., Ala. Code 1975, includes unborn children.

Facts and Procedural History

The alleged father and the mother were in a dating relationship and cohabited from February 2018 until August 2018, during which time the child was conceived. According to the alleged father's filing in the juvenile court,

"from the time of conception the [mother] held the child out to be the child of the [alleged father], announced it publicly and shared in preparation for the birth of the child with the [alleged father] and his family. [The alleged father] at no time denied paternity of the child and expressed both privately and publicly his desire to act as a father to the child, ... he held the child out as his own and provided financial and emotional support to the mother during the pregnancy."

However, according to the alleged father, beginning in mid-November 2018, the mother "refused to have any contact with the [alleged father] or his family." Subsequently, on November 14, 2018, the mother married Z.A.F. ("the husband").

On November 19, 2018, the alleged father filed a petition seeking to establish the paternity of the unborn child. On December 26, 2018, the child was born. On February 15, 2019, the mother filed a motion to dismiss the alleged father's petition. The mother argued that the husband is the presumed father of the child under § 26-17-204(a)(1), Ala. Code 1975 ("A man is presumed to be the father of a child if ... he and the mother of the child are married to each other and the child is born during the marriage."), and that the husband had persisted in his status as the legal father of the child. Accordingly, the mother argued, the husband's presumption of paternity could not be challenged. See § 26-17-607(a), Ala. Code 1975 ("If the presumed father persists in his status as the legal father of a child, neither the mother nor any other individual may maintain an action to disprove paternity.").

On April 3, 2019, the alleged father filed a response to the mother's motion to dismiss. Although the alleged father failed to cite the applicable portion of the AUPA, the alleged father argued that he, too, is a presumptive father of the child:

"The [alleged father] asserts that from the time of conception the [mother] held the child out to be the child of the [alleged father], announced it publicly and shared in preparation for the birth of the child with the [alleged father] and his family. [The alleged father] at no time denied paternity of the child and expressed both privately and publicly his desire to act as a father to the child, therefore [the alleged father] asserts that he is the presumed father because prior to the marriage he held the child out as his own and provided financial and emotional support to the mother during the pregnancy."

Section 26-17-204(a)(5) is the applicable portion of the AUPA that is at issue in this case, and it states:

"(a) A man is presumed to be the father of a child if:

"....

"(5) while the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child or otherwise openly holds out the child as his natural child and establishes a significant parental relationship with the child by providing emotional and financial support for the child."

Based on his argument that he is also a presumptive father of the child, the alleged father requested an evidentiary hearing to present evidence proving that he had persisted in his status as a legal father of the child and, in addition, requested that, upon establishing that he, too, is a presumptive father of the child, the juvenile court hold an evidentiary hearing pursuant to § 26-17-607(b), Ala. Code 1975, which states:

"(b) A presumption of paternity under this section may be rebutted in an appropriate action only by clear and convincing evidence. In the event two or more conflicting presumptions arise, that which is founded upon the weightier considerations of public policy and logic, as evidenced by the facts, shall control. The presumption of paternity is rebutted by a court decree establishing paternity of the child by another man."

(Emphasis added.)

On May 23, 2019, the juvenile court entered an order granting the mother's motion to dismiss the alleged father's paternity action. The juvenile court determined that the husband is the presumed father of the child under § 26-17-204(a)(1) and that the husband had persisted in his status as the legal father of the child. The juvenile court's order states that the juvenile court held a hearing before entering its order and that, at the hearing, it "heard oral argument from both counsel and took the matter under advisement based on the pleadings herein." Based on the above-quoted language from the juvenile court's order, it is apparent that the juvenile court did not hold an evidentiary hearing to determine whether the alleged father persisted in his claimed status as a legal father of the child, and, thus, concluded that the alleged father is not a presumptive father of the child. Obviously, having concluded that the alleged father is not a presumptive father of the child, there was no reason for the juvenile court to hold an evidentiary hearing under § 26-17-607(b) as requested by the alleged father. After his postjudgment motion was denied, the alleged father appealed to the Court of Civil Appeals.

Before the Court of Civil Appeals, the alleged father argued that the juvenile court had erred in refusing to hold an evidentiary hearing to determine whether he persisted in his claimed status as a legal father of the child under § 26-17-204(a) and, assuming that the alleged father would have demonstrated his status as a presumptive father under § 26-17-204(a), in refusing to hold a subsequent evidentiary hearing pursuant to § 26-17-607(b). The alleged father argued that he is a presumptive father under § 26-17-204(a) based on the facts that he held out the child as his own since the child's conception, that he provided both financially and emotionally for the mother and the child during the mother's pregnancy, and that he has persisted in his status as the legal father of the child. Essentially, the alleged father argued that his prebirth conduct toward and support of the child and his persistence in his parenthood is sufficient to establish himself as a presumptive father of the child under § 26-14-204(a).

The Court of Civil Appeals rejected the alleged father's argument. The Court of Civil Appeals stated that, "[a]s § 26-17-204(a) is currently written, none of the provisions conferring the status of a presumed father applies to the facts of this case." Z.W.E., 335 So. 3d at 639. More specifically, the Court of Civil Appeals concluded that

"the AUPA as written currently does not provide for the recognition of prebirth emotional and financial support as a basis for conferring the status of presumed father, and this court cannot expand § 26-17-204(a) to shoehorn the facts of this case into fitting the provisions that do allow for such a status. ... Accordingly, we reject the alleged father's assertion that his prebirth support of the child confers upon him the status of a presumed father."

Id. at 641. Based on the above-quoted conclusion, the Court of Civil Appeals went on to further state that the alleged father lacked capacity to challenge the husband's status as the legal father of the child and, thus, concluded that the juvenile court had not erred in granting the mother's motion to dismiss the alleged father's paternity action. The Court of Civil Appeals specifically stated: "As we have previously held, the alleged father is not a ‘presumed father’ under the AUPA. Accordingly, the alleged father had no capacity to bring this action. The trial court was never required or even authorized [under § 26-17-607(b) ] to weigh the competing presumptions the alleged father attempts to establish." Id. at 644.

Judge Moore dissented from the Court of Civil Appeals’ decision, stating, among other things, that he disagreed "that the alleged ... father cannot, under the facts asserted, be considered a presumed father of the child." Z.W.E., 335 So. 3d at 647 (Moore, J., dissenting). Judge Moore concluded that the alleged father could be a presumed father under § 26-17-204(a)(5) if the alleged father could prove his allegations that "the alleged ... father ..., while the mother was pregnant, ... cohabited with the mother, ... openly acknowledged his paternity of the child, and ... provided the mother emotional and financial support." Z.W.E., 335 So. 3d at 648 (Moore, J., dissenting). Judge Moore explained that the word "child," as that term is used in § 26-17-204(a)(5), includes an unborn child. In so concluding, Judge Moore relied upon (1) this Court's decision in Ex parte Ankrom, 152 So. 3d 397, 411 (Ala. 2013), in which this Court, "when discussing the plain meaning of the word ‘child’ in the context of the criminal chemical-endangerment statute, held that the undefined term ‘child’ in that statute includes an unborn child," and (2) "Act No. 2019-189, Ala. Acts 2019, which is codified as Ala. Code 1975, § 26-23H-1 et seq., and which defines a ‘child’ a...