
    J.N.F. v. A.S., C.S., and L.C.S.
    2011009.
    Court of Civil Appeals of Alabama.
    May 23, 2003.
    Dani V. Bone, Gadsden, for appellant.
    Leon Garmon, Gasden, for appellees.
   PITTMAN, Judge.

This appeal arises from a judgment of the Etowah Probate Court permitting the adoption of C.L.S. (“the child”), born in June 2001 to L.C.S. (“the mother”), by C.S. and A.S., the mother’s parents (“the petitioners”).

In March 2002, the petitioners filed their petition in the Etowah Probate Court, seeking to adopt the child; the petitioners identified the mother as being the only known person “from whom consents and relinquishments to th[e] adoption are required by law” and they alleged that the child had resided in their home since her birth. The mother gave written consent to the adoption of the child by the petitioners, and the probate court entered an order on March 26, 2002, awarding pendente lite custody of the child to the petitioners and setting a “dispositional hearing” for June 19, 2002. The probate court further directed that notice of the proceedings be served in the manner prescribed by § 26-10A-17, Ala.Code 1975, which provided, at the time of the probate court’s order, that “notice of pendency of [an] adoption proceeding shall be served by the petitioner on,” among other persons, “[t]he father and putative father of the adoptee if made known by the mother or otherwise known by the court.” Section 26-10A-17(a)(10). Section 26-10A-17(c) provides for service “by publication, by posting, or by any other substituted service” upon a putative father “[i]f the identity or whereabouts of the parent is unknown, or if the one parent fails or refuses to disclose the identity or whereabouts of the other parent.”

On April 10, 2002, the probate court directed that notice to “the unknown or undisclosed parent of [the child]” of the June 19, 2002, adoption proceedings be published at the expense of the petitioners. The notice of adoption was published for four consecutive weeks in a newspaper of general circulation in Etowah County; it was last published on May 8, 2002. On June 4, 2002, within 30 days of the final publication date of the notice of adoption, an attorney filed in the probate court a notice of his appearance on behalf of a man claiming to be the child’s father, J.N.F. (“the putative father”); the putative father also filed an “objection” to the adoption, averring that hé was a “fit and proper person” to have custody of the child and that DNA testing should be ordered to ascertain the child’s paternity.

The record does not reflect what transpired at the June 19, 2002, hearing on the adoption petition; however, the parties in the briefs to this court contend that the probate court gave them permission to file exhibits. On June 20, 2002, the putative father filed a number of documents in the probate court, including a calendar that, the putative father alleged, reflected the number of days the child had spent in the putative father’s home, a pediatric-clinic record signed by the mother identifying the putative father as the child’s father, and documents indicating expenditures by the putative father’s family on behalf of the child for day care and medical care. On June 21, 2002, the petitioners filed copies of papers that, they alleged, concerned the circumstances of the putative father’s separation from military service. Finally, on June 25, 2002, the putative father submitted additional financial documents that he claimed showed day-care expenditures made by him on behalf of the child.

The probate court’s judgment from which the putative father appeals is dated June 19, 2002; however, the parties contend that that judgment was not “filed” (i.e., entered) until June 25, 2002. The probate court’s judgment is in the same typeface as the petitioners’ filings, and it appears to be based on a judgment form supplied by the petitioners. In its judgment, the probate court stated, in pertinent part:

“This above-styled cause is now properly before the Court for disposition; and it now appears that an Interlocutory Order has been entered in this matter ...; .that due and proper notice of these proceedings has been perfected on those entitled; that all required consents to the adoption have been placed of record; and that all other requisites of law have been met; and on motion the Court proceeds; and
“The Court being satisfied from clear and convincing , evidence adduced that the facts alleged in said petition are true; that the adoptee has been in the actual physical custody of the Petitioner(s) for a period of sixty (60) days or more; that there has been no contest or objections brought in this cause; that the Petitioner(s) is/are suitable to be the parent(s) of said adoptee and he/she/ they desires to establish a parent/child relationship with the adoptee; that the best interest of the adoptee will be served by granting the petition; and that a change [of name of the adoptee and a change] of guardianship to the Petitioner(s) is proper.
“It is therefore ORDERED, ADJUDGED AND DECREED by the Court that the Petition for leave to adopt ... be and the same is hereby granted....”

(Emphasis added; bracketed language in the original.)

On appeal from the probate court’s judgment, the putative father contends that the probate court’s judgment is based upon an incorrect premise, i.e., that there were no contests or objections to the adoption. The record clearly indicates that the probate court’s judgment on this point is in error — the putative father, within 30 days of receiving notice of the adoption proceedings, appeared through counsel and filed an objection to the adoption. The probate court, in rendering a judgment on a form that appears to have been supplied by counsel for the petitioners, erroneously failed to address the merits of the putative father’s contest as required by § 26-10A-24(a), which mandates that a hearing be set to determine, among other things, the best interests of the adoptee and the validity of any actual or implied consents to adoption “[w]henever a motion contesting the adoption is filed.” Moreover, we note that, in overlooking the putative father’s contest of the adoption, the probate court failed to comply with § 26-10A-22, Ala. Code 1975, which requires the appointment of a guardian ad litem “[i]n the event of a contested adoption.”

The probate court’s failure to address the merits of the putative father’s contest of the adoption sought by the petitioners necessitates that we reverse the probate court’s judgment. We therefore do not address the putative father’s second argument concerning whether the putative father has consented to the adoption of the child, either expressly or by his conduct, or whether his parental rights should be terminated. We remand the cause to the probate court for that court to address the putative father’s contest.

In reversing the probate court’s judgment and remanding this case, however, we note that the law in this area is in a state of relative flux. As the putative father correctly notes, a number of recent opinions issued by the Alabama Supreme Court and this court have considered the procedural and substantive rights of putative fathers in adoption cases under the versions of the Alabama Adoption Code, § 26-10A-1 et seq., Ala.Code 1975, and the Putative Father Registry Act, § 26-10C-1 et seq., Ala.Code 1975, in effect at the time those cases were decided. E.g., Ex parte F.P., 857 So.2d 125 (Ala.2003) (plurality opinion); Ex parte S.C.W., 826 So.2d 844 (Ala.2001); Ex parte C.V., 810 So.2d 700 (Ala.2001) (plurality opinion); K.L.B. v. W.M.F., 864 So.2d 333 (Ala.Civ.App.2002) (plurality opinion). However, in April 2002, the Legislature enacted Act No. 2002-417, 2002 Ala. Acts, which made significant changes to the Alabama Adoption Code and the Putative Father Registry-Act, especially as to whether a putative father, by his failure or refusal to register with the Department of Human Resources, impliedly consents to an adoption. Moreover, in Section 3 of Act No. 2002-417, the Legislature expressly gave those amendments retroactive effect to January 1, 1997. In addressing the putative father’s contest, the probate judge will necessarily be called upon to consider the effect of those legal developments upon the rights of the litigants in this case, including whether application of Act No. 2002-417 to the father in this case would violate § 95 of the Alabama Constitution of 1901. See Ex parte F.P., supra. Because of the scant record in this case, we deem it prudent to leave those issues for a determination in the first instance by the probate court on remand.

REVERSED AND REMANDED.

MURDOCK, J., concurs in the result.

YATES, P.J., and CRAWLEY, J., concur in the result in part and dissent in part.

THOMPSON, J., dissents.

MURDOCK, Judge,

concurring in the result.

I concur in the result reached by the main opinion. I write separately only to note the following: The main opinion references a potential issue relating to § 95 of the Alabama Constitution. Judge Thompson responds to this reference in his dissent, discussing our Supreme Court’s holding in Ex parte F.P., 857 So.2d 125 (Ala.2003). Among other things, our Supreme Court stated in Ex parte F.P. that “the father’s rights had vested before the passage of Act No. 2002-417[, Ala. Act. 2002,] and [, therefore,] that Act cannot be applied retroactively as to him” under Article IV, § 95, Ala. Const, of 1901. 857 So.2d at 138. The Supreme Court also stated in Ex parte F.P.: “[W]e do not address the arguments concerning the constitutionality of the substantive provisions of the Act in proceedings where § 95 is not at issue; we leave those questions for another day.” 857 So.2d at 138.

There may well be potential issues concerning the retroactive nature of the 2002 amendments to the Putative Father Registry Act; however, those issues have not been raised and I therefore would not address them.

YATES, Presiding Judge,

concurring in the result in part and dissenting in part.

I agree with the.main opinion that the case should be remanded to the probate court because J.N.F. attempted to contest the adoption. However, I believe the probate court should address whether J.N.F. was the “presumed” father before addressing his challenge to the adoption as a “putative” father. Although J.N.F. does not specifically contend that he is the child’s “presumed” father under § 26-10A-7(a)(3), Ala.Code 1975, there is a question of fact as to whether J.N.F., “regardless of paternity,” “received the adop-tee into his home and openly held out the adoptee as his own child.” See also § 26-17 — 5(a)(4) of the Alabama Uniform Parentage Act. Consent of the adoptee’s presumed father is necessary. There is evidence in the record indicating that J.N.F., the mother, and the child lived with the paternal grandmother for a short period. J.N.F. and the paternal grandmother paid medical bills and day-care expenses for the child. Also, on a medical-information sheet the mother provided to the child’s doctor, the mother acknowledged that J.N.F. was the father. I would remand the case for the probate court to determine whether the evidence would be sufficient to support a finding that J.N.F. was the presumed father under § 26-10A-7(a)(3)(d). If there is sufficient evidence to support such a finding, then the probate court should address whether he impliedly consented to the adoption under § 26-10A-9. If the probate court does not find that J.N.F. is the presumed father, then the court should address the adoption contest in terms of J.N.F’s status as a putative father.

CRAWLEY, J., concurs.

THOMPSON, Judge,

dissenting.

On April 17, 2002, the Alabama Legislature enacted amendments to the Alabama Adoption Code, § 26-10A-1 et seq., Ala. Code 1975, and the Putative Father Registry Act, § 26-10C-1 and -2, Ala.Code 1975. See Act No. 2002-417, Ala. Acts 2002. One of the primary changes created by the enactment of Act No. 2002-417 was the amendment of the Alabama Adoption Code and the Putative Father Registry Act so that each enactment now cross-references the other. See § 26-10A-7(a)(5), Ala.Code 1975; § 26-10A-9(a)(5), Ala.Code 1975; and § 26-10C-1®, Ala. Code 1975. Thus, because the Legislature has clearly dictated that those provisions of the Alabama Adoption Code and the Putative Father Registry Act deal with the same subject matter, those provisions must be construed in pari materia. Tuders v. Kell, 739 So.2d 1069 (Ala.1999).

In this case, the child was born on June 10, 2001; therefore, the provisions of the Alabama Adoption Code, as amended by Act No. 2002-417, apply to govern this action. See Act No. 2002-417, § 3, Ala. Acts 2002 (providing that the act has retroactive effect to January 1, 1997). After the petitioners filed their petition to adopt the child, the trial court ordered that notice by publication be provided, pursuant to § 26-10A-17(a)(10), Ala.Code 1975, to any putative father of the child. Upon receiving notice by publication of the adoption proceedings, J.N.F. filed a document on June 4, 2002, entitled “objection to [the] adoption.” In that filing, J.N.F. objected to the adoption, contended that he was the child’s natural father and that he was the fit and proper person to have custody of the child, and requested a DNA test to establish his paternity of the child.

J.N.F. does not contend that he is the child’s presumed father under § 26-10A-7(a)(3), Ala.Code 1975, and the record does not support an inference that he is the child’s presumed father. There is no evidence that the mother and J.N.F. ever married or attempted to marry, or that J.N.F. received the child into his home and held the child out as his own. See § 26-10A-7(a)(3), Ala.Code 1975. Also, the paternity of the child has never been established. Therefore, I conclude that J.N.F. is a putative father of the child. See In re Adoption of J.C.P., [Ms. 2010594, Aug. 16, 2002] — So.2d - (Ala.Civ.App.2002) (concluding, under facts similar to those in this case, that the appellant was not the presumed father but was a putative father of the child at issue).

Act No. 2002-417, among other things, amended § 26-10A-7, Ala.Code 1975, which sets forth the persons whose relinquishment or consent to an adoption is required. Section 26-10A-7, as amended, now provides in pertinent part that consent to an adoption shall be required from

“[t]he putative father if made known by the mother or is otherwise made known to the court provided he complies ivith Section 26-10C-1 [of the Putative Father Registry Act] and he responds within 30 days to the notice he receives under Section 26-10A-17(a)(10).”

§ 26-10A-7(a)(5), Ala.Code 1975 (emphasis added).

Thus, pursuant to the amendments to the Alabama Adoption Code effected by Act No. 2002-417, a putative father’s consent for an adoption is required only where the putative father responds within 30 days to notice of the adoption and “complies with Section 26-10C-1.” § 26-10A-7(a)(5), Ala.Code 1975. Section 26-10C-1, Ala.Code 1975, sets forth the method by which a putative father must register his intent to claim paternity of a child with the Department of Human Resources.,' The record in the instant case does not indicate that J.N.F-. complied with § 26-10C-1 by registering under the putative-father registry; J.N.F. made no assertion before the trial court or in his brief to this court that he did in fact comply with § 26-10C-1. Therefore, under the clear terms of § 26-10A-7, as amended, J.N.F.’s consent to the adoption was not required.

Further, I conclude that, given the changes in the Alabama Adoption Code and the Putative Father Registry Act created by the enactment of Act. No.2002-417, J.N.F. was not a person entitled to file a contest to the adoption proceedings. The Putative Father Registry Act, as amended by Act No. 2002-417, now provides in pertinent part:

“(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.
“This subsection shall be the exclusive procedure available for any person who claims to be the natural father of a child bom out of wedlock on or after January 1, 1997, to entitle that person to notice of and the opportunity to contest any adoption proceeding filed and pending on or after January 1, 1997.”

§ 26 — 10C—l(i), Ala.Code 1975 (emphasis added). Thus, as I interpret the newly amended Putative Father Registry Act, J.N.F.’s- failure to comply with that section precludes him from filing a valid contest to the adoption. Section 26 — 10C—1 (i) now provides the exclusive method by which a putative father is “entitle[d] ... to notice of and the opportunity to contest” any pending adoption proceeding. (Emphasis added.) Therefore, because J.N.F. did not comply with § 26-10C-1, I believe that he is precluded from contesting the adoption of the child.

In Ex parte F.P., 857 So.2d 125 (Ala.2003), the supreme court recognized the implications of Act No. 2002-417 and its retroactive effect on the constitutional rights of a putative father. In Ex parte F.P., the putative father filed a “petition to determine father and child relationship” on July 1, 1999, in which he alleged that he had registered with the putative-father registry; the father registered, pursuant to the Putative Father Registry Act, more than two years prior to the enactment of Act No. 2002-417. 857 So.2d at 137. The supreme court held that the putative father’s constitutional rights had vested before the passage of Act No. 2002-417, and, therefore, the father had a defense to the adoption action filed by the adoptive parents. Ex parte F.P., 857 So.2d at 138.

Unlike the putative father in Ex parte F.P., the record in the instant case does not indicate that J.N.F. registered as a putative father pursuant to the Putative Father Registry Act. Moreover, J.N.F. first filed his notice of appearance on June 4, 2002, 48 days after Act No. 2002-417 was enacted by the Legislature. It is clear that, in applying the supreme court’s holding in Ex parte F.P. to the facts before us in the instant case, J.N.F.’s rights did not vest and the retroactive application of Act No. 2002-417 was proper.

In its judgment, the trial court determined that all required consents to the adoption had been provided, and that no contest to the adoption proceeding had been filed. Although J.N.F. filed a document in which he sought to object to the adoption of the child, because of his failure to comply with § 26-10C-1, Ala.Code 1975, as amended, J.N.F. was not a person entitled to contest the adoption. See § 26-10C-l(i), Ala.Code 1975. Therefore, the trial court was correct in determining that no contest to the adoption had been filed, because no person entitled to file a contest to the adoption proceedings did so. I believe that in reaching the findings contained in its judgment, the trial court properly interpreted the Alabama Adoption Code and the Putative Father Registry Act, as amended by Act No. 2002-417. I would affirm the trial court’s judgment, which approves the petitioner’s petition to adopt the child. Therefore, I must respectfully dissent. 
      
      . We note that no case number has been assigned by the probate court.
     
      
      . Section 26-10A-17 was amended in 2002; however, the quoted language was unchanged by the-amendment.
     
      
      . We also note that the Alabama Adoption Code, § 26-10A-1 et seq., Ala.Code 1975, in addition to requiring the appointment of a guardian ad litem to represent the adoptee in a contested-adoption proceeding, also requires the appointment of a guardian ad litem to represent the interests of a minor parent when that parent’s consent is required for an adoption. See § 26-10A-8(a), Ala.Code 1975. The mother of the child was a minor at the inception of this action.
     
      
      . A man is presumed to be the natural father of the child if "[w]hile the child is under the age of majority, he receives the child into his home or otherwise openly holds out the child as his natural child.”
     
      
      . In Ex parte S.C.W., 826 So.2d 844 (Ala.2001), our supreme court, relying on a dissent authored by Judge Crawley, reversed this court’s affirmance of a judgment of adoption. This court had based its holding on the conclusion that the putative father's failure to comply with the Putative Father Registry Act rendered his consent to the adoption unnecessary. S.C.W. v. C.B., 826 So.2d 825 (Ala.Civ.App.2001), rev’d, 826 So.2d 844 (Ala.2001). The Supreme Court of Alabama found that the Alabama Adoption Code and the Putative Father Registry Act, as they existed at the time of that court's decision, were separate enactments that did not cross-reference each other, and, therefore, that the two enactments were in conflict. Ex parte S.C.W., 826 So.2d at 850. The supreme court resolved the conflict by concluding that the provisions of the more inclusive Alabama Adoption Code took precedence over the Putative Father Registry Act; therefore, the court held that the putative father’s failure to comply with the Putative Father Registiy Act, because he had taken other action to object to the adoption, did not prevent him from contesting the adoption. Ex parte S.C.W., supra.
      On April 17, 2002, after the Supreme Court released its decision in Ex parte S.C.W., supra, the Legislature adopted Act No. 2002-417, Ala. Acts 2002. That act amended the Alabama Adoption Code and the Putative Father Registry Act so that each enactment now cross-references the other; pursuant to the new amendments, the two enactments are to be construed together. Thus, Ex parte S.C.W. has been superseded by statute.
     