194 So. 3d 221
Ala. Civ. App.2015Background
- Mother (minor) gave birth in 2010; child removed by juvenile court and placed with foster parents after DHR involvement due to mother’s mental-health crises and allegations of abuse.
- Child lived with foster parents ~3 years; DHR initially sought termination of mother’s rights but later abandoned that petition after a psychological evaluation.
- Foster parents filed for adoption in Elmore Probate Court in Sept. 2013 while DHR retained temporary legal custody; mother was served with notice (but not the adoption petition) and remained opposed.
- Mother’s counsel filed an answer ~31–32 days after notice; DHR filed a timely contest and later withdrew it; juvenile court later awarded custody to a relative (D.C.) and closed the juvenile case.
- Probate court held a contested adoption hearing, found adoption in child’s best interest, and concluded mother had impliedly consented under Ala. Code § 26-10A-9(a)(3) (failure to maintain significant parental relationship) and (a)(4) (failure to respond within 30 days); probate court granted adoption. Court of Civil Appeals reversed.
Issues
| Issue | Plaintiff's Argument (mother) | Defendant's Argument (foster parents / DHR) | Held |
|---|---|---|---|
| Venue in Elmore County | Venue improper because parties and child resided in Montgomery; probate court lacked venue | Venue proper under §26-10A-4(3) because DHR has an office in Elmore County | Court refused to reach substantive venue argument (issue waived for lack of authority); no reversal on venue |
| Transfer to juvenile court | Probate court should have transferred adoption to juvenile court because juvenile court had pending dependency/termination matters | Probate court discretion to retain adoption; transfer provisions are discretionary except where necessary consent is wholly absent | Probate court did not abuse discretion in declining to transfer |
| Implied consent under §26-10A-9(a)(3) (failure to maintain significant parental relationship / leaving child) | Mother did not voluntarily abandon or knowingly leave child; loss of custody was involuntary and she maintained visitation when possible | Foster parents argued mother’s inconsistent visitation and long periods of no contact show implied consent | Court held involuntary loss of custody undermines (a)(3) inference; S.A. controls — voluntariness matters; (a)(3) finding unsupported |
| Implied consent under §26-10A-9(a)(4) (failure to answer within 30 days) | Answer was effectively timely under civil rules (certificate shows mailing on day 30, filing day 31); mother was not served with petition and DHR had timely contested | Foster parents emphasized statutory 30-day response and argued answer was late and thus consent may be implied | Court found (a)(4) inference unwarranted: mother wasn’t served with petition, no prejudice shown, DHR had timely contested, and implied consent is permissive and requires clear and convincing proof — not satisfied; judgment reversed and adoption dismissed |
Key Cases Cited
- Ex parte A.M.P., 997 So.2d 1008 (Ala. 2008) (discusses transfer provisions and the interplay between probate and juvenile court in adoption/termination contexts)
- S.A. v. M.T.O., 143 So.3d 799 (Ala. Civ. App. 2013) (interprets §26-10A-9(a)(3) and requires voluntariness for implied-consent inferences when custody was lost by juvenile-court action)
- M.M. v. D.P., 37 So.3d 179 (Ala. Civ. App. 2009) (short gaps of noncontact insufficient to support implied consent under §26-10A-9(a)(3))
- Ex parte W.L.K., 175 So.3d 652 (Ala. Civ. App. 2015) (procedure when contested adoption requires dismissal or transfer under §26-10A-24)
- McGowen v. Smith, 87 So.2d 429 (Ala. 1956) (explains strict construction of adoption statutes and the centrality of parental consent)