A.C.B. v. A.B.B. and J.E.B.
2210259
2210260
ALABAMA COURT OF CIVIL APPEALS
Rel: October 21, 2022
OCTOBER TERM, 2022-2023
Appeals from Cleburne Juvenile Court
(JU-18-23.05 and JU-18-24.05)
In July 2021, A.B.B. (“the uncle“) and J.E.B. (“the aunt“) filed in the Cleburne Probate Court (“the probate court“) petitions seeking to adopt their nieces, Z.S.B. and L.J.B. (“the children“). In their adoption petitions, the aunt and the uncle alleged that the children‘s father, J.B. (“the father“), was deceased and that the children‘s mother, A.C.B. (“the mother“), had impliedly consented to the adoptions by virtue of her abandonment of the children. See
The mother filed in the probate court an opposition to the adoption petitions and requested that the actions be transferred to the Cleburne Juvenile Court (“the juvenile court“). On September 20, 2021, the probate court entered orders transferring the adoption actions to the juvenile court, pursuant to
The juvenile court conducted a hearing at which it received ore tenus evidence over the course of two days. On November 29, 2021, the juvenile court entered orders finding that the mother had impliedly
The mother filed a postjudgment motion addressing the November 29, 2021, judgments on December 10, 2021. On that same date, the mother filed notices of appeal. The mother‘s appeals were held in abeyance pending the disposition of her postjudgment motion, which occurred when that motion was denied by operation of law. See
Following L.J.B.‘s birth, the mother began using illegal drugs and, according to the aunt and the uncle, battled addiction. However, the mother stopped using illegal drugs at some point, and, although her addiction caused strain in her marriage, the mother remained married to the father. In 2015, the father was killed in a motor-vehicle accident.
In the fall of 2015, after the father‘s death, the mother suffered a relapse into addiction, and she attended a substance-abuse-treatment program until approximately early 2016. During the time the mother attended that program, the children lived with their maternal grandparents, C.R. and P.R. (“the maternal grandparents“). The mother relapsed again in March 2017 and attended a seven-month-long substance-abuse-treatment program. The children again lived with the maternal grandparents while the mother was in that treatment program. According to the aunt, the children lived with the maternal grandparents during the remainder of the 2016-2017 school year but spent much of the
In January 2018, the Cleburne County Department of Human Resources (“DHR“) investigated the mother, apparently based on a report of substance abuse, and it removed the children from her custody at that time. It appears that DHR filed separate dependency actions pertaining to the children, who were placed in the home of the maternal grandparents, apparently pursuant to a safety plan. C.R., the maternal grandmother, testified that, from January through March 2018, the mother came to her home several times each week to help the children with homework and to put them to bed. However, the maternal grandmother stated, “at some point, she was not doing that.” The aunt testified that the mother was arrested on February 28, 2018, and that, in March 2018, the mother agreed, as a part of a plea agreement in the criminal case pending against her, to attend a substance-abuse-treatment program in Mississippi.
The aunt testified that, at the maternal grandmother‘s request, she returned the children to the maternal grandparents’ home on August 1, 2018, so that the children could prepare to begin the 2018-2019 school year. However, according to the aunt, after she took the children to the maternal grandparents’ home, the maternal grandparents asked the aunt and the uncle to meet them at the courthouse to “catch up” on “the case” involving the children. It appears from the record that dependency
The attorneys’ questions and the testimony of the parties and the witnesses indicate that, on August 1, 2018, the juvenile court entered judgments awarding the aunt and the uncle permanent custody of the children. The parties did not include copies of those judgments in the record on appeal. Regardless, it is undisputed that the children have lived with the aunt and the uncle since August 1, 2018. The record does contain November 17, 2018, judgments of the juvenile court, entered in response
The aunt testified that, between February 2018 and November 2018, the mother had almost no contact with the children and provided no support for them.1 The aunt stated that the mother had telephoned the children only twice during that time, that both calls occurred in September 2018, and that the mother sounded as if she were under the influence of drugs or alcohol during both of those telephone calls. The aunt contradicted the maternal grandmother‘s testimony that the mother had contacted the children from jail during the spring of 2018. The aunt testified that she had obtained, via a subpoena, recordings of the 110 telephone calls the mother had made from jail and that the mother spoke with the children in only 1 of those 110 calls. The rest of the telephone
The aunt testified that, during one of the two September 2018 telephone calls, she invited the mother to visit the children in person in October 2018. The mother agreed to that visit but then did not attend the scheduled visit. Later in October 2018, the mother was again arrested on drug-related charges and incarcerated. We note that the mother stated that that arrest occurred in September 2018. The aunt testified that, as a condition of the mother‘s release from jail, the mother agreed to attend another substance-abuse-treatment program. In November 2018, on the day the mother left jail and was traveling to the treatment program, the aunt and uncle arranged for the children to visit the mother for approximately one hour.
It is undisputed that the mother left that treatment program in late November 2018 or early December 2018 and that she had no contact with the children in December 2018. The mother testified that, during the time immediately after she left the treatment program in late 2018, she maintained contact with the maternal grandmother. The mother testified that the maternal grandmother told her that the aunt and the uncle had
According to the aunt, the mother made no attempt to communicate with the children or to contribute to their support between November 2018 and May 2019. The mother stated that she did not contact the children between November 2018 and January 2019 because of the aunt‘s request, but the mother attempted to explain her failure to attempt to contact the children after January 2019. In January 2019, the mother was again arrested and remained incarcerated through March 2019. The mother stated that, as a condition of her release, she began attending a
In May 2019, the mother contacted the aunt, asking to reestablish contact with the children. The aunt arranged a June 2019 visit for the mother, but then, the aunt said, after the visit the mother failed to contact the children for the rest of June 2019. According to the aunt, the mother called the children twice in July 2019 for a total of 21 minutes, twice in August 2019 for a total of 21 minutes, three times in September 2019 for a total of 15 minutes, three times in October 2019 for a total of 22 minutes, three times in November 2019 for a total of 20 minutes, and three times in December 2019 for a total of 23 minutes. During those
At some point in the summer or fall of 2019, the maternal grandparents initiated actions in the juvenile court against the aunt and the uncle in which they sought an award of custody of the children; for ease of reference, we refer to those actions as “the .03 actions.” On January 3, 2020, the juvenile court entered in the .03 actions judgments that incorporated an agreement reached by the parties. The January 3, 2020, judgments provided, among other things, that the aunt and the uncle would maintain custody of the children and that the mother would have three hours of supervised visitation with the children on the first and third weekends of each month. The agreement, which was incorporated into the January 3, 2020, judgments in the .03 actions, provided that the mother agreed to maintain consistent contact with the
“Should the mother fail to visit a total of two (2) times or call a total of two (2) times without there having been an intervening emergency or act of God, the mother‘s visitation/contact will become at the discretion of [the aunt and the uncle]. In the event of an emergency, the mother will provide proof to [the aunt and the uncle].”
The aunt and the uncle each testified that they had entered into the agreement that was incorporated into the January 3, 2020, judgments to provide some structured contact between the mother and the children; the aunt testified that she and the uncle believed that structured and consistent contact with the mother would be in the children‘s best interests. The mother appears to have visited the children fairly consistently in compliance with the terms of that agreement. However, by June 2020, the aunt and the uncle considered the agreement “ended” because the mother had failed to make two of her weekly telephone calls. The mother testified that, when she was supposed to make one of those calls, she had been asked to pick up a client of the substance-abuse-treatment program from jail; she characterized that duty as “job related.” The mother claimed that she also missed the other telephone call for “job related” reasons because, she said, she slept through the time to call the
The aunt and the uncle allowed the mother some unsupervised visits with the children during the summer of 2021. Those unsupervised visits ended, according to the aunt, in the fall of 2021 because the visits occurred at the soccer fields where each of the children played soccer; therefore, those visits were supervised.
In August 2021, the mother filed actions in the juvenile court seeking an award of unsupervised visitation with the children and a
Both the aunt and the uncle stated that, if the adoption petitions were granted, they would continue to encourage visitation between the children and the mother. The aunt and the uncle believed that the children wanted to visit the mother and that it would be in the children‘s best interests to maintain contact with her. However, they also stated that the children wanted and needed to be assured that they were in a permanent home and would grow up in that home.
The aunt and the uncle have five biological children who range in age from 12 years to 3 years. The uncle is a pastor, and the aunt home schools all seven of the children. The aunt and the uncle each testified that they can support the children and that they had never received any financial support from the mother for the benefit of the children. On cross-examination, the uncle stated that he and the aunt receive
The aunt and the uncle also presented the testimony of Sonia Martin, a bonding expert, who stated that the children were “crying out for permanency.” Martin testified that the children were bonded with the aunt and the uncle and that, if permanency for the children was achieved, it would be beneficial to the children to visit the mother. We note that Martin appeared to define adoption as the only method of obtaining that permanency for the children. Martin stated that she was unable to assess the bond between the mother and the children because the mother had not cooperated with Martin‘s requests that she be allowed to evaluate that bond.
On appeal, the mother first argues that the juvenile court erred in entering the November 29, 2021, judgments because, she contends, the doctrines of res judicata and collateral estoppel precluded the juvenile court from considering the aunt and the uncle‘s claims. The mother contends that the entry of the juvenile court‘s January 3, 2020,
In explaining the doctrines of res judicata and collateral estoppel, this court has stated:
“‘Res judicata and collateral estoppel are two closely related, judicially created doctrines that preclude the relitigation of matters that have been previously adjudicated or, in the case of res judicata, that could have been adjudicated in a prior action.
“‘“The doctrine of res judicata, while actually embodying two basic concepts, usually refers to what commentators label ‘claim preclusion,’ while collateral estoppel ... refers to ‘issue preclusion,’ which is a subset of the broader res judicata doctrine.”
“’Little v. Pizza Wagon, Inc., 432 So. 2d 1269, 1272 (Ala. 1983) (Jones, J., concurring specially). See also McNeely v. Spry Funeral Home of Athens, Inc., 724 So. 2d 534, 537 n.1 (Ala. Civ. App. 1998). In Hughes v. Martin, 533 So. 2d 188 (Ala. 1988), this Court explained the rationale behind the doctrine of res judicata:
“‘“Res judicata is a broad, judicially developed doctrine, which rests upon the ground that public policy, and the interest of the litigants alike, mandate that there be an end to litigation; that those who have contested an issue shall be bound by the ruling of the court; and that issues once tried shall be considered forever settled between those same parties and their privies.”
“’533 So. 2d at 190. The elements of res judicata are
“‘“(1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both actions.”
“’Equity Res. Mgmt., Inc. v. Vinson, 723 So. 2d 634, 636 (Ala. 1998). “If those four elements are present, then any claim that was, or that could have been, adjudicated in the prior action is barred from further litigation.” 723 So. 2d at 636. Res judicata, therefore, bars a party from asserting in a subsequent action a claim that it has already had an opportunity to litigate in a previous action.
“‘The corollary to the above-stated rationale is that the doctrine of res judicata will not be applied to bar a claim that could not have been brought in a prior action. Old Republic [Ins. Co. v. Lanier], ... 790 So. 2d [922,] 928 [(Ala. 2000)]. See also United States v. Maxwell, 189 F. Supp. 2d 395, 406 (E.D. Va. 2002); Restatement (Second) of Judgments, § 26(1)(c) (1982), Restatement (Second) of Judgments, § 51(1)(a). “In order for a judgment between the same parties to be res judicata, it must, among other things, ... involve a question that could have been litigated in the former cause or proceeding.” Stephenson v. Bird, 168 Ala. 363, 366, 53 So. 92, 93 (1910).‘”
Ex parte H.A.S., 308 So. 3d 533, 540-41 (Ala. Civ. App. 2020) (quoting Lee L. Saad Constr. Co. v. DPF Architects, P.C., 851 So. 2d 507, 516-17 (Ala. 2002)) (footnotes omitted).
With regard to the doctrine of collateral estoppel, our supreme court has explained:
“‘For the doctrine of collateral estoppel to apply, the following elements must be established:
“‘“‘(1) that an issue in a prior action was identical to the issue litigated in the present action; (2) that the issue was actually litigated in the prior action; (3) that resolution of the issue was necessary to the prior judgment; and (4) that the same parties are involved in the two actions.’
“‘”Smith v. Union Bank & Trust Co., 653 So. 2d 933, 934 (Ala. 1995). ‘“Where these elements are present, the parties are barred from relitigating issues actually litigated in a prior [action].“’ Smith, 653 So. 2d at 934 (quoting Lott v. Toomey, 477 So. 2d 316, 319 (Ala. 1985)).”
“’Biles v. Sullivan, 793 So. 2d 708, 712 (Ala. 2000). “Only issues actually decided in a former action are subject to collateral estoppel.” Leverette ex rel. Gilmore v. Leverette, 479 So. 2d 1229, 1237 (Ala. 1985) (emphasis added). The burden is on the party asserting collateral estoppel to prove that the issue it is seeking to bar was determined in the prior adjudication. See Adams v. Sanders, 811 So. 2d 542, 545 (Ala. Civ. App. 2001) (“Because we have no transcript of the trial in the district court, the burden is on Sanders to show that the district court determined that he was not negligent.“). See also United States v. Cala, 521 F.2d 605, 608 (2d Cir. 1975) (“The burden ... is on [the one asserting collateral estoppel] to establish that the issue he seeks to foreclose from litigation in the present prosecution was necessarily decided in his favor by the prior verdict.“). ‘”
Walker v. City of Huntsville, 62 So. 3d 474, 487 (Ala. 2010) (quoting Lee L. Saad Constr. Co. v. DPF Architects, P.C., 851 So. 2d at 520).
Out of an abundance of caution, we also note that we disagree with the mother‘s argument, asserted as a part of her argument that the aunt and the uncle‘s claims are precluded under the doctrine of res judicata, that the same “cause[s] of action” were presented in the .03 actions and in the adoption actions. As the mother points out on appeal, the application of the doctrine of res judicata or claim preclusion is not limited to the exact cause of action but may also include “‘all legal theories and claims arising out of the same nucleus of operative facts.‘” Austill v. Prescott, 293 So. 3d 333, 346 (Ala. 2019) (quoting Old Republic Ins. Co. v. Lanier, 790 So. 2d 922, 928 (Ala. 2000)). The mother contends that the aunt and the uncle could have litigated in the .03 actions issues such as whether the children‘s best interests were served by continued visitation with the mother and maintaining a relationship with her or whether the mother had abandoned the children.
However, this court has held that actions involving adoption and actions involving dependency or the termination of parental rights are not the same causes of action. See T.C.M. v. W.L.K., 208 So. 3d 39, 44 (Ala. Civ. App. 2016) (“We have often explained that adoption actions in probate court and dependency and/or termination actions in juvenile court are not the same causes of action and that, in many instances, dependency or termination actions and adoption actions occur simultaneously.“); J.J. v. J.B., 30 So. 3d 453, 457 (Ala. Civ. App. 2009) (“[A]doption proceedings are not duplicative of the juvenile-court proceedings.“); B.C. v. Cullman Cnty. Dep‘t of Hum. Res., 169 So. 3d 1059, 1061 (Ala. Civ. App. 2015) (“This court has noted that the juvenile court is ‘concerned with a different issue than the probate court and that [their respective judgments] are separate judgments rendered on different facts under different law.‘” (quoting D.B. v. J.E.H., 984 So. 2d 459, 462 (Ala. Civ. App. 2007))); and D.B. v. J.E.H., 984 So. 2d at 462 (“Insofar as the custodians argue that the retention of the adoption proceeding by the probate court resulted in inconsistent judgments, we conclude that the juvenile court was concerned with a different issue than the probate court and that the judgments are not inconsistent but instead are separate judgments rendered on different facts under different law.“).
In the .03 actions in the juvenile court, the maternal grandparents asserted claims seeking to modify custody of the children and visitation
Finally, the cases discussed with regard to this issue generally pertain to the attempted modification of an earlier judgment. In these appeals, however, no such attempted modification is at issue; the adoption actions do not involve a modification of the January 3, 2020, judgments. Nevertheless, the principles discussed above would remain
The mother also argues that the aunt and the uncle should be deemed “equitably estopped” or “judicially estopped” from seeking to adopt the children. In making those arguments, the mother contends that the aunt and the uncle have taken a position in the adoption actions that is contrary to the position taken in the .03 actions in the juvenile court.
“The three essential elements of equitable estoppel are:
“‘(1) The person against whom estoppel is asserted, who usually must have knowledge of the facts, communicates something in a misleading way, either by words, conduct, or silence, with the intention that the communication will be acted on; (2) the person seeking to assert estoppel, who lacks knowledge of the facts, relies upon that communication; and (3) the person relying would be harmed materially if the actor is later permitted to assert a claim inconsistent with his earlier conduct.‘”
With regard to judicial estoppel, our supreme court has stated:
“In Ex parte First Alabama Bank, [883 So. 2d 1236 (Ala. 2003),] this Court ‘embrace[d] the factors set forth in New Hampshire v. Maine[, 532 U.S. 742, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001),] and join[ed] the mainstream of jurisprudence in dealing with the doctrine of judicial estoppel.’ 883 So. 2d at 1246. As this Court stated:
“‘The [New Hampshire v. Maine] Court held that for judicial estoppel to apply (1) “a party‘s later position must be ‘clearly inconsistent’ with its earlier position“; (2) the party must have been successful in the prior proceeding so that “judicial acceptance of an inconsistent position in a later proceeding would create ‘the perception that either the first or second court was misled‘” (quoting Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir. 1982)); and (3) the party seeking to assert an inconsistent position must “derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” 532 U.S. at 750-51, 121 S. Ct. 1808. No requirement of a showing of privity or reliance appears in the foregoing statement of factors to consider in determining the applicability of the doctrine of judicial estoppel.’
Middleton v. Caterpillar Indus., Inc., 979 So. 2d 53, 60-61 (Ala. 2007).
“For purposes of judicial estoppel, this new evidence distinguishes the relationship between A.L.D. and the [juvenile] court in the 2007 dependency proceeding from their relationship at the time of the 2006 custody determination. The new evidence precludes [the Calhoun County] DHR‘s position from being ‘clearly inconsistent’ with its 2006 recommendation. See Ex parte First Alabama Bank, 883 So. 2d [1236,] 1244-45 [(Ala. 2003)]. It also precludes any perception that the trial court was ‘misled’ as contemplated by the second New Hampshire v. Maine[, 532 U.S. 742 (2001),] factor. Id.”
A.L.D. v. Calhoun Cnty. Dep‘t of Hum. Res., 2 So. 3d at 861. This court also held that courts must also consider the child‘s best interests, stating:
“In light of the new evidence the trial court received at the November 19, 2007, hearing, applying the doctrine of judicial estoppel as A.L.D. suggests would unduly restrict the trial court‘s ability to consider the best interests of the child. Accordingly, we hold that the doctrine of judicial estoppel does not apply in this case ....”
In her appellate brief, the mother does not specifically address the applicability of either judicial estoppel or equitable estoppel or formulate an argument that one of those forms of estoppel should apply in these cases. Instead, the mother merely refers to “estoppel” or “the doctrine” in
However, as we have already noted, the .03 actions involved custody-modification and visitation-modification claims asserted by the maternal grandparents. The record does not indicate that the mother was a party to the .03 actions such that she could have been “misled” by any litigation strategy or theory that the aunt and the uncle might have employed, or, in the case of judicial estoppel, how either the court in the
We note that, in another part of her brief, but not in the same section as her estoppel arguments, the mother refers to text messages sent from the aunt to the maternal grandmother in 2018 in which the aunt stated that she and the uncle had no intention of seeking to terminate the mother‘s parental rights. The mother does not contend, in her estoppel arguments, that those text messages should bar the aunt and the uncle from seeking to adopt the children.
Regardless of whether we consider only the January 3, 2020, judgments or whether we also consider the 2018 text messages when evaluating the mother‘s estoppel arguments, the mother fails to identify how she might have relied upon those judgments or messages to her detriment. The mother does not contend that, in reliance on the text messages, she elected not to visit the children and was therefore “misled” into engaging in behavior that might result in her being deemed to have
Moreover, the aunt and the uncle each testified that they entered into the agreement upon which the January 3, 2020, judgments were based because they believed that continued, regular contact with the mother was in the children‘s best interests and because they hoped that the terms of that agreement and the judgments would force the mother
The mother next argues that, even if this court rejects her collateral-estoppel, res judicata, judicial-estoppel, and equitable estoppel arguments, the juvenile court erred in allowing the children to be adopted by the aunt and the uncle. Under the Alabama Adoption Code (“the AAC“),
In these actions, the mother opposed the proposed adoptions, i.e., she did not give her express consent to the adoption of the children. The aunt and the uncle, however, proceeded under
“(a) A consent or relinquishment required by
Section 26-10A-7[, Ala. Code 1975,] may be implied by any of the following acts of a parent:“(1) Abandonment of the adoptee. Abandonment includes, but is not limited to, the failure of the father, with reasonable knowledge of the pregnancy, to offer financial and/or emotional support for a period of six months prior to the birth.
“(2) Leaving the adoptee without provision for his or her identification for a period of 30 days.
“(3) Knowingly leaving the adoptee with others without provision for support and without communication, or not otherwise maintaining a significant parental relationship with the adoptee for a period of six months.
“(4) Receiving notification of the pendency of the adoption proceedings under
Section 26-10A-17[, Ala. Code 1975,] and failing to answer or otherwise respond to the petition within 30 days.“(5) Failing to comply with
Section 26-10C-1[, Ala. Code 1975] .“(b) Implied consent under subsection (a) may not be withdrawn by any person.”
“’ “[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.” ‘”
J.D.S. v. J.W.L., 204 So. 3d at 390 (quoting L.M. v. D.D.F., 840 So. 2d 171, 179 (Ala. Civ. App. 2002), quoting in turn
“The court finds that A.C.B., the natural mother, impliedly consented to the adoption on the grounds provided in
§ 26-10A-9(a)(1) and§ 26-10A-9(a)(3), Ala. Code 1975 .“Abandonment,
§ 26-10A-9(a)(1) “The natural mother abandoned the adoptee[s] for a period of six months between February 28, 2018, and September 2018. During this period, the mother made no contact whatsoever with the adoptee[s], made no attempt to visit, and provided no financial support.
“The natural mother abandoned the adoptee[s] for a second period of six months between November 3, 2018, and May 3, 2019. During this period, pursuant to uncontroverted testimony at trial, the natural mother made no contact whatsoever with the adoptee[s], made no attempt to visit, and provided no financial support.
“Failure to Maintain a Significant Parental Relationship,
§ 26-10A-9(a)(3) “Furthermore, the mother failed to maintain a parental relationship for a period exceeding six months. As the Alabama Supreme Court stated in Ex parte A.M.F., 997 So. 2d 1008 (Ala. 2008), ‘maintaining a significant parental relationship with a child entails more than mere sporadic showing of interest or concern.’ ...
“In the present case, the natural mother testified that she has been employed and working for at least fourteen months. The [aunt and the uncle] gave uncontroverted testimony that the natural mother has never provided
support for the child[ren] while the child[ren] [have] been in their care. “From February 2018 to May 2019, the natural mother only visited the child[ren] once, and only called sporadically in those eighteen (18) months. The natural mother had opportunity to reach out to the adoptee[s], and the [aunt and the uncle] even contacted her several times to arrange visits. However, the [aunt and the uncle‘s] efforts were rebuffed by the natural mother.
“A natural parent‘s implied consent to an adoption, once given, cannot be withdrawn.
§ 26-10A-9(b), Ala. Code 1975 . In light of an uncontroverted six-month period of abandonment and her failure to maintain a significant parental relationship, the court finds that the natural mother has consented to the adoption[s].”
On appeal, the mother contends that the facts of these cases are similar to the facts in other cases concerning implied consent, in which the appellate courts have held that a parent‘s actions did not amount to such consent. We note that the theory and law governing implied consent has changed over time. Before 1990, the adoption code in Alabama required the express consent to the adoption by the child‘s parent unless that parent had abandoned the child. For instance, former
“No adoption of a minor child shall be permitted without the consent of his parents, but the consent of a parent who has abandoned the child, or who cannot be found, or who is insane or otherwise incapacitated from giving such consent, or who
has lost guardianship of the child, through divorce proceedings, or by the order of a juvenile court or court of like jurisdiction, may be dispensed with, and consent may be given by the guardian if there be one, or if there be no guardian by the state department of public welfare. ...”
Schwaiger v. Headrick, 281 Ala. 392, 203 So. 2d 114 (1967), was decided in 1967, when, under former
Similarly, Butler v. Giles, 47 Ala. App. 543, 258 So. 2d 739 (Civ. 1972), was decided in 1972 under former
When it enacted the AAC in 1990, the legislature, for the first time, included a definition of the term “abandonment” for the purposes of adoption. That term was, and currently is, defined as:
“A voluntary and intentional relinquishment of the custody of a minor by [a] parent, or a withholding from the minor, without good cause or excuse, by the parent, of his or her presence, care, love, protection, maintenance, or the opportunity for the display of filial affection, or the failure to claim the rights of a parent, or the failure to perform the duties of a parent.”
This court considered what are now
The main opinion in K.L.B. v. W.M.F. discussed the holdings of Butler v. Giles, supra, and Schwaiger v. Headrick, supra, which, as noted above, discussed the application of former
Further, in K.L.B. v. W.M.F., supra, the main opinion proceeded to analyze the issue whether the implied consent of a parent could be withdrawn, as the express consent to an adoption can be under certain circumstances. The main opinion concluded that an implied consent to an adoption could be withdrawn but that,
“even if the father‘s conduct were sufficient to imply his consent at one time to his daughter‘s adoption, we do not believe there is sufficient evidence in the record in this case to support a conclusion that the child‘s best interests would be served by not allowing her father to withdraw that consent.”
K.L.B. v. W.M.F., 864 So. 2d at 351.
The mother contends that the facts of the cases discussed above are sufficiently similar to the facts of these cases to support the conclusion that she did not impliedly consent to the proposed adoptions. The mother‘s arguments on appeal conflate the concepts of abandonment under
In her appellate brief, the mother has asserted a number of challenges to the findings that she had abandoned the children, contending, for example, that she had contacted the children by telephone a few more times than the juvenile court found that she had.
The mother contends that the evidence does not support a finding that she impliedly consented to the proposed adoptions under
Thus, in arguing that the juvenile court erred in determining that she “[k]nowingly [left] the adoptee[s] with others without provision for support and without communication, or not otherwise maintaining a significant parental relationship with the adoptee[s] for a period of six months,” see
The mother challenges the evidentiary support for that part of the juvenile court‘s finding that she did not maintain a significant parental relationship with the children from February 2018 through the spring of that year. The mother contends that, in the spring of 2018, the children primarily resided with the maternal grandparents and, therefore, that the aunt had no knowledge of how frequently she contacted the children. The mother points to her own testimony that she kept in contact with the children from February through May 2018, when, she admits, she “went off the deep end.”
However, the mother was arrested in early March 2018 and was incarcerated for much of that spring. The aunt testified that she had
The evidence indicates that the mother frequently contacted her parents and others through May 2019 but that she did not contact the children after her March 2018 arrest. As the mother points out, in October 2018, the aunt and the uncle, on the advice of the children‘s counselor, asked that, for a brief period, the mother and maternal grandparents not see the children and allow the children to settle into their home. However, the aunt estimated that that brief period lasted through December 2018 or January 2019. Regardless, the mother never contacted the aunt and the uncle, or the children, to learn of that request;
In her appellate brief, the mother relies on J.D.S. v. J.W.L., 204 So. 3d 386, 390 (Ala. Civ. App. 2016), which, upon a cursory review, would seem to support the mother‘s argument that our caselaw supports the determination that the evidence did not support a finding that she had failed to maintain a significant parental relationship with the children. The mother in J.D.S. v. J.W.L. alleged that the father in that case had slowly reduced exercising his court-ordered visitation and that visitation
In addressing the father‘s appeal in that case, this court analyzed a number of earlier cases, including in K.L.B. v. W.M.F., supra, Butler v. Giles, supra, and Schwaiger v. Headrick, supra. This court‘s discussion in J.D.S. v. J.W.L., supra, of those earlier cases, however, calls into question the holding in that case. Butler v. Giles, supra, and Schwaiger v. Headrick, supra, both involved the issue whether a child had been abandoned, and those cases were decided before the 1990 legislation that defined the term “abandonment” for the purposes of the AAC. As explained earlier in this opinion, K.L.B. v. W.M.F., supra, also relied
Similarly, in J.D.S. v. J.W.L., supra, this court, although noting that the probate court in that case had relied upon
“The record in this case shows that the father failed to act in a responsible manner in fulfilling his parental obligations to the child. The record would further support a determination by the probate court that the best interests of this child appear to be served by the adoption of the child by the stepfather. However, the legislature has provided that the adoption cannot occur without the father‘s consent, which in this case must be found by implication through clear and convincing evidence. Although the father failed to make contact with the child for approximately two years prior to the filing of the adoption petition, the father had maintained a relationship with his child for eight years before his absence
and consistently paid child support even throughout the adoption proceedings. The father testified that he failed to visit the child because of financial problems and a difficult work schedule, not because he intended to abandon the child. He further testified that his situation had since improved and that he wanted to be involved in his child‘s life. Like the fathers in K.L.B. [v. W.M.F., 864 So. 2d 333 (Ala. Civ. App. 2002)], Butler [v. Giles, 47 Ala. App. 534, 258 So. 2d 739 (Civ. 1972)], and Schwaiger [v. Headrick, 281 Ala. 392, 203 So. 2d 114 (1967)], we cannot construe the evidence as being sufficient to clearly convince the fact-finder that this father‘s conduct ‘evince[d] a settled purpose to [forgo] all parental duties and relinquish all parental claims’ to the child.’ Schwaiger, 281 Ala. at 394, 203 So. 2d at 116. Therefore, we conclude that there was not clear and convincing evidence demonstrating that the father impliedly consented to the adoption.”
J.D.S. v. J.W.L., 204 So. 3d at 393.
It is not clear that this court would have decided Butler v. Giles, supra, and Schwaiger v. Headrick, supra, in the same manner had those cases been presented to this court currently, especially given the addition of what is now subsection (a)(3) to
The legislature did not define the phrase “maintaining a significant parental relationship” as it is used in
“‘The term is variously defined as acts of repairs and other acts to prevent a decline, lapse or cessation from existing state or condition; bear the expense of; carry on; commence; continue; furnish means for subsistence or existence of; hold; hold or keep in an existing state or condition; hold or preserve in any particular state or condition; keep from change; keep from falling, declining, or ceasing; keep in existence or continuance; keep in force; keep in good order; keep in proper condition; keep in repair; keep up; preserve; preserve from lapse, decline, failure, or cessation; provide for; rebuild;
repair; replace; supply with means of support; supply with what is needed; support; sustain; uphold.‘”
Downs v. Downs, 978 So. 2d 768, 774 (Ala. Civ. App. 2007) (Moore, J., dissenting) (quoting Black‘s Law Dictionary 953 (6th ed. 1990) (emphasis omitted)). The version of Black‘s Law Dictionary relied upon in Downs v. Downs, supra, further provides that “[n]egatively stated, [maintain] is defined as not to lose or surrender; not to suffer or fail or decline.” Black‘s Law Dictionary 953 (6th ed. 1990).
Moreover, in S.A. v. M.T.O., supra, this court interpreted
“The AAC provides that a consent required under
§ 26-10A-7[, Ala. Code 1975,] may be implied by, among other things, a parent‘s ‘[k]nowingly leaving the adoptee with others without provision for support and without communication, or not otherwise maintaining a significant parental relationship with the adoptee for a period of six months.’Ala. Code 1975, § 26-10A-9(a)(3) (emphasis added). Consistent with settled rules of statutory construction, we must interpret the general phrase ‘not otherwise maintaining a significant parental relationship’ in this context with reference to the specified circumstance listed, i.e., knowingly leaving an adoptee both without support and without communication. Cf. Foster v. Dickinson, 293 Ala. 298, 300, 302 So. 2d 111, 113 (1974) (‘The words, “or otherwise” in law when used as a general phrase following an enumeration of particulars are commonly interpreted in a restricted sense as referring to such other matters as are kindred to the classes before mentioned, receiving ejusdem generis interpretation.‘).
“.... “... That said, however, it must be remembered that the legislature of Alabama has seen fit to mandate that a mother‘s consent to a proposed adoption of her child shall be required and that that consent may be deemed implied under subsection (a)(3) of
§ 26-10A-9 only from the existence of a six-month period during which that mother has ‘[k]nowingly le[ft] the adoptee with others without provision for support and without communication’ or has similarly failed to act to maintain a significant parental relationship.”
In S.A. v. M.T.O., supra, this court reiterated that consent “may be deemed implied under subsection (a)(3) of
The definitions discussed above and the language of S.A. v. M.T.O., supra, indicate that the legislature, in enacting
In her appellate brief, the mother has argued that her conduct since January 2020 indicates that she did not consent to the proposed adoptions of the children during the earlier periods in which she failed to communicate with them, support them, or maintain a significant parental relationship with them. Thus, in essence, the mother contends that her conduct since January 2020 should cancel out or negate her conduct from February 2018 through May 2019. As the juvenile court noted, however, our legislature has provided that, unlike express
Lastly, the mother also contends in her appellate brief that the juvenile court erred in finding that the proposed adoptions were in the children‘s best interests. The mother points out that the aunt and the uncle stated that they believed that the mother having continuing contact with the children could serve the children‘s best interests and that the children wanted to maintain a relationship with the mother. However, the aunt testified that the mother‘s inconsistent contact with the children had been detrimental to the children but that she believed that contact with the mother, together with the permanency of the proposed adoptions, would be beneficial for the children. The aunt
The juvenile court‘s November 29, 2021, judgments are affirmed.
2210260 -- AFFIRMED.
Hanson, J., concurs.
Moore, Edwards, and Fridy, JJ., concur in the result, without opinions.
Notes
“No. The pattern has stayed about the same. She just missed more visits. I mean, she missed more phone calls and showed up late to a visit, just a few things like that. But more missed calls, and then she would ask -- several times, she asked for additional phone calls and then neglected to make those phone calls.”