567 So. 2d 333 | Ala. Civ. App. | 1990
This is an appeal from a final order of adoption entered by the Juvenile Court of Cherokee County over the refusal of the State Department of Human Resources (department) to give its consent. The juvenile court specifically found that the department had refused to consent and that the concerns of the department in not consenting were not arbitrary or unreasonable. The juvenile court went further, however, and found that, pursuant to § 26-10-10, Ala. Code 1975, it is not as restricted as the probate court to the requirements of §
The department appeals, basically contending that the juvenile court is required, pursuant to Ala. Code 1975, § 26-10-3, to find that its consent is being withheld unreasonably *334 or arbitrarily prior to granting the adoption. The petitioners, Ray and Barbara Ann Smith, argue, however, that pursuant to Ala. Code 1975 § 26-10-10, § 26-10-3 does not apply in the instant case because this case was transferred from the probate court to the juvenile court.
Ala. Code 1976, § 26-10-10, is as follows:
"The provisions of this chapter shall not apply to proceedings for the adoption of a child when such proceedings have been removed from the probate court to the juvenile court on motion of any party to the proceedings."
Where, as here, this court is called upon to construe a statute, the fundamental rule is that the court has a duty to ascertain and effectuate the legislative intent. Ex parteHolladay,
In Alabama, there was no right to adoption at common law. In fact, prior to the Code of 1852, the right of adoption was limited to the legitimation of bastard children by their fathers. Abney v. DeLoach,
Here, however, the petitioner argues that, in view of § 26-10-10, the juvenile court is not required to follow the requirements of §
Rather, we find that the better reasoned interpretation of § 26-10-10 would be that "the procedural provisions" of the adoption statute do not apply when a case has been transferred to the juvenile court. Instead, the juvenile court would follow the procedural guidelines set up for it by the supreme court.See Alabama Rules of Juvenile Procedure; see also Ala. Code 1975, § 12-15-2(c). This would still require the juvenile court to follow the substantive provisions of the adoption statute.
In view of the above, we find that the juvenile court was required to follow § 26-10-3 as concerns the consent of the department. It is well established that, in a case such as this one in which the parental rights of the child's natural parents have been terminated and the child's custody is with the department, the consent of the department is required in order for the trial court to proceed with the adoption. Ex parteDepartment of Human Resources,
Here, the department did not give its consent to the adoption of the children, and the juvenile court specifically found that the department's concerns in not consenting did not constitute arbitrary or unreasonable concerns. Therefore, as the juvenile court is required to follow the substantive provisions of §
In view of the above, we have no alternative but to reverse the juvenile court's order of adoption and remand the case to that court to set aside the adoption.
REVERSED AND REMANDED.
ROBERTSON and RUSSELL, JJ., concur.