Khm v. Dli, Jr.

895 So.2d 950 (2003)

K.H.M. and R.M.
v.
D.L.I., JR.

2011216.

Court of Civil Appeals of Alabama.

September 12, 2003. Rehearing Denied November 14, 2003. Certiorari Denied August 13, 2004.

Charles E. Vercelli, Jr., of Vercelli & Associates, P.C., Montgomery, for appellants.

Richard K. Keith of Keith & Hamm, P.C., Montgomery, for appellee.

Alabama Supreme Court 1030341.

YATES, Presiding Judge.

K.H.M., the mother, and D.L.I., Jr., the father, had a short relationship in 1995 when the father lived with the mother and her parents. The mother became pregnant. The relationship ended before the child was born. The father claimed that the relationship ended because of the mother's infidelity. The mother admitted that she had had other relationships. The child was born in 1996. The mother sought child support; the father denied that the child was his. In May 1997, following a paternity test, the father was found to be the child's biological father and he was ordered to pay child support, which was automatically deducted from his paycheck. The mother married R.M. ("the stepfather"), in October 1997.

On September 19, 2001, the father filed a petition in the juvenile court, alleging that the child was dependent. On September 28, 2001, the mother and the stepfather filed an adoption petition in the probate court. On that same day, the mother filed a petition to terminate the father's parental rights in the juvenile court. On October 19, 2001, the father moved to amend his petition, stating:

"1. When Petitioner first consulted his former attorney, his interest was to establish visitation rights with his daughter and to petition for joint legal custody.

"2. That his former attorney felt it would be in his best interest to file a petition to modify custody.

"3. That Petitioner wishes to have his Dependent Petition for joint custody amended to petition for visitation and joint legal custody of the minor child."

The mother and stepfather moved to transfer the adoption petition to the juvenile court; the probate court granted that petition. Following a hearing, the juvenile court entered the following order:

"Matters concerning the aforesaid child are before the Court upon a Dependent Petition, as Amended, filed by the Father, seeking joint legal custody and visitation rights with the child; a Response and Counter-Dependent Petition, seeking termination of the Father's parental rights, filed on behalf of the Mother; and a Petition for Step Parent Adoption, filed on behalf of the Step Father in Probate Court and transferred to this Court. Testimony was heard on several occasions, at which times all parties and Counsel were present, together with the Guardian Ad Litem, and certain exhibits were admitted into evidence, including testimonial depositions and expert opinion. At the conclusion of the last evidentiary hearing, Counsel and the Guardian Ad Litem were given an opportunity to discuss the possibilities of an agreed-upon settlement, but the Court has now been informed that such attempts were not successful and the parties have filed a waiver of additional evidentiary hearings and stipulated that this matter should be decided by the Court based upon the evidence previously submitted.

"The aforesaid minor child was born [in] 1996. The Mother had a relationship with the Father, but the same had broken up prior to the birth of the child and the Father did not have a significant part in the birthing or initial care of the child. During the year after the birth, the Father had opportunities to establish a relationship with the child but made no substantial attempt to do so. The Mother, however, admitted in her testimony that the Father may have had reasonable doubts concerning his paternity. A paternity action was filed with the assistance of [the Department of Human Resources] and the Father requested DNA parentage testing, which was performed and indicated that he was the biological parent. An Order establishing paternity and determining the Father's child support obligation as $315.00 per month was entered in the Child Support Division of the Family Court in May, 1997. The Father did not seek visitation rights as part of that proceeding. A Wage Withholding Order was entered and child support has been deducted from the Father's income and paid regularly and currently since the Order was entered.

"The Father made little, if any, effort to see the child immediately after the paternity proceeding and the Mother remarried her current Husband in October, 1997. The Mother's Husband stepped in and has apparently been a loving and good stepfather to the child since that time. The Father made no substantial efforts to see the child until 1999 and those efforts are subject to disputed evidence. By that time, however, it is clear that the Mother and her Husband had decided that the child should not be told that she had a biological Father and it is doubtful that attempts by the Father to visit with the child would have been met with acceptance.

"During the year 2000, the Father began a more serious attempt to establish a relationship with the child and was approached by the Mother and stepfather with a proposal that he consent to a stepparent adoption. After a meeting between the parties, the Mother and stepfather apparently assumed that the Father would consent and went forward with plans for an adoption proceeding. The Father refused to consent to the proceedings and shortly prior to the stepfather's Petition For Adoption being filed in Probate Court, filed his Dependency Petition in this Court, seeking custody and visitation rights.

"The primary issue before the Court is presented by the Mother's Petition to terminate the parental rights of the Father. Should the father's parental rights be terminated, his Petition for Custody and Visitation would be rendered moot and should his parental rights not be terminated, the stepfather's Petition for Adoption would be rendered moot. When one parent seeks to terminate the parental rights of the other, the Court is not required to make a specific finding of dependency but is governed by a two-prong test; the Court must first find that there are grounds for termination of parental rights and secondly, after such grounds are established, the Court must determine if all viable alternatives to termination have been considered and rejected such that termination of parental rights is in the best interests of the child. Ex parte Beasley, 564 So.2d 950 (Ala.1990). L.M. v. D.D.F., 840 So.2d 171 (Ala.Civ.App.2002). Grounds for termination of parental rights are codified in Ala.Code, 1995, § 26-18-7. The Court must find from clear and convincing evidence that the parent whose parental rights are sought to be terminated is unable or unwilling to discharge his responsibilities for the child and that such is unlikely to change in the foreseeable future. In determining the parent's inability or unwillingness to discharge his responsibilities, the Court is directed to consider certain facts or circumstances, the only one of which is relevant to the instant case being abandonment. The Mother alleges that although the Father has paid child support as ordered, he has not attempted to establish a relationship with or visit with the minor child.

"The evidence is clear that for a substantial period of time after his paternity was established, the Father made little or no effort to communicate with or establish visitation with the child, even considering the child's young age. However, the evidence is also clear that after the Mother and her Husband decided to establish their own family and not tell the child that the Husband was a stepfather as opposed to a biological father, efforts by the biological father would have been rebuffed. Considering the fact that parental rights should only be terminated in the most egregious of circumstances, it is difficult to find that the Father's neglect under these circumstances would be sufficient to sound the death knell on his parental rights. Ex parte Beasley, 564 So.2d at 952.

"However, assuming arguendo, that the biological Father's failure to seek a relationship with the child while paying child support, might rise to the level of abandonment necessary for a determination that the grounds for termination of parental rights have been met, the Court must proceed further to determine that all viable alternatives to termination have been considered and should be rejected as not in the best interests of the child. Clearly, the Court cannot find, based on the evidence of the knowledge in the family and community, that the child's parentage will be hidden from her forever and the Mother and stepfather admitted that they would have to inform the child of the truth when they felt the time was right. Also, it is clear that the child making the discovery of her parentage without proper preparation will be traumatic and detrimental. Considering the conflicting expert testimony as to when the subject should be broached, the Court cannot find that a professionally assisted learning process toward providing the child with the proof of her parentage is not a viable alternative and such would appear to be in the best interests of the child. Therefore, the Court cannot find that termination of parental rights is necessary to, or would produce, a desired result in maintaining the child's ignorance of her true parentage.

"Likewise, the Court cannot find from the facts and circumstances presented, that it is clearly in the best interests of the child to prevent the eventual establishment of a relationship with her biological Father or that visitation between the Father and the child in the future would be contrary to the best interests of the child and is not a viable alternative to termination of parental rights when properly approached with proper professional advice and therapy. In other words, the Court does not find that it is in the best interests of the child to terminate the parental rights of the biological father merely to delay the child's knowledge of the truth or to avoid or delay facing the same in an organized and therapeutic manner, merely to assist the stepfather in his desire to become an adoptive father.

"In consideration of the evidence presented herein, the Court further finds and it is hereby,

"Ordered, Adjudged and Decreed as follows:

"1. That the petition For Termination of the biological Father's parental rights, filed by the Mother, is due to be and the same is hereby DENIED.

"2. That in consideration of the fact that the parental rights of the biological Father have not been terminated and he has objected to the adoption by the stepfather, the Petition for Step-Parent Adoption, filed in the Probate Court and transferred to the Juvenile Court, is due to be and the same is hereby DISMISSED.

"3. That upon further consideration of the circumstances and the Father's failure to actively assert his parental rights until the present time, the Court does not find that it would be in the best interests of the child to award the biological parents joint legal custody and further finds that the Mother should be awarded sole legal and physical custody of the child, subject only to visitation rights to be established for the biological Father.

"4. The Court reserves issues of visitation for further determination based upon a plan for informing the child of the truth of her parentage and the development of a relationship and eventual visitation schedule between the child and the biological Father. Such plan shall be developed with the professional advice and assistance of Dr. Guy Renfro, who testified as an expert witness in this cause. Counsel and the Guardian Ad Litem shall meet with Dr. Renfro with regard to his recommendations concerning the development of a plan and shall submit a proposal to the Court within thirty (30) days after the date hereof and the Court will enter such necessary Orders to implement such plan.

"5. That a copy of this Order be transmitted to Counsel for each of the parties and to the Guardian Ad Litem. The Guardian Ad Litem is expressly authorized to further provide a copy of this opinion to Dr. Renfro for purposes of compliance herewith."

The mother and the stepfather filed a notice of appeal. Following a remand from this court, the trial court granted the parties' joint motion to certify the order as final pursuant to Rule 54(b), Ala. R. Civ. P.

The mother and the stepfather argue that the trial court applied the wrong statute in its analysis. Specifically, they argue that the court should have applied the parental-rights-termination scheme set forth in the Alabama Adoption Code, § 26-10A-1 et seq., Ala.Code 1975 ("the AAC"), instead of the parental-rights-termination scheme set forth in the Child Protection Act, § 26-18-1 et seq., Ala.Code 1975.

The mother and the stepfather argue that § 26-10A-3 of the AAC provides that if any party whose consent is required fails to consent to the adoption, the proceeding will be transferred to the juvenile court for the "limited purpose of termination of parental rights." They contend that the case should have then proceeded under § 26-10A-5 and § 26-10A-27, which provides that a stepparent may adopt a child so long as the child has lived with the stepparent for one year. They argue that under § 26-10A-16 and § 26-10A-7 consent of the natural father was implied under the facts of this case because the father abandoned the child. However, the mother and the stepfather specifically argued in a memorandum of law filed with the juvenile court (before the hearing) that the CPA was applicable. The memorandum stated:

"5. As noted in the original Petition to Terminate Parental Rights, Chapter 18 of Title 26 of the Alabama Code, titled `Child Protection,' essentially states that any interested party (here [the mother and the stepfather]) may petition the Court to terminate the parental rights of a natural parent. Section 26-18-7 provides certain grounds for the termination of parental rights. Further, § 26-18-7(a)(1) provides that if a parent has abandoned the child, `proof shall not be required of reasonable efforts to prevent removal or to reunite the child with parents.' ...

"6. In further support of the termination, the Court should consider Alabama Code § 26-18-7(c) which provides in essence that there is a rebuttable presumption that abandonment has occurred when there is a mere four continuous months of unwillingness or inability to act as a parent....

"....

"It should also be noted that under Alabama Code § 26-10A-10, notwithstanding the requirement of the consent from the father, his consent is not required if `(1) [His] rights with reference to the adoptee have been terminated by operation of law in accordance with the Alabama Child Protection Act § 26-18-1 through § 26-18-10.' In other words, where abandonment is shown, termination of parental rights should as a matter of law be implied and found by this Court so that his consent to the adoption is not necessary."

The mother and the stepfather cannot now claim that the application of the CPA (§ 26-18-7) was in error where they expressly asked the court to consider that law. See Tuscaloosa County v. Jim Thomas Forestry Consultants, Inc., 613 So.2d 322 (Ala.1992)(county's contention on appeal that the trial court erred in instructing the jury was not reversible error where the county failed to oppose the instruction and affirmatively requested a charge containing the element that it assailed).

Further, this court in T.S. v. J.P., 674 So.2d 535, 538 (Ala.Civ.App.1995), held that, when an adoption proceeding also involves the termination of a parent's parental rights, the AAC and the CPA must be read in para materia and that

"[t]he CPA clearly provides the standards to be applied by the court in determining whether to terminate parental rights, and nothing limits the application of the CPA only to parental rights termination cases originating from separate and independent actions in the juvenile court or apart from adoption proceedings. No substantive provisions for terminating parental rights exist in the AAC, because the substantive provisions are provided in the CPA."

The mother and the stepfather next argue that the father abandoned the child as that term is defined under § 26-18-3(1). The father contends that he did not abandon the child because, he argues, he attempted to contact the child in 2000 and 2001. He further contends that he sent a Christmas gift and purchased a savings bond for the child in December 2001. He stated that he has paid child support, without fail, since he was adjudicated the father.

Section 26-18-3(1) provides:

"(1) Abandonment. A voluntary and intentional relinquishment of the custody of a child by a parent, or a withholding from the child, without good cause or excuse, by the parent, of his 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 failure to perform the duties of a parent."

Although the father's attempts at establishing a relationship with the child were minimal, he did not forego his parental duty of providing support and maintenance for the child after he was adjudicated the father. The family court found that there were grounds to question his parentage before he was adjudicated the father. The mother and the stepfather had not told the child that the stepfather was not her biological father, they had established their own family, and they did not plan on telling the child of her paternity until she was a teenager. The juvenile court inferred that any efforts by the father to establish a relationship with the child would have been rebuffed by the mother and the stepfather. The ore tenus rule applies in cases involving the termination of parental rights, Ex parte Johnson, 474 So.2d 715 (Ala.1985), and we cannot say that the trial court, after observing the witnesses, erred in its finding that the father had not abandoned the child.

"The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child's development."

Lehr v. Robertson, 463 U.S. 248, 262, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983) (footnote omitted).

Finally, the mother and the stepfather argue that the trial court erred in allowing Dr. Guy Renfro to testify, because, they claim, the father "failed to engage in proper discovery." They argue that the father misled them by advising them that Dr. Renfro would not testify at the hearing. The father stated that he never advised the mother and the stepfather that Dr. Renfro would not testify. The mother and the stepfather fail to cite any authority in support of their argument other than a passing reference to Rule 37, Ala. R. Civ. P. "An appellate court will consider only those issues properly delineated as such and will not search out errors which have not been properly preserved or assigned. This standard has been specifically applied to briefs containing general propositions devoid of delineation and support from authority or argument." Ex parte Riley, 464 So.2d 92, 94 (Ala.1985) (citations omitted). Failure to comply with the requirements of Rule 28(a)(10), Ala. R.App. P., provides this court with a basis for disregarding those arguments. Whited v. Holmes, 816 So.2d 20 (Ala.2001).

Even if the mother and the stepfather had properly supported their argument, there was no reversible error. The following exchange occurred at the hearing:

"Mother and stepfather's counsel: Your honor, just briefly we would object to Doctor Renfro's testimony. We had an agreement between the parties' lawyers that we would exchange the opinions of the witnesses. I was never given that, although I gave them Doctor Rogers's opinion. That having been said, we object to his testimony.

"Court: Have you given a written report?

"Father's counsel: Judge, I told [counsel] he didn't have to give me Doctor Rogers's report and Doctor Renfro didn't give me a written report, and he never gave me one.

"Mother and stepfather's counsel: I'll submit a letter later on explaining my point.

"Court: Well, there's no motion for discovery and no discovery order. The witness may testify. Again Doctor Renfro is well-known to the court, has testified many times, and he is accepted as an expert witness."

After Dr. Renfro testified, counsel for the mother and the stepfather again objected to his testimony. The trial court stated that none of the parties had asked for pretrial discovery. Counsel for the mother and the stepfather argued that he had effectively been deprived of an opportunity to cross-examine Dr. Renfro because he had no prior knowledge of what Dr. Renfro's testimony would be. The juvenile court then continued the case for a later hearing. However, on August 5, 2002, the parties filed a joint motion for waiver of any further hearings and stipulated that all the evidence in this case had been presented to the court. The mother and the stepfather clearly were given an opportunity to cross-examine Dr. Renfro at a subsequent hearing. However, they declined to do so. We cannot say the trial court erred in considering Dr. Renfro's testimony.

AFFIRMED.

CRAWLEY, J., concurs.

PITTMAN, J., concurs in the result.

THOMPSON and MURDOCK, JJ., dissent.

MURDOCK, Judge, dissenting.

The child in this case, a girl, was born in April 1996. Before her birth, the child's biological father made no attempt to support K.H.M., the child's mother, either emotionally or financially. For several years following the child's birth, the biological father showed no interest in, and took no steps toward, being involved in the child's life.

The mother testified that when the child was seven months old she requested that the father pay child support but that he refused. The mother then sued the father to establish his paternity of the child and to force child-support payments, an effort in which she was successful.

When the child was eight months old, the mother and R.M. began dating. The mother and R.M. married in October 1997 and, based on the evidence presented, it appears that R.M. has since that time been a good and loving stepfather to the child.

For the next four and one-half years, the court automatically deducted from the father's paycheck the child support that he had been ordered to pay. However, during this time (and therefore for a total of five and one-half years from the child's birth), the father made essentially no effort whatsoever to see his child or to become involved in her life in any way. In short, the child has, for almost all of her first six years of life, grown up knowing R.M. as her father and knowing of no other man as her father. Accordingly, when the child was five and one-half years old, R.M. and the mother approached the biological father to ask if he would consent to R.M.'s adopting the child as his own. In response, the biological father filed a custody petition in an attempt to obtain custody of a child whom he had never seen.

The father's admissions at trial prove his complete abandonment^[1] of the child to the care of the mother and R.M. for several years.

"Q. You saw your child for the first time at the child support hearing; is that correct?

"A. Yes.

"Q. The testimony has been in essence that you made no efforts whatsoever to actually see or visit your child from the time that you found out that you were the child's father, at least through the year 1997; isn't that true?

"A. That would be true.

"Q. And you have made no effort in the year 1997 after you found out that you were the child's father to go see her, true?

"A. Up until '99.

"Q. Okay, the answer to my question was yes, I made no efforts in '97?

"A. Correct.

"Q. And the same is true of 1998, you made no efforts to see your child in '98?

"A. Not to my knowledge.

"Q. When do you claim that you tried to see the child in '99?

"A. Well, I would call [K.H.M.'s] sister at work, and ask here to give [K.H.M.] a call to see if she would call me back. Sometimes she would, sometimes she wouldn't.

"Q. Okay. You say you made efforts in '99 to call [K.H.M.'s] sister; is that right?

"A. Correct.

"Q. And your conversations were one minute each and those were the minutes where you didn't actually talk to her; what did you do, leave a message?

"A. Or just hang up without leaving a message.

"Q. Apparently you had five minute conversation with her [the sister] in January of 2000?

"A. Yes.

"Q. You never once called [K.H.M.] ... to ask [for] visitation in the year 2000, did you?

"A. No only —.

"Q. The question is, isn't [it] true you never once called [K.H.M.] to see about visiting with [the child], in the year 2000?

"A. No, I guess I never did call [K.H.M.]

"Q. You never went to [K.H.M.'s] mother's house to try to arrange for visitation at any time ever, even to today?

"A. No, sir.

"Q. Now, did you ever send [the child] a Christmas present?

"A. This past Christmas, yes.

"Q. After you filed for custody, right?

"A. Yes.

"Q. Yeah. How about before your lawyer filed something, did you ever send [the child] a Christmas present?

"A. No, sir.

"Q. Did you ever send [the child] a birthday present?

"A. No, sir.

"Q. Did you ever call [the child] on her birthday or Christmas?

"A. No, sir, I never had a phone number or address to send her anything.

"Q. You knew [K.H.M. and the child were] living with [K.H.M.'s] mother after you moved out, didn't you?

"A. Yes.

"Q. And you knew at any time you could have gone to [K.H.M.'s] mom's and found out where [K.H.M. and the child were], didn't you?

"A. I never knew how long [K.H.M.] lived there with her mother.

"Q. You never made no effort to find out, did you?

"A. No, sir.

"Q. So the truth of the matter is, you never made even the smallest effort, aside from calling [K.H.M.'s] sister a few times, to try to find out about your daughter; that's the truth, isn't it?

"A. I guess so."

In sum, it is clear from the record that from the period of the child's birth through the summer of 2001, a period of five and one-half years, the biological father never once sought to see his child.

This case raises two significant issues that, in my opinion, require the reversal of the trial court's judgment. Those two issues correspond to the two-pronged test articulated in Ex parte Beasley, 564 So.2d 950 (Ala.1990), that is applicable in any termination-of-parental-rights case: (1) determining whether there are "grounds for the termination," and (2) determining whether, after considering the viable alternatives, termination is in the best interests of the child. Ex parte Beasley, 564 So.2d at 954-55. See D.M.P. v. State Dep't of Human Res., 871 So.2d 77 (Ala.Civ.App.2003) (plurality opinion).

The first issue is whether a biological father with no other connection with his child, who is ordered by a court to pay child support as a result of a paternity action filed against him by the child's mother, and whose paycheck is garnished for that support, can be found to have abandoned the child. Section 26-18-3(1), Ala.Code 1975, part of the Child Protection Act, provides the following statutory definition of "abandonment":

"[(1)] A voluntary and intentional relinquishment of the custody of a child by a parent, or [(2)] a withholding from the child, without good cause or excuse, by the parent, of his presence, care, love, protection, maintenance or the opportunity for the display of filial affection, or [(3)] the failure to claim the rights of a parent, or [(4)] failure to perform the duties of a parent."

(Section 26-10A-2(1), Ala.Code 1975, a part of the Alabama Adoption Code, provides a nearly identical definition of "abandonment.") Thus, § 26-18-3(1) provides, in the disjunctive, for four different acts that constitute abandonment, any one of which constitutes a ground for the termination of parental rights. Financial support of the child plays no role in two of the four acts constituting abandonment, the first and third. The father therefore fails those two tests, either one of which is sufficient to require a finding that the father has abandoned the child.

In addition, the second type of abandonment identified in the statute is the "withholding from the child, without good cause or excuse, by the parent, of his presence, care, love, protection, maintenance or the opportunity for the display of filial affection." In this case, the father has not provided his presence, care, love, protection, or the opportunity for the display of filial affection for a period of at least five and one-half years. He did provide some financial "maintenance," but even this he was forced to provide through involuntary payroll deductions as the result of a paternity action brought against him. I cannot conclude that those payroll deductions are a sufficient basis to conclude that the father did not satisfy the second category of abandonment identified in § 26-18-3(1); nor can I conclude that such payroll deductions come close to performing all "the duties of a parent" that were this father's responsibility, as contemplated by the fourth category of abandonment identified in the statute.

In sum, based on the facts presented in this case and a comparison of those facts to the four types of abandonment described in § 26-18-3(1), I must conclude that the father's actions satisfy each of the four categories, any one of which would be a sufficient basis to require the conclusion that the father had abandoned his child.^[2]

The trial court reasoned that the mother and her husband had decided after a period of time to "establish their own family and not tell the child that the Husband was a stepfather as opposed to a biological father." This, according to the trial court, constitutes evidence that "efforts by the biological father would have been rebuffed."

My response to the foregoing is to ask the question what else are a loving mother and stepfather supposed to do under these circumstances. The biological father had shown absolutely no interest in having anything to do with the child for five and one-half years. What message therefore are we sending to mothers with children whose fathers have abandoned them? How long must such a mother wait before attempting to establish her own home and family and to proceed with her life independent of the biological father? Section 26-18-7(c) provides that four months is presumptively long enough. If not four months, would one year be enough? Two years? In the present case, the evidence is undisputed that for several years the father made no effort to have any involvement in the life of his daughter. I am concerned that by our opinion today this court is advising this mother, and similarly situated mothers, that the State of Alabama expects them to hold a place in their daughter's or son's life for a man who has for many years shown absolutely no interest in occupying that place. Such a message invades the parental rights of the custodial parents and extends to a biological father rights and privileges that are far beyond what that father has sought to obtain for himself.

The trial court's judgment states that the decision of the mother to establish her own family with the daughter and the stepfather is evidence that the biological father's efforts to establish a relationship with his daughter would have been rebuffed. Perhaps this is correct. Indeed, the very fact of this lawsuit and the position taken here by the mother and the stepfather are evidence that, at least after five and one-half years of providing such a family for the daughter, and after five and one-half years of the biological father's playing no role in and expressing no desire for a role in the life of his daughter, such efforts would indeed be rebuffed. I see no reason why they should not be rebuffed given the fact that the biological father had long since abandoned his child. Would such efforts have been rebuffed, however, during the first four months of the child's life, or during the first four months after the paternity of the father was judicially established? During the first year after the father's paternity was judicially established? The first two or three years? We do not know; to answer these questions requires speculation. The one thing we do know is that the father never made those efforts.

Our law provides that the father's parental rights should be terminated only in the most egregious of circumstances. I believe the circumstances of this case are more than egregious enough. Indeed, insofar as the actual experience of the child in this case, I am not sure how the biological father's abandonment of her during the first five and one-half years of her life could be any more complete than it was.

In R.K. v. R.J., 843 So.2d 774 (Ala.Civ.App.2002), this court discussed at length the concept of abandonment and the special opportunity a biological father has for becoming a real father in the life of his child. When a biological parent fails to take advantage of that opportunity, he or she forfeits the special status that the law otherwise provides.

"`When an unwed father demonstrates a full commitment to the responsibilities of parenthood by "com[ing] forward to participate in the rearing of his child," Caban [v. Mohammed], 441 U.S. [380,] 392, [99 S.Ct. 1760, 600 L.Ed.2d 297 (1979)], his interest in personal contact with his child acquires substantial protection under the Due Process Clause. At that point it may be said that he "act[s] as a father toward his children." Id., at 389, n. 7[, 99 S.Ct. 1760]. But the mere existence of a biological link does not merit equivalent constitutional protection. The actions of judges neither create nor sever genetic bonds. "[T]he importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in `promot[ing] a way of life' through the instruction of children ... as well as from the fact of blood relationship." Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 844[, 97 S.Ct. 2094, 2109-2110, 53 L.Ed.2d 14] (1977) (quoting Wisconsin v. Yoder, 406 U.S. 205, 231-233[, 92 S.Ct. 1526, 32 L.Ed.2d 15] (1972)).'

"Lehr[ v. Robertson], 463 U.S. [248,] 261, 103 S.Ct. 2985, 77 L.Ed.2d 614 [(1983)] (...; footnote omitted in R.K.).

"Conversely, when an unwed father fails to `come forward,' he will not acquire substantial constitutional protection:

"`The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child's development. If he fails to do so, the Federal Constitution will not automatically compel a State to listen to his opinion of where the child's best interests lie.'

"Lehr, 463 U.S. at 262, 103 S.Ct. 2985, 77 L.Ed.2d 614 (footnote omitted in R.K.). See also M.V.S. v. V.M.D., 776 So.2d 142, 146 (Ala.Civ.App.1999) (relying on Lehr for the proposition that a biological father must have a `substantial relationship' with a child in order to have a constitutional right to withhold consent to that child's adoption).

"Here, the unwed father clearly did not step forward when he could have. The courts of this State therefore are under no obligation to accord the father full United States Constitutional protection of his parental rights. In the eyes of federal jurisprudence, providing such protection would be inconsistent with the best interests of the child, given the father's lack of any substantial relationship with the child.

"The State of Alabama, however, may be free to make a different judgment as to what would be in the best interests of children who have been abandoned by their biological fathers. The State may decide, insofar as state law is concerned, that the physical abandonment of a child by an unwed, biological father (in contrast to such father's abandonment of adjudicated paternity rights), should not prevent such a father from being on an equal presumptive footing with a fit, custodial mother — and on better footing than all other parties, regardless of their historical relationships with the children — if and when such a father's paternity is eventually adjudicated. Indeed, Ex parte D.J.[, 645 So.2d 303 (Ala.1994),] appears to do that. There is therefore an unavoidable tension between the holding of Ex parte D.J. and the principles reflected in Lehr and the state authorities other than Ex parte D.J. discussed above.

"Nonetheless, this court, as was the trial court, is bound by the holding of Ex parte D.J. However, that holding is not dispositive in the present case. The paternity of the father in this case did not remain unadjudicated throughout the entire time he continued his forfeiture of the child.

"R.J. was adjudicated as the father of the child in 1997, more than three years before he petitioned for custody. Ex parte D.J. does not foreclose a finding that a man who has been adjudicated to be the father of a child has, by his post-adjudication neglect of a child, voluntarily forfeited his custodial rights. The juvenile court's conclusion that the father did not abandon the child `as a matter of law' is therefore incorrect as to the period between 1997 and the filing of the father's July 2000 custody petition.

"Moreover, there was substantial evidence in this case indicating that the father, following his 1997 adjudication as the father of the child, made scarcely any effort to contact the child or the child's family, and that the father was a complete stranger to the child until the mother found the father in February 2000 and initiated contact with him. Indeed, because there is no substantial evidence to the contrary, we conclude that the father did voluntarily forfeit custody of his child after his 1997 adjudication and that the maternal grandparents accepted custody of the child during this same period and acted on such custody to the manifest interest and welfare of the child. We therefore must reverse the judgment of the juvenile court and remand the cause for that court to determine whether the father met the [Ex parte] McLendon[, 455 So.2d 863 (Ala.1984)] burden of proving that a transfer of custody to him at this juncture would materially promote the best interests of the child."

R.K. v. R.J., 843 So.2d at 781-83 (footnotes and emphasis omitted; emphasis added).

The abandonment of the child in the present case lasted even longer than the abandonment in K.D.T.J. v. Madison County Department of Human Resources, in which I wrote:

"[T]he constitutional concerns that are likewise reflected in our state-law presumption favoring biological parents are not even raised in the first instance where a father has not stepped forward to assume responsibility for and involvement in the life of his child. In the present case, the record clearly demonstrates that the father made no effort and took no initiative to locate the mother, to determine the status of the child, and/or to obtain a paternity test. There is no evidence that he provided emotional or financial support to the mother prior to the birth of the child. For over two and one-half years after the child's birth, he took no initiative of his own to determine whether he was the father of the child, either through self-help or through the help of a court. In short, he showed no interest in the child or even in finding out if the child was his, despite knowing that there was a `strong possibility' that he was the father. In part because the father had not stepped forward to be a parent to this child, the child was placed by [the Department of Human Resources] in foster care and, over a period of approximately two years, bonded with loving foster parents whom the child considers to be his mother and father according to the testimony of one witness.

"While there is and should be a strong policy presumption favoring the right of a parent to the custody of his or her child, the fundamental principles that inform that presumption and that should be guiding our decisions in this area do not support the extension of that presumption in a case such as this to a father whose only connection with the child is a purely biological one. If we are serious about pursuing the best interests of the children in such cases, I believe we must recognize both the legal and practical effect of a biological father who allows himself to become a stranger to his offspring. See generally Lehr v. Robertson [, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983),] and R.K.[ v. R.J., 843 So.2d 774 (Ala.Civ.App.2002)]."

K.D.T.J. v. Madison County Dep't of Human Res., 867 So.2d 1136, 1149 (Ala.Civ.App.2003) (Murdock, J., concurring in part and dissenting in part).

The second issue presented in this case relates to the trial court's discussion of the second prong articulated in Ex parte Beasley. The trial court stated that even if the father had abandoned the child, it "must proceed further to determine that all viable alternatives to termination had been considered and should be rejected as not in the best interest of the child." I agree with this as a statement of the court's responsibility under the second prong of the test articulated in Ex parte Beasley. See D.M.P., 871 So.2d 77 (plurality opinion). The trial court's judgment, however, reflects a somewhat different focus.

The trial court's judgment continues as follows:

"Clearly, the court cannot find, based on the evidence of the knowledge in the family and community, that the child's parentage will be hidden from her forever and the mother and stepfather admitted that they would have to inform the child of the truth when they felt the time was right. Also, it is clear that the child making the discovery of her parentage without proper preparation will be traumatic and detrimental. Considering the conflicting expert testimony as to when the subject should be broached, the Court cannot find that a professionally assisted learning process toward providing the child with the proof of her parentage is not a viable alternative and such would appear to be in the best interest of the child. Therefore, the court cannot find that termination of parental rights is necessary to, or would produce, a desired result in maintaining the child's ignorance of her true parentage.

"Likewise, the Court cannot find from the facts and circumstances presented, that it is clearly in the best interest of the child to prevent the eventual establishment of a relationship with her biological father or that visitation between the father and the child in the future would be contrary to the best interest of the child and is not a viable alternative to termination of parental rights when properly approached with proper professional advice and therapy. In other words, the Court does not find that it is in the best interest of the child to terminate the parental rights of the biological father merely to delay the child's knowledge of the truth or to avoid or delay facing the same in an organized and therapeutic manner, merely to assist the stepfather in his desire to become an adoptive father."

The issue under the second prong articulated in Ex parte Beasley is not whether, when, or how a child should be informed of his or her biological parentage. In a case such as this, making and carrying out that decision is the mother's role and responsibility and falls within her fundamental parental right to control the care and custody of her child. If a court decides that not terminating a biological father's parental rights is in the best interest of the child and, further, decides that visitation between the father and that child would be in the child's best interest, then the court may, in some cases, find that its "assistance" is needed to effectuate its visitation order and help the parties address the issue of how the child should be informed of his or her parentage.^[3] But the task of determining whether, how, and when to inform a child of his or her true parentage is not the primary focus of the trial court under the second prong of Ex parte Beasley.

Under the second prong articulated in Ex parte Beasley, a trial court is to determine whether a parental relationship with the biological father, and concomitantly adoption by a third party, is in the best interest of the child. Here, however, the trial court expressly made it clear that it focused on the need to avoid the "traumatic and detrimental" possibility of the child making an unplanned discovery of her parentage and the need for a professionally assisted learning process as a "viable alternative" that would appear to be in the best interest of the child. This focus is reflected throughout the trial court's analysis of the second Ex parte Beasley prong, including the trial court's concluding comment that

"the Court does not find that it is in the best interest of the child to terminate the parental rights of the biological father merely to delay the child's knowledge of the truth or to avoid or delay facing the same in an organized and therapeutic manner, merely to assist the stepfather in his desire to become an adopted father."

I do not believe that it can reasonably be concluded from the record presented that the purpose for the stepfather's attempt to adopt the child in this case was "merely to delay the child's knowledge of the truth or to avoid or delay facing the same in an organized and therapeutic manner." As the trial court itself stated, the child will learn of her true parentage sooner or later anyway. Rather, the purpose for which the mother and the stepfather sought the adoption at issue was, based on all indications in the record, the same as is the purpose of most prospective adoptive parents — that is, to provide the parental relationship for the child that is in the child's best interest. Likewise, the task of the trial court under the second prong of Ex parte Beasley is to decide what parental relationship is in the best interest of the child. I cannot conclude that the evidence in this case supports the conclusion that the child's best interest would be served by refusing to terminate the father's parental rights and preventing the adoption of the child by her stepfather.

I therefore respectfully dissent.

NOTES

[1] The trial court's findings with regard to the degree of abandonment include such terms as "significant," "little if any," or "no substantial"; the testimony, however, made it clear that the father made no efforts whatsoever to establish any relationship with the child until recently. While the trial court also noted the mother's admission in her testimony that the father may have had reasonable doubt concerning his paternity of the child, that doubt was obviously removed when the child was approximately one year old with the adjudication of the biological father's paternity.

[2] Furthermore, § 26-18-7(c) provides that "[i]n any case where the parents have abandoned a child and such abandonment continues for a period of four months next preceding the filing of the petition, such facts shall constitute a rebuttable presumption that the parents are unable or unwilling to act as parents."

[3] If, in a given case, the State decides that it is in the child's best interest that the father's parental rights be terminated, the State certainly has no role in deciding whether, how, or when to inform the child of his or her true parentage. If the State decides that termination is not in the child's best interest, but that visitation with the biological father is also not in the child's best interest, the State again has no role to play in deciding whether, how, or when to inform the child of his or her true parentage. Even if the State decides that termination is not in the child's best interest and that visitation with the biological father is in the child's best interest, the issue of how and when to inform the child of his or her true parentage is secondary to the fundamental issue that must first occupy the trial court's attention — whether to terminate and, if not, whether to establish visitation with the biological father. The fact that a child will, sooner or later, learn who his or her biological father is logically leads only to the parenting issue of whether and how to inform the child of such fact before he or she learns of it otherwise, not whether termination of the biological father's parental rights is or is not in the child's best interest.