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Absent biological fathers in adoption: noticing the nuance of notice.

TABLE OF CONTENTS

I.    PREFACE
II.   INTRODUCTION
III.  NOTICE TO IN-STATE PUNITIVE FATHERS
IV.   NOTICE TO PRESUMED FATHER WHEN WHEREABOUTS
      ARE KNOWN
V.    NOTICE TO PRESUMED FATHER WHEN WHEREABOUTS
      ARE UNKNOWN
VI.   COPY OF THE PETITION: TO SERVE OR NOT TO SERVE,
      THAT IS THE QUESTION
VII. CONCLUSION


I. PREFACE

In recent months, several states have seen intense litigation concerning the rights of biological fathers in contested adoptions. (1) For example, in November 2014, the Indiana Supreme Court held oral arguments in the case of Kramer v. Catholic Charities. (2) The Kramers, an adoptive family, filed a negligence lawsuit against Catholic Charities after the agency failed to identify that the putative father had registered with the Indiana Putative Father Registry. (3) The alleged negligence of Catholic Charities in failing to notify the biological father detrimentally affected the agency, the adoptive family, the biological father, and most importantly the adoptee. News sources indicated that the agency's failure to properly notify the biological father resulted in a disruption of the parent-child relationship between the child and the adoptive parents: "The adoption did not go through because the father of the child stepped forward, established paternity and successfully contested the adoption." (4) The trial court granted summary judgment to Catholic Charities, on the grounds that the Kramers signed documents waiving Catholic Charities from liability related to pre-adoption placement. (5) On appeal, the Indiana Court of Appeals was divided but ultimately reversed and remanded the decision. (6)

Similarly in Utah, biological fathers are fighting a legal battle against Utah. (7) A dozen fathers across the State have filed a civil lawsuit regarding the current adoption law, which allows mothers to secretly give their babies up for adoption. (8) The current Utah law does not require biological fathers to receive any type legal notice, which states a petition for adoption has been filed. (9) Requiring notice to be given provides the biological father with a limited number of days to contest the adoption process. (10) The notice requirement is common in several states and at least recommended in other states. (11)

The lack of notice requirement to biological fathers is also allegedly encouraging birth mothers to move to Utah and secretly place the baby for adoption. The Chief Justice of the Utah Supreme Court warned of such a scenario in which a biological father lost his bid to gain custody. (12) In a dissenting opinion, the Chief Justice wrote, "Utah risks becoming a magnet for those seeking to unfairly cut off opportunities for biological fathers to assert their rights to connection with their children. Not every unmarried biological father is indifferent to or unworthy of such connections." (13) Overall, the fathers who have filed suit are not only seeking monetary damages, but are also hoping the Utah Adoption Act will be found unconstitutional. (14)

For adoption professionals, providing proper notice to biological fathers in the adoption context is often overwhelming. Furthermore, the nuances of the putative father registry have recently been the subject of complex litigation. However, understanding these nuances is vital to protecting the interests of all entities involved--including attorneys, agencies, biological parents, adoptive parents, and more importantly, the adoptees.

What follows is an in-depth analysis of the key issues related to properly notifying biological and presumed fathers of an adoption in Alabama.

II. INTRODUCTION

Under Alabama adoption law, there are only two types of "fathers" who are potentially entitled to notice of an adoption proceeding and whose consent could potentially be necessary for an adoption: presumed and/or putative. (15) A man may become a presumed father by events transpiring around a marriage or attempted marriage, or receiving the adoptee into his home and openly holding out the adoptee as his own child. (16) All other potential "fathers" are considered putative fathers. (17)

III. NOTICE TO IN-STATE PUNITIVE FATHERS

This section addresses the following questions: (1) when is a putative father required to receive notice of a pending adoption, and (2) when is a putative father's consent required. (18)

Statutes and case law discussed herein firmly support the conclusion that, unless a putative father complies with the Putative Father Registry, he is not entitled to notice and his consent is implied.

The relevant statutes governing this question are as follows:

[section] 26-10A-17. Notice of Petition

[N]otice of the pendency of the adoption shall be served by the petitioner on ... (10) the father and putative father of the adoptee if made known by the mother or otherwise known by the court unless the court finds that the father or putative father has given implied consent to the adoption, as defined by Section 26-10A-9. (19)

[section] 26-10A-9. Implied consent or relinquishment

(a) A consent or relinquishment required by Section 26-10A-7 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 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 and failing to answer or otherwise respond to the petition within 30 days.

(5) Failing to comply with Section 26-10C-1. (20)

[section] 26-10A-7. Persons whose consents or relinquishments are required

(a) Consent to the petitioner's adoption ... shall be required of the following:

(5) The putative father if made known by the mother or is otherwise made known to the court provided he complies with Section 2610C-1 and he responds within 30 days to the notice he receives under Section 26-10A17(a)-(10). (21)

[section] 26-10C-1. Registration of putative fathers; notice of intent to claim paternity; release of information

(f) The Department of Human Resources shall, upon request, provide the names and addresses of persons listed with the registry to any court. The information shall not be divulged to any other person except upon order of a court for good cause shown. The Department of Human Resources shall further after receiving notice pursuant to Section 26-10A1-7 of the pendency of any adoption proceeding wherein the proposed adoptee is a child born within 300 days of the date or dates of sexual intercourse listed in the registry and to the same biological mother listed in the registry, immediately send a copy of the notice of intent to claim paternity to the court handling the adoption. When the court handling the adoption receives the notice of the intent to claim paternity, that court shall forthwith give notice of the pendency of the adoption proceeding to the putative father listed in such notice of intent to claim paternity and at the address therein listed, and additionally notify the biological mother that the putative father has registered in conformity with the putative father registry. (22)

A plain reading of these code sections suggests that unless a putative father signs the registry, he is not entitled to notice, and his consent is not required. The case of MVS. v. V.M.D. demonstrates the Court of Civil Appeals' "adoption," if you will, of this conclusion. In M. V.S. v. V.M.D., the Court of Civil Appeals interpreted the Adoption Code in the following manner:

   Section 26-10A-17(a)(10), a part of the Alabama
   Adoption Code, requires that a putative father be
   given notice of a pending adoption. Section 2610A-7(a)(5),
   also a part of the Alabama Adoption
   Code, requires the putative father's consent or relinquishment
   if he has responded within 30 days to the
   notice he received under [section] 26-10A-17(a)(10). Section
   26-10C-1(i) of the Putative Father Registry
   Act, which went into effect in 1997, now provides
   that the putative father will irrevocably consent to
   an adoption unless, within 30 days of the birth of
   the child, he files a notice to claim paternity. Only
   where the putative father has complied with the
   provisions of the Putative Father Registry Act is the
   consent of the father to the adoption required today.
   Section 26-10C-1(f), specifically provides that
   when the court handling the adoption 'receives said
   notice of the intent to claim paternity, that court
   shall forthwith give notice of the pendency of the
   adoption proceeding to the putative father listed in
   such notice of intent to claim paternity.' There
   would be no purpose in providing unregistered putative
   fathers with notice under [section] 26-10A-17(a)(10),
   because a right to consent to the adoption would
   have been waived by a failure to register under the
   newly enacted Putative Father Registry Act. Putative
   fathers who have registered would be entitled
   to notice under [section] 26-10A-17(a)(10), and their consent
   or relinquishment would be required under [section]
   26-10A-7(5), provided that they responded within
   30 days of the notice of the pending adoption." (23)


The Alabama Court of Civil Appeals and the Alabama Supreme Court have consistently upheld this interpretation of the statutes in question. In the 2007 Ex parte D.B. opinion, Justice Bolin of the Alabama Supreme Court reiterated the spirit of this sentiment. (24) Stating in relevant part:

   The concept of a putative-father registry may be burdensome to a
   putative father, but it cannot be contradicted that the registry
   gives him an opportunity to, and a procedure by which he can,
   perfect and propound that right, which he did not have before such
   registries. A putative-father registry also protects the privacy
   rights of the unwed birth mother by not forcing her to disclose the
   identity of the birth father against her wishes. The concept of a
   putative-father registry further protects the rights of the
   adoptive couple. The registry gives them the confidence and
   assurance that the right to notice and the issue of consent of all
   necessary parties has been judicially considered in the adoption
   forum. A putative-father registry advances the state's interest in
   promoting "the welfare or best interests of the [adoptee], which
   include the encouragement of adoption in general and an expeditious
   and positive adoption specifically."

   Finally, and most importantly, a putative-father registry helps
   protect the best interests of the adoptee, especially an infant
   child. As a result, the child will either know and receive the love
   and benefit of his or her biological father, or the love and
   benefit of adoptive parents, without the requirement to undergo the
   emotionally wrenching experience of coming to know both through a
   change in custody occasioned by protracted litigation.

   There can never be a perfect procedure for giving notice to
   putative fathers in newborn adoptions. It is a biological and
   common sense fact that the identity of the mother will always be
   known, but the same is not so for the biological father. Given the
   competing interests of the parties involved, there is only so much
   that government can do to seek out putative fathers and give them
   notice of an adoption proceeding, while protecting the privacy
   interests of the biological mother, who cannot be forced to
   disclose the identity of the putative father, and at the

   same time providing for an expeditious adoption proceeding. Various
   commentators have brought forth criticisms of putative father
   registries on different grounds. Some believe that the
   establishment of putative father registries as the sole vehicle for
   putative fathers to propound their rights does not go far enough,
   and that a mother should be encouraged to disclose the father's
   identity so that more effective means of notice can be used.
   Analogies have been made that governmental programs exist that
   require mothers receiving public aid to cooperate in good faith in
   establishing paternity of their children. While this may be an
   effective economic incentive for birth mothers in need of financial
   aid, there would be no such economic motivation for the birth
   mother who is placing the child for adoption. Others note that it
   may be faulty to assume that "putative fathers know the registry
   exists and understand the requirements of proper registration," and
   "[f]ew states include publicity requirements in the registration
   statute." These may be valid criticisms, but there must be a
   balancing of all competing interests when considering the
   overriding concern--the best interests of the adoptee.

   Certainly, states can be encouraged to publicize these
   putative-father registries, and to advise potential fathers of
   their rights under such registries. It must be remembered that the
   predicament being addressed was created when a potential father
   engaged in an extramarital sexual relationship that he knew could
   possibly lead to the conception of a child. The irresponsible
   putative father who has no interest in any child so conceived does
   not have to register and thus frees the child for adoption into a
   loving home.

   Should he belatedly decide that he wants to establish a
   relationship with the child, neither the child, nor the adoptive
   parents, have to worry about a subsequent traumatic interruption of
   their family unit.

   However, the responsible putative father who wants to establish,
   and have the privilege of enjoying, a father-child relationship has
   the ability to do so simply by perfecting his registration--a small
   price to pay for the preservation of his right to a parental
   relationship. Again, by putting the child's best interests
   uppermost in the adoption process, a putative father registry
   allows obstacles to the adoption to be quickly discovered so that
   if the adoption cannot be finalized, the litigation surrounding it
   will not drag on for years. A national putative father registry
   would further protect against extended litigation caused by
   multijurisdictional disputes, as is the case here. (25)


This sentiment was affirmed by the Alabama Court of Civil Appeals in A.D.S. v. S.J.L.:

As we noted in J.L.P. v. L.A.M., the provisions of the Adoption Code in effect at the time that the intervenors initiated the adoption proceedings in this case "[did] not explicitly require consent of a 'father' to a proposed adoption except insofar as a 'father' is the 'presumed father' or the 'putative father' of the child to be adopted." We further discussed the crucial distinction between the two terms in this context at some length:

"The terms 'presumed father' and 'putative father' mean different things under the Adoption Code: a 'presumed father' is '[a]ny male person as defined in the Alabama Uniform Parentage Act,' i.e., Ala. Code 1975, [section] 26-17-1 et seq. ('the AUPA'), whereas a 'putative father' is '[t]he alleged or reputed father.' Compare Ala. Code 1975, [section] 26-10A-2(11), with Ala. Code 1975, [section] 26-10A-2(12). There is a further significant difference between the two classifications. Under the Adoption Code, a 'presumed father' of a child who has never married or attempted to marry that child's mother is afforded an unqualified right to object to a proposed adoption of that child, regardless of the child's actual paternity, if '[h]e received the adoptee into his home and openly held out the adoptee as his own child.' Ala. Code 1975, [section] 26-10A-7(a)(3)d.

"In contrast, a 'putative father' who is made known to the court considering the adoption is merely given the right to object to an adoption 'provided he complies with Section 26-10C-1,' i.e., the [PFRA], Ala. Code 1975, [section] 26-10A-7(a)(5). That language reflects that, since 2002, a required consent is deemed given by implication by a failure to comply with [the PFRA]; such consent so implied 'may not be withdrawn by any person.' Ala. Code 1975, [section] 26-10A-9(a)(5) and (b). In turn, [section] 26-10C-1(a) provides for a central putative-father registry in which are to be recorded the names of, and other information concerning, any person filing a notice of intent to claim paternity of a child. The penalty for failing to file such a notice of intent is, under the [PFRA], severe:

"'Any person who claims to be the natural father of a child and fails to file his notice of intent to claim paternity pursuant to [the PFRA] prior to or within 30 days of the birth of a childborn out of wedlock[] shall be deemed to have given an irrevocable implied consent in any adoption proceeding.

"'This subsection shall be the exclusive procedure available for any person who claims to be the natural father of a child born out of wedlock on or after January 1, 1997, to entitle that person to notice of and the opportunity to contest any adoption proceeding filed and pending on or after January 1, 1997.' Ala. Code 1975 [section] 26-10C-1(i) (1975)." (26)

Although A.D.S. contends that classifying him as a putative father violates constitutional principles of due process, we noted in M. V.S. v. V.M.D., that "due process for unwed fathers requires that state law provide an adequate opportunity for them to claim paternity and to take responsibility for their children in a timely manner," and we added that "limits on procedural protection for a putative father are necessary from the perspective of the child, who needs a stable start in life and needs stability early." The PFRA and the Adoption Code, taken together, afford males claiming to be the fathers of children out of wedlock, as A.D.S. has claimed to be the father of the child at issue in this case, a clear right to notice and rights to give or withhold consent to a proposed adoption upon compliance with those statutes. Without having shouldered those relatively light burdens during the mother's pregnancy or the 30-day period following the child's birth so as to ensure his substantive parental rights, A.D.S. is in no position to claim that his subsequent objections to the proposed adoption and professions of readiness to be a parent are anything more than mere appeals to biological affinity. Stated another way, A.D.S.'s due-process attack on the juvenile court's judgment must fail because he failed to 'establish a substantial relationship with the child to merit constitutional protection.' (27)

In summary, the statutes and case law clearly support the conclusion that unless the putative father signs the Putative Father Registry within thirty days after birth, he is not entitled to notice and his consent is implied.

III. NOTICE TO OUT-OF-STATE PUNITIVE FATHERS

If a child is born in Alabama and the adoption petition is filed in Alabama, but the putative father (PF) lives in another state, is it necessary to give notice of the proceedings to the PF?

Most likely, no. Notice to the PF would not be necessary. If litigation ensues regarding this question, the appropriate course for the probate court to take will be to search not only Alabama's Putative Father Registry (PFR), but also the PFR (or other applicable mechanism) of the state in which the PF resides. If the PF has complied with the PFR of Alabama or his state of residence (or other applicable mechanism), his consent will not be implied based on this criteria and he will be entitled to notice. However, Alabama's case law offers very little guidance on this question, and each case should be analyzed on an individual basis.

In Mary Beck's article, A National Putative Father Registry, she analyzes several state cases related to the above stated question:

   The conclusion that can be drawn from reading the different state
   cases analyzing interstate issues in adoption and dependency cases
   is that states are attempting to protect the rights of fathers by
   searching for putative father registrations in sending states and
   not just considering the filings in the receiving states, a.k.a.
   forum states, and are processing the expeditious placement of
   children in adoption where fathers have not established paternity
   and/or assumed parental responsibilities. (28)


In Justice Bolin's concurring opinion in Ex Parte D.B., he explained that "[m]ost states have now passed some form of a putative-father registry or registration of paternity, and in doing so these states ... have done all they can to protect the rights of putative fathers and the privacy interests of unwed birth mothers, prospective adoptive couples, and potential adoptees, in proceedings within the borders of each of those states." (29)

All states have provisions for a father to voluntarily acknowledge paternity or the possibility of paternity of a child born outside of marriage. (30)

Approximately twenty-four states (including Alabama) have established paternity registries for this purpose. (31) In nineteen states, the District of Columbia, and the United States Virgin Islands, there are provisions for voluntary acknowledgment of paternity through forms that are filed with social services departments, registrars of vital statistics, or other similar entities. (32)

The Alabama Supreme Court case, Ex parte J. W.B., is one of the only Alabama cases that address this question. (33) This case held that a biological father's consent to his child's adoption was implied by his acts and omissions. Both the biological father and the birth mother were residents of Georgia. (34) The child was born in Georgia, and was moved to Alabama where the adoptive family lived. (35) Immediately following the child's birth, the biological father claimed that the birth mother and her family had interfered with his efforts to have a relationship with the child, but the birth mother had no contact with the father for the next three weeks, which led her to believe that he had abandoned the child, which encouraged her decision to put the child up for adoption. (36)

One of the factors the court considered in finding implied consent was the fact that the PF did not sign the PFR in Georgia (where he and the birth mother were from), or Alabama (where the child was adopted). (37) However, caution should be used in relying on this case to support this memorandum's conclusion. The main factor the court considered in finding implied consent was that the PF failed to create and maintain a substantial relationship with his child. (38) In fact, in a seesaw-like manner, the court states that "[b]oth parties acknowledged that the Alabama PFR Act did not apply since the child was born in Georgia and both the birth mother and the biological father resided in Georgia." (39) The court ultimately held that the birth father was not precluded in having a relationship with the child, and that his consent to adoption was implied based on his lack of relationship with the child. (40) The court also held that a biological father's consent to his child's adoption was implied by his acts and omissions.

J.W.B., at best, gives us ambiguous guidance as to the course a court would take in determining whether our memorandum's conclusion sufficiently protects a PF's right to notice. With the absence of clarity on this issue in Alabama, a court would almost certainly look to how the issue has been handled in other states. Many of our sister states have faced this issue, and the way these states have ruled generally favors this memorandum's conclusion.

The Court of Appeals of Oregon upheld a judgment that a PF was not entitled to notice of an adoption preceding that took place in a state where the PF did not register. (41) In Burns v. Crenshaw, the PF and birth mother both lived in Washington where the child was conceived. (42) The birth mother then moved to Oregon after finding out she was pregnant, and the PF responded by registering in Washington, but failed to register in Oregon. (43) The court brought up the fact that he had reason to believe that the mother might have relocated to Oregon, yet still failed to register there, and found that his timely registration with Washington was insufficient to entitle him to notice in Oregon. (44)

The Supreme Court of Minnesota also ruled on this issue in 2002. (45) In Heidbreder v. Carton, the birth mother and PF lived together in Iowa where they conceived a child and broke up soon after. (46) The mother moved to Minnesota and concealed her whereabouts from the PF. (47) He registered with Iowa's putative father registry, and though he knew she had family in both Minnesota and Illinois, he did not file with either state's PFRs because he alleged that he did not think she had moved out of Iowa. (48) The child was then adopted in Minnesota. (49) The Minnesota Supreme Court affirmed the holding that he was barred from maintaining a paternity action, that the mother concealing her location did not excuse him from his failure to register with the Minnesota registry in time, and that the mother owed the PF no fiduciary duty to disclose her location to him. (50)

Tennessee protected an Ohio PF's rights where the father registered with the Ohio PFR 26 days after the child's birth. (51) The father did not visit or support the mother during the pregnancy because he said he was unsure if the child was his. (52) The Tennessee Court of Appeals held that he was a legal father because he had properly filed with Ohio's PFR, and that his failure to support or visit the child was the result of the mother and her family's concerted effort to keep him away from the child. (53) Thus, Tennessee case law protects a PF's rights where a mother has interfered with his efforts to assert paternity as long as the PF's actions are done in compliance with the statute's timeline. (54)

The Ohio Court of Appeals remanded a case where an Indiana man filed timely with the Indiana PFR. (55) Both the birth mother and the PF were residents of Indiana. (56) Shortly after dating, she became pregnant and placed the baby in the custody of an adoption agency also located in Indiana. (57) The child was placed with a couple in Ohio, and the PF opposed the adoption. (58) The court reasoned that while he failed to register with Ohio's PFR, he registered in compliance with Indiana's PFR statute. (59) This case affirms the principle that the father can protect his paternity interest by timely registering with the PFR in the state where the child was conceived and born. (60)

As another example, New Hampshire requires that a search of the PFR of another state only occur if the child were born in another state. However, if the child were born in New Hampshire, it does not address that a PFR should be searched in every possible state where a putative father registry is available. (61)

Thus, the protection offered by these registries remains only within the borders of each of state and that particular state's registry. In Ex Parte D.B., Justice Bolin aptly articulated the dilemma in his concurrence:

   In an increasingly mobile society, however, such
   state registries cannot, and do not pretend to, provide
   protection for the varied interstate interests that
   may arise in the possible scenario where a putative
   father may reside in one state, a birth mother in another
   state, conception occurred in a third state, the
   birth of the child took place in a fourth state, and the
   child was placed for adoption in potentially a fifth
   state. (62)


Justice Bolin continued his concurring opinion by advocating for a national PFR, which he considers as a simple, yet important step to help encourage finality in adoptions. (63)

Several law review articles have picked up on similar themes. In Implementing a National Putative Father Registry by Utilizing Existing Federal/State Collaborative Databases, Donna Moore addresses the issue of what to do when a birth mother lives in one state (where the child also was born and where the adoptive parents also live), and the PF lives in another state. (64) This article addresses the fact that a man's participation in a sexual relationship with a woman is sufficient to "trigger the mechanism for registration." (65) Thus, it is not necessary for the mother to make the PF aware, and a PF's claim that he was unaware of the pregnancy or birth are an insufficient defense. (66) Also addressed is the flaw of each state operating a segregated database. (67) Because each state operates independent registries, unwed mothers are allowed to move to another state and move forward with an adoption, and the PF's lack of knowledge of the mother's location will not excuse him from registering. (68) The only way to remedy this flaw is to implement a national PFR. (69)

In The Putative Father Registry: Behold Now the Behemoth (A Cautionary Tale), Shirley Howell explains that there are no alternatives under the Alabama statute--outside of the substantial relationship doctrine--for a PF who fails to register with Alabama's PFR within thirty days after the child's birth. (70) Under the substantial relationship doctrine, by establishing a relationship with his child, a biological father cannot be divested of his right to contest his child's adoption proceeding by failing to sign the putative father registry. (71) Outside of this exception, registering in accordance with the statute is the exclusive way a PF can manifest his intent to claim paternity of the child. (72) The finality of this statute does not recognize ignorance of the law or ignorance of the child's birth as an excuse. (73) Furthermore, Howell acknowledges the fact that the Alabama Court of Civil Appeals has held in favor of the adoptive parents in every case in which the PF failed to file with the registry within the thirty-day time frame. (74) Complications, such as those that arise when the birth mother and PF reside in different states, were noted to be outside the scope of Howell's article. (75) However, Howell's article evidences good indications as to how strict the Alabama courts are in construing the state's PFR statute.

In conclusion, we see a question of law that lacks substantial clarity from our courts. In the absence of such clarity and in an effort to balance the varied interests, I recommend that adoption professionals apply the same procedures to out of state PF as we apply to in-state PFs. If litigation ensues, then the petitioners' attorney should advocate that the trial court search, not only Alabama's PFR but also the PFR (other mechanism) of the home state of the PF. If the PF has not complied with either state's mechanism, then his consent should be implied. (76)

IV. NOTICE TO PRESUMED FATHER WHEN WHEREABOUTS ARE KNOWN

The family structure dynamics have made the presumed father concept more prevent than ever. What was once viewed as the traditional family unit--a married couple with biological children produced during the marriage--has evolved in complexity due to increases in unwed mothers, fathers, and blended families. Alabama and many other states adhere to this firmly rooted principle: where a man persistently embraces his presumption of fatherhood, no other man is free to challenge it. (77)

Again, only two types of "fathers" exist in adoption cases: presumed and putative. A presumed father may exist: (1) by events transpiring around actual or attempted marriage, or (2) by receiving the adoptee into his home and openly holding out the adoptee as his own child. (78) Regardless of an actual biological connection, the adoption code requires a presumed father's consent to adoption if:

a. He and the adoptee's mother are or have been married to each other and the adoptee was born during the marriage, or within 300 days after the marriage was terminated by death, annulment, declaration of invalidity, or divorce, or after a decree of separation was entered by a court; or

b. Before the adoptee's birth, he and the adoptee's mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and,

1. If the attempted marriage could be declared invalid only by a court, the adoptee was born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce; or

2. If the attempted marriage is invalid without a court order, the adoptee was born within 300 days after the termination of cohabitation; or

c. After the adoptee's birth, he and the adoptee's mother have married, or attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and

1. With his knowledge or consent, he was named as the adoptee's father on the adoptee's birth certificate; or

2. He is obligated to support the adoptee pursuant to a written voluntary promise or agreement or by court order; or

d. He received the adoptee into his home and openly held out the adoptee as his own child." (79)

Section 26-10A-17 allows for two methods of service on the presumed father: certified mail and personal service. Section (c)(1) states that service shall be in accordance with the Alabama Rules of Civil Procedure (hereinafter Ala. R. Civ. P) except as modified by the Alabama Rules of Juvenile Procedure (hereinafter Ala. R. Juv. P.). Moreover, section (c)(3), in modification of the Ala. R. Civ. P. and Ala. R. Juv. P., states that service by certified mail "shall be sufficient." (80) This modifies the service rules mentioned earlier because Ala. R. Civ. P. 4(i)(2)(A) states that service by certified mail may not issue without the plaintiff filing a "written request with the clerk for service by certified mail." (81) Thus, the Adoption Code bypasses this requirement for the petitioner to make a formal request to the clerk for process via certified mail.

In addition, notice can be given by personal service as described in Ala. R. Civ. P. 4. Although Alabama Code Section 2610A-17 does not say this explicitly, it is a natural inference. Section (c)(1) of the code says that service shall be in accordance with Ala. R. Civ. P. and Ala. R. Juv. P. In addition, it says that notice by certified mail "shall be sufficient." Thus, notice by certified mail is not necessary. By default, the personal service rules of Ala. R. Civ. P. 4 would also be a sufficient method of perfecting notice.

In the event that service by either of these methods fails, the petitioners must look to the rules governing notice by publication. If the decision is made to rely solely on personal service (without service by certified mail), then publication should be initiated according to the guidelines of Ala. R. Civ. P. 4.3(d)(1). (82) If initial service by certified mail is a method of choice, the Adoption Code provides a streamlined process for notice by publication. Section 26-10A-17(c)(3) of the code provides that the court shall order notice by publication if service by certified mail fails after two attempts. The petitioners' attorney should make a motion averring such facts with a) an affidavit from the petitioners, and b) proof of the two failed attempts.

V. NOTICE TO PRESUMED FATHER'S WHEN WHEREABOUTS UNKNOWN

What is the appropriate procedure for giving notice to a presumed father when his whereabouts are unknown?

If the whereabouts of the presumed father are unknown, notice can be given by publication. Alabama Code Section 26-10A17(c)(1) dictates that:

   Service of process shall be made in accordance with the Alabama
   Rules of Civil Procedure except as otherwise provided by the
   Alabama Rules of Juvenile Procedure. If the identity or whereabouts
   of the parent is unknown, or if one parent fails or refuses to
   disclose the identity or whereabouts of the other parent, the court
   shall then issue an order providing the service by publication, by
   posting, or by any other substituted service.


Although this section authorizes notice by publication to presumed fathers whose whereabouts are unknown, it must be interpreted in conjunction with the Ala. R. Civ. P and the Ala. R. Juv. P. Ala. R. Civ. P. 4.3 is relevant to the question. Section (d)(1) of Rule 4.3 requires that a specific affidavit be filed with the court prior to publication:

   Before service by publication can be made in an action where the
   identity or residence of a defendant is unknown, or when a
   defendant has been absent from that defendant's residence for more
   than thirty (30) days since the filing of the complaint or where
   the defendant avoids service, an affidavit of a party or the
   party's counsel must be filed with the court ave.3rring that
   service of summons or other process cannot be made because either
   the residence is unknown to the affiant and cannot with reasonable
   diligence be ascertained, or, the identity of the defendant is
   unknown, or, the resident defendant has been absent for more than
   thirty (30) days since the filing of the complaint, or, the
   defendant avoids service, averring facts showing such avoidance.


Rule 4.3(d)(1) requires that an affidavit be filed with the court averring the existence of one of three possible scenarios prior to the publication for a presumed father. Either the petitioners or their attorney can execute this affidavit. The affidavit must aver either:

1) service cannot be made because the presumed father's residence is unknown to the affiant and cannot with reasonable diligence be ascertained to the affiant,

2) service cannot be made because the resident defendant has been absent for more than thirty days since the filing of the complaint, or

3) service cannot be made because the defendant avoids service (with specific facts being set out to support the averment). (83)

Potentially devastating problems could arise with each of these three affidavits. To understand these potential problems, we must remember that notice is a constitutional requirement. (84) If a necessary party to an action never received notice, the trial court never retained proper jurisdiction. (85) A presumed or legal father is always a party who must receive notice. Thus, if the presumed father fails to receive proper notice, the adoption can be voided years after finalization.

With that refresher in mind, let's consider the first affidavit. The first affidavit requires that the affiant aver that the whereabouts of the presumed father cannot be ascertained with "reasonable diligence." What is reasonable diligence? Is thinking about it for five minutes reasonable diligence? Is searching on Facebook, Phonebooks, and online directories reasonable diligence? Is contacting all of the presumed father's next of kin reasonable diligence? Or is all this required in addition to hiring a private investigator?

If the Petitioners only look on Facebook and in the phonebook, the presumed father could come back years later and argue that Petitioner's search did not constitute reasonable diligence. The presumed father could argue that reasonable diligence would have required the Petitioner's talk to his mother, who only lived two blocks away.

The second affidavit requires the affiant to aver that the presumed father "has been absent for more than thirty days since the filing of the [adoption petition]." (86) The petitioners need to aver how they came to this conclusion and support the assertion with sufficient facts to establish clear and convincing evidence that would make the case "impervious" on appeal.

The third affidavit requires the affiant to aver that service cannot be made to the presumed father "because the [the presumed father] avoids service." (87) The petitioners need to aver how they came to this conclusion and support the assertion with sufficient facts to come to clear and convincing evidence. Again, the evidence must be sufficient for making the case "impervious" for appeal purposes.

Unfortunately, clarity on this issue is absent from the case law. As a practice point, I recommend discussing the potential risk and cost associated with different levels of "diligence" with the adoptive family. However, the adoptive family and their adopted child will have to live with the consequences of the decision, and the final decision should rest on their shoulders. (88)

VI. COPY OF THE PETITION: TO SERVE OR NOT TO SERVE, THAT IS THE QUESTION

Alabama's Adoption Code has very specific requirements regarding who is entitled to notice of the petition for adoption; it provides a list of individuals and agencies that must receive a copy of the petition. (89)

Section 26-10A-17(b) provides that "A copy of the petition for adoption shall be delivered to those individuals or agencies in subdivisions (a)(2) through (a)(10)." (90)

Thus, the persons entitled to notice who must receive a copy of the petition is everyone except, "[a]ny person, agency, or institution whose consent or relinquishment is required by Section 26-10A-7, unless service has been previously waived or consent has been implied." (91)

The parties whose consent is required by Section 26-10A-7, to whom it is not necessary to give a copy of the petition are the following:

1. An adoptee that is over the age of 14,

2. The biological mother,

3. The presumed father (under specific circumstances),

4. The agency that holds permanent custody, (or to whom the adoptee was relinquished), and

5. The putative father (under specific circumstances). (92)

Because these five parties are required to give consent for adoption by statute, they are not entitled to receive a copy of the petition for adoption. However, the notice of the pendency of the adoption proceeding must contain sufficient information to allow these parties to substantively respond and challenge the adoption if they so desire.

Why would the Legislature carve out this exception? My guess, and this is only a guess, is that the Legislature saw that some parties having all the details about the petitioners might be harmful to the adoptee. For example, if a putative father is a fairly dangerous individual, then it would not be good for the adoptee if the putative father knew where the petitioners live. However, this reasoning doesn't quite work with every party in the list.

V. CONCLUSION

Please keep in mind that this article only addresses what notice is necessary. The demands of prudence require that each adoption be analyzed on a case-by-case basis.

For the Kramer family and Catholic Charities, the result of their dispute is still uncertain. Catholic Charities has petitioned the Supreme Court to accept jurisdiction over the appeal. (93)

It is likely that the organization and legal implementation of the putative father registry on a state and federal level will be an evolving process, and therefore in the interests of securing the wellbeing and stability of a child it may be best to err on the side of caution in ensuring paternal involvement prior to filing the adoption petition. The balance of justice and mercy often require adoption professionals to humbly provide more notice than what the law minimally requires.

(1) See generally Lorraine Bailey, Late paperwork forfeits paternity rights in Utah, The Courthouse News Service (Nov. 7, 2014, 7:31 AM), http://www.courthousenews.com/2014/ll/07/late-paperwork-forfeits-patemity-rights-inutah.htm; Marjorie Cortez, Birth father rights the focus of two bills under consideration by Utah Legislature, Deseret News, (Mar. 2, 2014, 5:56 PM), http://www.deseretnews.com/article/865597753/Birth-father-rights-the-focus-of-twobills-under-consideration-by- Utah-Legislature.html?pg=all; Chris Hayes, Why teen dad must fight adoption agency for his child, KPRL-St. Louis, (Apr. 30, 2014, 10:52 PM), http://kplrll.com/2014/04/30/why-teen-dad-must-fight-adoption-agency-for-his-child/.

(2) Indiana Supreme Court will hold oral argument at Purdue, The Exponent Online, (Nov. 9, 2014, 10:25 PM), http://www.purdueexponent.org/campus/article_766cf7b 1f51-5074-be40-5426814b323c.html; Indiana Supreme Court holds proceedings on campus, The Exponent Online, (Nov. 11, 2014, 10:44 am), http://www.purdueexponent.org/campus/article_60d9add6-68f2-11 e4-92349b50858db99d.html; Kramer v. Catholic Charities of Diocese of Fort Wayne-S. Bend, Inc., 6 N.E.3d (Ind. Ct. App. 2014).

(3) Kramer v. Catholic Charities of the Diocese of Fort Wayne-S. Bend, 6 N.E. 3d 984, 986 (Ind. Ct. App. 2014).

(4) Indiana Supreme Court will hold oral argument at Purdue, The Exponent Online, (Nov. 9, 2014 10:25 PM), http://www.purdueexponent.org/campus/article_766cf37blf51-5074-be40-5426814b323c.html.

(5) Kramer, 6 N.E.3d at 986.

(6) Id. (J. Najam and J. Crone concurring, J. Baker dissenting).

(7) Manzanares v. Office of the Attorney Gen. of the State of Utah, No, 2:14-cv-00040 (D. Utah filed Jan. 22, 2014); See also Kyla Asbury, Fathers file class action against Utah attorneys general over state adoption policies, Legal Newsline, (Jan. 23, 2014 4:19 PM), http://legalnewsline.com/issues/class-action/246715-fathers-file-class-actionagainst-utah-attomeys-general- over-state-adoption-policies [hereinafter Asbury, Fathers file class action].

(8) See Asbury, Fathers file class action, supra note 7.

(9) Utah Code Ann. [section] 78B-6-121.

(10) E.g., Neb. Rev. Stat. [section] 43-104.05(1).

(11) Kathryn A. Sampson et. al., Arkansas's Putative Father Registry and Related Adoption Code Provisions: Inadequate Protection for Thwarted Putative Fathers, 1997 Ark. L. Notes 49, 69-70 (1997).

(12) O'Dea v. Olea, 2009 UT 46, [paragraph] 49, 217 P.3d 704 (holding that the mother's statement, "I am in Utah," placed the father on inquiry notice that the mother resided in Utah).

(13) Id. at 716.

(14) Brooke Adams, Suit: Utah adoption laws permit 'legalized fraud and kidnapping', The Salt Lake Tribune, (January 23, 2014 9:19 AM), http://www.sltrib.com/sltrib/mobile3/57432393-219/utah-adoption-lawsuitfathers.html.csp.

(15) Ala. Code [section] 26-10A-7 (1975).

(16) Ala. Code [section] 26-10A-7(3) (1975).

(17) Due to the vast differences in minimum notice standards between putative and presumed fathers, adoption professionals must be careful to rightly categorize the potential father. See, e.g., M.M. v. D.P. and C.P., 10 So. 3d 605, 608 (Ala. Civ. App. 2008) (overturning an adoption because a presumed father was mis-categorized by the petitioners' attorney and was not given notice according to the law relating to putative fathers). In view of the risks of such mis-categorization, adoption professionals should treat a potential father as a presumed father when there is a doubt about his actual status.

(18) See infra pp. 3-5.

(19) Ala. Code [section]26-10A-17 (1975).

(20) Ala. Code [section] 26-10A-9 (1975).

(21) Ala. Code [section] 26-10A-7 (1975).

(22) Ala. Code [section]2 6-10C-1 (1975) (emphasis added).

(23) M.V.S. v. V.M.D., 776 So. 2d 142, 154 (Ala. Civ. App. 1999) (emphasis added).

(24) 975 So. 2d 940, 956-69 (Ala. 2007) (Bolin, J., concurring).

(25) Id. at 965-967 (internal citations and footnotes omitted).

(26) A.D.S. v. S.J.L., 70 So. 3d. 345, 349-50 (Ala. Civ. App. 2010) (emphasis added) (quoting J.L.P. v. L.A.M. 41 So. 3d 771 (Ala. Civ. App. 1008); M.V.S. v. V.M.D., 776 So. 2d 142, 149 (Ala. Civ. App. 1999)).

(27) A.D.S. v. S.J.L., 70 So. 3d. 345, 352 (Ala. Civ. App. 2010).

(28) Mary Beck, A National Putative Father Registry, 36 Cap U. L. Rev. 295, 331 (2007).

(29) Ex parte D.B., 975 So. 2d 940, 964 (Ala. 2007).

(30) Child Welfare Information Gateway, The Rights of Unmarried Fathers, (current through January 2014), https://www.childwelfare.gov/systemwide/laws_policies/statutes/putative.pdf.

(31) Id.

(32) Id.

(33) Ex parte J.W.B., 933 So. 2d 1081 (Ala. 2005).

(34) Id. at 1083.

(35) Id. at 1085.

(36) Id.

(37) Id. at 1089.

(38) J.W.B., 933 So. 2d at 1089.

(39) Id. A putative father may allege that the state the child is in does not have jurisdiction to make a custody determination. However, Alabama (the state the child is born is) would be considered the child's home state. Ex parte D.B., 975 So. 2d at 950. Thus, a putative father living in another state would likely be unsuccessful in asserting that the child's home state was anywhere else in an attempt to file a custody proceeding in the state where he resides. In re Hylland, 867 P.2d 551, 554 (Or. Ct. App. 1994).

(40) Ex parte J.W.B., 933 So.2d 1081, 1090 (Ala. 2005).

(41) Burns v. Crenshaw, 733 P.2d 922, 925 (Or. Ct. App. 1987).

(42) Id. at 922.

(43) Id. at 923.

(44) Id. at 924.

(45) Heidbreder v. Carton, 645 N.W.2d 355 (Minn. 2002).

(46) Id. at 360.

(47) Id. at 361.

(48) Id.

(49) Id.

(50) Heidbreder, 645 N.W.2d at 380.

(51) In re Adoption of S.M.F., No. M2004-00876-COA-R9-PT, 2004 WL 2804892, at *10 (Tenn. Ct. App. Aug. 6,2004).

(52) Id. at *2.

(53) Id. at *7.

(54) Id. at *9.

(55) In re Adoption of Lichtenberg, No. CA2002-11-125, 2003 WL 868306, at *1 (Ohio Ct. App. March 5, 2003).

(56) Id.

(57) Id.

(58) Id.

(59) Id. at *3.

(60) Lichtenberg, 2003 WL 868306, at *3.

(61) State of New Hampshire, Probate Court Procedure Bulletin (2008), available at http://www.courts.state.nh.us/probate/pcprocbulletins/pb0025.pdf.

(62) Ex parte D.B. 975 So. 2d 940, 964 (Ala. 2007).

(63) Id. at 976. This case should give rise to caution in relying on J.W.B. to support this memorandum's conclusion.

(64) Donna Moore, Implementing a National Putative Father Registry by Utilizing Existing Federal/State Collaborative Databases, 36 J. Marshall L. Rev. 1033, 104345 (2003).

(65) Id. at 1038.

(66) Id. at 1039.

(67) Id. at 1047.

(68) Id.

(69) Moore, supra note 59, at 1048.

(70) Shirley Howell, The Putative Father Registry: Behold Now the Behemoth (A Cautionary Tale), 64 Ala. L. Rev. 237, 238 (2003).

(71) See id. at 240.

(72) Id. at 238.

(73) Id.

(74) Id. at 241.

(75) Howell, supra note 65, at 243.

(76) Ala. Code [section] 26-10A-9 (1975).

(77) Michael H. v. Gerald D., 491 U.S. 110, 112 (1989).

(78) Ala. Code [section] 26-10A-7(3) (1975).

(79) Although Section 26-10A-7 does not purport to define "presumed father," in actuality the criteria listed are definitions of a presumed father. Section 26-10A-2(11) defines a presumed father as "any male person as defined in the Alabama Uniform Parentage Act." The Alabama Uniform Parentage Act (UAPA) gives essentially the same criteria as Section 26-10A-7 of the Adoption Code. The UAPA prescribes that a man is presumed to be the father of the child if: "(1) he and the mother of the child are married to each other and the child is born during the marriage; (2) he and the mother of the child were married to each other and the child is born within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce; (3) before the birth of the child, he and the mother of the child married each other in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce; (4) after the child's birth, he and the child's mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with the law although the attempted marriage is or could be declared invalid, and: (A) he has acknowledged his paternity of the child in writing, such writing being filed with the appropriate court or the Alabama Office of Vital Statistics; or (B) with his consent, he is named as the child's father on the child's birth certificate; or (C) he is otherwise obligated to support the child either under a written voluntary promise or by court order; (5) while the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child or otherwise openly holds out the child as his natural child and establishes a significant parental relationship with the child by providing emotional and financial support for the child; or (6) he legitimated the child in accordance with Chapter 11 of Title 26." ALA. CODE [section] 26-17-204 (1975).

(80) Ala. Code [section] 26-10 A- 17(c)(3).

(81) The rule goes on to explain that service by certified mail can be issued by the clerk of the court of the attorney. See Ala. R. Civ. P. 4(h)(i)(2)(B) (2014).

(82) See supra Part V.

(83) Ala. R. Civ. P. 4.3(d)(1).

(84) U.S. Const, amend. XIV.

(85) Ala. R. Civ. P. 4

(86) Ala. R. Civ. P. 4.3(d)(1).

(87) Ala. R. Civ. P. 4.3(d)(1).

(88) An entirely different track of analysis would be to read Alabama Code Section 26-10A-17 as not incorporating the Alabama Rules of Civil Procedure. Section 26-10AA-17(c)(1) and (3) provide that: "If the identity or whereabouts of the parent is unknown, or if one parent fails or refuses to disclose the identity or whereabouts of the other parent, the court shall then issue an order providing for service by publication, by posting, or by any other substituted service" and "[a]s to any other person for whom notice is required under subsection (a) of this section, service by certified mail, return receipt requested, shall be sufficient. If such service cannot be completed after two attempts, the court shall issue an order providing for service by publication, by posting, or by any other substituted service." Under this alternative interpretation, all the petitioners would need to aver prior to publication is the factual requirements set out in said code section. Due to the lack of case law interpreting this alternative analysis, I recommend caution if proceeding with this interpretation.

(89) Ala. Code [section] 26-10A-17(a) (1975).

(90) Ala. Code [section] 26-10A-17(b) (1975).

(91) Ala. Code [section] 26-10A-17 (1975).

(92) Ala. Code [section] 26-10A-17 (1975).

(93) Kramer v. Catholic Charities of the Diocese, No. 71A03-1308-CT-301, 2014 WL 1266269 (Ind. Ct. App. Mar. 28, 2014).

Samuel J. McLure *

* Sam McLure is originally from Marianna, Florida. He moved to Montgomery in 2004, and graduated from Huntington College with a B.A. in Business Administration. Sam graduated, cum laude, from Faulkner School of Law in 2011, where he was a member of the Faulkner Law Review and active with the Christian Legal Society. Upon graduation, he established The Adoption Firm--a firm dedicated to zealously advocating for orphaned children to be adopted into loving homes. Sam and his wife, Mary Beth, were inspired to advocate for orphaned children through the adoption of their first son, Robi. Prior to establishing The Adoption Firm, Sam worked in the private sector, civil defense, and the government sector.
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