FROM THE ALABAMA LAWYER: A Primer on Alabama Adoptions

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By Jonathan A. Griffith

Many attorneys love the idea of connecting a loving family with a child in need of a forever home, but are intimidated by the adoption process. This article is designed to help those lawyers.

Overview – Statutory Nature of the Adoption Process

The adoption process is statutory, and it demands strict compliance with Alabama’s Adoption Code, all of which is located in §§ 26-10A-1 to -35.

Pre-Placement Investigation (“Home Study”)

The adoption process begins when you file a petition for adoption. More about the petition is below.

However, when possible, the first step should be a pre-placement investigation (“home study”).[1] While it is ideal to complete this step before filing the petition, sometimes there is simply no time to complete a pre-placement home study, and the court may waive the requirement, or it may order a post-placement home study instead.[2]

The purpose of the pre-placement home study is to determine the suitability of the petitioners’[3] home (which is the adoptee’s future home), and it includes a criminal background investigation. The statute allows the petitioners to initiate the home study by a direct request through DHR or a licensed child-placing agency, or by filing a request with the probate court.[4] The petitioners should include a copy of the home study report with the petition for adoption.[5] By statute, the home study must be performed by DHR or a licensed individual or agency.[6]

However, the statute does not require a pre-placement home study for adoptions by stepparents or by relatives falling within one of several statutory categories.[7]

Jurisdiction and Venue

The statute allows the petition to be filed with the probate court in the county in which (1) the minor adoptee resides; (2) a petitioner resides or is in military service; or (3) an office of any agency or institution operating under Alabama law having guardianship or custody of a minor or an adult is located.[8] Although the probate court has original jurisdiction over petitions for adoption, a matter will be transferred to juvenile court for the limited purpose of termination of parental rights if a person whose consent is required fails or is unable to provide such consent.[9] Additionally, in the event of a contested adoption, either party (or the court itself) may move the probate court to transfer the case to juvenile court for a hearing on that issue.[10] That transfer is discretionary.

The Adoption Petition

The petition itself is a short document, containing the pertinent information outlined in the statute regarding the petitioners and the adoptee, each petitioner’s desire to adopt the child, any relevant court orders (including juvenile court orders) that may pertain to the adoptee, and information regarding anyone from whom consent is required.[11] As outlined below, several other supporting documents are required and should be filed along with the petition.

Accountings and Affidavits

Alabama law prohibits an individual or organization from accepting any type of fee for matching adopting parents with an adoptee.[12] Thus, the petition should be accompanied by sworn affidavits by both the petitioners and, if applicable, the biological parents stating that no money or other things of value have been exchanged in connection with the relinquishment of the adoptee.[13]

Additionally, the petitioners should file a sworn disclosure of anticipated disbursements.[14] This affidavit should include a listing of all anticipated charges, expenses, and fees for services that they anticipate to pay in the matter (and to whom they will be paid), including attorney’s and legal fees, as well as court costs.

Notably, no affidavits regarding fees and charges are required in the case of a stepparent adoption, or if the petitioners fall within one of the provided categories of relatives of the adoptee, unless ordered by the court.[15]

Once paid, the petitioners must file a “sworn statement that is a full accounting of all disbursements paid in the adoption.”[16]

Consents – Express and Implied

The petition should also be accompanied by the express, written consent of any adoptee who is 14 years of age or older, the adoptee’s mother, and (subject to exceptions) the adoptee’s presumed father.[17]

The consents should be drafted and executed as a typical affidavit, before a notary public, and they should include the information specifically required by the statute, including the individual’s name, relationship to the adoptee, and the individual’s acknowledgment that he is knowingly, voluntarily, and irrevocably forfeiting all parental rights and obligations.[18] Take a careful look at the statute and follow it.

In some cases, the court may determine that consent of one or both parents is implied. The statute provides that consent or relinquishment of an individual is implied when (1) the father, with reasonable knowledge of the pregnancy, fails to offer financial or emotional support for six months prior to the adoptee’s birth; (2) a parent leaves the adoptee without provision [the adoptee’s] identification for 30 days; (3) a parent leaves the adoptee in another’s care without maintaining a significant parental relationship with the adoptee for six months; (4) a parent receives notice of a pendency of adoption and fails to answer or respond within 30 days; and (5) a father fails to comply with the requirements for the registration of putative fathers in § 26-10C-1.[19]

Special Note on Consent and the Putative Father Registry

Determining whether the biological father’s consent is required depends on that father’s legal status. While legal and presumed fathers’ consents are clearly required, the consent of a putative father is required only if “he complies with Section 26-10C-1 and he responds within 30 days to the notice he receives under Section 26-10A-17(a)(10).”[20] Section 26-10C-1 codifies Alabama’s Putative Father Registry, where a man who claims to be the father of a child born out of wedlock can file a “Notice of Intent to Claim Paternity.” Filing with the registry entitles the putative father to notice of an adoption petition for 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.[21]

Failing to file with the registry within 30 days of the child’s birth has severe repercussions to the putative father’s ability to receive notice of and contest an adoption petition. As stated above, the Adoption Code provides that a putative father’s consent is only required if he complies with the registry. Further, failing to register is listed as a ground for finding implied consent.[22] The registry itself provides that “[a]ny person who claims to be the natural father of a child and fails to file his notice of intent to claim paternity […] prior to or within 30 days of the birth of a child born out of wedlock, shall be deemed to have given an irrevocable implied consent in any adoption proceeding.”[23] The statute continues to say that registering is “exclusive procedure available” to entitle a putative father “to notice of and the opportunity to contest any adoption proceeding.”[24]

Once the Department of Human Resources receives notice of an adoption petition under § 26-10A-7, the department will send the probate court a copy of the “Notice of Intent to Claim Paternity” filed by any putative fathers, and the probate court will then give notice to the putative father.[25] If no putative fathers have registered, no further search is required.

Under the statute, any man who later wishes to claim paternity of the adoptee has already given irrevocable implied consent to the adoption and is not entitled to notice pursuant to § 26-10A-17(a)(10).

If the putative father has registered, but fails to respond to notice he receives under § 26-10A-17(a)(10), his consent is not required. § 26-10A-7(a)(5). However, the question of what effect the registry ultimately has on a putative father’s rights in relation to contesting an adoption has not been directly addressed by a majority of the Alabama Court of Civil Appeals or the Alabama Supreme Court.

Notice/Service of Process

Unless service has previously been waived, the petitioners must serve notice of the pending adoption on the individuals and agencies listed in § 26-10A-17. These include (but are not limited to) those from whom consents or relinquishment are required (unless notice has been waived or parental rights have been terminated), any legally appointed custodians or guardians of the adoptee, anyone having physical custody of the adoptee (excluding foster parents), the Department of Human Resources, and the father and putative father if made known by the mother or otherwise known by the court (subject to exceptions, such as if parental rights have been terminated or the court has determined implied consent).[26]

Service must be perfected according to the Alabama Rules of Civil Procedure and must inform the recipient that a response is required within 30 days if he intends to contest the adoption.[27] Service must also include a copy of the adoption petition for parties listed in § 26-10A-17(a)(2) through (10) – essentially all parties except for those whose consents are required under § 26-10A-7.[28]

If a parent’s whereabouts are unknown (including in the event one parent fails or refuses to disclose the identity or location of the other parent), the statute provides that the court shall allow service by publication, by posting, or by any other substituted service.[29]

The statute allows for service by certified mail to the agency or individual who performed the pre-placement investigation and DHR.[30]

Petitioners must provide the court with proof of service of the notice on all for whom such notice is required before the adjudicational hearing occurs.[31]

When you file your adoption petition, you may want to also file a notice of intent, demonstrating to whom you intend to send notice of the adoption. That will demonstrate the petitioners’ intent to serve the individuals according to the Alabama Rules of Civil Procedure and whether the petitioners anticipate needing to request permission from the court to serve any notices by publication, and it will assure the court that the petitioners will notify the court when all relevant parties have received proper notice.

Interlocutory Decree

When you file your adoption petition, you should file a motion and proposed order for an interlocutory decree granting the petitioners temporary legal custody. Section 26-10A-18 provides that the court shall enter such a decree “[o]nce a petitioner has received the adoptee into his or her home for the purposes of adoption and a petition for adoption has been filed.” The decree delegates custody of the adoptee to the petitioners, as well as the responsibility for the adoptee’s care, maintenance, support, and medical care.[32]

Motion for Dispositional Hearing

Finally, the adoption petition should be accompanied by a motion to set a dispositional hearing under § 26-10A-25. That statute provides that once the pre-placement home study has been completed (or waived by the court), the court shall schedule a dispositional hearing as soon as possible, or no later than 90 days after the filing of the petition.[33]

In the event a home study has not been completed, or if it has been waived, or where the adoptee is a special needs child, the dispositional hearing must be set no later than 120 days after filing.[34]

You can combine the order setting the dispositional hearing with the proposed order for interlocutory decree.

Optional Appointment of Guardian Ad Litem

“Upon the motion of any party, or upon the court’s own motion, before or after the filing of petition for adoption the court may appoint a guardian ad litem for the adoptee. . . .”[35] This step may be beneficial in cases where one of the parties is a minor or could be deemed legally incompetent. In such case, a motion should be included with the petition, or even before filing the petition, if need be.

Contested Hearings

If a party files a motion to contest a pending adoption, the court “shall set the matter for a contested hearing.”[36] At such hearing, the court will determine whether the adoption is in the best interest of the adoptee, the requirements of the statute have been fulfilled, and all proper consents and relinquishments have been obtained (and not withdrawn).[37] As noted above, the probate court has original jurisdiction over adoption proceedings, but the statute affords the probate court discretion to transfer the matter to juvenile court to conduct the contested adoption hearing.[38]

The probate court is required to give notice of the contested hearing by certified mail to all parties involved in the adoption proceeding, and the contestant and each petitioner is required to attend the hearing. A guardian ad litem must be appointed and present to represent the adoptee’s interests.[39]

After the hearing (which may be continued from time to time to permit further discovery or investigation), the court will decide to either dismiss the adoption proceeding or deny the contest.

If the court denies the contest, it may immediately proceed with the dispositional hearing, and the court shall order the contestant to pay all legal costs the petitioners incurred because of the contest.[40] If the court grants the contest and denies the adoption, the court shall order reimbursement to the petitioners “for all medical and living expenses incidental to the care and well-being of the minor child for the time the child resided with the petitioners for adoption.”[41]

Dispositional Hearing

To obtain a final decree of adoption, the petitioners must present clear and convincing evidence that: (1) the adoptee has been in the physical custody of the petitioners for 60 days (unless waived by the court); (2) all consents, relinquishments, terminations, or waivers have been obtained; (3) service of notice of the adoption proceeding has been perfected; (4) all contests, if any, have been resolved in the petitioners’ favor; (5) each petitioner is suitable and desires to become the adoptee’s parent; (6) adoption is in the adoptee’s best interest; and (7) all other statutory requirements of the adoption code have been met.[42]

The Written Decree

Upon the court’s finding of clear and convincing evidence of the items listed in § 26-10A-25(b), the court shall issue a written decree of its findings.[43] The written decree granting the adoption must include the adoptee’s new name, along with an order that from the date of the decree, the adoptee shall be the petitioners’ child, and be “accorded the status set forth in Section 26-10A-29.” That portion of the code provides that the adoptee “shall be treated as the natural child of the adopting parent or parents and shall have all rights and be subject to all of the duties arising from that relation, including the right of inheritance.”[44]

Post-Dispositional Hearing Matters

Following the dispositional hearing and the court’s written decree, the statute requires the court to send a copy of the final order to DHR and a certificate of the final order of adoption to the State Registrar of Vital Statistics of the State Board of Health.[45] The State Registrar of Vital Statistics will then generate a new birth certificate for the adoptee, including the adoptee’s new name along with each adoptive parent’s name. The statute also requires the original birth certificate and adoption decree to be sealed and filed, protected from inspection except upon court order.[46]

Appeals

Appeals from final decrees of adoption must be filed in the Alabama Court of Civil Appeals within 14 days of the decree.[47] The statute requires the appellate court to prioritize such appeals over other cases.[48] Appellants must serve notice of the appeal to everyone entitled to receive notice of the pending adoption petition under § 26-10A-17, except those for whom consent or relinquishment was implied or not required under §§ 26-10A-9 and 26-10A-10.[49]

Notices of appeal must maintain the adoptee’s confidentiality and should only specify the identity of the court where the appeal is pending; the docket number of the petition; the nature of the appeal; and the name, address, and telephone number of the attorney filing the petition.[50] The caption of the appeal should only include the initials of the adoptee’s birthname.[51] The initials of the natural parents and the petitioners must be indicated in all appellate pleadings and briefs.[52]

Endnotes

[1] Ala. Code § 26-10A-19.

[2] Id. at § 26-10A-19(c).

[3] For clarity, we adopt the plural form, petitioners, though, of course, a single person, a petitioner, can also adopt.

[4] Id. at § 26-10A-19(b).

[5] Id. at § 26-10A-19(a).

[6] Id. at § 26-10A-19(d).

[7] Id. at § 26-10A-19(h).

[8] Id. at § 26-10A-4.

[9] Id. at § 26-10A-3.

[10] Id. at § 26-10A-24(e).

[11] Id. at § 26-10A-16.

[12] Id. at § 26-10A-23(a).

[13] Id. at § 26-10A-23(d).

[14] Id. at § 26-10A-23(b).

[15] Id. at §§ 26-10A-27, -28.

[16] Id. at § 26-10A-23(c).

[17] Id. at § 26-10A-7.

[18] Id. at § 26-10A-11.

[19] Id. at § 26-10A-9.

[20] Id. at § 26-10A-7(a)(5).

[21] Id. at § 26-10C-1(f).

[22] Id. at § 26-10A-9(a)(5).

[23] Id. at § 26-10C-1(i) (emphasis added).

[24] Id. (emphasis added); See also Ex parte Z.W.E., 2021 Ala. LEXIS 23 at *22 (Ala. 2021) (Parker, C.J., concurring) (“By law, a father of an unborn child conceived out of wedlock may take responsibility for the child by filing a notice with the putative father registry. § 26-10C-1(a)(2) and (c). If he fails to file, he forfeits his parental rights. § 26-10C-1(i).”); Cf. T.C.M. v. W.L.K., 248 So. 3d 1, 5 (Ala. Civ. App. 2017) (“we will not further consider the issue whether the father’s failure to timely register with the Alabama Putative Father Registry should be fatal to his contest of the adoption.”); C.Z. v. B.G., 278 So. 3d 1273, 1282 (Ala. Civ. App. 2018) (“In line with T.C.M., we decline to consider further the arguments of the prospective adoptive parents that the failure of the father to provide all the information required by the APFRA should negate his right to contest the adoption of the child.”).

[25] Ala. Code § 26-10C-1(f).

[26] Id. at § 26-10A-17(a).

[27] Id. at § 26-10A-17(b).

[28] Id.

[29] Id. at § 26-10A-17(c)(1).

[30] Id. at § 26-10A-17(c)(2).

[31] Id. at § 26-10A-17(e).

[32] Id. at § 26-10A-18.

[33] Id. at § 26-10A-25.

[34] Id.

[35] Id. at §§ 26-10A-11, -12.

[36] Id. at § 26-10A-24.