BRYAN, Judge.
This is an adoption case in which A.E.C. ("the birth mother") appeals the Jefferson Probate Court's denial of the contest she filed challenging the adoption of A.J.M. ("the child") by J.R.M., Jr., and J.A.M. ("the adoptive parents"). The birth mother's contest and appeal are based, in large part, on her assertion that the prebirth-consent form used for the adoption is invalid.
On September 7, 2006, Jefferson County Probate Judge Mark Gaines signed an order confirming the prebirth consent for adoption signed by the birth mother.
The birth mother signed the consent form, which stated in part:
The birth mother signed an affidavit on September 7, 2006, stating that she had "received no money or other things of value or been paid for giving the said minor up for adoption." Likewise, the adoptive parents signed an affidavit stating that they had "paid no money or other things of value to any party in connection with this adoption proceeding except that which has been approved by the Court."
The child was born on December 20, 2006. On December 22, 2006, the adoptive parents took custody of the child at the hospital where the birth mother had delivered the child. The adoptive parents filed
On January 17, 2007, the probate court held an ore tenus hearing on the birth mother's petition to withdraw consent; the probate court denied the birth mother's petition because it was fatally defective in that it was not witnessed by two witnesses as required by § 26-10A-14(c), Ala.Code 1975.
On February, 16, 2007, the birth mother filed a motion for relief from the order dated January 17, 2007; the birth mother simultaneously filed a motion to alter, amend, or vacate the court's order of January 17, 2007. In both motions, the birth mother alleged that she gave two forms to the probate-court clerk in an attempt to withdraw her consent for adoption; however, she alleged, the probate-court clerk told the birth mother that she did not need to file the second form, which contained the signatures of two witnesses, as is required by § 26-10A-14(c). On June 4, 2007, the probate court granted the birth mother's motions and scheduled a hearing on the birth mother's petition to withdraw consent and her adoption-contest petition, pursuant to § 26-10A-24, Ala.Code 1975.
In the adoption-contest petition, the birth mother alleged that the adoptive parents had obtained her consent for the adoption by fraud, duress, mistake, or undue influence, and that, therefore, her consent is invalid pursuant to § 26-10A-14(a)(2), Ala.Code 1975. The birth mother further alleged that R.S., a family friend of the birth mother's, was the agent of the adoptive parents and was also a perpetrator of the alleged fraud, duress, mistake, or undue influence.
On or about July 16, 2007, the birth mother requested visitation with the child. The probate court judge stated that Alabama's Adoption Code, § 26-10A-1 et seq., Ala.Code 1975 ("the Adoption Code"), did not prescribe visitation with a natural parent, and he refused to grant visitation rights to the birth mother.
On August 15, 2007, the birth mother filed an amendment to her adoption-contest petition, alleging that § 26-10A-12, Ala.Code 1975, as applied in this case, deprived the birth mother of her constitutional due-process rights under the Fourteenth Amendment to the United States Constitution because, she said, the consent-for-adoption form she signed failed to give notice of all the withdrawal provisions contained in § 26-10A-13, Ala.Code 1975.
The birth mother brings several issues on appeal. First, the birth mother argues that the prebirth consent for adoption was invalid, for the following reasons: 1) § 26-10A-12, Ala.Code 1975, is unconstitutional,
Ex parte J.W.B., 933 So.2d 1081, 1087 (Ala.2005).
Further, our supreme court set forth the applicable standard of review of constitutional challenges in State ex rel. King v. Morton, 955 So.2d 1012, 1017 (Ala.2006), as follows: "`Our review of constitutional challenges to legislative enactments is de novo.' Richards v. Izzi, 819 So.2d 25, 29 n.
The probate court gave a detailed summary of its specific findings of fact in its final order as follows:
The birth mother argues that § 26-10A-12 is unconstitutional because the consent-for-adoption form found within that section failed to give her adequate notice of all the provisions for withdrawal
Section 26-10A-13 sets forth the time limits for withdrawal of consent for adoption as follows:
Section 26-10A-12 states, in pertinent part:
(Emphasis added.)
The birth mother argues that the consent form she signed is constitutionally defective because it gave written notice of only the withdrawal provision of § 26-10A-13(a), the five-day withdrawal provision, but failed to give notice in writing of the withdrawal provision of § 26-10A-13(b), the option to withdraw consent for adoption after the fifth day following the birth of the child.
The probate court in its final order specifically found that Judge Gaines had explained § 26-10A-13 to the birth mother at the prebirth-consent hearing. That finding is supported by the testimony of the birth mother; she testified that Judge Gaines, during the prebirth-consent hearing,
Then, the birth mother stated that Judge Gaines had told her that after five days a different standard would apply, i.e., the best-interest standard, to determine what would be best for the child.
The birth mother also testified that she met with Francis Waller, a social worker,
The birth mother argues that the form provided by Waller did not give her proper notice of the withdrawal provision of § 26-10A-13(b) because it did not mention anything about the best-interest-of-the-child standard that would be applied during the days 6-14 withdrawal period. However, as previously discussed, the birth mother testified that Judge Gaines had told her about the best-interest standard during the prebirth-consent hearing.
The birth mother further testified that the two periods for withdrawing her consent had been explained to her several times. She stated that she withdrew her consent within 14 days after the birth of the child and that she did that because she knew there was a deadline. She testified that she knew that she would not have had to come to court if she had withdrawn her consent within five days after the child was born.
In light of the testimony of the birth mother and the findings of the probate court, we conclude that the evidence supports the probate court's finding that Judge Gaines strictly adhered to § 26-10A-12 by explaining to the birth mother "the legal effect of signing the document and the time limits and procedures for withdrawal of the consent." § 26-10A-12.
"The hallmarks of procedural due process are notice and `the opportunity to be heard "at a meaningful time and in a meaningful manner."'" Alabama Republican Party v. McGinley, 893 So.2d 337, 344 (Ala.2004)(quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), quoting in turn Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)).
The birth mother argues that her entire prebirth-consent form is invalid because the form failed to state, in writing, the provisions of § 26-10A-13(b), even though the birth mother testified that she had actual notice of the withdrawal provisions and the best-interest standard found in § 26-10A-13(b). Based on these facts, we conclude that § 26-10A-12 of the Adoption Code is not unconstitutional, as applied to the birth mother in this case, because, according to her own testimony, she had actual notice of the procedures for withdrawing her consent. The birth mother has taken advantage of her due-process rights by acting on her actual notice and withdrawing her consent to adoption within 14 days following the birth of the child; also, in furtherance of her due-process rights, the probate court provided the birth mother with a full opportunity to be heard on her petition to withdraw her consent and her adoption-contest petition. Due process guarantees no further protection. See Ex parte Jackson, 881 So.2d 450, 453 (Ala.2003) ("Due process requires notice and a hearing.").
The final order of the probate court stated that the attorney for the adoptive parents, Bryant A. Whitmire, Jr., explained § 26-10A-13 and the best-interest standard to the birth mother before the consent hearing. Because Whitmire represented
We conclude that the evidence does not support the probate court's finding that Whitmire explained the best-interest standard to the birth mother before the consent hearing. However, that finding does not affect the outcome of this appeal because, as we explained above, we conclude that the birth mother was nonetheless aware of all the withdrawal provisions found in § 26-10A-13.
After a review of the record, we do not find anywhere in the record where this issue was presented to the probate court. The birth mother did not raise this issue in her adoption-contest petition or in her amended contest petition, and the probate court did not rule on this issue in its final order. See Norman v. Bozeman, 605 So.2d 1210, 1214 (Ala.1992) ("Our review is limited to the issues that were before the trial court—an issue raised on appeal must have first been presented to and ruled on by the trial court.").
"`We cannot put a trial court in error for failure to rule on a matter which, according to the record, was not presented to, nor decided by him ....'" Kyser v. Harrison, 908 So.2d 914, 918 (Ala.2005) (quoting Defore v. Bourjois, Inc., 268 Ala. 228, 230, 105 So.2d 846, 848 (1958)). We conclude that the probate court did not commit error in failing to appoint a GAL on behalf of the birth mother.
Section 26-10A-14, Ala.Code 1975, sets forth the time limitations for withdrawing a signed consent-for-adoption form, as follows:
In her adoption-contest petition, the birth mother alleged that the adoptive parents personally, or through their agent, R.S., committed acts of fraud, duress, mistake, or undue influence in order to obtain her consent for adoption. On appeal, the birth mother alleges 15 specific examples of fraud, duress, or undue influence committed by the adoptive parents or R.S.
First, the birth mother alleges that the adoptive father agreed to pay for the birth mother's college education if she went through with the adoption. Although the birth mother stated that R.S. told her that the adoptive father would probably pay for her education if she went through with the adoption, the adoptive father testified that he did not recall agreeing to pay for the birth mother's education and did not recall discussing the matter with R.S. R.S. also denied that the adoptive parents had ever said that they would pay for the birth mother's education after the adoption went through.
Next, the birth mother argues that she felt "controlled" by the fact that the adoptive parents mailed the court-approved support payment to R.S., who then paid the birth mother's expenses and gave the remaining amount to the birth mother as an allowance. R.S. testified that the birth mother's mother put together a "starter kit" for him that contained all the birth mother's bills that could be paid for by the court-approved support from the adoptive parents; some of the bills were already overdue, including the bill for the birth mother's cellular telephone, which had been turned off. R.S. also testified that the payments from the adoptive parents on behalf of the birth mother were sent to him, at his private post office box, to protect the identity of the adoptive parents. R.S. gave the birth mother's counsel a spreadsheet that accounted for "every penny" of the money sent to R.S. by the adoptive parents on behalf of the birth mother, to the satisfaction of the birth mother's counsel.
The birth mother further argues that she suffered "pressures" at the hospital from the adoptive parents when she delivered the child. The birth mother insisted on handing the child directly to the adoptive parents at the hospital, despite their desire for confidentiality. Two days after the birth of the child the adoptive parents came to the hospital to take custody of the child; the birth mother testified that she was very emotional during this encounter. The birth mother further testified that she and the adoptive mother decided what outfit the child would wear and that anything said between the parties was very brief. The adoptive mother testified that when she and the adoptive father arrived at the birth mother's hospital room, everyone was very emotional. She stated that she and her husband left the room for a short period so that the birth mother "could have a little bit more time with her mom." The adoptive parents returned to the birth mother's room after a nurse called them in; the birth mother handed the child to the adoptive mother, and, as they were leaving, the adoptive mother recalled the birth mother saying "thank you." This event took place after the birth mother had signed the consent-for-adoption form, and it is unclear how it affected her decision to sign the prebirth-consent form three months earlier.
The birth mother also states that the number of telephone communications between R.S. and the adoptive parents, including a time of prayer together, is evidence of fraud, duress, or undue influence. The amount of communication between the adoptive parents and R.S. throughout the pregnancy in and of itself is not an example of fraud, duress, or undue influence.
Finally, the birth mother argues that the adoptive parents' delay in taking the child to their home was "in recognition of [the birth mother's] tentativeness." The testimony of both of the adoptive parents was that they left the child with the adoptive father's parents for several days after they took custody of the child because they knew that the birth mother had the absolute right to withdraw her consent to the adoption at any time during the five days following the birth of the child. They testified that it was to "protect their heart," not because they knew that the birth mother was feeling tentative about going through with the adoption. Regardless, it is unclear how this act of the adoptive parents, which occurred after the birth mother had given her consent to the adoption some three months earlier, is an example of fraud, duress, or undue influence on the birth mother.
We note that the birth mother's brief cites a single case, Roper v. Lenoir, 243 Ala. 583, 11 So.2d 361 (1943), to support her assertion that the above-alleged "facts" are actually examples of fraud, duress, or undue influence. In that case, the appellant, a widow, wanted to cancel a deed in which she had gifted real estate to her nieces. The widow alleged that her attorney, who drew up the deed, had unduly influenced her; however, in holding that the attorney had not unduly influenced her, the court found that the attorney had acted under the widow's orders, that his advice regarding the deed had not been sought or given, and that the widow had full knowledge of the transaction. The birth mother cites this case for the following statement:
243 Ala. at 584, 11 So.2d at 362.
This statement would seem to support an argument that the acts of R.S., as an agent of the adoptive parents, could be attributable to the adoptive parents. However, it does not support an argument that, in the above instances, the adoptive parents exerted fraud, duress, or undue influence on the birth mother. We conclude that the record supports the dismissal of the birth mother's adoption contest and the finding of the probate court "that undue influence was not manifested by [R.S.] or by any other person."
In her adoption contest, the birth mother alleged that R.S. and his family "provided for me shelter and sustenance during my pregnancy in exchange for placing my child for adoption" with the adoptive parents. She further stated that R.S. and his family "acted at all times on behalf of the prospective adoptive parents and acted to influence [the birth mother's] action in favor of adoption." She also stated in her petition that she "was at a loss of what to do, and I was made to feel that I had no other option but to place my child for adoption, or I would incur the ill will and disfavor of [R.S. and his family] and the adoptive couple and all their friends."
The evidence presented in the record supports the probate court's finding that R.S. was not the agent of the adoptive parents. The record reveals that the adoptive parents saw R.S. as a representative of the birth mother and her family. The probate court specifically found that R.S. and his family were long-time friends of the birth mother and her family. The birth mother's father and R.S. were "best friends," and their families had been on vacations together to the beach and to Disney World.
The record indicates that R.S. first attempted to arrange for the birth mother to live with other friends but that, when that fell through, he offered his own home to the birth mother. We further note that the adoptive parents did not know R.S. before he contacted the adoptive father's mother about the possible adoption.
The adoptive parents argue that "there is no citation to authority which would establish that any of the actions or inactions of R.S. and the adoptive parents indicate an agency relationship under Alabama law ...." We agree; the record supports the trial court's finding that R.S. was not the agent of the adoptive parents and that he "was only trying to be helpful in the face of less than the best of circumstances."
The birth mother argues that the probate court erred when it found that it did not have authority under the Adoption Code to grant visitation with the child to the birth mother. The birth mother concedes that the Adoption Code does not expressly grant visitation rights to a natural mother during the pendency of an adoption contest.
The birth mother directs this court to § 26-10A-30, Ala.Code 1975, which grants visitation rights to the natural grandparents of an adoptee in a situation when "the adoptee is adopted by a stepparent, a grandfather, a grandmother, a brother, a half-brother, a sister, a half-sister, an aunt or an uncle and their respective spouses, if any." The visitation rights may be granted "prior to or after the final order of adoption is entered ...." § 26-10A-30. The birth mother argues that the probate court possesses equitable powers, but she cites no authority to support her implied assumption that this court can create visitation rights for a natural mother during a contested adoption proceeding when such rights were not prescribed by our legislature.
When the birth mother signed the prebirth-consent form, she stated: "I understand that by signing this document and the subsequent court order to ratify the consent, I will forfeit all rights and obligations to [the child] ...."
This court has held that "`[b]ecause adoption is strictly statutory and involves the curtailment of the fundamental rights of the natural parents, the adoption statute[s] must be closely adhered to.'" Shelley v. Nowlin, 494 So.2d 453, 455 (Ala.Civ. App.1986) (quoting Vice v. May, 441 So.2d 942 (Ala.Civ.App.1983), citing in turn
Further, "[i]t is not proper for a court to read into [a] statute something which the legislature did not include although it could have easily done so." Noonan v. East-West Beltline, Inc., 487 So.2d 237, 239 (Ala.1986). If the legislature had intended to allow visitation between a birth mother and a child who is the subject of an adoption-contest proceeding, it could have provided for such visitation. Since the legislature has specifically granted visitation privileges, in certain circumstances, to certain family members of the adoptee's natural family it is clear that the legislature considered visitation privileges for members of an adoptee's natural family; apparently, however, it did not see fit to expand that privilege to the natural parents of the adoptee who have voluntarily consented to "forfeit all rights and obligations" to their child. See Ex parte Jackson, 614 So.2d 405, 407 (Ala. 1993) (stating that the legislature "knew how to draft a statute to reach" a desired end and that "[t]he judiciary will not add that which the Legislature chose to omit").
Therefore, we decline to hold the probate court in error for denying the birth mother's request for visitation with the child during the pendency of the adoption contest.
The birth mother argues that "the gifts, money, notes, and influence from [R.S.] on behalf of the adoptive [parents] confused her feelings and made her feel obligated to go through with the adoption." The birth mother argues that the adoptive parents signed an affidavit swearing that they "paid no money or other things of value to any party in connection with this adoption proceeding except that which has been approved by the Court" but that they then failed to disclose certain gifts that the adoptive parents had given to the birth mother during her pregnancy. In her brief, the birth mother calls this a "blatant omission" and evidence of the adoptive parents' true intention to exert influence over the birth mother. However, the birth mother fails to address the corresponding affidavit that she signed, swearing that she had "received no money or other things of value ... for giving the said minor up for adoption."
The probate court found that the gifts given to the birth mother by the adoptive mother were valued at approximately $112; the gifts included items such as candy, lotion, a candle, and flowers sent to the birth mother when she was in the hospital. The probate court found that "[t]he adoptive mother was merely attempting to be kind and supportive during the pregnancy, nothing more." The evidence supports the probate court's findings. The adoptive mother testified that she was raised to express appreciation by giving small gifts, and both of the adoptive parents testified that they did not consider the gifts to be of any monetary value, which is why they signed the affidavit swearing that they had not given anything of value to the birth mother.
In light of the mandates of the ore tenus rule, we assume that the findings of the probate court are correct if they are supported by the evidence. Meadows v. Meadows, 3 So.3d 221, 227 (Ala.Civ.App. 2008). We conclude that the probate court did not err in finding that the small tokens of appreciation from the adoptive mother to the birth mother were not an attempt by the adoptive parents to influence the birth mother to consent to adoption.
Dr. Turnbow testified regarding bonding and separation issues of a hypothetical child that is the same age as the
The birth mother argues that the probate court erred in allowing this testimony. In support of her argument, the birth mother cites Justice See's concurring opinion in Ex parte C.V., 810 So.2d 700 (Ala. 2001). Justice See stated that the child in question "ha[d] been in the custody of the prospective adoptive parents since shortly after his birth; that fact alone, however, does not provide a sufficient basis for terminating C.V.'s parental rights." 810 So.2d at 704. The adoptive parents argue that the birth mother did not properly preserve this issue for appeal. We agree.
The birth mother filed a motion to exclude the testimony of Dr. Turnbow on April 7, 2008, approximately two weeks before the first hearing on the birth mother's withdrawal of consent and adoption contest. In that motion, the birth mother alleged that Ex parte C.V. supported exclusion of Dr. Turnbow's testimony because Dr. Turnbow was going to testify regarding separation and bonding issues between a child and its primary caregiver. The probate court denied the birth mother's motion on April 11, 2008. At the subsequent hearing. Dr. Turnbow testified regarding separation and bonding issues without objection from the birth mother; further, counsel for the birth mother cross-examined Dr. Turnbow and asked several hypothetical questions regarding bonding and separation issues.
A "motion in limine" is defined by Black's Law Dictionary 1038 (8th ed.2004) as "[a] pretrial request that certain inadmissible evidence not be referred to or offered at trial." Although the birth mother's pretrial motion to exclude Dr. Turnbow's testimony was not styled as such, we view the motion as a motion in limine. See Evans v. Waddell, 689 So.2d 23, 26 (Ala. 1997) ("The substance of a motion and not its style determines what kind of motion it is."). In Bolden v. Lang, 695 So.2d 54, 57 (Ala.Civ.App.1997), this court, quoting Parks v. State, 587 So.2d 1012, 1015 (Ala. 1991), stated
Because the birth mother did not object to Dr. Turnbow's testimony regarding separation and bonding issues at the hearing and because the record does not reflect that the birth mother obtained the "express acquiescence of the trial judge that subsequent objection and assignment of grounds [were] not necessary," we conclude that the admission of Dr. Turnbow's testimony has not been properly preserved for appeal.
The birth mother also mentions, in a heading in her brief to this court, that "Dr. Turnbow testified that [the birth mother] was not fit based upon her past medical psychological records, never having interviewed [the birth mother]." The birth mother offers no further argument and cites no authority in support of this claim. That is a violation of Rule 28(a)(10), Ala. R.App. P., because the birth mother fails to present "[a]n argument containing the contentions of the appellant ... with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and part of the
This court is not without sympathy for a natural parent who changes his or her mind about giving their child up for adoption. However, "[a] natural parent's mere change of mind cannot justify a rescission of the natural parent's consent to an adoption provided the natural parent gave an informed, intelligent consent and all of the procedural safeguards were followed." Good v. Zavala, 531 So.2d 909, 910 (Ala.Civ.App.1988) (citing Ex parte Nice, 429 So.2d 265 (Ala.1982)). The order of the probate court is due to be affirmed.
AFFIRMED.
THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.
