A Primer on Alabama Adoptions
| Jurisdiction | Alabama,United States |
| Citation | Vol. 83 No. 3 Pg. 0166 |
| Pages | 0166 |
| Publication year | 2022 |
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...
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