D.I. v. I.G.

262 So.3d 651

D.I.

v.I.G. and R.D.

2160781

Court of Civil Appeals of Alabama.

March 9, 2018

Russell B. Robertson of Laird & Robertson, P.C., Jasper, for appellant.

Justin K. Forrester of Forrester Law, LLC, Birmingham, for appellees.

THOMAS, Judge.

In December 2010, I.G. ("the mother") gave birth to R.W.D. ("the child"). At that time, the mother was living with R.D. ("the presumed father"), who attended the birth of the child, executed an affidavit or paternity, and is named as the father on the child's birth certificate. The mother and the child continue to live with the presumed father, who has held out the child as his own and has performed the duties of a father since the child's birth such that he qualifies as a presumed father under Ala. Code 1975, § 26–17–204(a)(5), a part of the Alabama Uniform Parentage Act ("the AUPA"), codified at Ala. Code 1975, § 26–17–101 et seq.

In early 2014, D.I. ("the alleged biological father") was informed by a friend that he was the biological father of the child. He contacted the mother and requested that a DNA test be performed; the mother consented and produced the child for a DNA test. Once the results of that test were obtained, the alleged biological father and his parents, M.I. and J.I. ("the alleged paternal grandparents"), requested of the mother that they be allowed to visit the child and she acquiesced. They visited with the child at the alleged paternal grandparents' home on three occasions in March 2014. However, when the presumed father learned that the alleged biological father was participating in the visits, he ended them. The alleged biological father then filed in the Walker Juvenile Court ("the juvenile court") an action seeking to establish his paternity of the child.

After receiving an adverse judgment in the juvenile court, the alleged biological father appealed that judgment to the Walker Circuit Court ("the circuit court"); the alleged biological father also asserted an as-applied constitutional challenge to § 26–17–204(a)(5). The presumed father moved to dismiss the alleged biological father's action, arguing that, pursuant to Ala. Code 1975, § 26–17–607(a), the alleged biological father's paternity action should be barred. The circuit court, after a hearing, entered a judgment granting that motion on June 22, 2017. The alleged biological father timely appealed the order dismissing his action, arguing that (1) the presumed father failed to persist in his status, (2) the alleged biological father's petition was not a petition to disprove the presumed father's paternity and was therefore not barred by § 26–17–607(a), (3) the circuit court erred by interpreting § 26–17–607(a) in such a way as to render § 26–17–204(b) and § 26–17–607(b)"null and void," (4) the circuit court's interpretation and application of § 26–17–607(a) to preclude the alleged biological father from seeking to establish his paternity violates what the alleged biological father describes as his "fundamental constitutional rights to direct and participate in the upbringing of" the child, and (5) the present case is distinguishable from various other cases interpreting and applying the AUPA. The mother and presumed father and the attorney general have each filed briefs in support of the circuit court's judgment.

In order to effectively discuss the alleged biological father's arguments, we must set out the relevant statutes. Section 26–17–204 establishes the situations under which a man is presumed by law to be a child's father. The statute reads, in pertinent part, as follows:

"(a) A man is presumed to be the father of a child if:

"....

"(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;

"....

"(b) A presumption of paternity established under this section may be rebutted only by an adjudication under Article 6 [of the AUPA]. In the event two or more conflicting presumptions arise, that which is founded upon the weightier considerations of public policy and logic, as evidenced by the facts, shall control. The presumption of paternity is rebutted by a court decree establishing paternity of the child by another man."

§ 26–17–204.

Actions to establish parentage are governed by Ala. Code 1975, § 26–17–601 to § 26–17–613. According to by Ala. Code 1975, § 26–17–602(3), an action "to adjudicate parentage may be maintained by ... a man whose paternity of the child is to be adjudicated." However, the right to maintain a paternity action is specifically made subject to the provisions of § 26–17–607, which states:

"(a) Except as otherwise provided in subsection (b), a presumed father may bring an action to disprove paternity at any time. If the presumed father persists in his status as the legal father of a child, neither the mother nor any other individual may maintain an action to disprove paternity.

"(b) A presumption of paternity under this section may be rebutted in an appropriate action only by clear and convincing evidence. In the event two or more conflicting presumptions arise, that which is founded upon the weightier considerations of public policy and logic, as evidenced by the facts, shall control. The presumption of paternity is rebutted by a court decree establishing paternity of the child by another man."

The Alabama Comment to § 26–17–607 explains that

"[s]ubsection (a) follows Ex parte Presse, 554 So.2d 406 (Ala. 1989) [,] and its progeny that favor maintaining the integrity of the family unit and the father-child relationship that was developed therein. Once the presumed father ceases to persist in his parentage, then an action can be brought. If it is determined that the presumed father is not the biological father and non-parentage is found, a proceeding to adjudicate parentage may be brought under this article."

The alleged biological father first argues that the presumed father failed to persist in his presumption of paternity because he allowed the alleged biological father and the alleged paternal grandparents to visit with the child. According to the alleged biological father, "one cannot be said to ‘persist’ in one's status as father when one actively permits the visitation of the child with the child's actual paternal family." In his reply brief, the alleged biological father describes his argument as being that the presumed father has failed to persist in his claim that the child is his "natural child," indicating that he is arguing that the recognition of the child as having a biological father and associated paternal relatives somehow equates with the presumed father's failure to "hold[ ] out the child as his natural child," as is required to give rise to a presumption of paternity under § 26–17–204(a)(5). We disagree.

The circuit court concluded that the presumed father met the requirements of § 26–17–204(a)(5) because

"he was present at the minor child's birth, he is listed on the birth certificate as the child's father, he signed an acknowledgment of paternity four days after the child was born, the child came to his home from the hospital and has lived with him to date, he holds the minor child out to be his own and ... considers the child to be his own, and ... he has provided both financial and emotional support for the child."

The presumed father testified that he meets the child's day-to-day physical and emotional needs, that he regularly performs the duties of a father, including, most recently, reading to the child and assisting him with his homework, and that he and the child have close relationship. He explained that, upon being told of the alleged biological father's potential paternity, nothing had changed in his relationship with the child and that he had told the mother "that I was [the child's] father and I would do whatever I needed to do to maintain that." Thus, the evidence presented at the hearing on the motion to dismiss supports the circuit court's conclusion that the presumed father met the requirements of § 26–17–204(a)(5) and that he persists in his presumption of paternity.

The alleged biological father would have the presumed father's allowing visitation between the child and the alleged biological grandparents serve to negate his presumed paternity because the presumed father's actions are, in the alleged biological father's opinion, tantamount to a recognition that the child is not the presumed father's "natural child." Both our supreme court and this court have recognized that a man's knowledge or admission that he is not the biological father of a child does not prevent him from being presumed to be the legal father of a child under § 26–17–205(a)(5). See Ex parteT.J., 89 So.3d 744, 748–49 (Ala. 2012) ; D.F.H. v. J.D.G., 125 So.3d 146, 154 (Ala. Civ. App. 2013). As our supreme court explained:

"We also find support for our conclusion that the legislature did not intend for biology to prevent a presumption of paternity under § 26–17–204(a)(5) in Judge Thomas's dissent in Ex parte T.J., [74 So.3d 447 (Ala. Civ. App. 2011),] in which she discusses the phrase ‘openly holds out the child as his natural child’:

" ‘I understand that the use of the word "as" in the phrase "openly holds out the child as his natural child" is perhaps not entirely clear in meaning. However, I read "as" in this context as meaning "in the way or manner that," "in accordance with what or the way in which," or "in the capacity, character, condition, or role of." Merriam–Webster's Collegiate Dictionary 71 (11th ed. 2003). Likewise, to "hold out" is defined as "to represent to be," id. at 592, while "represent" is defined as "to describe as having a specified character or quality." Id. at 1057. Thus, subsection (a)(5) establishes a presumption of paternity in a man who openly treats a child in the same manner he

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