A sad reality in the world of adoption is that the biological parents are often hard to find. Whether it’s a biological father who has never stepped up to the plate or a mother who has abandoned the child, the necessity of achieving legal notice to the biological parent remains. The Alabama Adoption Code provides a minor tweak to the normal rules of notice. Notice can be initially attempted via certified mail. However, if this fails, or the adoptive parents are unaware of the biological parents home address, the next step to accomplish legal notice is publication.
Notice by publication normally takes place by placing the appropriate wording in a local newspaper, once a week for four successive weeks. If the biological parent has not responded to notice of the adoption within 30 days of the last publication, the court can find an additional grounds for implied consent.
A recent case out of the Alabama Supreme Court, Cochran v. Engelland, (Ala. January 10, 2020) sheds some light on the necessary steps that must take place prior to publication. In short, the adoptive parents must file an affidavit which specifically states the reasonable steps that were taken to locate the biological parent, prior to publication.
On April 16 2012 James Cochran, the plaintiff, ran into a horse while riding his motorcycle on U.S. Highway 278 in Calhoun County. Over the following years Cochran sued the owner of the farm that the horse escaped from. Cochran attempted to serve the owner notice of his claim by mail, which was returned as not deliverable. Cochran moved that the court allow service by publication, and the motion was granted. After the four week service by publication Cochran moved that the court enter the default judgment against the owner, and the court entered a judgment of $2,000,000 dollars. The owner of the farm moved that the judgment be set aside based on the fact that Cochran’s motion for service by publication was inappropriate because his attempt at service by mail was insufficient.
Rule 4.3, Ala. R. Civ. P provides that avoidance of service on the defendants part allows for a motion for service by publication on the part of the plaintiff. This section states that it is not simply enough for the plaintiff to prove that the previous service failed, but it requires specific evidence of avoidance. Rule 60(b)(4), Ala. R. Civ. P says that a judgment may be set aside if the judgment is voided. The court reviewed this case in light of Allsopp v. Bolding, 86 So. 3d 952 (Ala. 2011), where a similar motion to set aside judgment based on Rule 60(b)(4) was filed. In this case, the defendant argued that service was not avoided, and no evidence was given to prove this as is required by Rule 4.3, so therefore the motion for service by publication was improper. Based on this, the defendant argued that the judgment was voided and should be set aside. The court concurred, based on supporting case-law Wachovia Bank, N.A. v. Jones, Morrison & Womack, P.C., 42 So. 3d 667, 688 (Ala. 2009) and Kanazawa v. Williams, 838 So. 2d 392, 395 (Ala. Civ. App. 2002).
Cochran claimed he incurred hundreds of thousands of dollars in medical expenses as a result of the accident. He hired attorney James Shelnutt to represent him in pursuing legal action against any responsible parties for the escaped horse. Cochran and Shelnutt determined that the horse had escaped from a farm property that extended through both Calhoun and Cherokee counties. The owner of the farm was identified as Pilar Engelland (“Pilar”), and discovered that the farm was being leased to Jerry Coley (“Coley”) at the time of the accident.
Cochran sued Pilar and Coley in the Calhoun Circuit Court on April 16, 2014. Cochran attempted to send service to Pilar by certified mail to mailing address of the farm. The notice was returned the same month marked “return to sender, not deliverable as addressed, unable to forward.” Cochran made no further attempt to locate and serve Pilar. Pilar’s son, Jorge Engelland (Jorge) testified that he had handled the finances of the farm since 1994. He testified that his mother moved to Florida in 2001 or 2002 and moved within Florida several times since, but they had notified both Calhoun County and Cherokee County revenue commissioners of the change of address each time.
Cochran’s claim against Coley was eventually dismissed with prejudice in 2016, however on July 13, 2016, Cochran moved for permission from the trial court to serve Pilar by publication, supported by an affidavit from one of his attorneys stating that his attempts to serve notice to Pilar had been unsuccessful, and that she had avoided service. The trial court granted the motion, and Cochran published notice of his claim against Pilar for four weeks in the Anniston Star, a newspaper thats circulates in Calhoun County. Cochran moved the court to enter the default judgment in his favor, and on March 20, 2017 the court entered a $2,000,000 judgment against Pilar. A writ of execution based on the judgment was delivered by the Cherokee County Sheriff’s office to Pilar’s home in Florida.
Pilar moved that the court set aside the judgment under Rule 60(b)(4), Ala. R. Civ. P. Pilar argued that Cochran should not have been allowed to attempt service by publication as she had not made any attempts to avoid service, and that Cochran had not taken reasonable steps to locate her.
The trial court found that based on Rule 4.3 service by publication was improper, and based on Rule 60(b)(4) set aside the judgment against Pilar. Cochran’s affidavit supporting his motion for service by publication contained only a statement saying that Pilar had avoided service, which the court found did not meet the requirements of Rule 4.3. Cochran filed an appeal with the Alabama Supreme Court challenging the trial courts final judgment in favor of Pilar, and the Alabama Supreme Court affirmed the trial court’s holding.
As this case illustrates, the affidavit of the adoptive parents must include very specific recounting of the reasonable steps they have taken to locate and communicate with the missing biological parent.
Brennan DePace was born and raised as a pastor’s child and has carried with him the strong Biblical values passed on from his father. DePace is the youngest of five children who received a rigorous and thorough home-schooled education. He is now a Freshman at Auburn University at Montgomery studying History, with the hopes of attending law school and becoming an attorney. DePace serves as Legal Assistant to the Hon. Samuel J. McLure of The Adoption Law Firm.