B.F. v. C.D. and A.D.

Rel: May 22, 2026

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2025-2026
_________________________

CL-2025-0032
_________________________

B.F.

v.

C.D. and A.D.

Appeal from Coffee Juvenile Court
(JU-21-122.02)

After Remand from the Alabama Supreme Court

PER CURIAM.

The Alabama Supreme Court has reversed the prior judgment of

this court reversing the judgment of the Coffee Juvenile Court ("the

juvenile court") and has remanded the case to this court for further

proceedings. See Ex parte C.D., [Ms. SC-2025-0655, Mar. 27, 2026] ___
CL-2025-0032

So. 3d ___ (Ala. 2026), rev'g B.F. v. C.D., [Ms. CL-2025-0032, Aug. 22,

2025] ___ So. 3d ___ (Ala. Civ. App. 2025). In doing so, the supreme court

overruled the two primary cases on which this court had relied in

reaching its conclusion, Ex parte D.J., 645 So. 2d 303 (Ala. 1994), and Ex

parte G.C., 924 So. 2d 651 (Ala. 2025), and established a new test to

govern consideration of the issue this case presents. Ex parte C.D., ___

So. 3d at ___. We consider now, under that new test, whether the evidence

supports the juvenile court's judgment.

Background

The record on appeal indicates that S.G.R. ("the child") was born in

April 2021 to M.R. ("the mother"), who had been in a nonexclusive, sexual

relationship with B.F. ("the father"). In June 2021, the father was jailed

for drug-related charges, and, in December 2021, he was sent to prison.

In October 2021, the juvenile court found the child to be dependent and

granted legal and physical custody of the child to C.D., a longtime friend

of the mother, and A.D., C.D.'s husband. C.D. and A.D. also have custody

of two of the mother's other children, who are the child's half siblings.

The father remained in prison until July 2022, when he was

released to a rehabilitation program. At some point, he was placed in a

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second rehabilitation program. In all, he remained in the rehabilitation

programs for 18 months, completing the second program in December

2023.

In February 2024, the father filed a "petition to determine paternity

and custody" in the juvenile court. He sought an order requiring genetic

testing to determine whether he was the child's father. He also sought, if

he was proven to be the child's father, an order adjudicating him the

child's father and an award of custody of the child.

After genetic testing was conducted, with the results showing that

the father was the child's natural father, the juvenile court entered an

order on June 7, 2024, adjudicating the father as the child's father and

setting a hearing on the father's remaining requests for relief.

At the final hearing, which the juvenile court held on December 3,

2024, the testimony was in sharp dispute over when the father had

become aware or should have become aware that he was the child's

father. On January 5, 2025, the juvenile court entered a final judgment.

In its judgment, the juvenile court made the following findings:

"The child was born on April 29, 2021, and in June 2021
as part of a safety plan initiated by the [Coffee County]
Department of Human Resources, the child was placed in the
home of [C.D.]. At the time of the child's birth there was no

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legal or presumed father; however, evidence at this hearing
was that [the father] knew that [the mother] was pregnant,
that they had been engaged in a sexual relationship, [that] he
was sent pictures of the child after birth, [that he] met and
saw the baby when he was a couple of days old, and [that he]
bought formula for the baby after he was born. In addition,
the child's mother sent pictures and messages to [the father]'s
mother [C.F.] of the baby after he was born, commenting that
'the baby looks like [the father].' The court finds this
significant in that [C.F.] has worked for 25+ years with
Embrace Kids, which is in some regard affiliated with the
[Coffee County] Department of Human Resources in working
… to reunify children with families and provide services to
families in need. Less than six months after the child's birth
a dependency petition was filed by the [Coffee County]
Department of Human Resources and at the shelter[-]care
hearing on October 4, 2021, the child was adjudged to be
dependent, and custody vested with [C.D. and A.D.]. [C.D.] is
a lifelong friend to the child's mother and also has custody of
two of the mother's daughters who are half-siblings to this
child. The half-siblings have been in the care and custody of
[C.D.] and her husband since 2019. The child has remained in
the exclusive care of [C.D.] since the adjudication of
dependency and disposition and all of the child's needs are
being met by [C.D. and A.D.].

"This most instant petition was filed on behalf of [the
father] on February 15, 2024, nearly three years after the
birth of the child. On June 4, 2024, the issue of paternity was
addressed by the court and as [a] result of DNA genetic
testing, and with no objection from the parties, [the father]
was adjudged to be the father of the child. Despite the
arguments and assertions of counsel prior to the final hearing
the court determined that the appropriate standard to be
applied in this matter was the [Ex parte] McLendon[, 455 So.
2d 863 (Ala. 1984),] standard. Counsel for the [father] argues
that the appropriate standard would be the Terry standard
(Ex parte Terry, 494 So. 2d 628 (Ala. 1986)), relying on R.O.M.

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v. B.B., 854 So. 2d 98 (Ala. Civ. App. 2003). This Court in
determining that the McLendon standard was appropriate
relied first on the custody order in 19-JU-2021-122.01 which
determined that the child was dependent and that physical
and legal custody of the … child was vested with the
respondent [C.D.] (and her husband [A.D.]). In Ex parte
McLendon the Alabama Supreme Court followed the case of
Ex parte Matthews, 428 So. 2d 58 (Ala. 1983), in determining
that 'a natural parent has a prima facie right to the custody
of his or her child. However, this presumption does not apply
after a voluntary forfeiture of custody or a prior decree
removing custody from the natural parent and awarding it to
a non-parent.' In this instant matter there is a clear prior
[order], the order in JU-2021-122.01 dated October 4, 2021.
Although at the time of that order the father of the child was
unknown and [the father] was not noticed of that proceeding,
this court is satisfied that the child's father … had more than
enough notice, information, and belief that he was the
biological father of the child and failed to avail himself of the
rights of a father and that through his own actions voluntarily
forfeited any right to custody of the child. The father admitted
that he has had a long history of substance abuse/misuse [and
t]hat around the time of the pregnancy and birth of the child
… he and the child's mother engaged in the use of illegal
controlled substances. It should be noted that the child was
born positive for methamphetamine[], the drug of choice for
the mother and [the] father. The child was born on April 29,
2021, and in June 2021 the father was arrested and
incarcerated for the offense of possession or receipt of a
controlled substance while he was on probation for the same
type of offense. The father remained continuously
incarcerated from June 2021 until he was sentenced to prison
in December 2021. The father remained imprisoned until his
release in July 2022 whe[n] he was sent to a substance abuse
rehabilitation program for eighteen (18) months and was
subsequently discharged from that program in December
2023. On February 15, 2024, the child's father filed this
petition. For the majority of the child's life from birth until the

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filing of this petition the father was either in jail, prison, or
rehab, abandoning this child to the care of others. This court
is convinced that the father had more than enough notice and
information that he was the father of the child, or at a
minimum enough information to act on that belief over the
course of the past three years prior to the filing of this petition
in February 2024. During that entire three-year period of time
the child has resided exclusively in the home of [C.D. and
A.D.]. It was … the father's voluntary choice to engage in the
use of illegal controlled substances to the point that it led to
his incarceration and imprisonment to his own detriment, but
all the while abandoning the needs of this child to the care of
[C.D. and A.D.]. It is noteworthy that the father seems to have
addressed his substance-abuse past by remaining sober at
present; however, the court is convinced that the child's father
knew of the existence of the child at the time he was making
these decisions and voluntarily forfeited any right to the
custody of the child by engaging in these illicit behaviors. As
previously mentioned, the father knew that the mother was
pregnant, that they had been engaged in a sexual
relationship, [that] pictures of the child [reflected that the
child] looked like him as a baby, [that] he met and saw the
baby when he was a couple of days old, and [that] he provided
financial support for the benefit of the child, all prior to his
incarceration and imprisonment. [The father]'s mother [C.F.]
has made a career of working with families and possessed the
inherent knowledge that comes with her profession to advise
her son, and [the father] had the resources available to him to
avail himself of any parental authority over the child;
however, he failed to do so by his own volition. [The father]
did not want to be a father to this child when this child was
born and did not want to be a father to this child for the first
three years of the child's life. Only now that he represents that
he has 'changed' and 'cleaned himself up' does he want to
assume the role of a parent. All the while, every need this
child has had from the time he was placed in the home of
[C.D.] have been met by [C.D.] and her husband. The child
refers to [A.D. and C.D.] as 'daddy' and 'momma' and [C.D.

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and A.D.] are the only mother and father this child has ever
known. The child is now three years old and has resided his
entire life in the home of [C.D. and A.D.] along with his two
half-sibling sisters. Such a significant emotional tie exists
given the length of time the child has been in the home of
[C.D. and A.D.] and severing that tie would not serve the best
interests of the child. [C.D. and A.D.]'s home is fit and
acceptable and they have all they need to properly care for the
child and meet all of the child's needs."

(Emphasis added.) Having determined that the father had voluntarily

forfeited his right to custody of the child, the juvenile court, applying the

standard from Ex parte McLendon, 455 So. 2d 863, 865 (Ala. 1984),

"determined that no material change in circumstances ha[d]
occurred since the last custody order and that there was
insufficient evidence to support a conclusion that a change in
custody would materially promote the best interest and
welfare of the child so that the positive good brought about by
the modification would more than offset the inherently
disruptive effect of the change in custody."

Thus, the juvenile court denied the father's request in his petition for an

award of custody of the child.

The father appealed, and this court, in a per curiam opinion,

reversed the juvenile court's judgment, holding that the trial court had

erred in applying the Ex parte McLendon standard rather than the

"parental-presumption" standard set forth in Ex parte Terry, 494 So. 2d

628 (Ala. 1986). B.F., ___ So. 3d at ___. According to Ex parte Terry, a

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natural parent holds a prima facie right to the custody of his or her child,

which right can be overcome " 'only by a finding, supported by competent

evidence, that the parent seeking custody is guilty of … misconduct or

neglect to a degree which renders that parent an unfit and improper

person to be entrusted with the care and upbringing of the child in

question.' " 494 So. 2d at 632 (quoting Ex parte Mathews, 428 So. 2d 58,

59 (Ala. 1983)) (emphasis omitted). However, as this court noted, there

are two exceptions to Ex parte Terry's parental presumption: (1) when

the parent has voluntarily forfeited custody of the child or (2) when a

prior judgment has removed custody of the child from the parent and

awarded custody to a nonparent. Id. (citing Ex parte McLendon, 455 So.

2d at 865). If one of those exceptions is proven, the parental-presumption

standard is replaced by the Ex parte McLendon standard, pursuant to

which a parent will not be able to reclaim custody of his or her child

unless he or she proves: (1) a material change in circumstances since the

entry of the prior custody order, (2) that a change in the child's custody

will materially promote the child's best interest, and (3) that the positive

good brought about by the change in custody will more than offset the

inherently disruptive effect caused by uprooting the child. Id. at 865-66.

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Relying on our supreme court's decisions in Ex parte D.J., 645 So.

2d 303 (Ala. 1994), and Ex parte G.C., 924 So. 2d 651 (Ala. 2005), we held

that the father had not acquired any right to custody of the child until

the juvenile court had adjudicated him to be the child's father in its June

7, 2024, order. B.F., ___ So. 3d at ___. Thus, we held that, before that

time, he could not have voluntarily forfeited his right to custody of the

child. Id. at ___. We also concluded that, because the father had no

custodial rights to the child at the time of the entry of the 2021

dependency judgment, that judgment could not be considered a prior

judgment removing custody of the child from him. Id. at ___. Therefore,

we held that neither of the exceptions to Ex parte Terry's parental-

presumption standard applied, and we concluded that the juvenile court

had erred in applying the Ex parte McLendon standard rather than the

parental-presumption standard in resolving the father's claim for

custody of the child. Id. at ___.

Presiding Judge Moore, joined by all the other members of this

court, filed an opinion concurring specially in the per curiam opinion. Id.

at ___ (Moore, P.J., concurring specially). In his special writing, Presiding

Judge Moore acknowledged that we were bound by the supreme court's

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decisions in Ex parte D.J. and Ex parte G.C., and, thus, that we were

bound to conclude that the juvenile court had applied the wrong standard

in resolving the father's custody claim. Id. at ___ (Moore, P.J., concurring

specially). However, he urged the supreme court to overrule those

decisions in such a manner that would allow a trial court, in determining

whether a father had voluntarily forfeited his custodial rights to his child,

to consider the actions or inactions of that father before a formal

paternity adjudication. Id. at ___ (Moore, P.J., concurring specially).

C.D. filed a petition for a writ of certiorari with the supreme court,

which granted that petition and reversed this court's judgment. Ex parte

C.D., ___ So. 3d at ___. In so doing, the supreme court agreed that this

court had properly concluded that it was bound by its holdings in Ex

parte D.J. and Ex parte G.C. Id. at ___. But, adopting the view of the

members of this court as expressed in Presiding Judge Moore's special

writing, it overruled those cases, writing:

"Accordingly, we now state a new standard regarding
the period that a court may consider in determining whether
a putative father has voluntarily forfeited his presumptive
right to a child born out of wedlock. The relevant period begins
when 'a putative father knows, or should know, of his
paternity of a child born out of wedlock.' B.F. [v. C.D.], [Ms.
CL-2025-0032, Aug. 22, 2025] ___ So. 3d [___,] ___ [(Ala. Civ.
App. 2025)] (Moore, P.J., concurring specially). We overrule

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Ex parte D.J.[, 645 So. 2d 303 (Ala. 1994),] and Ex parte G.C.[,
924 So. 2d 651 (Ala. 2005),] insofar as those decisions conflict
with the standard that we state today."

Id. at ___. The supreme court remanded the case to this court for

proceedings consistent with its opinion.

Analysis

In applying the new standard that the supreme court announced,

our task is to determine whether the evidence supported the juvenile

court's conclusion that the father had forfeited his presumptive right to

custody of the child because of his actions and inaction beginning when

the father knew or should have known that he was the child's father. As

set forth above, the juvenile court found that the father knew that the

mother was pregnant; that they had been engaged in a sexual

relationship at or around the time of conception; that, after the child was

born, the mother sent him pictures of the child; that he met and saw the

child when the child was a couple of days old; that he bought the mother

formula for the child; and that the child's mother sent messages and

pictures of the child to the father's mother after the child was born. From

our review of the record, we conclude that the testimony at the final

hearing supports those findings and that those findings support the trial

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court's determination that the father knew or should have known, around

the time of the child's birth, that the child was his child1 and that, by

failing to avail himself of his rights as the child's father, he voluntarily

forfeited those rights.

As noted above, when a natural parent who seeks custody of his or

her child is found to have previously voluntarily forfeited his or her prima

facie right to custody of the child, Ex parte Terry's presumption in favor

of the parent over a nonparent in custody-modification proceedings is

replaced by the standard set forth in Ex parte McLendon, which affords

the parent no such presumption. See Ex parte McLendon, 455 So. 2d at

865-66. Based on the juvenile court's finding, which was supported by the

record, that the father forfeited his rights to custody of his child by failing

to act on those rights when he became aware or should have become

aware that he was the child's natural father, we conclude that the

1We note that there was additional evidence that would support the

juvenile court's determination that the father knew or should have
known that he was the father of the child around the time of the child's
birth, including the father's testimony that the mother told him during
her pregnancy that he was the father of the child, his testimony that he
was "giddy" when he found out about the child, the mother's testimony
that the father knew the child was his when he brought her formula, and
C.D.'s testimony that, at the time of the dependency hearing in 2021, the
mother had been adamant that the father was the child's father.
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juvenile court properly applied the Ex parte McLendon standard, rather

than the Ex parte Terry parental-presumption standard, in resolving the

father's custody claim.

To be sure, as the father argues on appeal, some of the testimony

supports his position that he did not know that the child was his until

the results of the genetic testing proved that he was. For example, the

father testified that two other men told him while he was in jail that the

mother had told them that the child was theirs; he further testified that

he had been uncertain the child was his until the genetic testing

confirmed he was the child's father. Moreover, the paternal grandmother

testified that the father had told her that he did not believe that the child

was his, and testimony indicated that the mother did not have the

father's name placed on the child's birth certificate. In addition, the

mother's testimony was conflicting regarding the point at which she had

come to believe the father was the child's natural father. At times, she

testified that she had not been certain that the father was the child's

father; at other times, however, she testified that she knew the child was

the father's at the time the child was born.

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The juvenile-court judge, as the judge of the credibility of the

testimony presented to him, was free to accept the testimony he believed

and to reject whatever testimony he determined was not credible. See

Woods v. Woods, 653 So. 2d 312, 314 (Ala. Civ. App. 1994) ("In ore tenus

proceedings, the trial court is the sole judge of the facts and of the

credibility of witnesses, and the trial court should accept only that

testimony it considers to be worthy of belief."). "When evidence in a child

custody case has been presented ore tenus to the trial court, that court's

findings of fact based on that evidence are presumed to be correct." Ex

parte Bryowsky, 676 So. 2d 1322, 1324 (Ala. 1996). "Appellate courts do

not sit in judgment of disputed evidence that was presented ore tenus

before the trial court in a custody hearing." Id.

Here, because the testimony was disputed, the juvenile court was

tasked with sorting through the testimony, accepting the testimony it

found to be credible, and drawing its legal conclusions from that credible

testimony. As noted above, our review of the record convinces us that the

findings the juvenile court made were supported by testimony and that

its determinations based on those findings were legally sound. Because

the juvenile court applied the correct standard in resolving the father's

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custody claim and the father asserted no other argument on appeal, the

juvenile court's judgment is due to be affirmed.

Conclusion

The juvenile court properly applied the Ex parte McLendon

standard in resolving the father's claim for custody of the child. Thus, we

conclude that the juvenile court's judgment is due to be affirmed.

AFFIRMED.

All the judges concur.

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