T.E.B. and D.K.G. v. C.A. (Appeal from Montgomery Probate Court: 2022-A0019).

Rel: April 26, 2024

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, 2023-2024
_________________________

CL-2023-0572
_________________________

T.E.B. and D.K.G.

v.

C.A.

Appeal from Montgomery Probate Court
(2022-A0019)

EDWARDS, Judge.

This is the second time these parties have appeared before this

court to seek review of the actions or inaction of the Montgomery Probate

Court ("the probate court") relating to the petition filed by T.E.B. and

D.K.G. ("the prospective adoptive parents") seeking to adopt B.B.A. ("the
CL-2023-0572

child"), the son of C.A. ("the biological mother"). See Ex parte T.E.B.,

[Ms. CL-2023-0261, July 7, 2023] ___ So. 3d ___ (Ala. Civ. App. 2023). We

explained the circumstances giving rise to the adoption petition and the

initial procedural history of the adoption action in Ex parte T.E.B.:

"In July 2022, the biological mother, who was then
pregnant with the child, met with Sarah Strength, a licensed
independent clinical social worker, regarding the biological
mother's potential intent to place the child for adoption with
the prospective adoptive parents. Strength does not work for
a particular adoption agency but is instead engaged by
adoption agencies to perform birth-mother interviews.
Strength explained the adoption process to the biological
mother and reviewed with her the provisions of the [former]
Alabama Adoption Code, Ala. Code 1975, [former] § 26-10A-1
et seq.,[1] regarding consent to adoption and the withdrawal
of that consent. See Ala. Code 1975, [former] § 26-10A-13
(providing that a consent executed by parent may be
withdrawn within five days of the birth of the child or the
execution of the consent, whichever comes last, and that a
consent executed by a parent may be withdrawn within 14
days of the birth of the child or the execution of the consent,
whichever occurs last, 'if the court finds that the withdrawal

1In 2023, the legislature enacted the Alabama Minor Adoption
Code, which is codified at Ala. Code 1975, § 26-10E-1 et seq., and which
repealed the former Alabama Adoption Code, which was codified at
former § 26-10A-1 et seq., effective January 1, 2024. Because the
adoption petition at issue in this appeal was filed in 2022, it is governed
by the provisions of the former Alabama Adoption Code. See Ala. Code
1975, § 26-10E-37(b) ("This chapter shall apply to all proceedings related
to minor adoptions that have not been commenced as of December 31,
2023.").

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is reasonable under the circumstances and consistent with the
best interest of the child'). During the interview, which took
about one and a half hours, Strength also accumulated
information relating to the biological mother's health history.
…

"On August 12, 2022, the biological mother gave birth to
the child at a hospital in Birmingham. On that same date, and
only a few hours after the child's birth, the biological mother
contacted Strength regarding her decision to place the child
for adoption. According to Strength, the biological mother
requested that Strength come to the hospital so that the
biological mother could complete the consent form and leave
the hospital to go home to attend to her 16-year-old son ….
Strength testified that the biological mother was upset when
she arrived at the hospital, which Strength indicated was a
typical reaction of a birth mother who was considering
executing a consent to adoption, and that Strength
communicated to the biological mother that she could take all
the time she desired to execute the consent and that, if she
decided she was not ready to execute the consent form,
Strength would leave. Strength explained that she consulted
with the biological mother's nurse and inquired whether the
biological mother had been administered narcotic pain
medication within the previous four hours; Strength said that
the nurse confirmed that the biological mother had not been
provided narcotic pain medication within the previous four
hours. Although the biological mother did not immediately
execute the consent upon Strength's arrival, she did execute
the consent that same evening. The biological mother then left
the hospital against medical advice. In addition, on or about
August 16, 2022, the biological mother returned to the
hospital at the request of the hospital staff to execute a
document permitting the prospective adoptive parents to take
the child home from the hospital. See Ala. Code 1975, [former]
§ 26-10A-15(a) (explaining that a health-care facility may not
release a child into the custody of any person other than
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specified entities or a 'parent, relative by blood or marriage,
or person having legal custody, unless such surrender is
authorized in a writing executed after the birth of the adoptee
by one of the adoptee's parents or agency or the person having
legal custody of the adoptee').

"On or about August 18, 2022, the biological mother sent
a message to Strength, indicating that she was having second
thoughts about giving the child up for adoption. According to
Strength, she reminded the biological mother that she had
until 14 days after the child's birth to file a motion with the
probate court seeking to withdraw her consent to the
adoption. In fact, Strength testified that she had sent the
biological mother a photograph of [former] § 26-10A-13 to
confirm the periods the biological mother had to file a petition
to withdraw her consent.

"On August 19, 2022, Amy Osborne, the attorney for the
prospective adoptive parents, mailed to the probate court a
petition to adopt the child and the necessary supporting
documents. The probate court docketed the adoption petition
on August 23, 2022. The probate court did not immediately
enter an interlocutory order of adoption. See [Ala. Code 1975,
former] § 26-10A-18 [(providing, in pertinent part, that,
'[o]nce a petitioner has received the adoptee into his or her
home for the purposes of adoption and a petition for adoption
has been filed, an interlocutory [order] shall be entered')].

"On August 24, 2022, the biological mother filed with the
probate court a letter and a withdrawal-of-consent form that
she had executed on August 22, 2022. In response to the
biological mother's filing, which the probate court properly
treated as a petition to withdraw her consent, the probate
court, on September 19, 2022, set a hearing for October 12,
2022. The probate court did not enter an interlocutory order
of adoption at any time before the date of the October 12, 2022,
hearing."
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___ So. 3d at ___ (footnotes omitted).

As we explained in Ex parte T.E.B., after the October 12, 2022,

hearing, the probate court did not enter any order addressing whether

the biological mother could withdraw her consent. On October 14, 2022,

the probate court held a hearing at which it addressed its concern that

Amy Osborne, the prospective adoptive parents' attorney, had made a

misrepresentation regarding the Jefferson County Department of

Human Resources ("the Jefferson County DHR") having issued a pickup

order relating to the child based on the results of the testing of his

meconium. That hearing did not address the issue of the biological

mother's petition to withdraw her consent to the adoption. The probate

court held a three-day evidentiary hearing on the issue of the withdrawal

of the biological mother's consent on November 17, 18, and 21, 2022.

After the conclusion of that evidentiary hearing, the probate court again

failed to render or enter a judgment resolving the question whether the

biological mother could withdraw her consent. Instead, the probate court

urged the prospective adoptive parents to relinquish the custody of the

child to the biological mother because, as we explained in Ex parte T.E.B.,

the probate court had a mistaken belief that it could not enter an
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interlocutory order of adoption under Ala. Code 1975, former § 26-10A-

18, after the biological mother had filed a petition to withdraw her

consent and because the probate court erroneously insisted that the child

had been improperly placed in the home of the prospective adoptive

parents. ___ So. 3d at ___.

In January 2023, the prospective adoptive parents filed a motion

seeking to have the probate court issue an interlocutory order of adoption

pursuant to former § 26-10A-18. As we explained in Ex parte T.E.B.:

"In an order dated February 13, 2023, the probate court
ordered that the prospective adoptive parents provide a letter
brief citing authority for the proposition that the probate
court 'can enter an interlocutory order under ... [former] § 26-
10A-18 ... when a withdrawal of consent has been filed by a
birth parent pursuant to ... [former] § 26-10A-13(b).' The
February 13, 2023, order also provided that the biological
mother and [Vicky Toles,] the guardian ad litem [for the
child,] should file a response to any letter brief filed by the
prospective adoptive parents.

"The probate court held yet another hearing on April 5,
2023. …

"At the April 5, 2023, hearing, the probate court …
entertained … argument on the issue of the request for entry
of an interlocutory order of adoption. …

"In an order entered on or about April 13, 2023, the
probate court recounted the procedural history of this
adoption proceeding. … [T]he probate court denied the
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prospective adoptive parents' renewed request for an
interlocutory order of adoption. The April 13, 2023, order d[id]
not address the merits of the biological mother's still-pending
petition to withdraw her consent to the adoption."

___ So. 3d at ___.

In response to the April 13, 2023, order denying their request for

the entry of an interlocutory order of adoption, the prospective adoptive

parents filed a petition for the writ of mandamus in this court, seeking a

writ requiring the probate court to enter an order as required by former

§ 26-10A-18. Id. at ___. We denied their petition for the writ of

mandamus, explaining that,

"[a]lthough we conclude that the prospective adoptive parents
are correct that the probate court was required by [former] §
26-10A-18 to enter an interlocutory order of adoption in
response to the filing of the adoption petition and that the fact
that the biological mother filed a petition to withdraw her
consent to the adoption had no bearing on the initial issuance
of the interlocutory order of adoption,"

id. at ___, the mandamus petition was untimely based on the

"surrounding circumstances." Id. at ___. We based our decision on the

lapse of time between the relinquishment of the child to the custody of

the biological mother in November 2022 and the filing of the mandamus

petition in April 2023 and on the fact that "the child will most certainly

7
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be severely impacted by any order from this court requiring that the

probate court enter an interlocutory order of adoption." Id. at ___. We

noted that, as of the time of the issuance of our opinion in July 2023, the

child had lived with the prospective adoptive parents for "approximately

three months and was then placed into the custody of the biological

mother, with whom he has now resided for seven months." Id. at ___.

However, in light of the fact that the unnecessarily protracted adoption

litigation had yet to produce an order resolving the determinative issue

-- whether the biological mother could withdraw her consent to the

adoption under Ala. Code 1975, former § 26-10A-13(b) -- we directed the

probate court to enter an order deciding that issue within seven days of

the issuance of our opinion. Id. ___.

In compliance with that directive, on July 14, 2023, nearly an entire

year after the biological mother had filed her August 22, 2022, petition to

withdraw her consent to the adoption, the probate court finally entered

an order deciding that issue. In its order, the probate court concluded

that the biological mother had presented evidence supporting the

conclusion that the withdrawal of her consent was reasonable under the

circumstances and that permitting the withdrawal of her consent would
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be consistent with the best interest of the child. The prospective adoptive

parents attempted to file a postjudgment motion on July 28, 2023, but

the clerk of the probate court rejected the filing because it contained an

electronic and not a "wet ink" signature; counsel for the prospective

adoptive parents then sent an e-mail with a pdf copy of the motion to the

probate-court clerk for filing and also sent a copy bearing a "wet ink"

signature to the probate court via certified mail, which was received and

docketed on July 31, 2023. The prospective adoptive parents filed a

notice of appeal to this court on August 11, 2023.

Before turning to the substantive issues presented in the appeal,

we first address whether this court has jurisdiction over the appeal. See

G.C. v. Baldwin Cnty. Dep't of Hum. Res., 331 So. 3d 620, 621 (Ala. Civ.

App. 2020) (indicating that an appellate court can notice the lack of a

timely filed notice of appeal ex mero motu). Because the record revealed

that the postjudgment motion had been filed in the probate court on July

31, 2023, we directed the parties to file letter briefs on the issue of the

timeliness of this appeal. See Ala. Code 1975, former § 26-10A-26(a)

(requiring appeal from final judgment in adoption proceeding be filed

within 14 days of entry of judgment); former § 26-10A-14(e) (treating
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order on petition to withdraw consent as final for purposes of appeal

under former § 26-10A-26). In their letter brief, the prospective adoptive

parents explained the facts relating to their attempt to file the

postjudgment motion on July 28, 2023, as recounted above. Because this

court cannot resolve factual disputes and because we could not know

whether the circumstances outlined by the prospective adoptive parents

were, in fact, true, we remanded the appeal to the probate court for it to

determine whether an attempt to file the postjudgment motion in the

probate court on July 28, 2023, had been made. On remand, the probate

court determined that, although counsel of record for the prospective

adoptive parents had not personally attempted to file the postjudgment

motion, Lisa Bannister, an employee of counsel's law firm, had made such

an attempt but was told that the motion would not be accepted because

it bore only an electronic signature. Moreover, in its order on remand,

the probate court recounted that Lisa Fells, the probate-court supervisor

who had been an employee of the probate-court clerk's office for over 20

years, had testified that the clerk's office "has consistently returned

documents that lack a wet[-ink] signature."

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As counsel for the prospective adoptive parents has argued, the

probate court was not permitted to refuse to accept the postjudgment

motion on the ground that it bore an electronic signature. The Rules of

Civil Procedure apply in the probate courts. See Ala. Code 1975, former

§ 26-10A-37 ("The Rules of Civil Procedure … apply to the probate court

in adoption proceedings to the extent they apply under [Ala. Code 1975,

§] 12-13-12."); Ala. Code 1975, § 12-13-12 ("The provisions of this code in

reference to … pleading and practice … in the circuit court, so far as the

same are appropriate, … in the absence of express provision to the

contrary, are applicable to the proceedings in the probate court."). Rule

11(a), Ala. R. Civ. P., clearly states that, "[a]s provided in Rule 30(G) of

the Alabama Rules of Judicial Administration, an electronic signature is

a 'signature' under these Rules." See also Rule 30(G), Ala. R. Jud. Admin.

("The requirement that any court record or document be signed is met by

use of an electronic signature."); Ex parte Mealing, 142 So. 3d 720, 727

(Ala. Civ. App. 2013) (stating that "Rule 30(G)[, Ala. R. Jud. Admin.,] and

Rule 11(a)[, Ala. R. Civ. P.,] both indicate that electronic signatures are

acceptable in court documents"). Regardless of its historical practice, the

probate court may not demand that pleadings or motions contain a wet-
11
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ink signature as a prerequisite for filing. Accordingly, we deem the

postjudgment motion filed by the prospective adoptive parents, and,

consequently, their notice of appeal, to have been timely filed. See Ex

parte G.L.C., 281 So. 3d 401 (Ala. 2018); Johnson v. City of Tuscaloosa,

375 So. 3d 1241, 1252 (Ala. Civ. App. 2022).

Turning now to the substantive issues presented by this appeal, we

must first summarize the evidence presented to the probate court

relating to the biological mother's decision to withdraw her consent and

to the best interest of the child. The biological mother testified that she

had initially decided to seek adoption of the child because her boyfriend

had ended their relationship, she was on unpaid maternity leave from

her employment as a discount-store manager, and she was not convinced

that she could provide materially for the child and her older son. She

said that she had been very upset on August 12, 2022, when she signed

the consent form and that she had also been upset when she had returned

to the hospital on August 16, 2022, to sign the form authorizing the

prospective adoptive parents to take the child home upon his discharge.

She described herself as "an emotional wreck."

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According to the biological mother, she had reconsidered her ability

to provide for the child once she resumed her full-time employment after

the child's birth. She admitted that she had previously given up her two

daughters for adoption, but, she stated, she was "tired of giving [her] kids

away." She also stated that "I just want [the child] back" and that "the

best interest of [the child] is to be with his mother." She described her

decision to place the child for adoption as a "last-minute decision" and

said that it had been a mistake.

The biological mother testified that she had a "support system" and

that her sister, her nieces, and her nephews lived in close proximity to

her. However, when asked if her support system included the person who

had driven her to the November 17, 2022, hearing, to which she had

arrived two hours late, she stated that her transporter was not her only

support and that her transporter had had a doctor's appointment that

had caused the delay. The biological mother said that she "had" three

automobiles, and, when asked if they "drove," she answered in the

affirmative. She admitted that she had not driven herself to the hearing

and that the three automobiles "need a little bit of work done to them."

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In addition, the biological mother did not provide any plan for

caring for the child while she worked, stating: "I plan on spending time

with him once I get him." She did not explain how she would be able to

do so when she had been unable to afford to provide for herself when she

was on unpaid maternity leave; she testified that she had been employed

by the discount store for only a year and a half at the time of her

testimony at the November 17, 2022, hearing, and she did not explain

whether she would be entitled to paid parental leave. She explained that

her older son was autistic and could not care for himself but that he could

talk. However, she testified on cross-examination that "[h]e's not as

autistic as you're making him out to be" and described him as "no

different from any other child." She said that, when she was working,

her older son sometimes stayed home alone and at other times stayed

with a friend who lived nearby. As previously noted, the biological

mother had left the hospital against medical advice after the birth of the

child because, she said, she had to get home to attend to her older son.

The biological mother described her home as a two-bedroom house

and said that she owned the home. Although she testified that she used

one bedroom and her older son used the other, the biological mother said
14
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that she could, after the child grew older, make another room in the house

into a bedroom for the child. She admitted that her water bill was in the

name of another person; she said that she had been unable to secure

water in the home in her name because, according to her, her sister had

previously run up a water bill for another house in the biological mother's

name.

Regarding her health, the biological mother testified that she had

asthma, anemia, and had suffered from pregnancy-induced hypertension

and preeclampsia. The biological mother admitted that she had a history

of alcohol abuse. She also said that she had a history of depression that

had resulted from the death of her parents in 2006 and 2009. She denied

having had suicidal ideations. The biological mother said that she had a

prescription for Xanax.

At the October 14, 2022, hearing, David Smith, a representative of

the Alabama Department of Human Resources, testified that he had been

informed by the Jefferson County DHR on that same date that the

biological mother had tested positive for alcohol, benzodiazepine,

amphetamines, and methamphetamine. He indicated, however, that he

was not aware of whether the Jefferson County DHR had administered a
15
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urine test or a hair-follicle test to the biological mother. Alicia Sexton, a

representative of the Butler County Department of Human Resources

("the Butler County DHR"), testified at the November 17, 2022, hearing

that the Montgomery County Department of Human Resources had

asked the Butler County DHR for assistance in investigating the report

that the child's meconium test had revealed that the child had been

exposed to unnamed drugs. The biological mother also admitted at the

November 17, 2022, hearing that she had been told that the child's

meconium had tested positive for drugs. However, she testified at that

hearing that the drug that she had been prescribed for high blood

pressure during her pregnancy, Labetalol, could cause false-positive

results, and she denied having used any illegal substances during her

pregnancy. The biological mother also testified at the November 17,

2022, hearing that she had been investigated by the Jefferson County

DHR, that she had tested negative on the drug screens that had been

required by the Jefferson County DHR, and that, other than during the

initial weekend after the report was received by the Jefferson County

DHR, during which her older son had stayed with her sister, the

biological mother had not been deprived of her older son's custody.
16
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D.K.G., the prospective adoptive mother, testified that she and

T.E.B., the prospective adoptive father, had been married for eight years;

that T.E.B. had two older children from a previous relationship, who were

24 and 15 years old; that the 15-year-old, who was a daughter, lived with

them; and that she and T.E.B. had a 5-year-old daughter together. She

explained that she and T.E.B. both worked for the federal government,

that she typically worked in the office only one day per week, and that

T.E.B.'s job was entirely remote. According to D.K.G., she and T.E.B. had

negotiated parental-leave time that would permit each of them to work

only one-half of each day so that one of them would be available at all

times to care for the child in his early months of life. As the probate court

noted in its July 14, 2023, order, the prospective adoptive parents'

combined yearly income exceeded $240,000.

D.K.G. explained that, after their parental leave was exhausted in

February 2023, they intended to hire a nanny to care for the child during

the day; she noted, however, that T.E.B. would be in the home during the

workday. She also explained that they expected to enroll the child in a

Montessori school once he reached age one. D.K.G. testified that their

home had four bedrooms and that the child would have his own room
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once he reached the appropriate age. She said that she had a strong

support group of other mothers and that T.E.B.'s 24-year-old son was also

available and willing to provide assistance as needed. She said that the

T.E.B.'s son, his daughter, and her and T.E.B.'s daughter all loved the

child.

In addition, D.K.G. described the child as having suffered from

jerky movements and having been easily awakened when he had first

come to their home from the hospital. She said that the hospital's

discharge papers had indicated that the child was suffering from nicotine

withdrawal. She also noted that hospital personnel had informed her to

watch for the child to "sneeze in threes," which, she said, he did.

Strength testified that the biological mother had recounted to her

that she had had a history of alcoholism after the death of her parents;

the birth-mother-interview form that Strength completed is contained in

the record on appeal and indicates that the biological mother had also

reported to Strength that she had been sober for three years. Strength

also testified that the biological mother had admitted to having a history

of depression and suicidal ideation. According to the birth-mother-

interview form, the biological mother had dropped out of high school in
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the 10th grade because she was "boy crazy," but the form indicates that

the biological mother had received her GED. Although the birth-mother-

interview form reflects that the biological mother's current employment

was with a discount store, the form further reflects that the biological

mother had not revealed any prior employment to Strength, who had

drawn a line through the blank on the form that provided for the

biological mother's response. The birth-mother-interview form also

indicates that the biological mother informed Strength during her

interview in July 2022 that she had anemia, asthma, pregnancy-induced

hypertension, and preeclampsia and that she smoked one pack of

cigarettes per day. According to the information provided by the

biological mother to Strength, as recorded on the birth-mother-interview

form, the biological mother did not have private insurance, was qualified

for Medicaid, and received food stamps.

Vickie Toles, the child's guardian ad litem, testified that she had

been to the homes of both the biological mother and the prospective

adoptive parents. She stated that, in her opinion, both homes were

suitable for the child and that both the biological mother and the

prospective adoptive parents could provide for the child's necessities. She
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said that the biological mother's home was small but that she had

observed that

"there was a little small area. I don't know -- it looks like it
may have been set up for a -- maybe like an office space or
something. That's off of the -- off of the kitchen slash bedroom
area. That had enough space that the -- that could be
converted back into some kind of room there or something in
that respect …."

Toles testified that she did not compare the varying financial capabilities

of the biological mother and the prospective adoptive parents in her

analysis of the best interest of the child, explaining:

"You're asking about a future question. To be honest with
you, the [prospective adoptive parents] could lose everything
that they got today or tomorrow, and they could be in the same
situation that [the biological mother] is in. So that's not a fair
question to ask me because either one of those or she could go
out and hit the lottery, and she could be the richest woman in
the world."

In her testimony, Toles opined that the child's best interest would

be better served by placement with the biological mother, citing two

reasons: the fact that the biological mother would be able to provide

information relevant to the child's medical history and the fact that the

child might suffer some emotional upset in the future upon learning that

he was adopted. She explained that "the traumatic experience that

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happens for many children that I've seen turns out to be why did my

momma give me up? Why did my daddy leave me? It is an issue for

children. The abandonment is a serious issue for them." She also

indicated that the fact that the biological mother may not have reliable

transportation was not a concern for her because she believed that

parents could provide for their children even without reliable

transportation.

In its July 14, 2023, order, the probate court determined that the

biological mother's decision to withdraw her consent was reasonable

under the circumstances. The probate court explained that the biological

mother had described her decision to allow the child to be adopted as a

mistake "borne out of her belief that she could not raise the child, in

addition to her teenaged son, by herself." The order states that the

biological mother believed that she could not rear her children without a

father but that she had "realized [she] could do it by [her]self" in the days

after signing the consent form. The probate court also stated that it had

considered the biological mother's statements regarding her "mindset" at

the time she had executed the consent form.

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Regarding the requirement that the withdrawal of consent be

consistent with the best interest of the child, the probate court stated in

its order that it had considered the " 'sex, age, and health of the child[];

the child[]'s emotional, social, moral, and material needs; and the …

parties' ages, character, stability, health, and home environment.' T.D.P.

v. D.D.P. and W.H.P., 950 So. 2d 311, 316 (Ala. Civ. App. 2006)." Relying

on Toles's belief that the biological mother's "smaller home and limited

financial resources" did not make her an inferior choice, the probate court

concluded that both the prospective adoptive parents and the biological

mother could meet the needs of the child. The probate court found that

the prospective adoptive parents could provide a loving home for the child

and, moreover, that they could provide "every societal and educational

advantage imaginable." The probate court then concluded that it could

not determine that placement in the biological mother's home "would not

be in [the child's] best interest," "that the essentials of a loving home are

lacking in her home," "or that [the child's] character, stability, health, or

home environment would be lacking in any meaningful way."

According to the probate court, it was also convinced by the

biological mother's "experience in observing the impact of adoption on her
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daughters" to conclude that adoption would not be in the child's best

interest. The probate court relied on statements made by the biological

mother in a letter she had mailed to the probate court in December 2022,

after the completion of the hearing on the issue of the withdrawal of her

consent. In that letter, which appears to have been, in part, a response

to the prospective adoptive parents' motion to reopen the evidence to

admit the records from St. Vincent's Hospital, where the child was born,

the biological mother stated that her daughters "suffer tremendously"

from her decision to place them for adoption.2 She said that they "battle

depression," blame themselves for her decision, and believe that, had

they been born male, the biological mother would have kept them. The

2The statements in the biological mother's letter in response to the

prospective adoptive parents' motion are technically not evidence. See
Guthrie v. Alabama Dep't of Labor, 160 So. 3d 815, 819 (Ala. Civ. App.
2014) (quoting Griffin v. Griffin, 159 So. 3d 67, 70 (Ala. Civ. App. 2014))
(stating, in an appeal involving a pro se party, that " 'statements or
arguments ... made in a motion do not constitute evidence' "). However,
the prospective adoptive parents have not objected to the probate court's
reliance on those statements, and we therefore have no basis to reject
them. See Armstrong v. Armstrong, 515 So. 2d 27, 28 (Ala. Civ. App.
1987) (stating that "[i]f illegal evidence is presented without objection, it
is properly admitted and the trier of facts may consider it" and that
"[e]videntiary issues will not be considered upon appeal in the absence of
an objection or in the absence of an adverse ruling by the trial court").
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biological mother also described her daughters as "miserable" and said

that they "live[] everyday wondering why they weren't good enough." She

also reported that they "feel out of place, rejected from day [one] on this

earth, [and] don't know who they are and are afraid to love." Moreover,

as mentioned above, Toles testified, without objection, that adoption was

traumatic for many children, who, she indicated, questioned why their

parent or parents had chosen adoption and who suffered feelings of

abandonment.

Citing A.E.C. v. J.R.M., 46 So. 3d 481, 499 (Ala. Civ. App. 2009)

(quoting Good v. Zavala, 531 So. 2d 909, 910 (Ala. Civ. App. 1988)), the

prospective adoptive parents contend that " '[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.' " We note,

however, that that particular principle of law arose under the adoption

code as it existed before the former Alabama Adoption Code, which was

enacted in 1990. The former versions of the adoption code contained no

provisions governing the withdrawal of a natural parent's consent to an

adoption. See Ala. Code 1975, former § 26-10-3; Ala. Code 1940 (Recomp.
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1958), Title 27, § 3; Ala. Code 1940, Title 27, § 3; Williams v. Pope, 281

Ala. 416, 420, 203 So. 2d 271, 275 (1967) ("[O]ur statutes are silent as to

the revocation of consent."). In 1990, before the enactment of the former

Alabama Adoption Code, our supreme court summarized the rule

governing the withdrawal of consent:

" 'The rule in Alabama is that, once a valid consent to
adopt has been given and the child has been placed in the
custody of the adoptive parents, consent can only be revoked
for legal cause, such as where the consent was procured
through fraud, undue influence, coercion, or other improper
methods or where, under all the circumstances, the trial court
finds it to be in the best interest of the child for it to be
returned to the natural parents.' "

Ex parte Fowler, 564 So. 2d 962, 965 (Ala. 1990) (quoting In re Miller,

473 So. 2d 1069, 1070 (Ala. Civ. App. 1985)). Former § 26-10A-13(a) and

(b) changed the then-existing adoption law and allowed for a natural

parent to change his or her mind about consenting to an adoption. Thus,

we do not find this argument convincing.

We have no caselaw interpreting the application of the

requirements for the withdrawal of consent as set out in former § 26-10A-

13(b). However, we have before explained that a determination of the

reasonableness of the withholding of consent to adoption by the

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Department of Human Resources under Ala. Code 1975, former § 26-10A-

7(4), is a question of fact. See R.L.T. v. State Dep't of Hum. Res., 668 So.

2d 862, 864 (Ala. Civ. App. 1995); In re Roland, 483 So. 2d 1366, 1368

(Ala. Civ. App. 1985). We see no basis for distinguishing between the

reasonableness of withholding consent and the reasonableness of

withdrawing consent; thus, the question regarding the reasonableness of

the biological mother's decision to withdraw her consent to the adoption

is also a question of fact. Likewise, we have stated that the decision

respecting the custody of children is left to the discretion of the trial court,

Sockwell v. Sockwell, 822 So. 2d 1219, 1223 (Ala. Civ. App. 2001), and

that "[t]here is no wider area for the exercise of judicial discretion than

that of providing for and protecting the best interests of children."

McDaniel v. McDaniel, 621 So. 2d 1328, 1330 (Ala. Civ. App. 1993).

" 'Where a probate court hears ore tenus evidence on a
petition for adoption, its findings and conclusions based on
that evidence are presumed to be correct.' K.P. v. G.C., 870 So.
2d 751, 757 (Ala. Civ. App. 2003). The ore tenus presumption
of correctness arises because the trial court is in a position to
observe the demeanor and behavior of the witnesses and is
thus able to evaluate whether their testimony is credible and
truthful. Ex parte Fann, 810 So. 2d 631, 633 (Ala. 2001); Ex
parte Bryowsky, 676 So. 2d 1322, 1324 (Ala. 1996). The trial
court is able to make personal observations of the witnesses,

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while an appellate court has the benefit only of a cold
transcript of the proceedings."

Ex parte J.W.B., 933 So. 2d 1081, 1087 (Ala. 2005). As our supreme court

has observed, "[t]his opportunity to observe witnesses is especially

important in child-custody cases. 'In child custody cases especially, the

perception of an attentive trial judge is of great importance.' " Ex parte

Fann, 810 So. 2d 631, 633 (Ala. 2001) (quoting Williams v. Williams, 402

So. 2d 1029, 1032 (Ala. Civ. App. 1981)).

Because we are constrained by the ore tenus presumption, we

cannot reweigh the evidence presented to the probate court. Ex parte

J.W.B., 933 So. 2d at 1087. The probate court viewed the parties during

their testimony and was therefore able to determine the veracity of that

testimony. Id. From that testimony, the probate court could have been

convinced that the biological mother's decision to withdraw her consent

was reasonable under the circumstances and that allowing the biological

mother to withdraw her consent would be in the best interest of the child.

We therefore affirm the probate court's July 14, 2023, order determining

that the biological mother's withdrawal of her consent was reasonable

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under the circumstances and consistent with the best interest of the

child.

The prospective adoptive parents contend that, once it determined

that the biological mother could withdraw her consent, the probate court

was required, pursuant to Ala. Code 1975, former § 26-10A-3, to transfer

the adoption action to the Montgomery Juvenile Court for that court to

consider the termination of the biological mother's parental rights.

However, as a plurality of this court explained in Ex parte W.L.K., 175

So. 3d 652, 658 (Ala. Civ. App. 2015), the field of operation of former § 26-

10A-3 is not quite so large as to compel a probate court to transfer an

adoption action to a juvenile court for termination of parental rights

when a natural parent has successfully mounted a challenge to the

adoption. Although Ex parte W.L.K. involved a successful contest to an

adoption based on a probate court's conclusion that a natural father had

not impliedly consented to the adoption based upon his conduct, pursuant

to Ala. Code 1975, former § 26-10A-9(a)(1), 175 So. 3d at 655, and not the

resolution of a petition to withdraw consent under former § 26-10A-14,

the same result obtains in the present case.

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Former § 26-10A-14(e) required the probate court to "order the

minor restored to the custody of his or her parent" if it determined that

the parent may withdraw his or her consent. Moreover, Ala. Code 1975,

former § 26-10A-24(a)(4), provided that a probate court shall consider

"[w]hether a consent … may be withdrawn" at a contested hearing.

Former § 26-10A-24(d)(4) required that an adoption action be dismissed

if the probate court determined that "a necessary consent may be

withdrawn."

We conclude, as did a plurality of this court in Ex parte W.L.K.:

"[A]lthough, according to the prospective adoptive parents,
[former] § 26-10A-3 appears to require the transfer of an
adoption proceeding in every situation where a parent has
failed to give his or her consent, enforcing the transfer
provision contained in [former] § 26-10A-3 after a parent has
successfully [withdrawn consent to] the adoption would leave
no field of operation for the requirement in [former] § 26-10A-
24(d) that the adoption proceeding be dismissed after [the
probate court permits the withdrawal of a consent to the
adoption]. Enforcing [former] § 26-10A-24(d) and requiring
dismissal of an adoption proceeding after [withdrawal of a
consent is permitted], however, leaves room for the operation
of [former] § 26-10A-3 in those adoption proceedings in which
a parent does not [seek to withdraw his or her consent] but
fails to consent or is unable to do so. Such a construction of
the two provisions is supported by the language used in the
statutes, and it also meets our duty ' "to harmonize and
reconcile all parts of a statute so that effect may be given to
each and every part." ' "
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175 So. 3d at 658-59 (quoting Hays v. Hays, 946 So. 2d 867, 877 (Ala. Civ.

App. 2006), quoting in turn Leath v. Wilson, 238 Ala. 577, 579, 192 So.

417, 419 (1939)).

Finally, the prospective adoptive parents contest the probate court's

July 14, 2023, order insofar as it directs that they pay $11,000 to cover

the guardian ad litem's fee and costs. Citing Ex parte Shinaberry, 326

So. 3d 1037 (Ala. 2020), they specifically contend that the award of the

guardian ad litem's fee should be reversed because, they say, Toles did

not provide an itemized statement of the hours expended to support her

$6,187.50 fee. However, Toles filed in the probate court an itemized

statement supporting that fee, which appears on page 256 of the record.

The prospective adoptive parents, apparently unaware of that filing, did

not object to any particular aspect of the guardian ad litem's fee, and,

thus, we have no arguments to consider regarding its reasonableness.

See T.C.M. v. W.L.K., 248 So. 3d 1, 9 (Ala. Civ. App. 2017) (affirming the

award of a guardian ad litem's fee when "[t]he father [did] not argue that

$200 per hour [was] not a reasonable fee, and [did] not specifically

challenge the time the guardian ad litem expended"). Accordingly, we

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affirm the order insofar as it directs the prospective adoptive parents to

pay the guardian ad litem's fee of $6,187.50.

However, we agree with the prospective adoptive parents that the

remaining portion of the $11,000 they were ordered to pay -- $4,812.50 --

which apparently represents the costs of the adoption action, has no

support in the record. The prospective adoptive parents challenged the

award of unspecified costs in their postjudgment motion.

" '[A] party aggrieved by an award of costs may appeal the
propriety of such an award, even where the merits of the
underlying case are not before the appellate court.' Garrett v.
Whatley, 694 So. 2d 1390, 1391 (Ala. Civ. App. 1997) (citing
City of Birmingham v. City of Fairfield, 396 So. 2d 692, 694
(Ala. 1981)). However, our review of a trial court's order
taxing costs pursuant to Rule 54(d)[, Ala. R. Civ. P.,] is limited
to determining whether 'a clear abuse of discretion' is present.
Garrett, 694 So. 2d at 1391."

Bundrick v. McAllister, 882 So. 2d 864, 866 (Ala. Civ. App. 2003).

No party filed a motion seeking an award of costs, no cost bill

appears in the record, and the order does not provide an itemization of

the costs being assessed against the prospective adoptive parents.

Although we are well aware that Rule 54(d), Ala. R. Civ. P., provides that

the prevailing party is typically permitted an award of costs, the rule does

not set out the procedure for compiling those costs or for challenging an
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award of costs by the court in its judgment.3 However, as is the case with

attorney fees and guardian ad litem fees, the award of costs must contain

sufficient specificity to provide for the ability to challenge the assessment

of those costs and for meaningful appellate review. See T.C.M., 248 So.

3d at 9 (quoting Pharmacia Corp. v. McGowan, 915 So. 2d 549, 553 (Ala.

2004)) (explaining that an attorney-fee award should provide information

including an articulation of the decision made, the basis for that decision,

and the calculation of the fee to " 'allow for meaningful appellate

review' "). Because the record does not reveal the particular costs

assessed against the prospective adoptive parents, they have not had an

opportunity to challenge any costs that they might deem to be excessive,

duplicative, or improper, and this court certainly cannot provide any

meaningful appellate review of the assessment of those costs.

Accordingly, we reverse that portion of the order assessing $4,812.50 in

costs against the prospective adoptive parents, and we remand the case

for the probate court to itemize the costs it assessed against the

3Rule 54(d) provides that the clerk may tax costs and that, if a party

desires to challenge taxation of costs by the clerk, the party must file a
motion seeking review of the award by the trial court.
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prospective adoptive parents and to permit them, if necessary, to

challenge any particular costs.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED

WITH INSTRUCTIONS.

Moore, P.J., and Fridy and Lewis, JJ., concur.

Hanson, J., recuses himself.

33