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

2

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withdrawn within five days of the birth of the child or the 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consent executed by a parent may be withdrawn within 14 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repealed the former Alabama Adoption Code, which was codified at 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.").
CL-2023-0572

3

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 
CL-2023-0572

4

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."
CL-2023-0572

5

___ 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 
CL-2023-0572

6

interlocutory order of adoption under Ala. Code 1975, former § 26-10A18, 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 
CL-2023-0572

7

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 
CL-2023-0572

8

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 
CL-2023-0572

9

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 
CL-2023-0572

10

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." 
CL-2023-0572

11

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 alsoRule 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-
CL-2023-0572

12

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." 
CL-2023-0572

13

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." 
CL-2023-0572

14

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 
CL-2023-0572

15

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 
CL-2023-0572

16

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. 
CL-2023-0572

17

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 
CL-2023-0572

18

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-motherinterview form, the biological mother had dropped out of high school in 
CL-2023-0572

19

the 10th grade because she was "boy crazy," but the form indicates that 

the biological mother had received her GED. Although the birth-motherinterview 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 
CL-2023-0572

20

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 
CL-2023-0572

21

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. 
CL-2023-0572

22

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 
CL-2023-0572

23

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").
CL-2023-0572

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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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25

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 § 26-10A13(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 § 26-10A7(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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29

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] § 26-10A24(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.