author: LYONS, Justice.

text:
    James TOWNSON v. Locresia STONICHER and Joy Cranford. Locresia Stonicher and Joy Cranford v. James Townson.
    1041047 and 1041083.
    Supreme Court of Alabama.
    Dec. 9, 2005.

      Algert S. Agricola, Jr., of Slaten & O’Connor, P.C., Montgomery, for appellant/cross-appellee James Townson.
    Frank M. Wilson, Montgomery, for ap-pellee/cross-appellant Locresia Stonicher.
    Albert L. Jordan, Jr., of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham; and R. Stan Morris and Jonathan W. Cartee of Cartee & Morris, L.L.C., Birmingham, for appellee/cross-appellant Joy Cranford.
   LYONS, Justice.

I. Facts and Procedural History

In the 2004 mayoral election for the City of Guntersville, candidate Bob Hembree challenged the incumbent, James Town-son. After the votes were tallied on election day, Townson received 1,242 votes, and Hembree received 1,241 votes. Town-son was declared the winner. Thereafter, Locresia Stonicher and Joy Cranford, two voters who had voted for Hembree, filed an election contest in the Marshall Circuit Court. The issues in the election contest concerned mainly the validity of some votes cast by absentee ballots.

After a bench trial and a posttrial hearing in the election contest in which the trial judge reviewed the absentee ballots cast, the trial .court entered a final count of 1,226 votes for Townson and 1,228 votes for Hembree, thus overturning the results of the election. Townson appeals, and Stonicher and Cranford cross-appeal, each side arguing that the trial court impermis-sibly included or excluded certain votes. We agree with Stonicher and Cranford that the trial court should have excluded the votes of those voters for Townson who included an improper form of identification with their absentee ballots. Because our decision on that issue renders moot the other issues involved in this case, we pre-termit discussion of those other issues.

II.Standard of Review

The dispositive issue on appeal involves a question of law. A trial court’s rulings on questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).

III.Analysis

A.

Stonicher and Cranford argue'that the trial court should have excluded the votes of those voters who included an improper form of identification with their absentee ballots. Section 17-11A-1, Ala. Code 1975, provides:

“(a) As used in this section, the term ‘valid photo identification’ may include in addition to governmentally produced photo identifications, identification cards containing the photo of the elector produced by employers for employees and identification cards containing the photo of the elector produced by a public or private college, university, or postgraduate technical or professional school located within the state.
“(b) Each elector shall provide identification to an appropriate election official prior to voting. A voter required to show identification when voting in person shall present to the appropriate election official either of the following forms of identification:
“(1) A current valid photo identification.
“(2) A copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter. The term ‘other government document’ may include, but is not limited to, any of the following:
“a. A valid identification card issued by a branch, department, agency, or entity of the State of Alabama, any other state, or the United States authorized by law to issue personal identification.
“b. A valid United States passport.
“c. A valid Alabama hunting or fishing license.
“d. A valid Alabama permit to carry a pistol or revolver.
“e. A valid pilot’s license issued by the Federal Aviation Administration or other authorized agency of the United States.
“f. A valid United States military identification card.
“g. A certified copy of the elector’s birth certificate.
“h. A valid Social Security card,
“i. Certified naturalization documentation.
“j. A certified copy of court records showing adoption or name change.
“k. A valid Medicaid card, Medicare card, or an Electronic Benefits Transfer Card (formerly referred to as a ‘food stamp card’).
“(c) For voters required to show identification when voting by mail, the voter shall submit with the ballot a copy of one of the forms of identification listed in subsection (b).”

(Emphasis added.)

It is undisputed that at least 30 absentee voters who voted for Townson provided with their absentee ballots a form of identification that was not proper under § 17-11A-1. Stonicher and Cranford argue that the trial court erred in allowing those voters to “cure” that defect by providing a proper form of identification at the trial of the election contest. We agree.

The plain language of § 17-11A-I(c) makes it mandatory that an absentee voter provide proper identification with an absentee ballot: “For voters required to show identification when voting by mail, the voter shall submit with the ballot a copy of one of the forms of identification listed in subsection (b).” In Eubanks v. Hale, 752 So.2d 1113, 1150 (Ala.1999) (opinion on return to second remand), this Court stated:

“ ‘It is the established law in this state that:
“ . a person be not disfranchised as to his right as an elector ... when he has made an honest effort to comply with the law and in that effort has substantially complied with the statutory mandates.” ’ ”

(Quoting Woodall v. City of Gadsden, 278 Ala. 634, 636, 179 So.2d 759, 761 (1965).)

The voters whose forms of identification provided with their absentee ballots were improper did not substantially comply with the statutory mandate that “the voter shall submit with the ballot a copy of one of the forms of identification listed in subsection (b).” § 17-11A-I(e). The evidence at trial indicated 1) that the absentee ballots sent to voters contained instructions as to what forms of identification were permissible and 2) that the substantial majority of the voters whose absentee ballots were being challenged on this basis in fact possessed a valid form of identification but simply neglected to include a copy of it with their ballots. Under the circumstances, it is difficult to conclude that those voters failing to provide proper identification made an “honest effort to comply with the law.” Eubanks, 752 So.2d at 1150.

In Eubanks, this Court held that the trial court had correctly excluded the absentee votes of voters who had indicated on their absentee-ballot affidavits an inaccurate reason for voting absentee. The relevant inquiry in Eubanks was whether those voters had failed to “ ‘substantially] complfy] with the essential requirements of the absentee voting law,’ ” and whether “the submission of the absentee ballot with [an inaccurate reason for voting absentee] ‘adversely affect[ed] the sanctity of the ballot and the integrity of the election.’ ” 752 So.2d at 1153 (quoting Wells v. Ellis, 551 So.2d 382, 384 (Ala.1989)). The Court in Eubanks held that such a defect was fatal, notwithstanding the fact that the voters who had provided an inaccurate reason for voting absentee had other, valid reasons for voting absentee. 752 So.2d 1151-57. In the instant case, we hold that the voters who included identification with them absentee ballots that did not conform to the requirements of § 17-11A-I(b) failed to substantially comply with the essential requirements of the absentee-voting law.

Moreover, we find persuasive Stonicher and Cranford’s argument that to count the votes of voters who fail to comply with the essential requirement of submitting proper identification with their absentee ballots would have the effect of disenfranchising qualified electors who choose not to vote rather than to make the effort to comply with the absentee-voting requirements. A potential voter who was ignorant of a rule that he could cure at an election contest his failure to submit proper identification with his absentee ballot would be justified in complaining that he had been misled into not voting. Cf. Roe v. Alabama, 43 F.3d 574 (11th Cir.1995) (“[T]he change in the rules after the election would have the effect of disenfranchising those who would have voted but for the inconvenience imposed by the notarization/witness requirement”).

B.

Townson points out that § 17-11A-1(e) provides that “[a]n individual required to present identification in accordance with this section who is unable to meet the identification requirements of this section shall be permitted to vote by a challenged ... ballot, as provided for by law.” He also cites Ala. Op. Att’y Gen. No.2004-161 (June 21, 2004), which provides: “[A]n absentee ballot in a municipal election that does not contain proper identification shall automatically be treated as a challenged ballot by the poll workers and should be counted.”

To the extent that the attorney general opinion concludes that absentee ballots unaccompanied by proper identification in municipal elections are nevertheless to be counted in an election contest, we disagree. If the voters who provided improper identification with their absentee ballots are treated as being “unable to meet the identification requirements of [§ 17-11A-1],” § 17-11A-I(e) nevertheless permits those voters to vote challenged ballots only “as provided for by law.” (Emphasis added.) The challenged-ballot procedure applicable to municipal elections, provided in part by §§ 11-46-41 and 11-46-112, Ala.Code 1975, requires a voter whose vote has been challenged to take a challenge oath and to complete a proof-of-identity affidavit. In taking the challenge oath, the voter must swear that he or she possesses the qualifications necessary to voting in the election, and he or she must identify two other persons who have personal knowledge of the voter’s residence. The proof-of-identity affidavit requires a qualified elector who is a “freeholder and householder” to vouch for the identity and residence of the voter being challenged. The absentee voters in this case who submitted improper identification with their absentee ballots did not comply with the requirements of challenged-ballot voting, i.e., they did not complete challenge oaths or proof-of-identity affidavits. Therefore, § 17-11A-I(e), which allows voters who are “unable to meet the identification requirements ... to vote by a challenged ... ballot, us provided for by law,” does not excuse the failure of those voters to include a proper form of identification with their absentee ballots.

TV.

In the instant case, the failure of the absentee voters to include proper identification with their absentee ballots was a defect fatal to the votes cast by those absentee voters. The trial court erred in allowing those voters to “cure” that defect by presenting acceptable forms of identification at trial. Therefore, we reverse the trial court’s decision to count those votes, and we subtract them from Townson’s total vote count. Because the subtraction of those 30 votes from Townson’s vote count renders moot the other arguments on appeal, we pretermit discussion of those arguments. We affirm the trial court’s judgment insofar as it declares Hembree the winner of the election, and we vacate the stay of the enforcement of that judgment.

AFFIRMED; STAY VACATED.

NABERS, C.J., and SEE, HARWOOD, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

      . The trial court stayed enforcement of its judgment pending resolution of this appeal.

      . The parties agree that a ruling adverse to Townson on 30 absentee votes would render moot Townson’s other challenges, because those other challenges do not involve enough votes to offset 30 votes.

      . Among the issues rendered moot is the issue concerning the trial court's exclusion of the absentee votes of three voters for Townson who included improper forms of identification with their ballots because they failed to cure that defect by presenting proper identification at trial. Townson argues that the trial court erred in determining that the forms of identification of two of those voters, submitted with their ballots, were improper. One of those voters submitted a utility bill that arguably was not "current,” as that term is used in § 17-11A-1 (b)(2); the other submitted an account statement from a hospital that arguably did not meet the definition of a "governmental document,” as that term is used in § 17 — 11A—1(b)(2). Because of the effect of our reversal of the trial court's decision as to at least 30 absentee voters, as discussed in note 2, it is not necessary to decide whether the trial court correctly rejected those ballots based on improper forms of identification.

      . Townson does not contend that there is any deficiency in the clarity of the instructions sent to the voters with the absentee ballots.

      . An attorney general’s opinion is not binding on this Court and does not have the effect of law. Farmer v. Hypo Holdings, Inc., 675 So.2d 387, 390 (Ala.1996).

      . Section 17-11A-I(e) also states that voters unable to comply with the identification requirements may vote a "provisional” ballot. However, during oral argument, the parties agreed that the provisional-ballot procedures in § 17-10A-1 et seq., Ala.Code 1975, are inapplicable to municipal elections. See Ala. Op. Att’y Gen. No. 2003-207 (July 31, 2003) (recognizing inconsistency between the provisional-voting procedures and the framework established by the laws for conducting municipal elections and expressing the opinion that the legislature did not intend provisional voting to apply in municipal elections); § 17 — 1— 1, Ala.Code 1975 ("All of the provisions of this title [including the provisional-voting procedures] shall apply to ... elections by ... municipalities held in this state, except in cases where the provisions of this title are inconsistent or in conflict with the provisions of a law governing ... municipal elections.”). Whether the unavailability of such procedures in municipal elections is sound public policy is a matter for the legislature, not this Court.


source: Caselaw Access Project

author: NABERS, Chief Justice.

license: Public Domain

text:
    ECO PRESERVATION SERVICES, LLC v. JEFFERSON COUNTY COMMISSION and Wayne Sullivan.
    1040965.
    Supreme Court of Alabama.
    Jan. 13, 2006.

      Billy R. Weathington, Jr., of Weathing-ton & Moore, P.C., Moody, for appellant.
    Charles S. Wagner, asst, county atty., Birmingham, for appellees.
   NABERS, Chief Justice.

This case involves the authority of the Jefferson County Commission (“the Commission”) to deny a permit that would allow a private company to install a sewer line along a county road and within a county right-of-way. That company, ECO Preservation Services, LLC (“ECO”), sought declaratory, injunctive, and mandamus relief to compel the Commission to issue the permit. The Jefferson Circuit Court entered a summary judgment for the Commission. We affirm.

I. Facts and Procedural History

ECO is an Alabama limited liability company that provides sanitary sewage-treatment and disposal services. ECO operates a sewage-treatment facility in Tuscaloosa County; treated waste from that facility is discharged into Mud Creek in Bibb County. ECO serves customers primarily in Tuscaloosa County and has no customers in Jefferson County.

To facilitate its operations in Tuscaloosa County, ECO sought permission from the Commission to install a sewer line in a county right-of-way in Jefferson County. ECO’s stated purpose in installing its line within the county right-of-way was to connect its current sewer system in Tuscaloosa County to a potential commercial customer in eastern Tuscaloosa County through a portion of Jefferson County contiguous with Tuscaloosa County. ECO also contends that if the Commission allows it to install the sewer line in and along the county right-of-way, ECO could offer services to potential customers in western Jefferson County.

This Court has already decided one case involving ECO and the Commission. Jefferson County Comm’n v. ECO Preservation Servs., LLC, 788 So.2d 121 (Ala.2000){“ECO I ”). The instant case, however, involves different facts and different issues and produced a different result in the circuit court.

The events giving rise to ECO I began in 1997, when ECO applied for a permit seeking a perpendicular crossing to construct a sewer line under Kimbrell Cutoff Road in western Jefferson County. The Commission denied the permit, and ECO sued, seeking declaratory, injunctive, and mandamus relief. The Jefferson Circuit Court entered a partial summary judgment for ECO and ordered the Commission to issue the permit, finding that the Commission’s decision to deny the crossing permit was arbitrary and capricious. The Commission appealed, and this Court affirmed.

In December 1999, while ECO I was pending in the circuit court, ECO applied for a second permit, proposing to run a sewer line parallel to Old Tuscaloosa Highway, in the county right-of-way, between Kimbrell Cutoff Road and the Tuscaloosa County line. This proposed line would travel 2,050 feet along the county right-of-way and involve an 8-inch “force main” sewer. It is this permit application that is at issue here.

The Commission refused to issue the second permit. On April 11, 2000, ECO moved to amend its then pending complaint to compel the Commission to issue the second permit. By that time, however, the Commission had already appealed the summary judgment in ECO 1 to this Court. After conducting a hearing on the request for a preliminary injunction, the circuit court stayed the motion to amend pending resolution of ECO I. The circuit court eventually granted the motion to amend, although it is not clear when it did so.

This Court decided ECO I on August 18, 2000. The Commission subsequently issued ECO a permit for the perpendicular crossing of Kimbrell Cutoff Road. At the same time, however, the Commission denied ECO’s request for the second permit — the request to use the county right-of-way parallel to Old Tuscaloosa Highway.

After we affirmed the partial summary judgment, the Jefferson Circuit Court, with Judge Jack Carl presiding, held a status conference regarding the case on March 9, 2001. On April 11, 2001, the Commission moved for a summary judgment on all of ECO’s claims regarding the denial of the second permit, and ECO countered with its own motion for a partial summary judgment.

On June 2, 2001, Judge Carl entered an order denying ECO’s summary-judgment motion but withheld judgment on the Commission’s motion. In his order, Judge Carl gave ECO 14 days in which to submit evidence indicating “that the County Commission acted in an arbitrary and capricious manner when it denied [ECO’s] request to install a sewer line along the County’s right-of-way.” The order also provided the Commission seven days to respond to ECO’s submission of evidence. ECO, however, failed to offer any evidence.

On October 15, 2004, more than three years after ECO had been given an opportunity to provide evidence to support its claims, the circuit court, in an order issued by Judge Houston L. Brown, dismissed the action for want of prosecution. On November 12, 2004, ECO moved to vacate the order of dismissal, and on November 23, 2004, the circuit court granted ECO’s motion and the action resumed, now focused solely on whether the Commission had unlawfully denied the second permit. At that point, the circuit court scheduled a hearing for January 7, 2005, on the Commission’s motion for a summary judgment, which had been pending since April 11, 2001.

On December 17, 2004, the Commission filed a motion for involuntary dismissal, asking the circuit court to set aside its ruling reinstating the action on the grounds that ECO had failed to comply with the court’s order of June 7, 2001, giving ECO 14 days to submit evidence in support of its claims. The circuit court, however, held the hearing on the Commission’s motion for a summary judgment on January 7, 2005, as scheduled. In an order issued on the same day, the circuit court continued the hearing on the Commission’s motion for a summary judgment until February 11, 2005, and gave the parties until January 21, 2005, “to submit any additional authority in support of their respective positions.” 'Following this order, the Commission once again moved for involuntary dismissal based on the delay in the case.

Finally, on February 18, 2005, after the parties had presented oral arguments and submitted evidence, the circuit court entered a summary judgment for the Commission, concluding that the Commission had acted within its discretion in denying the permit. ECO appeals.

II. Standard of Review

A. Summary Judgment

A party is entitled to a summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Ala. R. Civ. P. 56(c)(3). This Court reviews a summary judgment de novo, subject to the caveat that it must review the record in the light most favorable to the nonmoving party and resolve any reasonable doubts against the moving party. University of South Alabama v. Progressive Ins. Co., 904 So.2d 1242, 1246 (Ala.2004); Southeast Cancer Network, P.C. v. DCH Healthcare Authority, Inc., 869 So.2d 452, 456 (Ala.2003). The moving party has the burden of making a prima facie showing that the movant is entitled to a summary judgment. American Gen. Life & Accident Ins. Co. v. Underwood, 886 So.2d 807, 811 (Ala.2004). If the mov-ant satisfies this burden of production, the nonmovant then bears the burden of producing substantial evidence creating a genuine issue of material fact. 886 So.2d at 811. ‘“Substantial evidence’ is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Hess v. Market Inv. Co., 917 So.2d 140, 142 (Ala.2005) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).

B. Discretionary Action by a County Commission

In this action, ECO contends that the Commission acted improperly in denying the second permit. To determine whether the summary judgment for the Commission was appropriate, we must first define the standard applicable to a court’s review of a county commission’s discretionary decision when, as here, the county commission acts to grant or to deny a permit to use a right-of-way. ECO argues that the relevant inquiry is whether the Commission’s decision to deny the permit was “arbitrary or capricious.” We agree.

Our cases have consistently held that local governments may not arbitrarily exercise their discretionary powers, including the power to grant or to deny a permit to use a right-of-way. In Mobile County v. City of Saraland, 501 So.2d 438 (Ala.1987), we issued a writ of mandamus to compel a city council to grant such a permit to Mobile County. We based that decision on our conclusion that the city’s denial of the permit was arbitrary and capricious. 501 So.2d at 440. A county commission is subject to the same standard. See Etowah County Comm’n v. Hayes, 569 So.2d 397, 398 (Ala.1990)(judi-cial review of county commission’s decisions extends to “conduct so arbitrary or capricious as to contravene lawfully constituted authority”); Black v. Pike County Comm’n, 375 So.2d 255 (Ala.1979)(analyz-ing denial of liquor license under arbitrary-or-capricious standard). Although our eases have not always used the words “arbitrary or capricious,” we have consistently applied that standard in practice when reviewing a county’s decision to grant or deny a license or permit.

III. Analysis

In denying ECO’s request for the permit, the Commission concluded, among other things, “[t]hat the Plaintiffs, ECO Preservations Services L.L.C. et al. have no clear legal right to use the right-of-way of Old Tuscaloosa Highway and further presented no evidence or argument at the hearing on their applications that they possessed any such right.” Before the Commission and before the circuit court, ECO was given every opportunity to provide evidence indicating that the Commission acted improperly in denying its request for the second permit, including the opportunity to demonstrate that it has a legal right to the second permit under either Alabama law or the Commission’s practices and procedures. ECO, however, has failed to offer any such evidence.

By statute, the Commission has general superintendence over the roads in Jefferson County, including rights-of-way. Section 23-1-80, Ala.Code 1975, provides, in pertinent part:

“The county commissions of the several counties of this state have general superintendence of the public roads, bridges and ferries within their respective counties so as to render travel over the same as safe and convenient as practicable. To this end, they have legislative and executive powers, except as limited in this chapter. They may establish, promulgate and enforce rules and regulations, make and enter into such contracts as may be necessary or as may be deemed necessary or advisable by such commissions to build, construct, make, improve and maintain a good system of public roads, bridges and ferries in their respective counties, and regulate the use thereof....”

Our cases have held that this right of general superintendence includes the power to decide whether private entities may install sewer lines in county rights-of-way that run parallel to those rights-of-way. In Water Works & Sewer Board of City of Birmingham v. Shelby County, 624 So.2d 1047 (Ala.1993), the Birmingham Water Works wanted to run a 12" water main along a county right-of-way in Shelby County to serve a subdivision in that county. When the Shelby County Commission did not grant it a permit, the Birmingham Water Works petitioned the Shelby Circuit Court for a writ of mandamus to compel the county commission to issue the permit. After evidence was taken, the circuit court denied the petition, and an appeal to this Court followed. We affirmed, stating:

“Birmingham Water Works did not establish a clear right to this remedy. No statutory or case law establishes an imperative duty on Shelby County to grant an excavation permit to Birmingham Water Works to install its lines within the right-of-way of a Shelby County road. Birmingham Water Works argues that its ‘right’ arises from its authorization to provide services outside the municipal limits of Birmingham; Atkinson v. City of Gadsden, 238 Ala. 556, 561, 192 So. 510 (1939), and its ability to expand or extend its system pursuant to § ll-50-235(a)(4), Ala.Code 1975 (1992 Repl. vol). We recognize the authority and ability provided by those statutes, but they do not convey upon Birmingham Water Works the right to install water lines within the right-of-way of Highway 41. The clear legal right to regulate public roads rests with Shelby County, based on § 23-1-80. We have stated many times that the general superintendence over county roads is with the county commissions. Barber v. Covington County Commission, 466 So.2d 945, 947-48 (Ala.1985).”

624 So.2d at 1050.

Water Works & Sewer Board of Birmingham makes it clear that Alabama law does not require the Commission to allow a private sewer company to install parallel pipelines in its existing right-of-way. The Commission could, however, grant such access by its own regulations and practices.

ECO argues that the Commission has in fact created a general right of access for private utilities to all county rights-of-way. To support that position, ECO presented to the trial court a document entitled “Jefferson County Subdivision, Land Development, and Construction Regulations.” The scant portion of the document available in the record states: “Utilities have the right to install their lines and facilities on the rights-of-way of public roads and streets and like the County, their authority] depend[s] on State laws and regulations.” The regulations also indicate that they apply to “all public and private utilities,” including those providing sewage services.

Relying on these provisions, ECO asserts that the Commission’s decision to deny the second permit violated its regulations. Moreover, ECO contends that other similarly situated private utilities have been permitted under the regulations to use the rights-of-way to install sewer lines parallel to those rights-of-way.

The Commission responded by offering evidence indicating that it has not permitted other private sewer companies to use its rights-of-way for general sewer service to the public, but rather “[a]ll ... private sanitary sewer lines that may have crossed County rights-of-way in the past served specific sites by agreement with the County Commission.” After being given every opportunity for more than three years to present evidence rebutting the Commission’s evidence, ECO failed to do so.

When presented with this evidence and ECO’s arguments regarding the regulations, the trial court concluded that “[t]he reasons cited by the Commission in denying the permit form a solid and sound basis for its denial of [ECO’s] request to install its private for[-]profit sewer line within and 2,050 feet along the County’s right-of-way line-” The trial court found that the regulations apply only to the development of subdivisions and not to existing rights-of-way that do not involve the development of a subdivision, such as the right-of-way at issue in this case. The trial court stated, in part:

“Jefferson County has put evidence in the record before this Court that no similar for[-]profit sanitary sewer .line installation has ever been allowed in any Jefferson County road right-of-way. [ECO] has had over three years to produce contrary evidence, but has failed to do so despite argument of counsel that he thought he knew of or has heard of other installations, one possibly in Shelby County associated with a plant in Shelby County and the other to a trailer park, the location of which was never presented to the Court. These statements were made by counsel during argument and do not constitute evidence ....
“[ECO] contend[s] that the County Commission has violated its own subdivision rules and regulations. [ECO] rel[ies] on the provisions for installing utilities within proposed residential subdivision as authority for [its] claim that the County Commission violated its own rules and regulations in denying [its] permit to run a parallel sanitary sewer line within Jefferson County road rights-of-way. This argument is without merit since the subdivision rules and regulations apply to proposed subdivisions. There is no evidence before the Court that [ECO] proposed to build a subdivision requiring approval through the normal County Commission procedures for construction of houses and appurtenant utilities within a subdivision. [ECO’s] application is solely for the use of County road rights-of-way, not subdivision streets as laid out on some plat of a proposed subdivision which is entirely distinguishable from the County’s discretionary authority governing its power to regulate County roadways.”

Although the record indicates that the trial court had before it the entire text of the regulations, ECO, the appellant, has failed to make the complete text a part of the record on appeal; instead, we are presented with selected excerpts from those regulations. Because this Court will not take judicial notice of county regulations, State ex rel. Edmunds v. Moses, 231 Ala. 215, 218, 164 So. 562, 565 (Ala.1935), and because ECO has failed to provide the full text of the regulations, we cannot conclude that the trial court’s interpretation of the regulations was erroneous. See Eaton v. Shene, 282 Ala. 429, 430, 212 So.2d 596, 598 (1968) (“Over and over this court has held that where there was evidence before the trial court, and not before us, which may have influenced it at arriving at the conclusion it reached, we cannot disturb that finding.”).

ECO also contends that it has a legal right to the second permit under our decision in ECO I. ECO’s reliance on ECO I, however, is misplaced. In ECO I, we stated:

“The Commission argues that ... it has the exclusive right to operate a sewer system in Jefferson County. It also argues that it can deny [ECO] ... the requested permit to use a right-of-way on county roads based on its general superintendence over public roads in the county. See § 23-1-80, Ala.Code 1975. While the county commission does have general superintendence authority over public roads, see Water Works & Sewer Board of the City of Birmingham v. Shelby County, 624 So.2d 1047, 1050 (Ala.1993), and Barber v. Covington County Commission, 466 So.2d 945, 947-48 (Ala.1985), this regulatory authority is not unlimited, and we find no authority for the proposition that the Jefferson County Commission has the exclusive right to maintain a sewer system in Jefferson County.
“After considering the pleadings, the oral arguments of the parties, and the legal principles involved, the trial court granted [ECO] ... declaratory and in-junctive relief. In doing so, the trial judge found that the Commission had failed to ‘convince [the court] that Alabama law grants Jefferson County the exclusive right to provide sanitary sewer service in Jefferson County.’ The trial judge also found that the Commission had failed to provide ‘any evidence that the single crossing in question’ would, in any way, damage the right-of-way, create any hazard on the right-of-way, or interfere with the use of the right-of-way by any other entity.
“We conclude that the trial judge did not err. The partial summary judgment is affirmed.”

788 So.2d at 127.

Thus, ECO I held (1) that Jefferson County does not have the right to maintain a monopoly on a sewer system in that county, and (2) that ECO was entitled to an excavation permit for a single perpendicular crossing of its private sewer line under a county road right-of-way. ECO I did not hold, however, that the Commission must allow any private utility to run pipelines parallel to county roads within the county rights-of-way. ECO I, therefore, does not establish that ECO has a legal right to the second permit.

We conclude that ECO has failed to demonstrate that it has a legal right to use the county right-of-way as proposed in its application for a permit. It is clear under Alabama law that the Commission is not required by statute to grant ECO access to county road rights-of-way for the installation of parallel private sewer lines, and ECO has not established that the Commission’s decision to deny it a permit for such installation was arbitrary or capricious in light of the Commission’s regulations or practices.

AFFIRMED.

SEE, HARWOOD, STUART, and BOLIN, JJ., concur.

      . The complaint originally named Jerry Drake, a former director of the Roads and Transportation Department of Jefferson County, as the second defendant. Mr. Drake has since died, and his successor, Wayne R. Sullivan, was substituted as a defendant on March 21, 2000. See Rule 25(d), Ala. R. Civ. P.

      . ECO's brief to this Court refers to two plaintiffs-intervenors, Knobloch, Inc., and Petro Stopping Centers, L.P., as "appellants.” However, ECO's notice of appeal and docketing statement make no reference to those parties. ECO is the sole appellant in this case. See Ala. R.App. P. 3(c) ("The notice of appeal shall specify the party or parties taking the appeal ... ”); Ala. R.App. P. 3(e)("The appellant ... shall complete and sign the docketing statement before it is filed with the court.”).

      . During a hearing before the circuit court on April 19, 2000, portions of a transcript of related proceedings before the Commission were read into the record. That transcript shows that, under questioning from one of the commissioners, Frazier Christy, a civil engineer employed by ECO on the project, testified that ECO sought the permit to use the Jefferson County right-of-way "to get from point A [in Tuscaloosa County] around to point B which is the Petro station.... The [Petro] station is in Tuscaloosa County[,] but ... [t]he cheapest way is to go through Jefferson County to get there."

      . The case was assigned to Judge Carl following Judge Thomas Woodall’s election to the Supreme Court of Alabama.

      . The case was assigned to Judge Brown following Judge Carl's retirement.

      . The Commission has not preserved for appellate review any issues relating to the circuit court's refusal to grant its motions for involuntary dismissal.

      . ECO also argues that because we applied the arbitrary-or-capricious standard in ECO I, see 788 So.2d at 128, the "law of the case” doctrine requires that we do the same here. We disagree. Under the law-of-the-case doctrine, "whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.” Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala.1987)(emphasis added). The facts on which ECO I was decided are not the facts of this case. ECO I concerned a permit for a single perpendicular road crossing. The second permit, which is at issue here, relates to an entirely different (and significantly more extensive) project.

      . The arbitrary exercise of governmental power may also violate the Equal Protection Clause of the United States Constitution. Vieth v. Jubelirer, 541 U.S. 267, 310, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004)(Fourteenth Amendment empowers courts to determine whether state action is arbitrary or capricious).

      . The Commission argues that our review of its decision is limited to whether that decision resulted from "fraud, corruption, or unfair dealings.” In its order, the trial court concluded that ECO had "failed to meet [its] heavy burden of proving that the discretionary decision of the Commission amounts to arbitrary and capricious conduct so gross as to amount to fraud, corruption or unfair dealing.” Although the trial court’s order indicates that the court mixed the arbitrary-or-capricious standard with that relating to fraud, corruption, or unfair dealing, and although we have sometimes used the language on which the Commission relies, e.g., Darden v. Macon County, 413 So.2d 1137, 1140 (Ala.1982), the arbitrary-or-capricious standard is the appropriate standard to apply where the denial of a license or a permit is at issue.


author: CRAWLEY, Presiding Judge. MURDOCK, Judge,

text:
    K.W.J. v. J.W.B. and K.E.M.B.
    2030805.
    Court of Civil Appeals of Alabama.
    Feb. 18, 2005.
    James M. Gaines of Gaines & Gaines, L.L.C., Magnolia Springs, for appellant.
    B. Andrew Whitmire, Jr., Birmingham, for appellees.
   On Application for Rehearing

CRAWLEY, Presiding Judge.

The opinion of this court issued on November 19, 2004, is withdrawn, and the following is substituted therefor.

K.W.J. (“the biological father”) appeals from a judgment of the Madison Probate Court denying his contest to the adoption of E.C.B., an infant girl (“the child”), by J.W.B. and K.E.M.B. (“the adoptive parents”). We reverse and remand on the authority of Ex parte F.P., 857 So.2d 125 (Ala.2003).

The child was born on May 4, 2003, in Gwinnett County, Georgia. The biological father and E.M.M. (“the birth mother”), who are both residents of Georgia, had been dating for several months when they learned, in October 2002, that the birth mother was pregnant. Initially, the biological parents decided to marry and raise the child together. The birth mother, however, broke off the engagement and, three weeks after the child was born, gave her consent to the child’s adoption by the adoptive parents, who are residents of Madison County, Alabama.

The evidence was in conflict with regard to the amount of prebirth support the biological father provided for the birth mother and the unborn child. The biological father testified that he purchased food and maternity clothes for the birth mother, baby clothes for the child, and nursery furniture, including a crib and a chair, for the child’s room. He said that he spent approximately $200 per month on the birth mother during her pregnancy. He stated that he had established a bank account for the child and that he had arranged for her to be included under his health insurance coverage. The birth mother testified that, with the exception of three co-payments the father made to cover her prenatal care and a few meals he paid for on “dates,” the biological father provided no financial support before the child’s birth.

It is undisputed that the biological father was at the hospital with the birth mother when she went into labor; he was not present, however, for the birth of the child. The biological father testified that he wanted to stay at the hospital for the birth of the child, but, he said, the birth mother’s mother (“the maternal grandmother”) told him he was not the father of the child and ordered him to leave the hospital because he was upsetting the birth mother. The birth mother testified that she had wanted the biological father to be with her for the birth of the child, and, she said, when he could not be located in response to her request, she thought he had abandoned her and the baby.

The biological father testified that he tried to reach the birth mother numerous times every day for three weeks after the birth of the child but that the birth mother did not return his telephone calls or acknowledge the messages he had left on her answering machine. The birth mother testified that she had received no telephone calls or messages from the biological father for three weeks after the child’s birth and that, during that time, she decided to consent to the child’s adoption by a couple from Huntsville, Alabama. She explained that, although she had been introduced to the adoptive parents by a woman from her church the day after the child’s birth, it had taken her three weeks to conclude that adoption was the best option for her.

On May 27, 2003, the birth mother signed a form giving her consent to the adoption and the adoptive parents took the child to Huntsville. On June 25, 2003, the adoptive parents filed in the Madison Probate Court a petition to adopt the child. On June 30, 2003, the probate court entered an interlocutory order awarding custody of the child to the adoptive parents pending a final dispositional hearing to be conducted on August 29, 2003. The biological father stated that sometime in June 2003 he saw the maternal grandmother and inquired where the child was; the maternal grandmother replied that the child was “with family.” On July 14, 2003, the biological father received notice of the adoption petition. The biological father testified that the birth mother had never mentioned the idea of adoption to him. He stated that not only had he been unaware before receiving the notice that the child had been placed with adoptive parents but also that he had no idea the child had been removed from the state of Georgia.

On July 15, 2003, the biological father filed in the Superior Court of Gwinnett County, Georgia, a petition for legitimation, a motion for genetic tests, and a request for custody of the child. On July 23, 2003, the biological father filed an objection to the adoption in the Madison Probate Court, requesting that the adoption be held in abeyance until the completion of the genetic testing. DNA test results obtained on August 25, 2003, established that the probability of the biological father’s paternity of the child was 99.998 percent.

On September 11, 2003, the adoptive parents filed in the Superior Court of Gwinnett County, Georgia, a motion to intervene and a motion to dismiss the legitimation proceeding. On October 6, 2003, the Georgia court granted the adoptive parents’ motions to intervene and to dismiss, ruling that it had no jurisdiction, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (“the UCCJEA”), to determine paternity or child custody because, it held, Alabama was the child’s “home state” and an Alabama court had already made an “initial child custody determination.” See § 30-3B-102(8) and § 30-3B-201(a)(l), Ala. Code 1975. The biological father did not appeal the Georgia court’s ruling, and he does not contest the jurisdiction of the Madison Probate Court.

It is undisputed that the biological father was not asked by the birth mother or by the adoptive parents to provide any financial support for the child after the child’s birth. It is also undisputed that the biological father did not offer to provide, nor did he actually provide, any financial support for the child after her birth. The biological father saw the child only once before the trial of the adoption contest. In August 2003, after all parties had learned the results of the DNA paternity test, the adoptive parents, who were on their way to Florida for a vacation, detoured through Georgia to see the biological father. On that occasion, the adoptive parents suggested the idea of an “open adoption” to the biological father. When the biological father rejected the suggestion, stating that he would agree to nothing less than full custody of the child, the adoptive parents became upset and left. The biological father testified that he had asked the adoptive parents to allow him to visit the child during Christmas 2003 and that the adoptive parents had refused. It is undisputed that the birth mother visited the child during Christmas 2003 and at other timés.

The probate court conducted a hearing on the adoption contest on January 29, 2004, and February 11, 2004. On April 26, 2004, the probate court entered a judgment, which included the following pertinent findings and conclusions:

“1. That the contest filed by [the biological father] is hereby denied.
“2. That this Court finds that [the biological father] has failed to maintain a significant relationship with the minor child, the subject of this matter; and the said [biological father] has not been prevented from maintaining a significant parental relationship with said minor child; [the biological father] has not provided or offered to provide any financial or emotional support for said minor child; the failure of [the biological father] to maintain a significant parental relationship was for a period in excess of six months during which [the biological father] had full knowledge of the name and location of the legal representative of [the adoptive parents] in whose custody the minor child has resided.
“That this Court having considered all of the testimony adduced at trial finds that there is clear and convincing evidence that the consent of [the biological father] to the adoption is implied pursuant to the Code of Alabama Section 26-10A-9 due to the failure of [the biological father] to maintain a significant parental relationship with said minor child for a period of six months.
“3. [The biological father] also acknowledged that Alabama had full jurisdiction.
“4. It would be in the best interest of the minor child to deny the contest of [the biological father] and to grant the adoption.”

As can be seen from the foregoing order, the probate court determined that the biological father, by failing to maintain a significant parental relationship with the child for a period of six months or more, had impliedly consented to the adoption of the child.

In F.P. v. J.K.M., 857 So.2d 110 (Ala.Civ.App.2001), the juvenile court denied a biological father’s petition for custody of a child born out of wedlock, terminated the biological father’s parental rights to the child, and granted the petition of a couple to adopt the child based on its finding that the biological father had impliedly consented to the adoption by failing to support the child and by failing to maintain a significant parental relationship with the child. This court affirmed the judgment of the juvenile court. Presiding Judge Yates, joined by Judge Crawley, dissented. The Alabama Supreme Court reversed this court’s judgment, adopting Judge Yates’s dissent. Ex parte F.P., 857 So.2d 125 (Ala.2003). The supreme court held that the biological father, who had never seen his child before the trial of the adoption petition and who had not provided any support to the mother or to the adoptive parents after the birth of the child, could, nevertheless, not be deemed to have impliedly consented to the adoption of the child pursuant to § 26-10A-9(a)(l)(abandon-ment of the child) or § 26-10A-9(a)(3)(fail-ure to maintain a significant parental relationship with the child) because, before the child’s birth, he took the following steps to pursue his parental rights through legal action: he petitioned the juvenile court for a determination of the father-child relationship; he registered with the Putative Father Registry; he requested a blood test to determine paternity; and he moved for a stay of the adoption proceedings pending the paternity determination. The Alabama Supreme Court held that, “[p]ost-birth, the father had a justifiable excuse for failing to establish a relationship with the child — the adoptive parents did not wish to allow him to do so.” Ex parte F.P., 857 So.2d at 138.

In the present case, the biological father took the same steps that the biological father in Ex parte F.P. took (with the exception of registering with the Putative Father Registry) to pursue his parental rights through legal action. One day after he received notice of the pending adoption, the biological father filed a legitimation action in Georgia, seeking genetic testing and custody of the child. Two and one-half months after the child’s birth, he contested the adoption and asked for a stay of the adoption proceedings pending the outcome of the paternity testing. As in Ex parte F.P., the biological father had a “justifiable excuse for failing to establish a relationship with the child — the adoptive parents did not wish to allow him to do so.” 857 So.2d at 138. In short, there is no principled distinction between this case and Ex parte F.P.

Accordingly, we conclude that the Madison Probate Court erroneously applied the law to the facts. That court’s judgment approving the adoption and denying the adoption contest is, therefore, reversed. Because the birth mother signed a consent to have the child adopted by named individuals (J.W.B. and K.E.M.B.) and because the adoption by those individuals cannot proceed in the absence of the biological father’s consent, we conclude that the parties will return to the status quo ante and custody of the child will revert to the birth mother pending any further proceedings. See generally Ex parte D.J., 645 So.2d 303, 307 (Ala.l994)(stating that “ ‘[tjhere is a strong presumption in Alabama, which has not been modified or abolished either judicially or legislatively, that the mother of a child born out of wedlock has a superior right of custody over all other persons, absent good cause that custody should not be vested in her’ ’’Xquoting Rainer v. Feldman, 568 So.2d 1226, 1227 (Ala.1990)).

OPINION OF NOVEMBER 19, 2004, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; REVERSED AND REMANDED.

THOMPSON and PITTMAN, JJ., concur in the result, without writing.

MURDOCK, J., dissents, with writing, which BRYAN, J., joins.

MURDOCK, Judge,

dissenting.

As a threshold matter, I note my disagreement with the inclusion in the main opinion of an order requiring custody of the child immediately to revert to the birth mother. Though I fully agree with the substantive legal presumption upon which that order is premised, I question whether it is the correct course procedurally for this appellate court to enter such an order at this juncture. (Indeed, the question of the child’s custody in the event the adoption does not go forward has not been briefed to this court.) Procedurally, I believe it to be appropriate that this court merely reverse the trial court’s judgment approving the adoption.

As to the more fundamental question of the adoption, itself, I cannot agree with the main opinion when it quotes from Ex parte F.P., 857 So.2d 125, 138 (Ala.2003), to state that the biological father in this case had a “ ‘justifiable excuse for failing to establish a relationship with the child — the adoptive parents did not wish to allow him to do so.’ ” 933 So.2d at 1078. The trial court conducted an ore tenus hearing and, based on conflicting evidence, found that the biological father did not have a justifiable excuse for failing to establish a relationship with the child. The record contains substantial evidence to support the trial court’s finding.

“ ‘The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring.’ ” R.K. v. R.J., 843 So.2d 774, 781 (Ala.Civ.App.2002) (quoting Lehr v. Robertson, 463 U.S. 248, 262, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983)). It should take more than the “wish” of prospective adoptive parents to prevent a fit and loving father from seeing his daughter and establishing a relationship with her. Indeed, the trial court could have found from the evidence presented that the biological father did not make a meaningful effort, either informally or by seeking the aid of the courts, to visit, or engage in an actual relationship with, his daughter after her birth and/or during the pendency of this litigation.

It is not necessary for a parent to intend, or set out, to abandon a child in order to do so. All that is required is that the child, in fact, be abandoned. It is true that an “abandonment” may be intentional — that is, a parent may intend to physically, emotionally, and/or financially abandon a child. Such purposeful conduct is only one type of abandonment recognized by statute. Alabama’s Child Protection Act, Ala.Code 1975, § 26-18-1 et seq. (“the CPA”), defines abandonment as

“[a] voluntary and intentional relinquishment of the custody of a child by a parent, or a withholding from the child, without good cause or excuse, by the parent, of his presence, care, love, protection, maintenance or the opportunity for the display of filial affection, or the failure to claim the rights of a parent, or failure to perform the duties of a parent.”

Ala.Code 1975, § 26-18-3(1) (emphasis added). The clauses following the disjunctive “or” describe abandonment that is not so much a matter of purpose as a matter of simply engaging or failing to engage in certain conduct. Such conduct can be the basis for the termination of parental rights under the CPA. See Ala.Code 1975, 26-18-7(1); D.M.P. v. State Dep’t of Human Res., 871 So.2d 77 (Ala.Civ.App.2003)(plu-rality opinion). See also Ex parte F.P., 857 So.2d at 143-46 (Stuart, J., dissenting).

Having said the foregoing, however, I concede that this case does not entail a direct claim for termination of parental rights under the CPA due to an abandonment. Compare Ex parte F.P., supra. Still, the same definition of abandonment found in the CPA is found in Alabama’s Adoption Code. See Ala.Code 1975, § 26-10A-2(1). Thus, as in the case of the CPA, abandonment for purposes of the Adoption Code is not necessarily a function of the biological parent’s intent. With respect to the Adoption Code, however, a finding of abandonment, or failure to maintain a parental relationship, arguably is only dispos-itive to the extent that it, in turn, is found to imply a consent to adoption on the part of a biological parent. See Ala.Code 1975, § 26-10A-9(a). Despite the formal legal position taken in this case by the biological father, the trial court found that the father’s subsequent acts and omissions spoke louder than his words, and implied the necessary consent under the Adoption Code. This is a difficult case. Given the conflicting evidence and the ore tenus presumption, however, I have not been persuaded that this court should overturn the trial court’s judgment in this case.

We should not equate the filing of “court papers” and the taking of legal positions with the establishment of human relationships. A child can be abandoned just as surely when papers have been filed with a court as when they have not been. While those papers sit in a folder in a courthouse, children grow. They are read to and tucked in at night. They are nursed to health. They are taught. They are nurtured. They are loved. And they love back. And bonds are formed — but not with a biological father who has allowed himself to remain absent from the child’s life. See generally R.K. v. R.J., 843 So.2d 774; Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614.

BRYAN, J., concurs.

      . Section 26-10A-17(a)(10), Ala.Code 1975, requires that notice of the pendency of an adoption proceeding shall be served on
      "[t]he father and putative father of the adoptee if made known by the mother or otherwise known by the court unless the court finds that the father or putative father has given implied consent to the adoption, as defined in Section 26-10A-9.”

      . Section 26-10A-9, Ala.Code 1975, provides, in pertinent part:
      "(a) A consent or relinquishment required by Section 26-1OA-7 may be implied by any of the following acts of a parent:

      "(3) Knowingly leaving the adoptee with odrers without provision for support and without communication, or not otherwise maintaining a significant parental relationship with the adoptee for a period of six months.”

      . Section 26-10A-7(a)(5), Ala.Code 1975, a part of the Alabama Adoption Code, provides that consent to an adoption is required of various parties, including

        "[t]he putative father if made known by the mother or is otherwise made known to the court provided he complies with Section 26-10C-1 [the Putative Father Registry Act] and he responds within 30 days to the notice he receives under Section 26-10A-17(a)(10).”
      All parties concede that the Alabama Putative Father Registry Act is not applicable to this case because the child was born in Georgia and both biological parents are Georgia residents.

      . I recognize that the main opinion in the Supreme Court's 2003 decision in Ex parte F.P. was joined by a majority of the Justices on that Court and therefore constitutes precedent that is binding on this court. I do not conclude, however, that Ex parte F.P. forecloses us from affirming the trial court’s judgment in the present case. In large part, the focus in Ex parte F.P. was on the effect of certain postbirth legal positions taken by the biological father upon his alleged prebirth implied consent to the adoption of the child and whether, if there was a prebirth implied consent, the postbirth legal positions of the biological father could operate to revoke that consent. Prebirth abandonment and consent are not at issue in the present case. As to the issue of postbirth abandonment and consent to adoption, I do not read Ex parte F.P. as holding that the taking of legal positions alone necessarily serves to insulate a biological parent from claims that he or she has abandoned and consented to the adoption of his or her child. Rather, the main opinion in Ex parte F.P. disposed of the claim that the biological father had abandoned his child after the child’s birth by stating that the biological father had a justifiable excuse for the absence of a postbirth relationship with his child. The facts of every case obviously are different in this respect, and, in this case, I would uphold the trial court’s finding based on conflicting ore tenus evidence that the lack of a physical and emotional relationship between the biological father and the child was not justified.


author: SMITH, Justice.

text:
    Ex parte J.W.B. and K.E.M.B. (In re K.W.J. v. J.W.B. and K.E.M.B.).
    1040779.
    Supreme Court of Alabama.
    Nov. 4, 2005.
    Rehearing Denied Jan. 27, 2006.

      B. Andrew Whitmire, Jr., Birmingham, for petitioners.
    James M. Gaines of Gaines & Gaines, L.L.C., Magnolia Springs, for respondent.
   SMITH, Justice.

The Madison Probate Court denied the contest of K.W.J. (“the biological father”) to the adoption of E.C.B., an infant child (“the child”), by J.W.B. and K.E.M.B. (“the adoptive parents”). The biological father appealed, and the Court of Civil Appeals, in an opinion by Presiding Judge Crawley in which two judges concurred in the result, reversed and remanded on the authority of Ex parte F.P., 857 So.2d 125 (Ala.2003), concluding that the Madison Probate Court had erroneously applied the law to the facts. The Court of Civil Appeals ordered that the parties return to the “status quo ante,” with custody of the child reverting to the birth mother pending further proceedings. K.W.J. v. J.W.B., 933 So.2d 1075 (Ala.Civ.App.2005). This Court granted certiorari review. We now reverse the judgment of the Court of Civil Appeals because there are principled distinctions between this case and Ex parte F.P., on which that court relied. Additionally, the probate court based its judgment on ore tenus evidence and properly applied the law to the evidence; its judgment, therefore, is due to be affirmed.

Facts

Most of the evidence in this case is in conflict. A thorough discussion of both the disputed and the undisputed facts is relevant to our disposition of the case.

The child was born on May 4, 2003, in Gwinnett County, Georgia. The biological father and the birth mother were both residents of Georgia. They had dated for approximately two months when the birth mother learned in August 2002 that she was pregnant. By all accounts, the biological father and the birth mother initially discussed marriage. The biological father maintains that the couple had an engagement party in December 2002. While the biological father contends that his relationship with the birth mother was “rocky,” in large part because, he says, the birth mother was emotionally unstable, he maintains that even at the hospital, just before the child’s birth, he and the birth mother were discussing marriage. In contrast, the birth mother contends that after she returned the engagement ring within days of receiving it in October 2002, the biological father filed for a temporary restraining order against her, “manipulating” her into complying with his demands. While she continued to see the biological father, she denies that a Christmas party held in December was an engagement party, and she denies that she and the biological father were still planning to be married at the time the child was born.

The birth mother testified that the biological father knew during the entire pregnancy that there was the possibility that another man could actually be the father of the child. She recalled conversations with the biological father in which he would make calculations with a calendar regarding the dates on which she and he had had intercourse and that those discussions “caused a lot of fights.” The biological father stated that while there was some initial indication that another individual might have been the child’s father, the birth mother reassured him on a number of occasions that he was the child’s father. He testified that he knew shortly after the child’s birth in mid- to late May that the other man had been excluded as the father of the child. The maternal grandmother testified that the mother of the biological father initially wanted to host a baby shower for the birth mother, but later expressed her hesitanee to attend a shower, wanting to avoid embarrassment, because, she said, there was a “fifty-fifty chance” that another man was actually the child’s father.

The evidence regarding the amount of prebirth support the biological father provided the birth mother and the unborn child is in conflict. The biological father testified that because the birth mother had problems with her own parents, she frequently stayed overnight at his house, as often as “five times a week.” He says that her driver’s license had been suspended and that she depended on him for transportation. The biological father testified that he purchased food and maternity clothes for the birth mother, baby clothes for the unborn child, and that he and the mother set up a nursery at his house, including a crib and a “bouncy chair.” He said that he spent approximately $200 per month on the birth mother during her pregnancy and that he had made inquiries about including the child on his health insurance after the child was born. He further testified that he had established a bank account for the child, although he never testified as to any amount that had been deposited into that account. The biological father testified that he attended “parenting classes” with the birth mother before and on his own after the child was born and that he attended doctor visits with the birth mother approximately eight or nine times. He denies that he has incurred substantial debt.

The birth mother denies that the biological father furnished any prebirth support for her or the unborn child, with the exception of three co-payments the biological father made to cover her prenatal care and a few meals he paid for on their “dates.” She maintains that he never purchased maternity clothes for her and that she never saw or received any baby clothes for the child that had been purchased by the biological father. The birth mother contends that the biological father has incurred substantial debt.

The biological father testified that he prepared a nursery in his house for the child before she was born. The birth mother testified that while she and the biological father selected a “Winnie the Pooh” theme to decorate the nursery, she never saw a nursery at the biological father’s house, despite the fact that she visited there just days before the child’s birth. The birth mother did admit that she and the biological father agreed on the name of the child.

The maternal grandmother testified that her daughter lived at home during her pregnancy and that she, along with members of her church, purchased nursery items and clothing for her daughter. She said that her daughter initially had difficulty securing a doctor’s appointment, so her daughter was first seen at a pregnancy clinic where the possibility of adoption was mentioned and an ultrasound was performed. She further testified that the biological father attended only 3 or 4 of the 15 to 20 doctor and hospital visits and that the biological father wanted the birth mother to secure assistance from Medicaid rather than pay the co-pay on the health insurance.

The birth mother admits that the biological father attended several doctor appointments with her, primarily in December 2002, and that, in particular, he was with her at the appointment when she had the first ultrasound. In addition, she stated that the biological father met once with a woman at the pregnancy center, and, on a few occasions, he watched movies relating to pregnancy and birth with the birth mother at the center. She stated he declined to attend birthing classes despite her request that he do so. While the biological father contends that he and the birth mother never discussed the issue of adoption, the birth mother testified otherwise, recalling that every time she mentioned the possibility of adoption, the biological father would “go into a rage.”

The birth mother testified that she telephoned the paternal grandmother to take her to the hospital on the occasion of the child’s birth because her mother was out of town and she could not reach her father, who had hearing problems, by telephone. The birth mother experienced medical complications during her pregnancy and at the time of the child’s birth. Although she was scheduled only for a regular doctor visit on May 2, 2003, she was admitted to the hospital because of concerns with her blood pressure and swelling.

The parties likewise dispute the events at the child’s birth and in the months that followed. The birth mother and the maternal grandmother testified that the biological father came to the hospital with friends and family on the date she was admitted and created a party-like atmosphere-complete with food and ice coolers with beverages. The maternal grandmother admitted asking the biological father to remain in the waiting room at the hospital, rather than in the birth mother’s room, because of her daughter’s serious medical condition. When the biological father objected, the maternal grandmother said that she had a discussion with him regarding her daughter’s condition and the fact that there was a “fifty-fifty” chance that he was not the child’s father. She said she returned to the waiting room later in the evening to update him on the sitúation but that he had left the hospital. The biological father testified that the maternal grandmother ordered him off of the premises, threatened to have him removed if he did not leave, and informed him that he was not the father of the child. The maternal grandmother denied threatening to have him removed from the hospital if he did not leave.

The birth mother testified that she had wanted the biological father to be with her for the birth of the child. She said that she left a voice message on the biological father’s cell phone conveying that she was upset that he had left the hospital. According to the birth mother, when the biological father did not return to the hospital and did not contact her in person or. by telephone in the three weeks following the birth of the child, she thought that he had abandoned her and the child.

The biological father contends that in the weeks following the child’s birth he tried to reach the birth mother numerous times each day but that the birth mother did not return his telephone calls or acknowledge the messages he left for her. The birth mother testified that she received no telephone calls or messages for three weeks after the child’s birth, and that during that time she decided to place the child for adoption. She explained that although a woman from her church had introduced her to the adoptive parents the day after the child was born, she was so undecided at that time about whether to place the child for adoption that she made appointments with a pediatrician a month in advance until she ultimately decided, three weeks after the child’s birth, that adoption was the best option.

Some evidence regarding the events that followed the birth of the child on May 4, 2003, is not in dispute. The maternal grandmother testified that after the biological father left the hospital on the day of the child’s birth, she telephoned him in the early evening hours to tell him that the birth mother was in labor. She telephoned again after the baby was born at approximately 3:00 a.m. to tell him that the child had been born and that both the birth mother and the child were doing well. The birth mother introduced telephone bills documenting the calls, and the biological father never denied that the maternal grandmother had left him those messages. The biological father contacted an attorney within a day or two of the child’s birth and again 10 to 12 days later. The biological father did not, however, initiate any legal proceedings at that time. The child remained with the birth mother for three weeks following its birth. During this period, the paternal grandmother saw the birth mother and the child at a local store in the community. The biological father knew within two to four weeks after the birth of the child that DNA testing had excluded the other man as the father of the child. On May 27, 2003, the birth mother signed a form consenting to the child’s adoption, and the adoptive parents took the child to their home in Alabama. On June 25, 2003, the adoptive parents filed in the Madison Probate Court a petition to adopt the child. On June 30, 2003, the probate court entered an interlocutory order awarding custody of the child to the adoptive parents pending a final dispositional hearing to be conducted on August 29, 2003. The biological father testified that in June 2003 he saw the maternal grandmother and inquired as to the child’s whereabouts. The maternal grandmother replied that the child was “with family.” On July 14, 2003, the biological father received notice of the adoption proceedings. He stated that he had been unaware before he received the notice that the child had been placed with the adoptive parents in Alabama.

The Court of Civil Appeals’ decision accurately states the remaining uncontested facts:

“On July 15, 2003, the biological father filed in the Superior Court of Gwin-nett County, Georgia, a petition for legitimation, a motion for genetic tests, and a request for custody of the child. On July 23, 2003, the biological father filed an objection to the adoption in the Madison Probate Court, requesting that the adoption be held in abeyance until the completion of the genetic testing....
“On September 11, 2003, the adoptive parents filed in the Superior Court of Gwinnett County, Georgia, a motion to intervene and a motion to dismiss the legitimation proceeding. On October 6, 2003, the Georgia court granted the adoptive parents’ motions to intervene and to dismiss, ruling that it had no jurisdiction, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (‘the UCCJEA’), to determine paternity or child custody because, it held, Alabama was the child’s ‘home state’ and an Alabama court had already made an ‘initial child custody determination.’ See § 30-3B-102(8) and § 30-3B-201(a)(1), Ala.Code 1975. The biological father did not appeal the Georgia court’s ruling, and he does not contest the jurisdiction of the Madison Probate Court.
“It is undisputed that the biological father was not asked by the birth mother or by the adoptive parents to provide any financial support for the child after the child’s birth. It is also undisputed that the biological father did not offer to provide, nor did he actually provide, any financial support for the child after her birth. The biological father saw the child only once before the trial of the adoption contest. In August 2003, after all parties had learned the results of the DNA paternity test, the adoptive parents, who were on their way to Florida for a vacation, detoured through Georgia to see the biological father. On that occasion, the adoptive parents suggested the idea of an ‘open adoption’ to the biological father. When the biological father rejected the suggestion, stating that he would agree to nothing less than full custody of the child, the adoptive parents became upset and left. The biological father testified that he had asked the adoptive parents to allow him to visit the child during Christmas 2003 and that the adoptive parents had refused. It is undisputed that the birth mother visited the child during Christmas 2003 and at other times.
“The probate court conducted a hearing on the adoption contest on January 29, 2004, and February 11, 2004. On April 26, 2004, the probate court entered a judgment, which included the following pertinent findings and conclusions:
“ ‘1. That the contest filed by [the biological father] is hereby denied.
“ ‘2. That this Court finds that [the biological father] has failed to maintain a significant relationship with the minor child, the subject of this matter; and the said [biological father] has not been prevented from maintaining a significant parental relationship with said minor child; [the biological father] has not provided or offered to provide any financial or emotional support for said minor child; the failure of [the biological father] to maintain a significant parental relationship was for a period in excess of six months during which [the biological father] had full knowledge of the name and location of the legal representative of [the adoptive parents] in whose custody the minor child has resided.
“ ‘That this Court having considered all of the testimony adduced at trial finds that there is clear and convine-tag evidence that the consent of [the biological father] to the adoption is implied pursuant to the Code of Alabama Section 26-10A-9 due to the failure of [the biological father] to maintain a significant parental relationship with said minor child for a period of six months.
“ ‘3. [The biological father] also acknowledged that Alabama had full jurisdiction.
“ ‘4. It would be in the best interest of the minor child to deny the contest of [the biological father] and to grant the adoption.’ ”

K.W.J., 933 So.2d at 1077-78.

The Court of Civil Appeals concluded that the probate court wrongly determined that the biological father had impliedly consented to the adoption by failing to maintain a significant parental relationship with the child. Citing Ex parte F.P., the Court of Civil Appeals held that any failure on the part of the father to establish a parental relationship with the child was justifiably excused because “ ‘the adoptive parents did not wish to allow him to do so.’” K.W.J., 933 So.2d at 1078 (quoting Ex parte F.P., 857 So.2d at 138) (citations to the record omitted).

Analysis

“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, while an appellate court has the benefit only of a cold transcript of the proceedings. Thus, neither this Court nor the Court of Civil Appeals may reweigh the evidence or sit in judgment of disputed evidence presented ore tenus, Ex parte Bryowsky, 676 So.2d at 1324-1326, and the trial court’s judgment based on ore tenus evidence will not be disturbed unless it is palpably wrong, manifestly unjust, or without supporting evidence. Samek v. Sanders, 788 So.2d 872, 876 (Ala.2000).

Section 26-10A-17(a)(l), Ala.Code 1975, requires that notice of the pendency of an adoption proceeding shall be served on

“[t]he father and putative father of the adoptee if made known by the mother or otherwise known by the court unless the court finds that the father or putative father has given implied consent to the adoption, as defined in Section 26-10A-9.”

Section 26-10A-9, Ala.Code 1975, provides as follows:

“(a) A consent or relinquishment required by Section 26-10A-7 may be implied by any of the following acts of a parent:
“(1) Abandonment of the adoptee. Abandonment includes, but is not limited to, the failure of the father, with reasonable knowledge of the pregnancy, to offer financial and/or emotional support for a period of six months prior to the birth.
“(2) Leaving the adoptee without provision for his or her identification for a period of 30 days.
“(3) Knowingly leaving the adoptee with others without provision for support and without communication, or not otherwise maintaining a significant parental relationship with the adoptee for a period of six months.
“(4) Receiving notification of the pendency of the adoption proceedings under Section 26-10A-17 and failing to answer or otherwise respond to the petition within 30 days.
“(5) Failing to comply with Section 26-10C-1.
“(b) Implied consent under subsection (a) may not be withdrawn by any person.”

The Court of Civil Appeals held that the evidence was insufficient to establish that the biological father had impliedly consented to the adoption of his child because he had a justifiable excuse for failing to maintain a relationship with the child — the adoptive parents prevented the biological father from seeing the child. In so ruling, the Court of Civil Appeals relied on Ex parte F.P.:

“In F.P. v. J.K.M., 857 So.2d 110 (Ala.Civ.App.2001), the juvenile court denied a biological father’s petition for custody of a child born out of wedlock, terminated the biological father’s parental rights to the child, and granted the petition of a couple to adopt the child based on its finding that the biological father had impliedly consented to the adoption by failing to support the child and by failing to maintain a significant parental relationship with the child. This court affirmed the judgment of the juvenile court. Presiding Judge Yates, joined by Judge Crawley, dissented. The Alabama Supreme Court reversed this court’s judgment, adopting Judge Yates’s dissent. Ex parte F.P., 857 So.2d 125 (Ala.2003). The supreme court held that the biological father, who had never seen his child before the trial of the adoption petition and who had not provided any support to the mother or to the adoptive parents after the birth of the child, could, nevertheless, not be deemed to have impliedly consented to the adoption of the child pursuant to § 26-10A-9(a)(l)(abandonment of the child) or § 26-10A-9(a)(3)(failure to maintain a significant parental relationship with the child) because, before the child’s birth, he took the following steps to pursue his parental rights through legal action: he petitioned the juvenile court for a determination of the father-child relationship; he registered with the Putative Father Registry; he requested a blood test to determine paternity; and he moved for a stay of the adoption proceedings pending the paternity determination. The Alabama Supreme Court held that, ‘[pjostbirth, the father had a justifiable excuse for failing to establish a relationship with the child — the adoptive parents did not wish to allow him to do so.’ Ex parte F.P., 857 So.2d at 138.”

K.W.J., 933 So.2d at 1078.

The Court of Civil Appeals concluded that there was “no principled distinction between this case and Ex parte F.P.”:

“In the present case, the biological father took the same steps that the biological father in Ex parte F.P. took (with the exception of registering with the Putative Father Registry3) to pursue his parental rights through legal action. One day after he received notice of the pending adoption, the biological father filed a legitimation action in Georgia, seeking genetic testing and custody of the child. Two and one-half months after the child’s birth, he contested the adoption and asked for a stay of the adoption proceedings pending the outcome of the paternity testing. As in Ex parte F.P., the biological father had a ‘justifiable excuse for failing to establish a relationship with the child — the adoptive parents did not wish to allow him to do so.’ 857 So.2d at 138.
‘‘3Section 26-10A-7(a)(5), Ala.Code 1975, a part of the Alabama Adoption Code, provides that consent to an adoption is required of various parties, including
“ ‘[t]he putative father if made known by the mother or is otherwise made known to the court provided he complies with Section 26-10C-1 [the Putative Father Registry Act] and he responds within 30 days to the notice he receives under Section 26-10A-17(a)(10).’
“All parties concede that the Alabama Putative Father Registry Act is not applicable to this case because the child was born in Georgia and both biological parents are Georgia residents.”

K.W.J., 933 So.2d at 1078-79.

The Court of Civil Appeals thus reversed the probate court’s judgment granting the adoption and denying the biological father’s contest to the adoption, holding that the probate court had “erroneously applied the law to the facts.” K.W.J., 933 So.2d at 1079. Judge Mur-dock issued a dissenting opinion, which Judge Bryan joined.

Ex parte F.P., on which the Court of Civil Appeals relied, is distinguishable from this case. While it is true, as the Court of Civil Appeals noted, that in the present case the biological father eventually took steps somewhat similar to the steps taken by the father in Ex parte F.P. to preserve his parental rights through legal action (with the exception of registering in accordance with the Putative Father Registry Act, § 26-10C-1, Ala.Code 1975), the timing of those steps and the facts regarding efforts by the biological father to maintain a relationship with the child — and any alleged interference with those efforts— are significantly different. In Ex parte F.P., the father and the mother, before their child’s birth, could not date “openly” because they were of different races and her family did not approve of her dating the father. The father in Ex parte F.P. actually filed a petition for a determination of a “father and child relationship,” 857 So.2d at 127, before the child was born. The child was placed with the adoptive parents upon its discharge from the hospital. The mother, from the outset, lied to the Department of Human Resources social worker, stating that she did not know the father’s whereabouts. The adoptive parents took the child home from the hospital, and the father was told unequivocally before the adoption that he could not see his child. The father and the paternal grandmother also tried to see the baby shortly after it was born, but they were told that they could not see the baby without the mother’s permission. The father made one attempt to contact the adoptive parents by telephone before the hearing, but he was told by a relative of the adoptive parents who was babysitting that he could not see the child. The adoptive parents testified that they were not sure they wanted the father to have contact because he was contesting the adoption and that they would consider requests from him to see the child to be “harassing calls.” Ex parte F.P., 857 So.2d at 131.

In the present case, the biological father contends that interference began at the child’s birth when he was told by the maternal grandmother to leave the hospital and threatened with legal action if he failed to do so. He also contends that the birth mother and the maternal grandmother interfered with his relationship with the child when the birth mother failed to return his telephone calls or to respond to the messages he left for her, including his message that he wanted to see the child. Likewise, he contends that the birth mother and the maternal grandmother interfered with his relationship with the child when they placed the child with the adoptive parents in Alabama without his knowledge, and that the adoptive parents interfered with his relationship with the child by seeking to have his legitimation process in Georgia dismissed and by refusing to allow him to visit the child.

With deference to the presumption of correctness afforded the probate court’s findings under the ore tenus rule, we hold that the probate court did not exceed its discretion when it concluded that the biological father “has not been prevented from maintaining a significant parental relationship with [the] minor child.”

Unlike Ex parte F.P., the biological father and the paternal grandmother here were not excluded when the birth mother was admitted to the hospital to give birth to the child. The biological father and the paternal grandmother were present at the hospital when the birth mother was admitted weeks before her due date because her condition necessitated immediate medical care. Indeed, the paternal grandmother took the birth mother to the hospital. Despite the biological father’s contention that she made him leave the hospital before the child’s birth and that she interfered with his relationship with the child, the probate court was warranted in drawing other inferences from the testimony elicited — inferences that must be presumed correct. The probate court could justifiably have viewed the maternal grandmother’s request that the biological father remain in the waiting room not as an attempt by the maternal grandmother to interfere with the biological father’s relationship with the child, but as a reasonable request, given the birth mother’s medical condition and the biological father’s apparent insensitivity by creating a party-like atmosphere in the birth mother’s hospital room. The maternal grandmother’s testimony that she went to the waiting room to update the biological father on the mother’s condition but that he was no longer at the hospital, her production of telephone bills documenting that she had called the biological father on his telephone, and the fact that she notified the biological father of the birth of the child, all suggest that he made the decision not to return to the hospital, rather than that anyone was interfering with his relationship with the child.

Unlike the father in Ex parte F.P., the biological father here did not file with the Putative Father Registry in either Alabama or Georgia. He did not initiate court proceedings at the child’s birth, despite his claims that he had been excluded from the birthing experience. He did not initiate any proceedings in mid- to late May 2003, when he concedes he learned that the other man had been excluded as the child’s father by DNA testing. Despite the fact that he did consult with an attorney following the child’s birth, he initiated no legal proceedings until after he was served with notice of the adoption.

It is uncontroverted that the biological father never went to the birth mother’s house in the three weeks following the birth of the child. He offered alternative reasons for not attempting to see the child: his lawyer advised him not to contact the birth mother so as to avoid potential harassment charges; the maternal grandmother had threatened him with legal ramifications if he did not leave the hospital, a contention that is refuted by the record; and he did not know if the birth mother was actually residing at her parents’ house. The probate court, in weighing the evidence and assessing the credibility of the witnesses — including the truthfulness of the biological father’s testimony— could have reasonably discredited his second and third reasons. As to the remaining reason, the biological father had access to legal remedies of which he did not avail himself. Despite the fact that the biological father had conferred with an attorney, his delay in initiating proceedings to have himself declared the legal father and consequently to be held legally and financially responsible to support the child, is in marked contrast with his swift access to the judicial system seven months earlier when he filed for a temporary restraining order within days of the birth mother’s decision to end their engagement.

To be clear in our holding, we note that this was not a circumstance in which the biological father testified that his delay in initiating legal proceedings was influenced by his lack of financial resources. To the contrary, the biological father testified that he was gainfully employed; that he had no substantial debt; and that he and his mother jointly owned their house.

Parents are rightfully entitled to a thorough judicial determination regarding their rights to their children. But the singular evidence of participation in court proceedings, without more, does not evidence a parent’s commitment to a child, nor does it singularly evidence a significant parental relationship.

The probate court did not exceed its discretion in resolving the conflicts in the testimony by discrediting the biological father’s version of the facts — that he provided prebirth support for the child and birth mother; that he prepared a nursery for the child in his house; and that he established a bank account for the child. The probate court did not exceed its discretion by accepting the birth mother’s version of the facts — that the biological father failed to provide support for her and the child before or after the child’s birth, that he was not present for the birth of the child and did not return to the hospital to visit her or the child; and that he did not telephone her for three weeks following the child’s birth.

When the biological father did ultimately reach the birth mother by telephone after the child’s birth, the birth mother’s evasiveness and her ultimate refusal to tell the biological father where the child was physically residing must be considered by the court in light of additional undisputed facts peculiar to this case. First, the paternal grandmother, with whom the biological father resided and with whom he jointly owned a house, had been convicted of the offense of interference with custody for fleeing the country with her children in violation of a court order. Parties to this proceeding were aware of that conviction. The birth mother testified that the biological father had once told her during the pregnancy, “if you try and take her from me, I will get her legally or illegally.” Secondly, the biological father indicated his failure to appreciate the significance of a legal proceeding when he initiated contact with the birth mother after he had secured a temporary restraining order against her.

Finally, the birth mother’s evasiveness becomes less relevant when considered in light of the biological father’s own conflicting testimony regarding requests he made to visit the child. Initially, the biological father testified that he requested to be allowed to visit the child on “numerous” occasions. When pressed for the dates and times of those requests, he testified as to only one occasion when he specifically requested of the adoptive parents that he be allowed to visit the child. That request was made at Christmastime when the child was 7 1/2 months old and the adoption proceeding had been pending for five months. The significance of the biological father’s lack of contact with or inquiries about the child is heightened, given the child’s medical condition at birth. The biological father’s attorney testified that she relayed to her client the child’s condition. Specifically, she recalled telling the biological father that the child’s head “seemed to be misshaped and that [the child may have] neurological problems.” While the biological father professed his desire to have custody of his child despite the child’s health problems, the evidence indicating that he did not inquire about the child’s health is telling.

The Court of Civil Appeals’ opinion, authored by Presiding Judge Crawley, held that “there is no principled distinction between this case and Ex parte F.P.” K.W.J., 933 So.2d at 1079. We, however, conclude that the facts in the present case are distinguishable from the facts in Ex parte F.P. The facts in the present case do not provide a justifiable excuse for the biological father’s behavior, which constitutes implied consent.

After considering the record in this case and the main opinion of the Court of Civil Appeals, we agree with the views expressed by Judge Murdock in his well-written dissent:

“Despite the formal legal position taken in this case by the biological father, the trial court found that the father’s subsequent acts and omissions spoke louder than his words, and implied the necessary consent under the Adoption Code [§ 26-10A-1 et seq., Ala.Code 1975]. This is a difficult case. Given the conflicting evidence and the ore tenus presumption, however, I have not been persuaded that this court should overturn the trial court’s judgment in this case.
“We should not equate the filing of ‘court papers’ and the taking of legal positions with the establishment of human relationships. A child can be abandoned just as surely when papers have been filed with a court as when they have not been. While those papers sit in a folder in a courthouse, children grow. They are read to and tucked in at night. They are nursed to health. They are taught. They are nurtured. They are loved. And they love back. And bonds are formed — but not with a biological father who has allowed himself to remain absent from the child’s life. See generally R.K. v. R.J., 843 So.2d 774 [ (Ala.Civ.App.2002) ]; Lehr v. Robertson, 463 U.S. 248 [ (1982) ].’ ”

K.W.J., 933 So.2d at 1080-81 (Murdock, J„ dissenting) (footnote omitted).

Conclusion

The probate court’s judgment granting the adoption and denying the biological father’s contest to the adoption proceeding, based on ore tenus testimony and therefore presumed correct, is supported by the evidence. The decision of the Court of Civil Appeals is therefore reversed, and a judgment is rendered in favor of the adoptive parents.

REVERSED AND JUDGMENT RENDERED.

NABERS, C.J., and HARWOOD, STUART, and BOLIN, JJ., concur.

SEE, LYONS, WOODALL, and PARKER, JJ., concur in the result.

      . In light of our holding, we pretermit discussion of the Court of Civil Appeals' ruling that custody of the child be placed with the birth mother, without the benefit of a custody determination by a trial court.