A Win for Ore Tenus

Regular readers are familiar with the principle of ore tenus evidence, the idea that when a trial court has the opportunity to look witnesses in the eye and hear the inflection in their voice, its determination of the facts in a case will be presumed correct unless that determination is shown to be “plainly and palpably erroneous or manifestly unjust.” Regular readers are also familiar with my observation from time to time that appellate courts tend to follow it only when it serves their purposes. Now a ruling from the Alabama Supreme Court strikes a blow for the validity of ore tenus evidence.

This is an adoption case you’ve already read about here, K.W.J. v. J.W. B. and K.E.M.B. Now before the Supreme Court it bears the title J.W.B. and K.E.M.B., Case No. 1040779 (Ala. November 4, 2005). The case arises from the biological father’s attempt to set aside the adoption of his child, and the principal factual issue was whether the father had impliedly consented to the adoption by failing to maintain a relationship with the child.

The Madison County probate court heard and evaluated a great deal of contradictory and inconsistent evidence about who ran whom off and who tried to contact whom. After hearing this evidence, the probate court determined that the biological father had failed to maintain a significant relationship with the child for more than six months and therefore had impliedly consented to the adoption. It therefore granted the adoption.

The Alabama Court of Civil Appeals, with Judges Murdock and Bryan dissenting, reversed the probate court. The Appeals Court ruled that the probate court wrongly determined that the biological father had impliedly consented to the adoption because the biological father had a justifiable excuse for failing to maintain a relationship with the child.

The Alabama Supreme Court reversed the Appeals Court and affirmed the probate court.

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).

The Appeals Court had stated that there was no principled distinction between this case and that of Ex parte F.P., 857 So. 2d 125 (Ala. 2003). In that case the Alabama Supreme Court had reversed both the trial court and the Appeals Court and had set aside an adoption because of a finding of justifiable excuse for the father’s failure to maintain contact.

The Supreme Court distinguished Ex parte F.C., however, noting that there were many more facts in dispute in this case than had been present in Ex parte F.C.

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.

The Supreme Court ended its opinion by quoting approvingly from Judge Murdock’s dissent in the Appeals Court case:

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, 103 S. Ct. 2985, 77 L. Ed. 2d 614 [(1982)].

One comment

  1. Daniel says:

    I agree that ore tenus presumption must be upheld. However, I think the trial court was manifestly unjust. How do you square the trial courts reading with Troxel? There is a parent’s right to parent and I think the time frame was to short to determine anything about the father’s intention. While there were facts in this case, I would hardly call them of a high enough substance to make the ruling of the trail court stand. The ore tenus presumption cannot be a cop-out for failing to exercise de novo judgement.

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