*1 264 points and fully have briefed their
Counsel
given
careful attention to
and we have
authorities
same,
all
cited
the briefs.
and have read
the cases
sup
opinion
respondents
In
the claim
our
authority.
Practically
weight
all
ported
authority
contrary,
ourselves
therefore we find
is to the
agreement
petitioner.
cases cited
with the
Adhering
many
by numerous
law
announced
to the
times
courts,
no other alternative.
we have
granted,
petition
is ordered
prayer
peremptory
is issued herein
writ of mandamus
writ,
receipt
commanding respondents, upon
an order that
the bill
make and enter
forthwith
(1)
2
of section
exceptions provided for in subdivision
expense
prepared
the cost and
at
bill No.
of senate
fur-
Nevada,
County,
petitioner
and that
of Clark
him,
copies of same
nished,
sufficient
without cost
present
appeal herein.
his
Application
of GRACE
the Matter
Corpus
of Habeas
SCHULTZ
for a Writ
FOOTE
of BABY BOY SCHULTZ.
Behalf
on
No.
May 29, 1947.
OPINION
By Court, Eather, C. J.: original
This is an proceeding in corpus. habeas Unquestionably the most difficult perplexing prob- lems which ever come before a for court decision are questions those which, while involving no financial con- sideration, have to do with vitally important those but wholly imponderable questions of human relations involving the basis sentiment care, custody, con- trol, and welfare of a minor child. Such a one is the present case. petition The charges minor, that a baby boy, a
unlawfully imprisoned and liberty by restrained of his Mr. Doe, and Mrs. prospective John adoptive parents adoptive prospective The names child. during proceedings, disclosed been
parents have Nevada adoption statute. keeping with respond- Inc., acted Bureau, has Welfare Catholic Baby agreed deliver and has proceeding ent in this so should if this court petitioner Boy direct. By means briefly summarized. may be The facts illegiti of an mother unwed corpus, the of habeas a writ recovering court aid requests the mate child October boy baby born possession of custody and several formed intention consequence of an 1946. relin signed purported mother previous, the months 2, 1946. The November adoption on quishment Catholic Nevada upon by acted relinquishment was its when Bureau, Inc., on November Welfare *3 prospective home in the child placed directors testimony in a conflict is There parents. adoptive asked mother agent of the an on which date as to relin of her revocation child of the for return formal that clear However, are facts quishment. by the made was child of the the return request for This 6, 1946. December on mailed letters until mother January 1947. initiated proceeding was case: by this presented questions three are There valid? relinquishment (1) the release Was valid, revocable? (2) If is wel- interest the best revocable, it for is (3) If revoked? be it to to allow child fare con- is statute adoption part of our pertinent The Compiled Laws 1065.02, Nevada in section tained reads: Supp., and section, no specified in this “Except as otherwise con- except a written permitted be adoption shall child, living parents of acknowledged by the duly sent In the wedlock. born out a child mother of or the over, consent age or years fourteen of a child case given in required must shall child of such court. presence writing parent guardian “Where the or relinquishes a child adoption institution, recognized for organization, to a society state, of this or another depart- or to the state welfare, ment of relinquishment recognized by law, it necessary, shall not be adopting said permission guardian obtain the ivho has ” * * * relinquished (The the said child. are italics ours.) signed release and the mother case, among things, instant other reads as follows:
“This release made under certain Act of Legislature Nevada, of the State of entitled: ‘An Act provide adoption children, defining for the Duties of Certain Persons Relation thereto and Other Relating Approved Matters thereto.’ March 1941. Stats, (1941 p. 355)” 1065.02, supra. section opinion The court is of the relinquish that a valid given. fully ment was The mother was informed consequences of her act. She had considered the matter months, signed and after she the document it was days held for two to insure that she desired that it be upon. urges acted Petitioner that she was under “misapprehension” signed at the time she the document.
By only delaying her statement reason for action give opportunity on the the father an appear responsibilities. and assume his The father appeared way has not and has no indicated he will responsibilities. urges assume Petitioner further agency as the name of the to which the child was *4 relinquished blank, validity was the document is argument questionable. seriously This was not asserted say no cited. that the docu authorities are Suffice to given duly agent ment to a authorized of the Cath upon by Bureau and was acted such bureau. olic Welfare signing of the of the We must conclude that at time adult, document, mother, her own will an free signature knowing desiring that annexed adopted. baby would be proceeding principal question raised
268 right relinquishment. of the mother to revoke her fully point.
Counsel have briefed this The authorities many permitted courts have revoca- cited indicate that parent; at others allow revo- tion the discretion of the estoppel intervene. cation if or welfare of the child do not App. Community 69 League, v. Ohio French Catholic 113; Adoption, Sur., 442, 60 In Re Burke’s 44 N.E.2d 1946, 421; Adoption Or., 175 Capparelli, N.Y.S.2d 153; McDonnell, 1947, 176 Adoption Cal.App. P.2d 778. P.2d right
Conversely many have denied the tribunals principles (1) revoke, on of con denials base such grounds; (3) pub tract; equitable (2) or other estoppel children, favoring adoption particularly policy lic children, illegitimate (4) the child as the welfare of Wyness Crowley, v. 292 Mass. apparent from facts. 858, 758; Ky. 459, 461, Thomas, v. 297 198 N.E. Lee 559, 457; Presler, Misc. Application of 171 181 S.W.2d al., 1942, 49; 194 Ga. et 13 Durden v. Johnson N.Y.S.2d 228, Gray, 689, 514; 42 Utah Stanford v. 22 S.E.2d Minor, Adoption 989; 423, Ann.Cas.1916A, of a In Re P. U.S.App.D.C. 144 F.2d 156 A.L.R. 357, 158 1001; Pippin, 673. W.Va. S.E. Lane v. pri parents general proposition have the a As custody right off mary superior of their and. others, the declared law spring of all but above that equal injected into a factor such cases has almost right parents, dignity of the and which as that superior child afforded is the welfare can advantages adopting parents, are to and about deprived if it, it would and of which furnish opinion of parents. But no its natural remained with right approves the are aware any far as we court so parents away natural any from one take ground upon solely custody their children provide prepared to are better adopting parents par natural advantages which the superior the child provide. But might be unable cause ents for agreed has exists that situation where *5 that might his or adopted her child and has executed such pointed consent or by offer in the manner out statutory jurisdiction by which has been acted on proposed adopter, agreement, then such consent or the absence of procurement, plus fraud or duress its vastly opportunities adopted child, increased of the creates a case where there is no alternative but sus- adoption applied tain the Thomas, supra. for. Lee v.
A principle decision of the involved in the instant case, opinion is included Wyness in the in the case of v. Crowley, 461, Mass. 198 N.E. 759. We quote:
“To accede to the voluntary contention that such con- may equivalent sent saying be withdrawn would be parties may court, deliberately give come to a their affecting assent to actions court matters their interests, afterwards, pleasure, at their will and they return to the court and undo what did because on day they a future did not like it.” Gray, the case of v. Stanford 42 Utah 129 P.
423, 426, Ann.Cas. 1916a, 989, the court stated fol : lows
“Ordinarily presumes the law the best interest by allowing of the child will be subserved it to remain custody parents, no matter how poor they though may be, worldly humble wealth and advance- may Where, ment be offered in the home of another. parent, by writing
however, otherwise, has vol- untarily transferred delivered his minor child into custody another, and under the control of as in ,to bar, possession case at and then seeks recover corpus, invoking child writ of habeas equitable the exercise of the discretion of the court disrupt private domestic relations he has volun- tarily brought about, grant and the court will not relief, upon hearing unless all the facts it is of the opinion pro- that the best interests of the child would be thereby.” moted
“From birth an infant a ward the State. It *6 In this and parens patriae. in the relation of
stands is the consideration proceedings fundamental similar Derrick, People v. ex rel. Converse the infant. welfare of 73, 77, 261 447. N.Y.S. 146 Misc. natural paramount to the is
“The infant’s welfare N.Y. (Breitung), 280 right Bock parent.” Matter of of a Presler, supra 186; Application 349, 353, 21 N.E.2d 559, 13 Mics. N.Y.S.2d 52]. [171 strictly complied “Statutory requirements must be proceed- adoption adoption proceeding, is a since * * * derogation ing in of common law. absolutely parents surrendered' natural have “Where welfare, county public their child to commissioner of adoption only subsequent of the child is for a basis by which a written consent execution commissioner of parents natural place the written consent of takes the * * * voluntary adoption. required in a case of unconditionally surrendering by parents, “Natural county public custody commissioner of their child to welfare, power thereafter divested themselves by consent.” child written of such an authorize Whitcomb, 61 1. App. N.Y.S.2d Div. In re argument court, considering previously an oral This custody by of a a released the care and only parties, lan- enunciated the child to third minor opinion court guage helpful here. which is The states: weight authority, however,
“The of modern seems to recognize agreements such as enforceable where it advantage appears enforce the to the of the minor to supported latter to us to be same. This view seems recognizes superior rights of reason. It the better being equal, places parents, natural all other matters but consideration, and, of the child as the first the interest child mani- appears the interest of the will where agreement, by enforcing festly be advanced Swall, parte Nev. Ex not be disturbed.” same will 1915b, 96, 97, 1015. 171, 195, 134 P. Ann.Cas. The court further cited with approval Stanford v.
Gray, supra, closely a similar case case, instant wherein the Utah court held: “There are some authorities which hold that con- by parent tract made in which he care, surrenders the control, custody of his minor child to another void against public policy. great weight authority, however, position sustains the appellants par- that a may by
ent legally contract transfer and surrender his infant custody child into the of another where the inter- est of the child prejudiced transaction, in all arising controversies respecting the custody of the child after such transfer and surrender made, have been paramount *7 question consideration —the of control- ling importance the interest, welfare, and —is happiness of the child. words, other while contracts of this kind, fairly and voluntarily into, entered are valid as between parties, the they will not be enforced the detriment the of child.” Substantial support position respondents of is furnished the and opinion exhaustive well-reasoned of the court appeals, of for the Columbia, District of In Re Adoption Minor, of a supra. There the court dealing adoption an statute ours, similar with and like the statute, Nevada legislative a recent act. Also the court was confronted with attempted an revocation of a con- sent to adoption by the illegitimate mother of an child. court, The denying right in revoke, the placed empha- sis on the tense of wording the passed statute Congress 1937, D.C.Code, in 1940, secs. 16-201 seq., et stating that the statute “speaks of completed,” an act and finds in the act words, the “no decree of adoption shall be made unless the court shall find that the follow- ing persons have adoption.” consented to the The Nevada statute, passed in sec. 1065.03, 1931-41, N.C.L. “* * * Supp., also uses the of words an completed. act required that all consents given.” have (The been italics ours.) are lan- such that appeals of court reasoning the of The consent make intent legislative indicates
guage here. applicable equally irrevocable wording of examination compelling However might prove, appeals of court by the the statute of Minor, aof Adoption Re Inof opinion of great value history and of consideration court’s from arises including child ramifications, its adoption and theory of illegitimacy, delinquency, welfare, juvenile family life, pro- in successful interest public great concluded: court The cedure. unstable cases particular inif apparent “It permitted, were mothers natural fancies whims love parental flow all in motion first, put is involved money which energy time, expenditure process casually, put the whole then, as adoption, and be would the statute major purpose reverse, divinity, medicine Doctors largely defeated. would workers social parents and adoptive potential premium A efforts. rehabilitative their stymied instability the emotional upon put instead, be would, pos- nothing say illegitimates; produces which interpretation an racketeering sibilities may crimi- who of those put in reach would law qualities lacking in the aswell tendencies their nal illegitimacy prevent cannot law new parenthood. extent but generally, stigma, its remove *8 illegiti- fewa of even placement desirable may secure it dangerous most its some may avoid it children mate children necessary that such' is it do so toBut results. possibili- against protected be parents adoptive their and adoption Especially suggested. kind the ties break the is desirable children illegitimate abrupt and be consenting mother infant between ours.) are (The italics final.” to, sympathetic cognizant is court the While recover mother natural aof efforts honest purpose intent child welfare adoption controlling- law must in be the factors hearing the determination of this At matter. evi- regarding dence was introduced the welfare of child. prospective parents The home of the was established proper as a environment for the child.
Following above, authorities cited court mother, having finds that the been freely voluntarily given, irrevocable, and, there being nothing to indicate that it would be to the detri relinquishment, ment of the child to enforce such document must be accorded full effect intended under the statute. policy
Public demands that the act should public nullified a decision that causes the consequences adopting fear the a child the full knowledge caprice that their are efforts at the whim and parent. of a natural proceeding
This is dismissed.
Badt, I J.: concur.
Horsey, J., dissenting. impelled feel majority
I opinion dissent from the this case. pertinent proceeding
The may facts involved in this summarized as follows: Schultz, petitioner Baby Foote
Grace on behalf of Schultz, Boy baby boy, unmarried mother of said 21, 1946, who born out of wedlock on October at the Mary’s Reno, hospital, St. Nevada. The evidence upon hearing petitioner reveals that came to July 1946, upon physician Reno and called some time August 1946. Miss Schultz testified she asked the physician her, to take care of and that she told him at put adop- that time that she wanted to the child out for ; that, tion that she saw the doctor about six times after hospital, and before she went to the did but not talk to adoption. physician him further about testified 29, 1946, August upon Schultz first Miss called him at *9 baby adopt the wanted him she told time she her told unmarried, that he out, she and that was any worry more not to care of that he take would September was to him it; next visit her that about testimony was point his that at physician, The 1946. they 16, 1946), (September whether, time at that asked answered, “I talked adoption, and proposed discussed the deliv- arrangements before financial her about baby.” The and the herself hospitalization ery, the propounded then were and answers following questions made: mention, that at she Woodburn): Did “Q. (By Mr. that at IA. believe bureau? time, welfare the state there. had been she mention did time she IA. time? you at that tell her “Q. And what did worry that, have didn’t she care of take we would said it. about The A. you her? saw next time “Q. was When 1946. September 30th of adop- proposed then about “Q. you her talk to Did I recall. that A. Not tion? 11th. A. October her? “Q. you next see did When you had time at that you whether “Q. recall And do adoption? the proposed her about with any discussion No, I do not. A. she when was you her saw
“Q. time next And the night October Yes, on hospital? A. went to 20th. A. 21st? on baby born “Q. And of October. morning 21st anything about her “Q. you discuss Did A. No. then? testimony at that “Q. Miss Schultz’ You heard you baby, see could you if she hospital she asked never A. She hospital ? they do didn’t said time.” at to see personally me asked asked deny Miss Schultz did The doctor baby. seeing the nurses, privilege nurse, or according that, foregoing from noted It will *10 physician’s testimony, adop- Miss discussed Schultz only visit, upon tion him with the occasion of her first August 29, merely and then told him “she wanted to adopt out, unmarried,” the child that she was that he “told her we would take care that and not to worry any clearly therefore, appears, more about it.” It express request physi- that Miss Schultz made no anything regard adoption, cian to do he but that that, volunteered to take care her and told not to worry him, testified, about it. She also told as he that she had been to state welfare bureau. testimony physi-
Miss Schultz’ as to what she told the cian, upon visit, was, “I occasion of her first men- any money, tioned the I fact that didn’t have and wanted adopt baby out.” She stated further she did not again Halley talk himto about it until the doctor and Mr. papers sign, her
came to room with the for her to on 2, November 1946. portions testimony,
In other of her Miss Schultz told visiting department branch about the state child welfare Vegas, April office in that she continued in Las coming Eeno, department touch with said after July, 1946, Bromberg oppor- and discussed with Mrs. born,
tunities it and what could child after was it, Bromberg done Mrs. was to have and that adopted in a foster home. testimony physician
From the of both the and Miss Schultz, hospital it is clear that she left the October home, that she ill continued at and that physician her; suffering attended that she was severe pains 31, 1946, on October the result of the birth of the child; prescribed her, that the doctor medicine for following morning, came to see her the but that was not then discussed.
Upon point requested of whether Miss Schultz calling Bromberg, department Mrs. of the state public welfare, requested physi- she testified she so cian, also one of the nurses. physician not, testified Miss Schultz did at baby born, him Mrs. Brom-
time after ask to call berg. requested she so He was not asked as whether baby He that Miss before the was born. testified further call Mrs. told him “she had asked some one to Schultz there, Bromberg’s office, she wasn’t asked she Bromberg Mrs. contact Brom- that Mrs. Miss Schultz.” testified, berg connection, received no she such call. of Miss on
As to what occurred at the room 2, 1946, upon November the occasion when the document Boy Baby purporting a release or *11 signed, differences was there are no substantial testimony Schultz, physician Miss between the of testified, connection, Halley. physician, in Mr. The that examination, on direct as follows: “Well, Halley her prepared Mr. for had documents room, explained sign. upstairs, I to her to We went visit, Halley prepared had for that Mr. the reason our child, told her to documents Halley sign if had Mr. told her she read over and it. it him, regarding ask questions the document to gladly explain it over for it to her. She read he would time, it only comment she had was about and the some sounding it. rather harsh with word ‘forever’
“Q. Halley ? advise her as that At time did Mr. explain her didn’t want A. And tried to we Yes. we something signing to. she didn’t want her to rush into phone already expecting call told had me she was She Halley he would hold Mr. said from the child’s father. Monday, following signed, paper until she had thought 4th, although she we at that time November definitely up had her mind. made “Q. following Monday, you telephone on Did she go Yes, ahead.” 4th ? A. and authorized us November testimony point (Miss that she on that Schultz’ convex’sation, stated, telephone she in the said father, phone child’s call from the hadn’t received nothing do.) guessed there was else and that she “Q. baby by placed was to be the Catholic welfare yes.” understood, (Italics bureau? A. I That is what mine.) opinion arrangement, I shall follow the as to questions involved, treatment which has been respective counsel, also, and,
followed majority opinion, being same as follows:
1. Was the release or valid ? valid,
2. If it revocable? revocable, 3. If it for the best interest and welfare child ? allow to revoked relinquishment, copy The release or disclosed appended respondent’s return, is as follows:
“Release of Child “I, Schultz, Reno, Grace F. County, Nevada, Washoe hereby relinquish do and release forever to Nevada Bureau, Inc., Reno, Catholic Welfare Nevada, my rights my as a child, Baby Schultz, and to male Mary’s Hospital, City at Reno, born St. County Washoe, Nevada, day October, State on 21st 1946, which said child was born out of wedlock and the undersigned represents that she is the Mother of said age days minor male now the and that she hereby relinquishes unto Nevada Catholic Welfare *12 Bureau, Inc., rights all her respectfully to said child and requests any competent jurisdiction court of to enter its adoption. order of release,
“This is made under that certain Act of the Legislature Nevada, entitled, of of State ‘An Act to Adoption Provide for Children, of Defining the Duties of Certain Persons in Relation Thereto and Other Relating Thereto,’ Approved Matters 28, March (1941 355.) Stats. “Grace F. Schultz Nevada, “State of ) SS' Washoe, County of j" day November, 1946, personally
“On this 2nd of appeared me, undersigned, Notary before Public in Nevada, County Washoe, Grace State for the
and Schultz, person described me to be the to F. known instrument, acknowl- who annexed executed the and who freely and same executed the edged me that she purposes men- voluntarily therein and for the uses and tioned. my whereof, hand I have hereunto set
“In witness County my my office seal at affixed official and day year Nevada, in this cer- Washoe, and State of tificate first above written. Halley
“John S. County “Notary “(Seal) in and for Public Washoe, of Nevada.” State by herein, alleged petition and admitted It deny same, failing document by respondent Halley, by physician Mr. petitioner presented time, not, 2, 1946, contain the at said did on November thereto; con any parties that it did not names of organ any name, petitioner, or of either of the tain the department society, ization, the state institution or adop welfare, proposed or names of name parents. tive alleged by petitioner, admitted
It is further purported notarized document was respondent, that such 1946, Halley, John S. on or about November Reno, Nevada, city on or November and that about physician said document delivered the said to-wit, Reno, Nevada, agency private welfare Bureau, Inc., specifically are Catholic Welf Nevada pur- thereof, pursuant and that said Father Collins consent said Father Collins ported Mary’s Boy Baby from the St. obtained said was, and delivered said Hospital, the child then where Doe, adoptive proposed parties. to Mr. Mrs. names, allegation of those because The omission pleadings, is fact in an established and admission of ignored. properly be the case and cannot *13 opinion In majority it is stated: urges
“Petitioner further that as the name of the agency relinquished blank, to which the child was was válidity questionable. argu- is document This seriously ment was asserted no authorities are say cited. given Suffice that the document was to a duly agent authorized of the Catholic Welfare Bureau upon and was acted such bureau. We must conclude signing document, that at the time of the mother, adult, signa- an of her free own will annexed her knowing desiring baby ture would be adopted.” agree.
I cannot This statement overlooks the fact child, Baby Boy Schultz, that the mother had had negotiations Bureau, no Inc., with the Catholic Welfare know, informed, did not nor even was she then that such organization existed, any an nor that there was inten- part physician Halley on Mr. tion or that said society should act in the matter of the Halley (who child. It doubtful whether Mr. testified worker, duly agent he is not a social nor a authorized society, legal performed he said but that had services for them, Diskin, time, as assistant to Mr. from time to them, prepared case, had and taken in a similar relinquishment) given any authority release or had been society, prepare said other than the release or relinquishment. may, Be that as there is no evidence informed, knew, that Miss Schultz was or whatever acting Halley was for and on Mr. so behalf Catho- stated, Bureau, fact, Inc. lic Welfare as above she did organization existed, not know such or was at all transaction, any involved in the nor had she idea that organization society placing said or to act whatever, capacity until she or received Collins, telephone Father he call from after had received relinquishment. As to this matter of the release Miss consent, knowledge so fundamental Schultz’ *14 invalidity determining validity in the document of question, statute, proper application in of sec. our 1065.02, Compiled Supp.1931-1941, Nevada Laws establishing just rights parties and in as to Baby Boy Schultz, for this court to decline to consider apply principles and fail to to well of it the established construction, statutory the law of and of contracts merely justice, because the learned chief who wrote majority “argu- opinion, to conclude chooses seriously (of petitioner’s attorney) ment” “was not cited,” my opinion in asserted no authorities are places justice upon in case the administration of very unsubstantial basis. argued petitioner’s
This matter is asserted and both brief, my opening reply and, opinion, in her brief and say seriously, right we have no same was asserted justify the and the to cite authorities does not failure declining question a fundamental court in consider court, proper legally determination before absolutely accomplishment of is essential justice in the case. (and elementary contracts
It is law of is such a document release or agreement) that generally a surrender cases denominate parties are formation at least two essential agreement; parties must be that such valid contract or severally may other, they in order that known to each they contract one wish to determine whether principal because, among necessary, This other. is contract, agreement consent are elements of an arise, which, relationship must be It intention. intelligently, voluntarily freely into entered may meeting the minds and that be a there order that may effected. Restatement relations contractual Am.Jur., 17; 15, p. Contracts, vol. sec. the Law 10. in footnote 16, p. cited and cases sec. contracts, filling after spaces in subject in blank contract, C.J.S., the execution of the is treated in 17 Con- tracts, 65, p. 416, many sec. and the authorities cited in the footnotes. The text said section 65 is as follows: writing incomplete
“A agreement as an where it, blanks as to they essential matters are left unless supplied can be parts from writing itself, other lawfully or unless and until such blanks are filled. The fact, however, that a contract contains blanks when *15 signed necessarily and, it, subject does not invalidate to exception instruments, an as recognized to sealed in some jurisdictions, signing paper leaving one and blanks in ordinarily presumed give authority to to the holder to fill in general the blanks accordance with the charac- instrument, parol ter of authority and is sufficient to filling writings authorize the of in seal, blanks not under contravening in the absence of a person statute. The fill authorized to blanks act in must accordance with the authority but, conferred, though authority even such may exceeded, may have been binding instrument be completed, person as in justi- favor of a third who has fiably good in changed position and faith his in reliance Questions implied authority thereon. as to to fill blanks commonly determining arise in the existence and effect of alterations of instruments and are considered in that Instruments, in connection title Alteration of secs.
63-66. may rejected surplusage in instruments
“Blanks be as gath- parties intended, if the so and the intent must be setting ered as an inference of fact from the whole of the transaction.” following excerpt footnote to text is the from Bruegge opinion in case v. Bank Well State of
ston, Mo.Supp., 74 835. S.W.2d authority implied fill in tests existence of to
“One of completed instrument in whether blanks instrument agreement correctly parties.” between states informed, sub- in had been Obviously, if Miss her adoption to consented stance, if she be her, would she presented document signed and Bureau, Welfare Catholic the child relinquishing selecting the place in her act in Inc., institution as the adop- consenting formally and parents, adoptive insti- such assent her expressed had tion, if she relinquishee name act, if the so should tution physician instrument, left blank had been circum- such would, under them, Halley, either or in such to fill authorized impliedly stances, been have agreement intention to conform space, blank information, knowledge or all when But parties. act, was institution, towas to what whom, or as to by inad- by concealment her, either from withheld exercise position no vertence, she was said determining whether discretion judgment not, Indeed, could she selected. should institution acquiesced, to have circumstances, deemed such under Welfare Catholic the selection implication, exist- its know then did Inc., she Bureau, when anything thereof, nor informed not been ence, had *16 it physician that the Halley and Mr. indicate said adoption. for child placing in serve should entirely law, is common to the unknown Adoption was strictly be must statutes statute, and of a matter 1 Am.Jur. parents. rights natural of to the as construed 626, 627. pp. on sec. particularly 622, 627, pp. of act (the adoption statute latest of our portion by a relinquishment, question of 1941) pertinent recog- a adoption to for child of a guardian, parent or or society this of or institution organization, nized welfare, is of department state state, to the or another N.C.L.1929, Supp.1981-1941, 1065.02, in sec. found follows: is as adop- section, no in specified “Except otherwise as consent a written except with permitted be shall tion child, or aof parents living by the acknowledged duly In the case the mother of a child born out of wedlock. years age over, child of fourteen or the consent given writing required
such child must shall be be presence court. guardian relinquishes parent or a child for “Where recognized organization, to a institution or society state, depart- of this another state or or welfare, recognized by ment of law, child, necessary, adopting it shall said guardian permission parent obtain or has who relinquished child.” the said
Giving the statute the required strict construction rights favor parent parents natural or (assuming parent has not abandoned the incompetent, become or provi- otherwise is within the amended, sions of the Statute of none of which applicable are existing to the situation in the instant case), only parent guardian it is clear that it is or upon authority child whom is conferred relinquish adoption. statute child The statute recognizes, generally, organizations, the value of institu- societies, including tions department the state welfare, training because their usual facilities and for, in, experience work, provides, social there- only fore, to such an institution relinquish- important purpose may ment for the of adoption Nevertheless, made. parent statute retains or guardian right organization the exclusive to choose the society, department or public institution or the wel- fare, relinquishment may to whom such be made. This authority organization, to choose such institution or society, etc., delegated to, cannot be or conferred guardian anyone else, parent upon, expressly or either by implication. says, The statute “Where the * * mine.) guardian relinquishes (Italics *.” *17 intended, they Obviously, one is or would no else delegate statute, power to in the nor is the named any authority conferred, in of statement in the absence legislative intent could be statute from which such a reasonably implied. interpretation required Such parents, natural the rule of strict construction to blood, strong By ties mentioned. reason of the above affection, and, normally, existing between love parent, believe child and the natural reasonable to parent, least, in more that the natural most cases at will seriously anyone earnestly or else devote his than thoughts careful, wise, pru her best efforts and to a very relinquishee to dent selection serve important acting place task of serious and adoptive natural in the selection of proposed parent case, appear parents. that there In the it does not instant part any thought was or intention on the Miss delegate authority anyone to act for her to choosing institution, had an but if there been such such authority delegation part, intention on manifestly void, being contrary to the been would have exclusively statute, expressly and terms guardian authority or to a confines such Anonymous, 178 In New York case of re child. wherein, N.Y.S.2d, instant like Misc. case, child to whom the parties the names of party blank, relinquished were left surrendered or was surrogate stated, opinion. in his agreement “Nor can the be treated as a surrender of 4; meaning within the the child section subd. only an such a surrender can be made authorized agency. clearly In the case at bar the facts indicate agency.” there no surrender to an was authorized being name document involved blank as parties party whom child was surren- relinquished, an dered or there was no surrender simply agency. authorized It an uncompleted, (Italics mine.) ineffective document. Pennsylvania
For a review of cases as to the effect of signing acknowledging consent,” an a “blanket *18 question, Andrews, extensive discussion the see re C., p. 14 D. & Pa. 343. failing organization,
Beside to name institution or society relinquished, the child which was to be relinquishment release case, or in the if instant attempted applied relinquishment to be as a to an insti- agency, tution or other does not comply with the stat- ute, 1065.02, N.C.L.1929, Supp.1931-1941, sec. in other respects important as follows:
(a) relinquish purpose adoption It does for the only, attempts relinquish rights but all to said by authority child. This far transcends the conferred statute, provides merely relinquishment which for adoption. This, believe, pending for I means that assumption adoption by parents adoptive actual rights responsibilities thereof, the natural parents, (in illegitimate child), an or the case of retain, statute, rights responsi- under the their full organ- bilities as to child. function of an merely proposed ization or institution is to select the adoptive arrange parents, and for and consent to the and, adoption, perhaps, arrange, meantime, for home, subject approval department a foster public Indeed, welfare. under sec. of the act of 1939, Stats.1939, p. 304, except purpose adop- for tion, assignment by parent, parents, or transfer a or rights permanent care, custody, to the and control aof years age prohibited. child under sixteen (b) nothing relinquishment There is in the release or providing relinquishee shall, agrees to, that the or select parents, arrangements adoptive adop- make or for tion, as is usual such documents.
(c) request (not There is a mere consent) jurisdiction competent court of to enter adop- its order of request by tion. This adoption pro- not confined to an posed parents by adoptive organization selected agency made, has been but readily that Miss Schultz
could be construed to mean any- to, requesting, consenting in advance presenting petition adoption. This would one scope beyond contrary public policy, far to sound authority conferred the statute. very may It noted at point well be *19 indi- language of this so-called release or pro- and contains the cates that was drawn form for a all the visions which would be suitable transfer of adop- rights proposed the mother the child direct to of to rights, of all tive the transfer parents. applied, If so rights to the a limitation of the transferred instead of pro- purpose adoption, the omission of suitable of defining duty relinquishee the as select- visions the to ing parents, proposed adoptive to and the failure the (or consent) adoptees request limit the to the thus selected, It clear that under becomes understandable. delegate her author- the statute the natural could only ity adoptive parents to choose and consent to the recognized organization, society, to a institution or or to not, therefore, welfare, department be and could delegate authority deemed to have intended so Obviously, therefore, Halley. physician, to the or Mr. adoptive parents persons neither of said could choose her, submitting her, their names for without rejection. affording opportunity or her the of selection they If, instance, had submitted to her the names Doe, had, in the exercise of her Mr. and Mrs. and she discretion, being agreed to their names exclusive document, had the names inserted the said or inserted event, language then, herself, docu- truly fitting properly ment be suitable and would But in the the intended transaction. absence describe by Schultz, physi- any report or to Miss submission identity else; Halley, anyone of the cian or Mr. parents, of all adoptive and in the absence proposed identity, could knowledge part to their there on her as entering contract part into no on consent them, by persons her as the nor selection of such adoptive parents plain of her child. It is that whoever actually entirely selected Mr. and Mrs. Doe acted without authority Schultz, from Miss for she did not know Doe, their desire for the existence Mr. and Mrs. nor of opportunity no to determine as and was afforded willing they adopt the whether or not she was instrument, language child. From the form and drawn, evidently draftsman, when same was parents adoptive selected Miss intended her, Schultz, not submitted to but their names were usurp her apparently some one to later it was decided authority, child to a social welfare and transfer sole institution, agency namely, Catholic Welfare Bureau, Inc. only
If treated as an instrument names language omitted, adoptive parents were clearly be, supplying of the indicates that it should Bureau, Inc., constitute name of would Catholic Welfare filling *20 creation, by parties party the blank or by only space, be created instrument which could of an would, course, had Schultz, have do so she Miss to identity knowledge possess as to to sufficient proposed relinquishee her to her dis- to enable exercise making cretion in The instrument was selection. sufficiently completed simply constitute a valid not by contract, completed and could not be instrument or Schultz, so, anyone than and she did not do other Miss attempt anyone nor did to authorize else to do so. she C.J.S., see, particularly, Alteration In connection 68, Instruments, p. 978, sec. and the authorities cited 19; C.J.S., Instruments, also, in footnote Alteration of 63, p. 977, in sec. and the authorities cited footnote 12. in
The so-called release or the instant effect, is, my judgment, totally ease void and of no only sufficiently com- not because document was not agreement pleted or relin- to constitute a valid surrender directly, by quishment, an institution Miss either to or but, also, Schultz, adoptive parents, proposed because, attempted applied to an institution or if to be vague, agency, provisions indefinite its are so other unenforceable; also, as to render same uncertain document, mentioned, my because, in the instance authority upon power opinion, attempts to confer by the relinquishee far excess of that authorized open also, way statute; because it leaves the requests by those than others approval adoption institution, society, organization, by or selected such an contrary policy. public which is to sound absolutely void, relinquishment being or release stated, rights, for the reasons same could confer no Bureau, Inc., upon upon either the Catholic Welfare or Doe, Baby Boy have Mr. and Mrs. John who now custody, by being their virtue of the said child deliv- by agency. judgment, any my In ered to them such may may adoption consent have been or here- given by agency after be said said totally void, by is, be, will if child Mr. and Mrs. Doe or only upon relinquishment. based release or Schultz, the consent of Grace Foote absence of mother, they validly legally adopt said child. cannot but, regard- They custody the actual have not, they actually delivery knew it its less of whether Bureau, Inc., only them the Catholic Welfare directly mother, legally was but unauthorized contrary provisions 25, approved the act March to the being p. Statutes same sections 1061- 1061.04, N.C.L.Supp. 1931-1941, approval because department placing state welfare of said prior placement. child to such Such was not obtained delivery custody being illegal, rights could thus no *21 thereby upon conferred Mr. and Mrs. Doe. While the position would Mr. and Doe this matter Mrs. pre- regrettable my and if should most unfortunate view should, vail, rights neces- the of Grace Foote Schultz being sarily, paramount, the natural mother held she of the child. unduly lengthen opinion
It would to state in detail many I instances wherein consider Miss was by unfairly, especially eager- physician. treated His friends, Doe, ness favor to his Mr. and were Mrs. who child, and, perhaps, adopt and childless desired to his child, undoubtedly hospital desire to rid the were underlying prompted him which assume causes to having the initiative in Miss Schultz the release execute end, relinquishment, and and to move toward that delivery custody Doe, Mr. undue to and Mrs. with rights haste and little for the or the condi- consideration Schultz, patient ill at the tion of Miss who was and his time. her humiliation and desolation of mind and spirit, undoubtedly was much under the influence of she physician’s personality. more dominant did She consideration, encouragement, receive that advice her, freely sowas essential to enable and without pressure personal the undue of circumstances and influ- others, ence of determine to whether not she wished give up to her child. If he had not too in a been much hurry get job placed to done the child Mr. with (such being Mrs. Doe prompted action doubtless physician), Collins, appears acts Father who through physician have been the medium which the acting accomplish objective quickly, his would probably sufficiently have waited until Miss Schultz was keep appointment recovered from her illness to her him, child, placing before have would ascertained keep child, and, perhaps, she desired to would not proceeded place have Doó; or, same with Mr. and Mrs. reported if he had department matter to the state welfare, requires, which the said statute of 1939 before placing Mr. might and Mrs. Doe been have spared the heartache which would be theirs if the child were mother, ordered to pursuant be returned to its paramount right parent. policy as the natural department, Bromberg, as testified to Mrs. encourage mother, proper circumstances, under keep her child. *22 extent, should, corpus a
Upon to reasonable habeas we welfare, hap and interest give best consideration to expressed But, as has been well piness of the child. many cases, alone in material circumstances differences parent of the cus justify depriving a natural will not principle has This tody, her child. and affection of love Livingston, In Matter of expressed in the case been 328, at page 135 N.Y.S. Dept., App.Div. at 2d page follows : custody right parents to the the natural
“While right same proprietary children is not a their chattel, is accom- and while it if the child were a sense as duty corresponding arises from which panied regarded, been it has ever and relation highest civilizations, primitive as one of even rights. interfere state cannot natural temporal right welfare simply the moral and to better so, unoffending parent. against If child as an poor might child of transfer the handsome then the state custody couple of a of wealth parents to the childless against parent.” the natural moral refinement will of evidence, doubt, and Mrs. Mr. I from the have no refinement, culture, persons education, Doe are has, character, Baby Boy splendid and that home, have, if left excellent continue to a most would official, Doe, however, custody. Mr. is a salaried their circumstances, and there is noth- in moderate financial ing Clapper, step- show that Mr. and Mrs. Ted Schultz, properly father and mother of Miss are not able baby, a fit care for her for the and to afford them nothing home. evidence and decent There good questions Miss at all character of time, Schultz, present except as to time or at at right require misstep. her one We have not the more. every longing is in its
There child a natural for natural parents, passing years, which increases with the as the up grows developed, mentally child and becomes more spiritually. particularly true, believe, This is I as to longing mother, biological for its which is a human attribute, .nothing presence, living, and which but her if fully can satisfy; and child be bereft of knowl- *23 edge of his or her mother in a leaves the human heart vacancy naturally void or happiness. which mars future has, believe, continuously It I since the establishment of government, policy our territorial been the of this court give paramount consideration, in its decisions and rul- ings legal proceedings, rights in to the of natural parents, reasonably practicable. whenever wherever Spellman,
In the case of Jackson v. 55 Nev. at page 180, page 127, 28 91 P.2d at A.L.R. eloquent
late Mr. in beautiful lan- Justice Ducker, guage, expressed policy this as follows: away
“The act par- of takes a child from its by destroying legal ent and natural relation between creating them and in its stead an artificial relation deemed law to be for best interests the child. derogation It regards is in of the common law which rights parents natural of a be sacred and endur- ing As special power character. the statute confers may this kind opposition in be exerted wishes, parents, or without the consent of should strictly quite in construed their favor. The courts are applying in uniform rule strict construction parents’ rights adoption proceed- favor natural ings.”
I depart believe we policy should from so fully consistently established and adhered to this court, which, my view, sound, legal both from a standpoint. and a humanitarian The same result would reached, my opinion, case, in the instant if the release and could be held valid as to its execution, and the law toas revocation of an instru- applied ment were to the facts and circumstances this great weight case in accordance with the of American authority. that, I believe further under the facts
292 bar, revocation would be of the case at
circumstances
exceptional
even under
the doctrine of
indicated
Ky. 858,
Thomas,
v.
S.W.2d
cases such as Lee
459, 461,
E.
Crowley,
198 N.
457; Wyness
292 Mass.
v.
Minor,
U.S.App.D.C.
758;
Adoption
In re
of a
191,
It
Baby Boy
custody
Grace Foote
ery
mother,
herein.
Schultz,
petitioner
his natural
STEPHENS,
FIRST
Appellant,
E.
UNA
v.
NEVADA,
BANK OF
NATIONAL
Respondents.
Al.,
Et
*24
No. 3479
20, 1947.