In Re CDT
The plaintiffs in this adoption proceeding were granted an interlocutory decree of adoption. The natural mother of the child appeals from the judgment of the trial court. The names оf the parties involved have been omitted in the title and in this opinion in accordance with
This case involves the attempted adoption of a newborn child. The child is the legal issue of a married couple who рreviously lived out of state. At the time of the child‘s birth on December 30, 1980, the husband and wife had been physically separated for some time although no legal separation or divorce had been finalized. It is conceded by all parties that the child was born after the husband and wife separated and that the husband is not the natural father.
The record shows that the husband pursuant to
The wife‘s (mother) consent to the adoption is contained in an undated act before a Notary Public and two witnesses which was executed prior to the birth of the child on December 30, 1980. She executed this act in her maiden name and stated untruthfully therein that she was unmarried. She executed a written consent for the potential adoptive parents (plaintiffs) to remove the child from the hospital on December 31, 1980. It was also еxecuted in her maiden name. The plaintiffs removed the child from the hospital and took it to
This situation arose when the plaintiffs, pursuant to their desire to adopt a child, placed an advertisement in the local nеwspaper expressing their interest in adopting a child. They received an anonymous telephone call suggesting that an attorney in Shreveport, Nesib Nader, could help them. They contacted Mr. Nader and were told that a baby would be available for adoption in December. In return, the plaintiffs were to pay for the mother‘s living expenses during the pre-natal period, hospital expenses, and the expenses of the adoption. The evidence supports the finding that the plaintiffs paid these expenses, at first through Mr. Nader and then to the mother directly.
Mr. Nader filed the original petition for adoption on February 26, 1981, and the hearing on the рetition for the interlocutory decree of adoption was set by the Court on April 7, 1981. However, since the Department of Health and Human Resources was unable to complete its required investigation of the plaintiffs by that time, the case was continued. On May 28, 1981, Mr. Nader filed a supplemental and amended petition alleging the existence of the legal father and requesting the appointment of a curator ad hoc to reрresent him. A curator ad hoc was appointed and the case was set for trial. On August 29, 1981, the mother filed an opposition to the adoption and a trial ensued.
The respondent-mother argues that no valid consent wаs given under either
The plaintiffs argue that the provisions of
The trial court after lengthy examination of the statutes dealing with adoption and the recent changes to those statutes determined that the undated aсt signed by the mother, using her maiden name and falsely stating that she was unmarried, constituted a Notarial Act of Consent under
We cannot agree. Upon examination of the statutes in question we find that an “Authentic Act of Voluntary Surrender” is necessary to grant legal custody of the child identified in the act to the pеrson or
Even had the contents of the act of surrender complied with the requirements of
The lеgislature has provided for a specific and exclusive method by which private adoptions are to be carried out. That procedure as set forth in
For the reasons assigned, the judgment of the trial court is reversed with costs assessed to the plaintiffs.
REVERSED.
Notes
A. All the proceedings provided in this Subpart shall be heard by the judge in chambers, and no one shall be admitted to the hearings except the parties in interest, their attorneys, and officers of the court. Records of the proceedings shall not be open to inspection except on written authorization by the court аnd there shall be no publication thereof. Such written authorization shall be granted only upon a showing of compelling reasons and then only to the extent necessary to satisfy such compelling necessity. In satisfying the requirement that information shall be revealed only to the extent necessary to satisfy the compelling necessity shown, the court is authorized to use the services of a curator ad hoc appointed pursuant to Artiсle 5091.2 of the Louisiana Code of Civil Procedure. No one except the judge presiding in the case, or his successor, shall have access to the confidential report rendered to the judge by the departmеnt. The court may punish for contempt anyone violating the provisions of this Section. Amended by Acts 1978, No. 450, § 1.
B. The clerks of the respective juvenile courts shall keep separate indices of all suits filed in accordаnce with this Sub-part, and shall index these suits in the name of the parties filing the petition and in the name of the child to be adopted. These records are subject to the same safeguards as are prescribed for all рroceedings. Following final disposition of the case, all confidential reports submitted by the department to the judge may in the judge‘s discretion be destroyed or returned to the department or be retained in confidentiаl files.
C. All adoption records of agencies shall be retained in confidential files and it shall be unlawful, except for purposes directly connected with the agencies’ responsibilities in relation to adoptiоn work, and then subject to the agencies’ rules and regulations, to disclose any information concerning any individual adoption case. Any person who violates the foregoing provision shall be fined not more than five hundrеd dollars or imprisoned for not more than ninety days, or both.
The formal act of surrender shall identify the parents or parents of the child by name, parish of domicile, age, and marital status; shall identify the child and the parish of birth оf the child; shall indicate the name and address of the person or persons to whom the surrender is made, or the name and address of the representative of that person or persons; and shall recite: (1) the date of birth of the child to be surrendered and that the act is not signed earlier than the fifth day following that date; (2) that the parent or parents freely and voluntarily surrender custody of the child for the purpose of private placement and adoption; (3) that the parent or parents consent to the adoption; (4) that the parent or parents have been informed and understand that their rights as parents of the child are to be terminatеd, and (5) that notice and service of any pleading of any sort in any subsequent adoption proceeding is waived. Should a surrendering parent of the child be under the age of eighteen at the time of signing, the formal act shall also recite that fact and shall state that the surrendering parent under the age of eighteen is joined in signing the formal act of surrender by those individuals indicated in R.S. 9:422.3. Each necessary party must sign in the presence of a notary and two witnesses, although it is not necessary that they sign the same instrument. Added by Acts 1979, No. 686, § 1.
The judge, upon examining the confidential report and upon the parties being interrogated, may grant or refuse to grant an interlocutory dеcree during or after the hearing hereinabove provided. The clerk of court shall forward a certified copy of the decree to the department. The withdrawal of consent of the adoption of а child, once given in a notarial act by the parent or parents of the child, shall not bar an interlocutory decree of adoption, if the court considers the decree in the best interest of the child. Added by Acts 1979, No. 686, § 4.
The formal act of voluntary surrender grants the legal custody of the child identified in the act to the person or persons named or represented in the act. Further, the formal act of voluntary surrender grants the irrevoсable consent, except as specifically provided in R.S. 9:422.10, of the surrendering parent or parents to the adoption of the child by the person or persons named or represented in the act. Should there be only one parent indicated on the birth certificate referenced in R.S. 9:422.4, the surrender by that parent alone terminates all parental right whatsoever, except as provided in R.S. 9:422.10. Added by Acts 1979, No. 686, § 1.
The formal authеntic act of voluntary surrender shall not be signed earlier than the fifth day following the date of the birth of the child to be surrendered. The surrendering parent or parents shall be represented by an attorney at the execution of the act of surrender. Added by Acts 1979, No. 686, § 1.