In Re RLV
Larry Starns, Denham Springs, for Rodney Vulganore plaintiff-appellee.
JOHN S. COVINGTON, Judge.
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 overruling her objection to the adoption and granting the interlocutory decree. The names of the parties involved have been omitted in the title and in this opinion in accordance with
This case involves the adoption of a four-month old infant. The child was born out of wedlock to SRP and was given the name LMP. The father‘s name was not specified on the birth certificate and SRP did not identify him even at the hearing held for the dual purpose of determining the merits of SRP‘s “Intervention in the Opposition to Adoption” and plaintiffs’ petition for an interlocutory decree of adoption.
The record shows that a document, styled “Parent‘s Formal Act of Surrender of a Child for Private Adoption,” was prepared by Larry G. Starnes, a Denham Springs attorney, who acted as Notary at the execution of the Act by SRP and her attorney, Ms. Roxie F. Goynes, in the presence of the Notary and two witnesses, six days before the infant attained the age of four months. The Act recited that SRP (1) was 22 years old, (2) gave birth to LMP on a specified date in a specified parish, (3) was executing the Act more than five days from LMP‘s birth, (4) “freely, voluntarily, and irrevocably surrenders the custody of [LMP] for the purpose of adoption to (sic) [RLV, et ux],” (5) “expressly consents to the adoption of [LMP] by [RLV, et ux].” The Act further recited that (1) “the effect of this Act of Surrender has been fully explained to [SRP] by Roxie F. Goynes, attorney at law, and [SRP] understands that her rights as the parent of [LMP] are to be terminated, including all rights of inheritance from [LMP]” and (2) [SRP] “fully understands that this Act of Surrender grants her irrevocable consent to the adoption of said [LMP] by [RLV, et ux], subject only to the exception of law found in LSA-R.S. 9:422.10.”
The Act of Surrender, while inartistically composed and unduly repetitive, is noteworthy not by what it contains but by what it does not contain. The Act did not recite (1) the father‘s name or that the father‘s name was unknown to the mother, (2) the mother‘s marital status, and (3) the address of the persons to whom the child was surrendered, whether the adoptive parents or their representative. Additionally, as revealed at the hearing on SRP‘s opposition to the adoption, the mother was 21, rather than 22 years old, when the Act of Surrender was executed.
By certified mail, return receipt requested, SRP directed her typewritten letter to RLV, et ux, which stated, in part, that (1) on a specified date she “executed a formal act of surrender wherein I surrendered the legal custody of [LMP] to you,” (2) “the purpose of this letter is to formally notify
At a regularly scheduled hearing the Trial Court heard testimony from eight witnesses, including SRP, RLV, et ux, and Ms. Roxie Goynes. The adoptive parents and SRP were represented by counsel at the hearing. The two issues the Trial Court addressed were (1) the legal sufficiency of the Act of Surrender and (2) the best interests of the infant.
The Trial Judge dismissed SRP‘s opposition based on the Act‘s alleged deficiencies, finding that “the act of surrender is [in] substantial compliance with R.S. 9:422.6,” reasoning, in part, “it is immaterial that the address of the person to whom the surrender was made was ... not included, because the purpose of it is ... to raise the opposition and objection to the adoption, which was done.” The Court further found that it was in the best interest of the infant to be adopted by the financially, morally and socially stable adoptive couple rather than be returned to SRP, “a tavern waitress” with a poor “history of continuity in employment over the recent years,” and was “reared by [her mother] who has been accustomed to having children and surrendering [them] to other people ... [to] raise rather than raise her own children.” The Court stated that SRP‘s “pillar to post” wanderings, combined with her continued association with a then incarcerated and convicted trafficker in narcotics, including “on again, off again” stints of living with him over a period of three years, which time included the time of LMP‘s conception, birth and surrender to RLV, et ux, entered into his factual finding that SRP could not provide a suitable home for the infant. The Court concluded that the evidence “overwhelmingly” preponderated in favor of the conclusion that “the best interest of the child would be served by granting to [RLV, et ux] the interlocutory decree of adoption.”
ISSUES
1. Does the Act of Surrender constitute an authentic act of voluntary surrender within the purview of
2. If the first issue is answered in the negative, does the Act of Surrender constitute a “notarial act” of surrender within the purview of
3. Is the “authentic act” of voluntary surrender, provided for by
4. Is the finding that LMP‘s best interests will be served by granting the adoption decree rather than returning the infant to the birth mother supported by the record as a whole?
AUTHENTIC ACT OF VOLUNTARY SURRENDER UNDER La.R.S. 9:422.3 through 422.13 ?
Referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent. The last antecedent is “the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence. Thus a proviso usually is construed to apply to the provision or clause immediately preceding it.... Where the sense of the entire act requires that a qualifying word or phrase apply to several preceding or even succeeding sections, the word or phrase will not be restricted to its immediate antecedent.
Sutherland Stat. Const. § 47.33 (4th Ed., 1984).
The Act of Surrender in the present case stated the natural mother‘s age as 22 when she was in fact 21. In addition, the document failed to recite her marital status and the address of “the person or persons to whom the surrender” was made or the address of the representative of that person or persons, just two of the several elements made absolutely necessary by
Clearly the Act of Surrender in this case does not contain all the requirements mandated by
There is no inherent right of adoption. In re Hughes, 176 So.2d 158, 161 (La.App. 4th Cir.1965). Adoption is purely a creature of statute; it is only what the law makes it. Thus it must be accomplished strictly in accordance with statutory
Since the Act of Surrender is invalid under
NOTARIAL ACT OF SURRENDER UNDER La.R.S. 9:429 ?
Although fatally defective as an authentic act of surrender within the purview of
The judge upon examining the confidential report and upon the parties being interrogated, may grant or refuse an interlocutory decree during or after the hearing hereinabove provided. The Clerk of Court shall forward a certified copy of the decree to the Department.
Section 2 of Act 268 of 1960 amended
... After the interlocutory decree has been granted by the judge, the withdrawal of consent by the legitimate parent or parents, by the mother or by the father who has acknowledged the child by notarial act as provided by Article 203 of the Civil Code, shall not bar a final decree of adoption.
The judge, upon examining the confidential report and upon the parties being interrogated, may grant or refuse to grant an interlocutory decree 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 to the adoption of a 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.
The language emphasized in the presently worded
In a thorough and scholarly Note at 44 La.L.Rev. 845 (1984), Ms. Amanda Karen Martin, made the following pertinent observations:
Louisiana has long recognized the problems inherent in a private adoption scheme in which continuing parental consent is a prerequisite. Thus, in 1932, the legislature began the first of numerous attempts to provide a framework for private adoptions that would ensure the protection of both the child and the natural parents. Act 46 of 1932 authorized private adoptions in which parental consent could be given either in an authentic act or in a private act duly acknowledged signed by the adoptive and natural parents. The Act also required that natural parents be made parties to the proceedings.
A 1938 amendment later dispensed with the notarial act as evidence of consent, and provided instead that adoption proceedings be initiated by a judicial petition presented by the proposed adoptive parents. Since this amendment[,] which aimed at ensuring the regulation of an increasing number of private adoptions, court supervision and authorization has been an integral part of the private adoption scheme. Act 228 of 1948 ultimately incorporated all changes in the adoption laws for minors under 17, and, in 1950, that act was adopted as Louisiana Revised Statutes 9:421-441. Throughout these legislative changes, the legislature emphasized the importance of the requirement of continuing consent in the private adoption law, and the jurisprudence reflected this emphasis.
. . . . .
Nevertheless, as it stood in 1960, the private adoption procedure left the adoptive parents in a precarious position. Natural parents were able to withdraw their consent after an interlocutory decree and effectively block a final decree of adoption. Natural parents could then use their necessary continuing consent as a bargaining tool in an effort to reach some kind of financial agreement with the adoptive parents. In addition, since the natural parents could revoke their consent after the interlocutory decree, many children were returned to their natural parents after considerable periods of time with their adoptive parents. These decisions were most often detrimental to the interests of the child, who had formed neither emotional nor psychological links with his natural parents.
As a result of these practical problems, the requirement of continuing consent was legislatively abrogated by Act 268 of 1960 ... This amendment represented the legislature‘s attempt to remedy the situation by shortening the time period within which natural parents could prevent an adoption by revoking their consent.
44 La.L.Rev. at 848-850.
Ms. Martin characterizes Act 686 of 1979, The Private Adoption Act of 1979, as “the most recent attempt by the legislature to formalize and regulate private adoption, while promoting the best interests of the child and balancing the interests of the biological and adoptive parents.” She continued:
... The legislature attempted to guarantee to private adoptions some of the safeguards traditionally associated with agency adoptions.... [P]erhaps the legislature felt that the only way to ensure
a safe method of private adoption was to provide a method of legal surrender that further limited the possibility of revocation of consent. A method of voluntary legal surrender was provided which eliminates the ability of natural parents to block an adoption by an arbitrary revocation of consent and ensures that the best interests of the child remain the paramount consideration in all stages of the adoption proceedings. However, if parental consent is invalid from the outset of the adoption proceedings, the consent requirement will not be met, and the adoption proceeding under... 9:422.3 will be nullified.
. . . . .
Once [Sections 422.3-.8, .10-.11] are complied with, the authentic act of surrender evidences irrevocable parental consent and automatically terminates parental rights.... [F]rom the time the authentic act of surrender is executed, custody of the child is vested in the adoptive parents named in the act.
An act of surrender that fails to meet all the requirements of a surrender as set forth in the new Act, however, is not necessarily an invalid act of surrender. The surrender may not afford the adoptive parents the advantages and protections of the procedure authorized by ... 9:422.3, but this does not mean that the surrender is invalid for purposes of other adoption proceedings authorized by state law.
44 La.L.Rev. at 850, 852. (Emphasis supplied.)
One of the adoption laws alluded to by Ms. Martin in a footnote is
A recent adoption case, decided on the basis of
Even had the contents of the act of surrender complied with the requirements of LSA-R.S. 9:422.6 we find that since the act was signed earlier than the fifth day after the birth of the child, and since the surrendering parents were not represented by an attorney at the execution of the act of surrender, as required by LSA-R.S. 9:422.7, the act is without effect.
After holding the act fatally defective under
The legislature has provided for a specific and exclusive method by which private adoptions are to be carried out. That procedure as set forth in LSA-R.S. 9:422.3 et seq. provides for an act of surrender to be executed in the manner prescribed. ... Thus an act that fails to comply with the requirements as set forth in LSA-R.S. 9:422.3 et seq. is without effect.... 415 So.2d at 318. (Emphasis supplied.)
We regard the emphasized language above to be obiter dictum. Having concluded the act of voluntary surrender was void because it was executed before the child was born, it was not necessary for the Court to proceed any further with its analysis of the many deficiencies of the document, gauged by the inflexible standard of
Sutherland‘s authoritative treatise on Statutory Construction, 4th Edition, makes the following pertinent observations:
§ 46.05
A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Consequently, each part or section should be construed in connection with every other part or section so as to produce a harmonious whole. Thus it is not proper to confine interpretation to the one section to be construed.
It is always an unsafe way of construing a statute ... to divide it by a process of etymological dissection, and to separate words and then apply to each, thus separated from its context, some particular definition given by lexicographers and then reconstruct the instrument upon the basis of these definitions. An instrument must always be construed as a whole, and the particular meaning to be attached to any word or phrase is usually to be ascribed from the context, the nature of the subject matter treated of, and the purpose or intention of the... body which enacted or framed the statute or constitution. Neither clinical construction nor the letter of the statute nor its rhetorical framework should be permitted to defeat its clear and definite purpose to be gathered from the whole act, compared part with part.
. . . . .
The result is that a “clear and unambiguous” statutory provision generally is one having a meaning that is not contradicted by other language in the same act....
. . . . .
The presumption is that the lawmaker has a definite purpose in every enactment and has adopted and formulated the subsidiary provisions in harmony with the purpose. That purpose is an implied limitation on the sense of general terms, and a touchstone for the expansion of narrower terms. This intention also affords the key to the sense and scope of minor provisions. From this assumption proceeds the cardinal rule that the general purpose, intent or purport of the whole act shall control, and that all the parts be interpreted as subsidiary and harmonious to its manifest object, and if the language is susceptible of two constructions, one which will carry out and the other defeat such manifest object, it should receive the former construction.
. . . . .
If conflict between provisions in the same act is resolvable no other way, the last provision in point of arrangement within the text of the act is given effect. . . . . .
§ 47.01
The starting point in statutory construction is to read and examine the text of the act and draw inferences concerning the meaning from its composition and structure....
. . . . .
§ 47.02
Inherent in the use of textual considerations as resource materials for the interpretation of statutes is the problem of determining how much of the statutory context of the particular word or passage is relevant and probative for its construction....
The following is a guide for determining how much and what kinds of context are relevant and probative for statutory construction:
. . . . .
(3) Preamble interpretation. In case of doubt or inconsistency between language in the enacted part of the statute and the preamble, the preamble controls because it expresses in the most satisfactory manner the reason and purpose of the act.
(4) The whole act interpretation. Neither the preamble nor the purview controls, but the entire act must be read together because no part of the act is superior to any other part.
This latter method is the most realistic in view of the fact that a legislature passes judgment upon the act as an entity, not giving one portion of the act any greater authority than another. Thus any attempt to segregate any portion or exclude any other portion from consideration is almost certain to distort the legislative intent. ...
. . . . .
§ 47.03
. . . . .
Titles have a communicative function....
. . . . .
... [I]n ascertaining the intention of the legislature nothing is to be rejected which will assist in the clarification of ambiguous phrases. Where the title throws light on the meaning of the statute itself, it is an available tool for the resolution of doubt.
§ 51.02
It is assumed that whenever the legislature enacts a provision it has in mind previous statutes relating to the same subject matter. In the absence of any express repeal or amendment, the new provision is presumed in accord with the legislative policy embodied in those prior statutes. Thus, they all should be construed together.
. . . . .
Statutes for the same subject, although in apparent conflict, are construed to be in harmony if reasonably possible....
§ 51.03
Statutes are to be in pari materia when they relate to the same person or thing, to the same class of persons or things, or have the same purpose or object....
. . . . .
... [T]he rule that statutes in pari materia should be construed together has the greatest probative force, in the case of statutes relating to the same subject matter passed at the same session of the legislature, ...
This court, in Bunch v. Town of St. Francisville, 446 So.2d 1357 (La.App. 1st Cir.1984), cogently reiterated the guiding principles of statutory construction, as follows:
When interpreting a law ..., the court should give it the meaning the lawmaker intended. It is presumed that every word, sentence or provision in the law was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary
words or provisions were used. Conversely, it will not be presumed that the lawmaker inserted idle, meaningless or superfluous language in the law or that it intended for any part or provision of the law to be meaningless, redundant or useless. The lawmaker is presumed to have enacted each law with deliberation and with full knowledge of all existing laws on the same subject. The meaning and intent of a law is to be determined by a consideration of the law in its entirety and all other laws on the same subject matter, and a construction should be placed on the provision in question which is consistent with the express terms of the law and with the obvious intent of the lawmaker in enacting it. Where it is possible to do so, it is the duty of courts in the interpretation of laws to adopt a construction of the provision in question which harmonized and reconciles it with other provisions. A construction of a law which creates an inconsistency should be avoided when a reasonable interpretation can be adopted which will not do violence to the plain words of the law and will carry out the intention of the lawmaker. (Citations omitted.) . . . . .
... When a law is susceptible to two or more interpretations, that which affords a reasonable and practical effect to the entire act is to be preferred over one which renders part thereof ridiculous or nugatory. (citations omitted.) ...
446 So.2d at 1360. (Emphasis supplied.)
With the foregoing pronouncements from Sutherland on Statutory Construction and Bunch v. Town of St. Francisville in mind, we now proceed to analyze Act 686 of 1979 and pre-existing private adoption statutes in pari materia.
The phrases used in
The Supreme Court, construing the term “notarial act” as it was used in Act 169 of 1940, an adoption statute presently found in
... It is significant that the later statute [Act 169 of 1940] does not require the adoption to be by authentic act or by an acknowledged private act, both of which are defined in the Civil Code and are required to be witnessed. When the legislature provided that the adoption should be by notarial act signed by the interested parties without defining the words “notarial act” and without providing that it be witnessed, it is evident that the legislature did not intend that the act should be executed in the presence of and signed by witnesses. ...
60 So.2d at 414. (Emphasis ours.)
After making the above distinction between “authentic act” and “notarial act,” the Court, applying principles of statutory construction, continued as follows:
... Where the legislature deliberately amends an act or repeals an act and enacts a new statute changing the provisions of the prior statute by using words conveying a different meaning, the
courts are not authorized to ascribe a meaning at variance with the plain import of the language used as that would be exercising legislative functions and would in effect operate as a judicial repeal....; 2 Sutherland Statutory Construction, Lewis 2d Ed. 893, Section 476,... It is provided in Act 169 of 1940 “That no adoption by notarial act or by private act duly acknowledged of persons over the age of seventeen years, executed prior to the effective date of this act, shall hereafter be set aside, annulled or be declared to be null, void or ineffective.” This indicates that the legislature intended to give effect to prior adoptions by notarial act. If it had intended to give effect only to adoption by authentic act or private act duly acknowledged, it would not have used the words “notarial act” but would have used the words “authentic act,” etc., as set out in the prior statute. ... Since the legislature has seen fit to dispense with the requirement that the adoption be effected by authentic act or acknowledged private act, it is evident that they did so for a purpose and we cannot, in the absence of any statute defining a notarial act, say that the legislature intended for the act to be passed in the presence of and signed by witnesses.
60 So.2d at 414. (Emphasis ours.)
Act 169 of 1940, construed in Thomson, supra, became
Prior to the enactment of
... The law does not set forth a specific method of obtaining consent of the natural parent to the adoption. Here the consent of Mrs. Lange comes directly from the fact that she told the Coles she wanted them to adopt the child and she signed the notarial act of consent. Consent may be inferred from the fact that she was personally served with the petition for adoption with the date of the hearing set forth therein, and she failed to appear to contest the matter. Consequently, the notarial act of consent is not necessary. ... Under these circumstances, the fact that the notarial consent... was not filed in the record is of no moment.
289 So.2d at 307. (Emphasis ours.)
We respectfully disagree with the language of our brethren of the Second Circuit Court of Appeal in In re CDT, supra, whether it be dictum, as we appreciate it, or the holding, that
Act 686 of 1979 amended
As stated in Sutherland on Statutory Construction, “the lawmaker has a definite purpose in every enactment and has adopted and formulated the subsidiary provisions in harmony with the purpose.” § 46.05, 4th Edition. Had the legislature intended that Section 1 of Act 686 of 1979, enacting
We hold that an act, authentic in form but which does not contain all enumerated elements for a “fail-safe” act of surrender provided for by
For the foregoing reasons that interlocutory decree of adoption and the dismissal of SRP‘s Intervention and Opposition are affirmed. Appellant-Intervenor-Opponent, SRP, is cast for all costs of these proceedings in this court and in the court below.
AFF