OPINION
This is an original proceeding in habeas corpus.
Unquestionably the most difficult and perplexing problems which ever come before a court for decision are those questions which, while involving no financial consideration, have to do with those vitally important but wholly imponderable questions of human relations involving the basis sentiment of the care, custody, control, and welfare of a minor child. Such a one is the present case.
The petition charges that a minor, a baby boy, is unlawfully imprisoned and restrained of his liberty by Mr. and Mrs. John Doe, prospective adoptive parents
of the child. The names of the prospective adoptive parents have not been disclosed during the proceedings, in keeping with the adoption statute. The Nevada Catholic Welfare Bureau, Inc., has acted as respondent in this proceeding and has agreed to deliver Baby Boy Schultz to the petitioner if this court should so direct.
The facts may be briefly summarized. By means of a writ of habeas corpus, the unwed mother of an illegitimate child requests the aid of this court in recovering the custody and possession of a baby boy born October 21, 1946. In consequence of an intention formed several months previous, the mother signed a purported relinquishment for adoption on November 2, 1946. The relinquishment was acted upon by the Nevada Catholic Welfare Bureau, Inc., on November 7, 1946, when its directors placed the child in the home of the prospective adoptive parents. There is a conflict in the testimony as to the date on which an agent of the mother asked for return of the child and the revocation of her relinquishment. However, the facts are clear that formal request for the return of the child was not made by the mother until letters mailed on December 6, 1946. This proceeding was initiated January 29, 1947.
There are three questions presented by this case:
(1) Was the release and relinquishment valid?
(2) If valid, is it revocable?
(3) If revocable, is it for the best interest and welfare of the child to allow it to be revoked?
The pertinent part of our adoption statute is contained in section 1065.02, 1929 Nevada Compiled Laws 1941 Supp., and reads:
"Except as otherwise specified in this section, no adoption shall be permitted except with a written consent duly acknowledged by the living parents of a child, or the mother of a child born out of wedlock. In the case of a child fourteen years of age or over, the consent of such child shall be required and must be given in writing in the presence of the court.
"Where the parent or guardian relinquishes a child for adoption to a recognized organization, institution, or society of this or another state, or to the state department of welfare, which relinquishment is recognized by law, it shall not benecessary, in adopting said child, to obtain the permission ofthe parent or guardian who has relinquished the said child. * * *" (The italics are ours.)
The release and relinquishment signed by the mother in the instant case, among other things, reads as follows:
"This release is made under that certain Act of the Legislature of the State of Nevada, entitled: `An Act to provide for the adoption of children, defining the Duties of Certain Persons in Relation thereto and Other Matters Relating thereto.' Approved March 28, 1941. (1941 Stats. p. 355)" section 1065.02, supra.
1. The court is of the opinion that a valid relinquishment was given. The mother was fully informed of the consequences of her act. She had considered the matter for months, and after she signed the document it was held for two days to insure that she desired that it be acted upon. Petitioner urges that she was under a "misapprehension" at the time she signed the document. By her statement the only reason for delaying action on the adoption was to give the father an opportunity to appear and assume his responsibilities. The father has not appeared and has in no way indicated he will assume such responsibilities. Petitioner further urges that as the name of the agency to which the child was relinquished was blank, the validity of the document is questionable. This argument was not seriously asserted and no authorities are cited. Suffice to say that the document was given to a duly authorized agent of the Catholic Welfare Bureau and was acted upon by such bureau. We must conclude that at the time of the signing of the document, the mother, an adult, of her own free will annexed her signature knowing and desiring that the baby would be adopted.
The principal question raised by this proceeding is
the right of the mother to revoke her relinquishment. Counsel have fully briefed this point. The authorities cited indicate that many courts have permitted revocation at the discretion of the parent; others allow revocation if estoppel or welfare of the child do not intervene. French v. Catholic Community League,69 Ohio App. 442, 44 N.E.2d 113; In Re Burke's Adoption, Sur., 60 N.Y.S.2d 421; Adoption of Capparelli, Or., 1946, 175 P.2d 153; Adoption of McDonnell, Cal.App. 1947, 176 P.2d 778.
Conversely many tribunals have denied the right to revoke, and base such denials on (1) principles of contract; (2) estoppel or other equitable grounds; (3) public policy favoring adoption of children, particularly illegitimate children, or (4) the welfare of the child as apparent from the facts. Wyness v. Crowley,292 Mass. 459, 461, 198 N.E. 758; Lee v. Thomas, 297 Ky. 858,181 S.W.2d 457; Application of Presler, 171 Misc. 559, 13 N.Y.S.2d 49; Durden v. Johnson et al., 1942, 194 Ga. 689, 22 S.E.2d 514; Stanford v. Gray, 42 Utah 228, 129 P. 423, Ann.Cas. 1916A, 989; In Re Adoption of a Minor, 1944, 79 U.S.App.D.C. 191,144 F.2d 644, 156 A.L.R. 1001; Lane v. Pippin, 110 W. Va. 357,158 S.E. 673.
2, 3. As a general proposition parents have the primary and superior right to the custody of their offspring above that of all others, but the declared law has injected into such cases a factor of almost equal dignity as that of the right of the parents, and which is the welfare of the child afforded by the superior advantages that adopting parents are about to and can furnish it, and of which it would be deprived if it remained with its natural parents.
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OPINION
This is an original proceeding in habeas corpus.
Unquestionably the most difficult and perplexing problems which ever come before a court for decision are those questions which, while involving no financial consideration, have to do with those vitally important but wholly imponderable questions of human relations involving the basis sentiment of the care, custody, control, and welfare of a minor child. Such a one is the present case.
The petition charges that a minor, a baby boy, is unlawfully imprisoned and restrained of his liberty by Mr. and Mrs. John Doe, prospective adoptive parents
of the child. The names of the prospective adoptive parents have not been disclosed during the proceedings, in keeping with the adoption statute. The Nevada Catholic Welfare Bureau, Inc., has acted as respondent in this proceeding and has agreed to deliver Baby Boy Schultz to the petitioner if this court should so direct.
The facts may be briefly summarized. By means of a writ of habeas corpus, the unwed mother of an illegitimate child requests the aid of this court in recovering the custody and possession of a baby boy born October 21, 1946. In consequence of an intention formed several months previous, the mother signed a purported relinquishment for adoption on November 2, 1946. The relinquishment was acted upon by the Nevada Catholic Welfare Bureau, Inc., on November 7, 1946, when its directors placed the child in the home of the prospective adoptive parents. There is a conflict in the testimony as to the date on which an agent of the mother asked for return of the child and the revocation of her relinquishment. However, the facts are clear that formal request for the return of the child was not made by the mother until letters mailed on December 6, 1946. This proceeding was initiated January 29, 1947.
There are three questions presented by this case:
(1) Was the release and relinquishment valid?
(2) If valid, is it revocable?
(3) If revocable, is it for the best interest and welfare of the child to allow it to be revoked?
The pertinent part of our adoption statute is contained in section 1065.02, 1929 Nevada Compiled Laws 1941 Supp., and reads:
"Except as otherwise specified in this section, no adoption shall be permitted except with a written consent duly acknowledged by the living parents of a child, or the mother of a child born out of wedlock. In the case of a child fourteen years of age or over, the consent of such child shall be required and must be given in writing in the presence of the court.
"Where the parent or guardian relinquishes a child for adoption to a recognized organization, institution, or society of this or another state, or to the state department of welfare, which relinquishment is recognized by law, it shall not benecessary, in adopting said child, to obtain the permission ofthe parent or guardian who has relinquished the said child. * * *" (The italics are ours.)
The release and relinquishment signed by the mother in the instant case, among other things, reads as follows:
"This release is made under that certain Act of the Legislature of the State of Nevada, entitled: `An Act to provide for the adoption of children, defining the Duties of Certain Persons in Relation thereto and Other Matters Relating thereto.' Approved March 28, 1941. (1941 Stats. p. 355)" section 1065.02, supra.
1. The court is of the opinion that a valid relinquishment was given. The mother was fully informed of the consequences of her act. She had considered the matter for months, and after she signed the document it was held for two days to insure that she desired that it be acted upon. Petitioner urges that she was under a "misapprehension" at the time she signed the document. By her statement the only reason for delaying action on the adoption was to give the father an opportunity to appear and assume his responsibilities. The father has not appeared and has in no way indicated he will assume such responsibilities. Petitioner further urges that as the name of the agency to which the child was relinquished was blank, the validity of the document is questionable. This argument was not seriously asserted and no authorities are cited. Suffice to say that the document was given to a duly authorized agent of the Catholic Welfare Bureau and was acted upon by such bureau. We must conclude that at the time of the signing of the document, the mother, an adult, of her own free will annexed her signature knowing and desiring that the baby would be adopted.
The principal question raised by this proceeding is
the right of the mother to revoke her relinquishment. Counsel have fully briefed this point. The authorities cited indicate that many courts have permitted revocation at the discretion of the parent; others allow revocation if estoppel or welfare of the child do not intervene. French v. Catholic Community League,69 Ohio App. 442, 44 N.E.2d 113; In Re Burke's Adoption, Sur., 60 N.Y.S.2d 421; Adoption of Capparelli, Or., 1946, 175 P.2d 153; Adoption of McDonnell, Cal.App. 1947, 176 P.2d 778.
Conversely many tribunals have denied the right to revoke, and base such denials on (1) principles of contract; (2) estoppel or other equitable grounds; (3) public policy favoring adoption of children, particularly illegitimate children, or (4) the welfare of the child as apparent from the facts. Wyness v. Crowley,292 Mass. 459, 461, 198 N.E. 758; Lee v. Thomas, 297 Ky. 858,181 S.W.2d 457; Application of Presler, 171 Misc. 559, 13 N.Y.S.2d 49; Durden v. Johnson et al., 1942, 194 Ga. 689, 22 S.E.2d 514; Stanford v. Gray, 42 Utah 228, 129 P. 423, Ann.Cas. 1916A, 989; In Re Adoption of a Minor, 1944, 79 U.S.App.D.C. 191,144 F.2d 644, 156 A.L.R. 1001; Lane v. Pippin, 110 W. Va. 357,158 S.E. 673.
2, 3. As a general proposition parents have the primary and superior right to the custody of their offspring above that of all others, but the declared law has injected into such cases a factor of almost equal dignity as that of the right of the parents, and which is the welfare of the child afforded by the superior advantages that adopting parents are about to and can furnish it, and of which it would be deprived if it remained with its natural parents. But no opinion of any court so far as we are aware approves the right in any one to take away from natural parents the custody of their children solely upon the ground that the adopting parents are better prepared to provide superior advantages to the child which the natural parents for any cause might be unable to provide. But where that situation exists and the parent has agreed
that his or her child might be adopted and has executed such consent or offer in the manner pointed out by the statutory jurisdiction which has been acted on by the proposed adopter, then such consent or agreement, in the absence of fraud or duress in its procurement, plus the vastly increased opportunities of the adopted child, creates a case where there is no alternative but to sustain the adoption applied for. Lee v. Thomas, supra.
A decision of the principle involved in the instant case, is included in the opinion in the case of Wyness v. Crowley,292 Mass. 459, 461, 198 N.E. 758, 759. We quote:
"To accede to the contention that such voluntary consent may be withdrawn would be equivalent to saying that parties may come to a court, deliberately give their assent to actions by the court in matters affecting their interests, and afterwards, at their will and pleasure, return to the court and undo what they did because on a future day they did not like it."
In the case of Stanford v. Gray, 42 Utah 228, 129 P. 423, 426, Ann.Cas. 1916A, 989, the court stated as follows:
"Ordinarily the law presumes that the best interest of the child will be subserved by allowing it to remain in the custody of the parents, no matter how poor and humble they may be, though wealth and worldly advancement may be offered in the home of another. Where, however, a parent, by writing or otherwise, has voluntarily transferred and delivered his minor child into the custody and under the control of another, as in the case at bar, and then seeks to recover possession of the child by writ of habeas corpus, such parent is invoking the exercise of the equitable discretion of the court to disrupt private domestic relations which he has voluntarily brought about, and the court will not grant the relief, unless upon a hearing of all the facts it is of the opinion that the best interests of the child would be promoted thereby."
"From birth an infant is a ward of the State. It
stands in the relation of parens patriae. In this and similar proceedings the fundamental consideration is the welfare of the infant. People ex rel. Converse v. Derrick, 146 Misc. 73, 77, 78,261 N.Y.S. 447.
"The infant's welfare is paramount to the natural right of a parent." Matter of Bock (Breitung), 280 N.Y. 349, 353,21 N.E.2d 186; Application of Presler, supra [171 Mics. 559, 13 N.Y.S.2d 52].
"Statutory requirements must be strictly complied with in adoption proceeding, since adoption is a proceeding in derogation of common law. * * *
"Where natural parents have absolutely surrendered their child to county commissioner of public welfare, only basis for a subsequent adoption of the child is the execution by commissioner of a written consent which takes the place of the written consent of natural parents required in case of a voluntary adoption. * * *
"Natural parents, by unconditionally surrendering custody of their child to county commissioner of public welfare, divested themselves of any power thereafter to authorize an adoption of such child by written consent." In re Whitcomb, 271 App. Div. 11,61 N.Y.S.2d 1.
This court, in previously considering an oral argument by which a parent released the care and custody of a minor child to third parties, enunciated the only language which is helpful here. The opinion of the court states:
"The weight of modern authority, however, seems to recognize such agreements as enforceable where it appears to the advantage of the minor to enforce the same. This latter view seems to us to be supported by the better reason. It recognizes the superior rights of natural parents, all other matters being equal, but places the interest of the child as the first consideration, and, where it appears that the interest of the child will manifestly be advanced by enforcing such agreement, the same will not be disturbed." Ex parte Swall, 36 Nev. 171, 195, 134 P. 96, 97, Ann.Cas. 1915B, 1015.
The court further cited with approval Stanford v. Gray, supra, a closely similar case to the instant case, wherein the Utah court held:
"There are some authorities which hold that a contract made by a parent in which he surrenders the care, control, and custody of his minor child to another is void as against public policy. The great weight of authority, however, sustains the position of appellants that a parent may by contract legally transfer and surrender his infant child into the custody of another where the interest of the child is not prejudiced by the transaction, and in all controversies arising respecting the custody of the child after such transfer and surrender have been made, the paramount consideration — the question of controlling importance — is the interest, welfare, and happiness of the child. In other words, while contracts of this kind, fairly and voluntarily entered into, are valid as between the parties, they will not be enforced to the detriment of the child."
Substantial support of the position of respondents is furnished by the exhaustive and well-reasoned opinion of the court of appeals, for the District of Columbia, In Re Adoption of a Minor, supra. There the court was dealing with an adoption statute similar with ours, and like the Nevada statute, a recent legislative act. Also the court was confronted with an attempted revocation of a consent to adoption by the mother of an illegitimate child. The court, in denying the right to revoke, placed emphasis on the tense of the wording of the statute passed by Congress in 1937, D.C. Code, 1940, secs. 16-201 et seq., stating that the statute "speaks of an act completed," and finds in the act the words, "no decree of adoption shall be made unless the court shall find that the following persons have consentedto the adoption." The Nevada statute, passed in 1941, sec. 1065.03, N.C.L. 1931-41, Supp., also uses the words of an act completed. "* * * that all required consents have been given." (The italics are ours.)
The reasoning of the court of appeals that such language indicates legislative intent to make the consent irrevocable is equally applicable here.
However compelling the examination of the wording of the statute by the court of appeals might prove, the great value of the opinion of In Re Adoption of a Minor, arises from the court's consideration of the history and theory of adoption and its ramifications, including child life, family welfare, juvenile delinquency, illegitimacy, and the great public interest in successful adoption procedure. The court concluded:
"It is apparent that if in particular cases the unstable whims and fancies of natural mothers were permitted, first, to put in motion all the flow of parental love and expenditure of time, energy and money which is involved in adoption, and then, as casually, put the whole process in reverse, the major purpose of the statute would be largely defeated. Doctors of medicine and divinity, potential adoptive parents and social workers would be stymied in their rehabilitative efforts. A premium would, instead, be put upon the emotional instability which produces illegitimates; to say nothing of the possibilities for racketeering which such an interpretation of the law would put in reach of those who may be criminal in their tendencies as well as lacking in the qualities of parenthood. The new law cannot prevent illegitimacy or remove its stigma, generally, but to the extent that it may secure desirable placement of even a few illegitimate children it may avoid some of its most dangerous results. But to do so it is necessary that such children and their adoptive parents be protected against possibilities of the kind suggested. Especially in the adoption of illegitimatechildren it is desirable that the break between infant and consenting mother be abrupt and final." (The italics are ours.)
While the court is cognizant of and sympathetic to, the honest efforts of a natural mother to recover her child, the welfare of the child and the intent and purpose
of the adoption law must be the controlling factors in the determination of this matter. At the hearing evidence was introduced regarding the welfare of the child. The home of the prospective parents was established as a proper environment for the child.
4. Following the authorities cited above, the court finds that the relinquishment of the mother, having been freely and voluntarily given, is irrevocable, and, there being nothing to indicate that it would be to the detriment of the child to enforce such relinquishment, the document must be accorded the full effect intended under the statute.
5. Public policy demands that the adoption act should not be nullified by a decision that causes the public to fear the consequences of adopting a child with the full knowledge that their efforts are at the whim and caprice of a natural parent.
This proceeding is dismissed.