Wuertz v. Craig

449 So. 2d 673, 1984 La. App. LEXIS 8650
CourtLouisiana Court of Appeal
DecidedApril 6, 1984
DocketNo. CA-1377
StatusPublished
Cited by3 cases

This text of 449 So. 2d 673 (Wuertz v. Craig) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wuertz v. Craig, 449 So. 2d 673, 1984 La. App. LEXIS 8650 (La. Ct. App. 1984).

Opinion

WILLIAMS, Judge.

This is an appeal from a decision of the trial court refusing to allow plaintiff Elizabeth Wuertz to revoke consent to an adoption.

On February 11, 1982, plaintiff signed an act of surrender transferring custody of her child to defendant, David Craig, an attorney representing unnamed parents, for the purposes of adoption. At some time after the signing of this document, plaintiff apparently changed her mind and intended to revoke this consent. Defendant refused to acknowledge the revocation as valid, and this lawsuit was instituted against Craig and the unnamed adoptive parents. After a trial on the merits, the court found in favor of the defendants. It is from this decision that the plaintiff now appeals, assigning four errors in the court below as the basis for the appeal: (1) the trial court erred in finding that the consent was freely given; (2) the trial court was in error in refusing to require the attorney who represented the parents at the adoption to disclose the name of the prospective parents; (3) the court erred in finding that the consent was not revoked; and (4) the court was in error in upholding the validity of the consent document.

EXECUTION UNDER DURESS

The plaintiff asserts as the major basis for reversal that the trial court should have found that the act of surrender was invalid because she executed it under duress.

It appears from the record and from the assertions in brief, that the person allegedly exerting the duress was the plaintiff’s grandmother, Mrs. Bertioniere. Mrs. Ber-tioniere did not testify at the hearing. The plaintiff testified that her grandmother had kept her from seeing her child and that her grandmother had hired the attorney who had represented her at the act of surrender. She also said that her grandmother had threatened her with prosecution for child abuse if she did not give up the child for adoption.

The defense asserts that there was ample evidence presented at trial on which the judge could have based its determination that the act of surrender was freely given. Although she did admit that she was afraid of going to jail, she stated under cross-examination that she fully understood that she was giving up all her rights to her child and that it was explained carefully to her. She stated that the attorney took a lot of time in this explanation. This exchange occurred during cross-examination:

Q. “And you signed this document knowing all this under your own free will; isn’t that correct?
A. Yes sir.

Tr. at 9.

Based on the information contained in the record, we can not find that the trial court abused its discretion in determining that the plaintiff signed the act of surrender freely and voluntarily.

[675]*675PARENTS’ ANONYMITY

Plaintiff argued that the trial court should have required the disclosure of the adoptive parents’ names by the attorney who represented them, defendant David' Craig. Plaintiff places reliance upon the decision in Brasseaux v. Girouard, 214 So.2d 401 (La.App. 3d Cir.1968) in which the court held that ordinarily no privilege prevents an attorney from testifying as to the name of his client. Id. at 410. We find this case distinguishable from Brasseaux.

Unlike Brasseaux, this is not an “ordinary” circumstance. The anonymity of adoptive parents is provided for by La. R.S. 9:422.9. This statute allows for representation of prospective adoptive parents by an attorney in the adoption proceedings. To require the disclosure of the names of the adoptive parents in cases such as this would clearly violate the intent of the legislature. Furthermore, we find there is no legal reason whatsoever for this disclosure, and the failure of the plaintiff to know the names of the adoptive parents in no way prejudices her in these proceedings.

UNTIMELY REVOCATION

Plaintiff asserts that she revoked her consent pursuant to La.R.S. 9:422.10, and that the trial court was in error in finding that this revocation was untimely. La.R.S. 9:422.10 provides for the revocation of an act of surrender if made within certain procedural guidelines:

The parents executing the act of legal surrender, acting jointly or individually, may oppose the adoption of the child surrendered only by a clear, written declaration of the revocation, made within thirty (30) days after executing the formal act of surrender. The writing must reasonably identify the child surrendered and the act of surrender; attaching a copy of the act of legal surrender being sufficient. A copy of the writing must be sent by certified or registered mail to the person or persons, or their representative, identified in the act of surrender to whom the custody of the child was granted to be of any effect. Proof of actual receipt of the writing must be made by an affidavit of mailing with signed return receipt attached or by other proof as in a civil trial ... The rights and procedures in this Section are exclusive, (emphasis added)

The testimony presented on the time of revocation and the notification of such is, at best, conflicting. The attorney representing the plaintiff testified at trial that he notified David Craig shortly after the act of surrender that his client wished to revoke the surrender. Craig, however, testified that he received a phone call two or three weeks later saying that there would be a revocation. Filed into evidence, was a letter from plaintiff’s attorney to Craig, dated February 19, 1982, confirming a telephone conversation bf the previous day in which the attorney had advised Craig of his representation of the plaintiff and of her revocation of consent. Enclosed with the letter, and also filed into the record is a withdrawal of consent of adoption. This was not sent by registered or certified mail. Craig could not testify as to the date when he did receive the letter, although he indicated that he might have received it after the 30 day period had expired.

Plaintiff argues that the provisions of La.R.S. 9:422.10 states: “[pjroof of actual receipt of the writing must be made by an affidavit of mailing with signed return receipt attached or by other proof as in a civil trial,” allows for regular mailing if this can be proved by testimony or affidavit.

The defense argues that strict interpretation of this provision is required, and that the trial court’s conclusion that no attempt had been made to revoke the act of surrender until the statutory time had elapsed, is supported by the evidence.

We find no error in the trial court’s decision, or its interpretation of the law. The court based its conclusions bn the testimony of Craig who could not testify that he received the required revocation within the statutory limits. This type of problem is exactly why La.R.S. 9:422.10 [676]*676requires certified or registered mail to be used in these instances. Plaintiffs argument that regular mail can be used is without merit. The provision on which her argument is based simply sets forth guidelines for proving that service in compliance with the statute, i.e. certified or registered mail, has taken place.

The thirty day limit also serves to protect the integrity of the family unit into which the child is placed. To allow a child to remain with the adoptive parents for any length of time and then remove him or her from their custody is disruptive and harmful to both the child and the parents.

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Related

In re C.A.P.
573 So. 2d 214 (Louisiana Court of Appeal, 1990)
Wuertz v. Craig
458 So. 2d 1311 (Supreme Court of Louisiana, 1985)

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Bluebook (online)
449 So. 2d 673, 1984 La. App. LEXIS 8650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wuertz-v-craig-lactapp-1984.