J.M.P., In re, 88-C-0008

Citation528 So.2d 1002
Decision Date03 June 1988
Docket NumberNo. 88-C-0008,88-C-0008
PartiesIn re Mr. & Mrs. J.M.P. Applying for Adoption. 528 So.2d 1002
CourtSupreme Court of Louisiana

M. Michele Fournet, for applicant.

H. Sanders O'Neal, Houma, for respondent.

DENNIS, Justice.

In this private adoption dispute the issues are (1) whether the eighteen year old natural mother's consent to the surrender and adoption were vitiated by duress (natural mother's family refused to let her bring baby home) or her attorney's conflict of interest (her attorney was the partner of the lawyer who placed the child with the adoptive parents and handled the adoption free of charge, as he had done in previous cases, because of strong anti-abortion beliefs); and, if not, (2) whether the record and the reasons support the trial court's judgment that the adoption is in the best interest of the child where the natural mother was a fit parent, the court gave no apparent weight to her biological relationship with the child, the evidence was insufficient to determine whether the child has developed a psychological relationship with the adoptive parents, and the trial court based its decision primarily upon the comparative wealth and income of the parties. The trial court decided that the act of surrender was valid and that adoption was in the child's best interests. The court of appeal affirmed, 518 So.2d 23. We affirm as to the validity of the act of surrender but vacate the lower courts' judgments and remand for a new hearing on whether the adoption is in the best interest of the child. The refusal of the adult natural mother's family to assist her in rearing the child was not unlawful duress of the nature that warrants vitiation of her consent or the surrender for adoption. At the time of the act of surrender, only reasonably effective representation, rather than completely independent counsel, was required; in the absence of a showing that the natural mother's attorney induced her to commit error that influenced her consent, vitiation thereof is not warranted. Of the three most important factors to be considered in a private adoption case in determining the best interests of the child, viz., fitness, psychological attachment, and biological relationship, the trial court evidently took only fitness into account. Since the record does not contain sufficient evidence on the psychological relationship factor for us to make a judgment at this level, the case will be remanded for a new best interest hearing.

The facts of this case follow a sadly familiar pattern. Dawn B., an eighteen year old unmarried woman, was employed in a grocery store but remained economically dependent on her mother and stepfather, Mr. & Mrs. B., with whom she resided. She became pregnant but concealed the fact from her mother for six months. At that time, with her mother's financial assistance, she traveled by bus from her home in Zachary to consult with a doctor at an abortion clinic in Metairie. The doctor informed her that her pregnancy was too far into its term to permit an abortion. Instead, he gave her the name and phone number of an anti-abortionist attorney, Perez, who would arrange for the placement of the child for private adoption free of charge. When she returned home Dawn placed a call to Perez but had to leave her number because he was out. When Perez returned the call, Dawn's mother, Mrs. B., answered and asked him to come to Zachary to discuss surrendering the expected child for private adoption. A few days later, Perez met with Dawn and Mr. and Mrs. B. in their home and explained what he was able to do: He could find a suitable couple to adopt the baby. He would have the couple pay the hospital, OBGYN, pediatrician, anesthesiologist, and drug bills. He explained that he would not charge a fee to them or the adoptive parents because his only interest was his personal cause of preventing abortions. Everything would be handled through him confidentially so that the identities of the two families would not be disclosed to each other. He told Dawn that she could change her mind and reclaim her child at any time up until the act of surrender was signed. Dawn, her mother and her stepfather agreed to the arrangement and asked him to proceed.

Between that meeting and the birth of the child Perez said he talked with Dawn on numerous occasions over the phone. On these occasions she called him to see if checks had been mailed for drug bills that she had sent him. During this period she gave him no indication of changing her mind with respect to the adoption.

After the birth of the child on November 30, 1985, Mr. Perez met with Dawn and Mr. & Mrs. B. at the hospital. Perez testified that he reminded them that his only interest was in seeing that the baby was born and told them that he would leave immediately if they wanted to keep the child. Dawn appeared to be sad about giving up the child, but this was not unusual, he said. At his request, she readily signed the hospital release form giving him permission to take the baby from the premises. Without any objection from Dawn he removed the baby from the hospital and took it to the prospective adoptive parents in Houma.

A week later, on December 7, 1985, Perez returned to Mr. & Mrs. B's house in Zachary to have Dawn execute the act of surrender. He brought along his law partner, Roberts, to act as Dawn's attorney and to advise her of her rights. Perez and the parents stepped out on the porch while Roberts and Dawn conferred in the house. Dawn testified that Roberts read the act of surrender to her, and that she did not ask any questions. She said that she told him to change the child's name in the act, and he said that he would do so later. The act of surrender which Dawn signed before a notary and two witnesses after conferring with Roberts, declares that it was fully explained to her by the attorney and that she understood she was surrendering the child for adoption and terminating her rights as a parent of the child. We cannot consider Roberts' testimony in this regard because he was not called as a witness.

While they were on the porch, Perez again informed Mrs. B. that Dawn could still change her mind and he offered to undertake the six hour round trip to fetch the child if Dawn did not want to sign the act of surrender. Mrs. B. replied that Dawn would like to keep the child but that the only way she could raise it would be on welfare and that, since she, Mrs. B., had already raised five children, she was not going to raise another. Perez testified that he did not interpret this remark as an indication that Dawn had changed her mind.

After the act of surrender was signed, Perez continued to receive medical bills and calls about their payment from Dawn. Sometime prior to December 30, 1985, however, he received a letter from her revoking her consent to the adoption. 1

The testimony of Dawn, Mrs. B. and Mr. B. reveals that the young natural mother signed the act and gave up her child although she knew that she had a right to refrain from doing so. Further, the record shows she surrendered the child not because of any improper act or omission by Perez or Roberts but primarily because she did not wish to undertake the hardship of caring for the child outside of her home and without her mother's assistance.

Dawn testified that early on the morning that the act of surrender was executed her mother and stepfather told her that if she refused to sign the instrument she could not bring the baby into their house. She expressed how this affected her decision to sign the act in several ways: She signed because it was what her mother wanted; her mother wanted her to start a new life. She couldn't bring the baby into the house and she had nowhere else to go with the baby. Although she could have gone to stay with her sister in Indiana, she would have had nowhere to go with the baby for the two days it would take for her to receive transportation fare from her sister or father in Indiana. This last explanation was inconsistent with other portions of her testimony in which she admitted that she had saved an unspecified sum of money before her child was born.

Dawn contradicted Perez on one point saying that he never told her that she had the right to refuse to surrender and reclaim her child. This disagreement is, however, without consequence because her testimony and that of her parents makes it clear that she fully understood her dilemma: she could either sign the act and lose her child or refuse to sign, keep her child, and lose her home and her mother's support.

Mr. & Mrs. B. admitted that they had caused Dawn to sign the act of surrender by telling her that she could not bring the child home. They testified that they had experienced a change of heart because of the suffering Dawn had endured, that they regretted their actions which had been intended only for her own welfare, and that they now stood ready to support Dawn financially and in every other way should she recover custody of the child.

Mrs. B. testified that after Perez received Dawn's revocation of consent he telephoned her and said that she and her husband would probably be "sued for financial responsibility." She testified that she had told Dawn about this conversation. Since the communication occurred after Dawn had signed the act of surrender and had revoked her consent, however, it is clear that this message could have had no effect upon her consent to surrender the child for adoption. Moreover, Perez testified several times that he had not threatened or pressured Dawn in any way.

At the conclusion of the hearing on the issue of the validity of the surrender, the trial judge ruled that because Perez was not acting as the adoptive parents' attorney, there was no conflict with his law partner's representation of Dawn; that Roberts was Dawn's attorney and that he provided her with adequate representation; that there was no coercion on the part of Perez or the adoptive...

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