Doan Thi Hoang Anh v. Nelson, 3--59318

• Decision Date: 22 September 1976
• Docket Number: No. 3--59318,3--59318
• Citation: 245 N.W.2d 511
• Parties: DOAN THI HOANG ANH, Appellee, v. Johnny NELSON and Bonnie Nelson, Appellants.
• Court: Iowa Supreme Court

Page 511

245 N.W.2d 511

DOAN THI HOANG ANH, Appellee, v. Johnny NELSON and Bonnie Nelson, Appellants.

No. 3--59318.

Supreme Court of Iowa.

Sept. 22, 1976.

Boyle, Schuler & Stanton, Clear Lake, for appellants.

Pappas, McGuire & Folkers, Mason City, for appellee.

En banc.

MOORE, Chief Justice.

This is a habeas corpus action by Doan Thi Hoang Anh (Anh), a refugee from Vietnam, to regain custody of her son Doan Van Binh (Binh) from defendants (Nelsons) in whose home the minor child had been placed for adoption by a Colorado child placement agency which had evacuated the child from Vietnam.

The trial court sustained the writ and specifically found Anh was Binh's natural mother; she had neither abandoned nor released Binh for purpose of adoption and concluded the best interests of the child required that he be returned to his natural mother. On this appeal by Nelsons they assert the trial court erred in each of its findings and conclusions.

I. Although habeas corpus was originally designed to test the legality under which a person was restrained of his liberty, it was long ago enlarged to encompass inquiries into the proper custody of children. LaMar v. Zimmerman, Iowa, 169 N.W.2d 819, 821; Allender v. Selders, 227 Iowa 1324, 1330, 291 N.W. 176, 179. Such actions are equitable in nature and we review them de novo. McCalester v. Hillcrest Serv., Child. & Youth, Iowa, 232 N.W.2d 1, 3; Eddards v. Suhr, Iowa, 193 N.W.2d 113, 116.

II. This habeas corpus action arises out of the incidents surrounding the end of United States involvement in Vietnam in April 1975. Binh was one of hundreds of Vietnamese children evacuated from Vietnam prior to the total collapse of the South Vietnamese government in 'Operation Babylift.' See Nguyen Da Yen v. Kissinger, 9 Cir., 528 F.2d 1194, 1197.

Plainiff's trial evidence reveals that during the final days of the Saigon regime, Anh was able to escape death or capture by the Communists and take her seven children from their home in the central highlands to Saigon. Her husband, the father of all seven children, had previously been killed by the Communists. It was only after an incredible ordeal that Anh and the children were able to escape the same fate. At one point Anh had given one of the children saliva from her mouth so that he would not die from lack of water. After arrival in Saigon, Anh took her children to an orphanage known as Friends of Children of Vietnam (FCVN) on approximately April 23, 1975. Anh testified she believed she would perish when the Communists took the city. Under these dire circumstances she asked Ross Meador, a representative of FCVN, if he could take her children out of the country. She gave him the name and age of each child. At no time did she sign either a written release or consent to the adoption of her children by other people. In fact, she refused to sign a consent form and instructed her oldest daughter to keep all the children together for two years. Additionally, she succeeded in securing the Denver, Colorado address of FCVN for the purpose of tracing her children's whereabouts if she survived.

Defendant's exhibits include an affidavit sworn to on August 26, 1975 by Cherie Clark, Overseas Director of FCVN which states Anh released her child, Doan Van Binh, verbally and physically to Ross Meador. Meador did not testify.

Soon after leaving the children with FCVN Anh, with other refugees, escaped from Saigon aboard a fishing boat. She traveled first to Singapore, then to the Philippines and eventually reached Wake Island. From there she was flown to Camp Pendleton, California where she arrived on August 5, 1975. There she immediately contacted the Red Cross for information about her children and learned FCVN had taken them to Denver. She resolved to regain custody of the children as soon as she was located.

Sponsored by three Methodist Church groups, Anh moved to Great Falls, Montana on September 12, 1975 where she continued to reside at trial time, March 4, 1976. On September 28, 1975 Anh succeeded in regaining custody of four of her children who had been staying in the Denver home of an FCVN official. The four children ran toward Anh screaming 'Mommy, Mommy' when she arrived at the official's home. The meeting of the official and his wife with Anh was warm and effusive. Anh there learned two younger children had been placed in foster homes and that Binh was with the Nelsons in Forest City, Iowa. Following defendants' voluntary request and application for a Vietnamese child, the Denver FCVN officials on May 3, 1975 placed Binh with the Nelsons for the purpose of adoption.

After learning Binh's whereabouts, Anh instituted an intensive campaign through various social agencies to regain his custody. Their reports recognized her as Binh's mother and did not seriously question her right to custody.

Nelsons were understandably upset as they had in good faith taken Binh into their home and treated him with the same love and affection as that which they had for their minor daughter and son. At trial time they were respectively 6 and 4 years of age. They sent a letter to Anh imploring Anh to let them raise her son. Later they sent their Minister, Rev. John Jerry Shep, as an emissary to Great Falls to determine whether Anh's claims to Binh were meritorious. He was treated courteously and with full cooperation by Anh and her sponsors. He found Anh and the four children living in a modest, well-furnished, clean and adequate apartment. He visited for several hours with Anh and, although he had difficulty understanding her, was apparently satisfied she was Binh's natural mother. His only rather shocking report was that Anh had said each of her seven children had a different father. Anh denied this in her trial testimony. We find it unnecessary to resolve this dispute because we think the result in the appeal must be the same in either event.

When Nelsons proved unwilling to release Binh to Anh she commenced with habeas corpus action on February 6, 1976. Nelsons' answer to her petition denied she was Binh's natural mother, alleged she had abandoned and released the child, and asserted Binh's best interests would be served by denial of Anh's request for his custody.

As already stated the trial court found against defendants on each of the issues thus raised. Logical well-prepared findings of fact and conclusions of law were filed by the trial court. We give the trial court's findings weight in our de novo review, especially when considering credibility of witnesses, but we are not bound by them. Rule 344(f)(7), Rules of Civil Procedure.

III. We first consider the issue of whether the record establishes Anh is Binh's natural mother. At trial, March 4, 1976, Anh testified in support of her claims and positively identified Binh as her child. After describing the events surrounding her escape to Saigon and ultimate pilgrimage to FCVN Anh's testimony includes:

'Q. You believed your children were coming to an orphanage that belonged to the United States government? A. Yes.

'Q. Now, Miss Anh, you have seen the little boy that's here in the court room, haven't you? A. I see. When I went inside.

'Q. Can you tell from looking at him whether he is your son? A. I just walked in the door and I knew this, that is my son. Other way we keep love in deep deep in the heart. I would like to hold my boy, but I no can do this.

'Q. But is there anything about your son that makes it easy for you to identify him, any physical features? A. My boy had two dimples and one ear infection.

'Q. This ear infection, how did that happen, do you know? A. That happened the one time they throw hand grenade. Vietnamese commands walked by our house, but all my children didn't make it in outside.

'Q. You are saying that your son's ear was injured when a grenade was thrown and you weren't able to grab all your children? A. Yes.

'Q. When was this son born to you. A. He born the 19th of May 1972.

'Q. You said that most Vietnamese don't remember the birth dates of their children? A. Most they don't.

'Q. But this child was born on Ho Chi Minh's birthday and you were very frightened on that day? A. Yes.

'Q. Now, Miss Anh, do you have any--well, excuse me, did you receive any kind of a birth certificate or any kind of paper when your child was born? A. My child born--come help us. We also had--

'Q. You say you had birth certificate for every child? A. Yes.

'Q. Where are those birth certificates now? A. When we run out of central to Saigon, we no carry anything with us so we don't have no birth certificates with me now.

* * *.'

We note the record includes ample documentation that Binh does suffer from a perforated right ear drum and has two dimples.

During her testimony Anh produced two pictures in support of her claim that Binh is her son. Exhibit C is a picture taken in Vietnam when Binh was eight months old. Exhibit D is a picture taken by Nelsons which they enclosed in their letter of October 1, 1975 to Anh. Exhibit A included a newspaper photo of Binh nd the Nelson family. These photographs show certain identifiable similarities of ears, mouth, eyes and expression although the age discrepancies between the pictures in comparing an eight-month-old baby to a three-year-old boy prevents positive identification.

Nelsons offered no evidence to contradict the direct and circumstantial evidence that Anh is Binh's natural mother.

Our de novo review brings us to agree with the trial court's finding and conclusion:

'Anh is a credible witness and her testimony, together with the substantial inference arising from the other circumstances, results in the firm conclusion that Doan Thi Hoang Anh is Doan Van Binh's mother.'

IV. Nelsons next contend that even assuming, arguendo, Anh is Binh's natural mother, she nevertheless abandoned her child in Saigon during the final days of the South Vietnamese regime in April 1975.

The concept of abandonment is not new to this court. However, most of our case...