Duncan v. Davis

• Decision Date: 28 May 1971
• Docket Number: No. 10745,10745
• Citation: 94 Idaho 205,485 P.2d 603
• Parties: Ellen DUNCAN, Plaintiff-Respondent, v. Rollin S. DAVIS, Unified Social Services of Arizona, Inc., and Unified Social Services of Idaho, Inc., Defendants-Appellants.
• Court: Idaho Supreme Court

Page 603

485 P.2d 603

94 Idaho 205

Ellen DUNCAN, Plaintiff-Respondent, v. Rollin S. DAVIS, Unified Social Services of Arizona, Inc., and Unified Social Services of Idaho, Inc., Defendants-Appellants.

No. 10745.

Supreme Court of Idaho.

May 28, 1971.

Holden, Holden, Kidwell, Hahn & Crapo, Idaho Falls, for defendants-appellants.

Albaugh, Bloem, Smith & Pike, Idaho Falls, for plaintiff-respondent.

DONALDSON, Justice.

This is an appeal by two social service agencies from a district court judgment awarding control and custody of a child to its natural mother. The mother had petitioned the district court for a writ of habeas corpus in order to secure the return of her son whom she claimed had been unlawfully taken from her. The case does not involved the undoing of an adoption but rather whether the natural mother made a surrender of the child. This case presented an issue of fact to the trial court and for various reasons it found that the surrender, or signing of the required form, was not done with such stability of mind and emotion as to constitute a voluntary relinquishment. However, there was no showing of fraud or trickery by the child placement agency. See, The People ex rel. Olga Scarpetta on behalf of Baby Scarpetta v. Spence-Chapin Adoption Service, 28 N.Y.2d 185, 269 N.E. 787, 321 N.Y.S.2d 65 (1971) (4-7-71).

The pertinent events involved in this appeal occurred in Arizona. In September, 1969, Ellen Duncan, a full blooded Navajo, gave birth to a child out of wedlock. She became pregnant prior to her graduation from high school. The father is also an Indian. After her graduation from high school, Ellen Duncan went to Phoenix, Arizona, to seek medical help and assistance for the impending birth and in placing her baby for adoption. At the Phoenix Indian Hospital, a doctor referred her to a social worker at the hospital. Ellen stated at the hospital a week and was then referred to the Unified Social Services of Arizona, Inc., (hereinafter referred to as the Arizona Agency), a qualified Arizona child placement agency. The Arizona child accepted Ellen into its unwed mothers' program and placed her in a foster home to await the delivery of her child. Immediately subsequent to the birth of her child, she signed a form which purported to relinquish 'A question I may ask in English will be interpreted quickly by them and answered, and at times I feel they really don't understand the question by virtue of what their answer was. When the question is rephrased through a Navajo interpreter, the answer is diametrically opposed to their first answer in English.'

her parental rights to the child although as the record indicates she was not aware of the implications and remifications that signing the form entailed. ¹ The record indicates that while Ellen was still at the hospital discussing with the social worker an attempted revocation of the relinquishment that she had just signed, a physician persuaded her not to change her mind but to give up the child for adoption. The baby was born on September 17, 1969, and from this time on the Arizona and Idaho welfare agencies, which work in conjunction with one another, have cared for the child and have since placed it with prospective adoptive parents. After Ellen left the hospital she returned to her native Navajo environment. She contacted her attorney about two weeks after the birth of the child and told him of her plight. Ellen Duncan petitioned the district court for a writ of habeas corpus for the purpose of compelling the adoption agency to release the child to her since she did not fully realize the consequences of signing the form relinquishing her right to the child. Ellen [94 Idaho 207] Duncan testified that the Navajo concept of adoption as she knew it meant a temporary rather than permanent relinquishment of the child. The record furthermore indicates that although Ellen Duncan understood the English language, it was not her native tongue and when faced with an emotional crisis, moght very well state the contrary of what she actually intended. Dr. Sheldon I. Miller, a psychiatrist, deposed:

The record reverals that according to Navajo tradition, when a child is born out of wedlock, the child is part of the whole Navajo family and there is a desire to keep the child because 'This is their baby.' ² The Bonneville County District Court granted the writ of habeas corpus and ordered the child produced since:

'* * * it appears that Baby Boy Duncan is illegally detained and restrained of his liberty against the wishes of the petitioner.' ³

The trial court reached this decision because in its opinion,

'* * * Ellen Duncan did not make a completely voluntary, free and knowing surrender of her child, and did not have any intention to forever surrender all right or claim to her baby.' ⁴

The adoption agencies (Unified Social Services, Inc. of Arizona and Unified Social Services of Idaho) have appealed to the Supreme Court from the adverse judgment and although they assign numerous findings of fact and conclusions of law made by the trial court as error, they can be reduced to the contention that the evidence presented at trial does not support the decision to grant the writ of habeas corpus.

It has long been the rule of this Court that findings of fact which are supported by competent and substantial evidence, though conflicting, will not be disturbed on appeal. I.R.C.P. 52(a); ⁵ Leonardson v. Moon, 92 Idaho 796, 451 P.2d 542 (1969); White v. Boydstun, 91 Idaho 615, 428 P.2d 747 (1967); Linhartsen v. Myler, 91 Idaho 269, 420 P.2d 259 (1966). Furthermore credibility of witnesses and inferences to be drawn from the evidence are for the trial judge, and his findings of fact will not be set aside unless clearly erroneous. Johnson v. Sweeney, 91 Idaho 805, 430 P.2d 883 (1967). The Supreme Court cannot inquire into credibility of witnesses on appeal since that question rests with the trier of the fact. Patrick v. Bisbee, 52 Idaho 369, 15 P.2d 730 (1932).

The principal issue presented by this appeal is whether the evidence sustains the In addition to all the ordinary incidents of childbirth and the normal pain and suffering attendant thereto, Ellen Duncan, who was undisputedly in an emotionally charged condition, ⁷ was requested by the adoption agency to sign a certain paper which relinquished all parental rights to the child. She signed the relinquishment form and then she was permitted to see the child and hold it for a short time. The record then reveals that Ellen Duncan was not sure about the consequences and implications resulting from the signing of the form and she informed the adoption agency the evening of the same day she signed the relinquishment that she 'wanted the baby.' This evidence coupled with the atmosphere of intimidation and apprehensiveness to which Ellen felt she was subjected to by the 'Anglos' are strong indications which negative any 'consent' and demonstrate that the form was not signed voluntarily by Ellen. As heretofore stated, there is no evidence of either fraud or coercion. However, this Court agrees with the district court in that legitimate doubts have been raised as to whether the mother in fact knew or was made sufficiently aware of the consequences flowing from the signing of the form. D. P. v. Social Service and Child Welfare Dept., 19 Utah 2d 311, 431 p.2d 547 (1967). In a recent case decided by the New York Court of Appeals it was held that where the trial court had found a surrender of an out-of-wedlock child was made without stability of mind and emotion, such findings of fact were to be accepted by the appellate court as immutable. The People ex rel. Olga Scarpetta on behalf of Baby Scarpetta v. Spence-Chapin Adoption Service, supra. A perusal of the Scarpetta case, supra, indicates that the facts presented by the instant case are substantially stronger and dictate a return of the child. The individual involved in the New York case was a mature woman, well-to-do, well traveled, and had received a college education. Yet, the highest court in that state in essence ordered her child to be returned to her because at the time she executed the 'surrender document' she was unstable in mind and emotion. The facts in the case at bar reveal that the individual involved was not a mature woman (over 30), but rather a young Indian girl of 19, not a girl of means, but one who had to rely on chritable assistance to have her baby. In light Judgment affirmed. Costs to respondent.

conclusion that the natural mother did not make a voluntary and free relinquishment of the child. Prior to the birth of the child, Ellen Duncan had planned to give it up for adoption. ⁶ The record indicates that the birth was difficult for Ellen and that her recovery was spent in discomfort. She underwent post-delivery surgery to stop profuse bleeding which occurred after the birth. After the child was born, Miss Griffin, a professional social worker, spent some time, the actual length of which is disputed, with Ellen Duncan discussing the adoption procedures. Miss Griffin once again visited Ellen Duncan for the purpose of securing a termination of pazrental rights to Ellen's child and visited with Ellen alone and then later two professional social workers were called into the room to witness and acknowledge the relinquishment papers. Ellen testified that she read the relinquishment documents but didn't fully understand them and that Miss Griffin did not explain the nature of the documents to her. However, the two witnesses each testified that Miss Griffin asked Ellen if she had read the papers and understood them and Ellen answered yes. However the same evening Ellen attempted to revoke the purported relinquishment and the next day while discussing the matter with Miss Griffin, a physician in the hospital persuaded Ellen to go through with the adoption of the facts revealed by this case, the Supreme Court has no choice but to affirm the judgment of the...