Ex parte Schultz

• Citation: 181 P.2d 585,64 Nev. 264
• Decision Date: 26 May 1947
• Docket Number: 3483.
• Parties: Ex parte SCHULTZ.
• Court: Supreme Court of Nevada

181 P.2d 585

64 Nev. 264

Ex parte SCHULTZ.

No. 3483.

Supreme Court of Nevada

May 26, 1947

Original proceeding in the matter of the application of Grace Foote Schultz for a writ of habeas corpus on behalf of Baby Boy Schultz.

Proceeding dismissed.

Lunsford & Goldwater, of Reno, for petitioner.

Thatcher Woodburn and Forman and William J. Cashill, all of Reno, for respondent Catholic Welfare Bureau, Inc.

EATHER Chief Justice.

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 be necessary, in adopting said child, to obtain the permission of the 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.

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 the 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.

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 parent is better prepared to provide superior advantages to the child which the natural parent 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 Misc. 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...