Ex parte Sullivan

• Decision Date: 21 August 1981
• Citation: 407 So.2d 559
• Parties: (Ex Parte Pamela Sue Hanlon SULLIVAN. In re Pamela Sue HANLON (Sullivan) v. William Joe MOONEY and Jean Mooney). 80-409.
• Court: Alabama Supreme Court

Page 559

407 So.2d 559

(Ex Parte Pamela Sue Hanlon SULLIVAN.

In re Pamela Sue HANLON (Sullivan) v. William Joe MOONEY and Jean Mooney).

80-409.

Supreme Court of Alabama.

Aug. 21, 1981.

As Corrected on Denial of Rehearing Sept. 18, 1981.

W. Eugene Rutledge and Kay S. Kelly of Rutledge & Yearout, Birmingham, for petitioner.

Conrad M. Fowler, Jr., of Wallace, Ellis, Head & Fowler, Columbiana, for respondent.

PER CURIAM.

We granted the petition for certiorari in this case because it is a case of first impression in several particulars. It is an adoption case. The Court of Civil Appeals affirmed the judgment of the probate court. We reverse and remand with directions.

The facts are not materially disputed. They do portray a picture of human tragedy and call for the Court to perform one of its most difficult and delicate functions.

In March of 1978, Pamela Sue Hanlon, who lived with her parents in Seymour, Indiana, became a rape victim at the age of seventeen. She learned for the first time in May of that year that the rape had resulted in pregnancy. She was informed of this fact by Dr. Maasen, an obstetrician-gynecologist. From the time Dr. Maasen learned of the circumstances resulting in Pamela's pregnancy, he counseled that it would be best for the child if she allowed its adoption. He told her that because the pregnancy resulted from a rape, she would more than likely beat and abuse the child. He repeated this opinion on each visit. Pamela's mother offered contrary advice, but testified that Pamela was finally persuaded by Dr. Maasen that she might harm the child if she kept it. He also told her that "If you get married, no boy is going to want to take that baby." Dr. Maasen told Pamela that he knew some people who would make a nice home for the baby.

The evidence shows that the people to whom Dr. Maasen referred were Mr. and Mrs. Joe Mooney, who live in Pelham, Alabama. Dr. Maasen met the Mooneys during his residency at the University of Alabama Medical School. Mr. Mooney runs a service station and apparently Dr. Maasen met him there. Joe Mooney is 43 years of age. His wife is 35. They have both been married previously. Mrs. Mooney has a teenaged son. Mr. Mooney is childless.

The Mooneys had sought to apply for adoption of a child with the Alabama Department of Pensions and Security (DPS), but their application was unacceptable under DPS regulations because that department does not accept applications from persons of the Mooneys' age.

In September, 1978, the Mooneys received a telephone call from one Fred DeMarco, who had been an assistant to Dr. Maasen and who was acquainted with the Mooneys. He advised that Dr. Maasen might have a child available for adoption. Mr. Mooney called his friend Dr. Maasen, who explained the situation with regard to Pamela, and was told "it might be a natural tie in and he would see if he could get it."

The Mooneys again contacted DPS to inquire as to the proper procedure for bringing a child into the State of Alabama for adoption. They were informed of the proper method and were cited to § 38-7-15, Ala.Code 1975. They were also advised to seek an attorney's advice. The statute to which they were referred requires the consent of DPS prior to bringing a child into the state, and DPS may, as a condition precedent to bringing a child into the state, require an authorized agency in the state from which the child is brought to interview the natural parent or parents of the child. The Mooneys neither sought nor received the consent of DPS. Instead, a few days later they traveled to Seymour, Indiana, with "Consent to Adoption" forms prepared for Pamela's signature. Although the documents stated that she was acquainted with the Mooneys, all parties agree that this was untrue, and they had never met. They met Pamela's mother in Dr. Maasen's office, but did not see Pamela. The forms were signed by Pamela and her mother on October 28, 1978. They were subsequently notarized outside Pamela's presence. The Mooneys returned to Alabama with the consent forms.

Pamela gave birth to a baby girl on December 3, 1978, in Scaneck Hospital in Seymour, Indiana. She was discharged from the hospital six hours after the delivery and never saw the baby. Dr. Maasen immediately telephoned the Mooneys in Alabama to inform them of the birth of the baby. The Mooneys traveled to Indiana, and Dr. Maasen delivered the days old infant to them. The Mooneys returned to Alabama with the baby and on January 26, 1979, filed a petition for adoption of the child in the probate court of Shelby County. Meanwhile, Pamela kept asking Dr. Maasen about the baby and "kept on after him telling him (she) wanted (her) baby back." Maasen told her there was "not a snowball's chance in hell for (her) to have (her) baby." Pamela and her mother came to Shelby County and testified at a hearing held on March 7, 1979, on the Mooneys' petition to adopt the baby. Both Pamela and her mother filed in open court a revocation of their alleged consent to the adoption of the child.

On March 26, 1979, the probate judge, a non-lawyer, entered an interlocutory order which ordered the adoption proceedings to proceed according to law. This order was served on DPS so that that agency could conduct an investigation of the prospective adoptive parents as required by § 26-10-2, et seq., Ala.Code 1975. In its report to the court, DPS advised that although the Mooneys had been advised of the necessary procedure in bringing a child into the state for adoption, "said procedure was not followed and the child was brought into the state without prior approval of the State Department of Pensions and Security." The report also stated that "(s)ince October, 1978, the insecurities of adoptions where parents know the whereabouts of the child and where the mother is a minor have been repeatedly pointed out to the petitioners."

Pamela filed a petition for habeas corpus in the United States District Court for the Northern District of Alabama, which sought the return of her baby. This petition was dismissed for want of jurisdiction. She also filed a petition for writ of habeas corpus, or in the alternative, a petition for child custody, or in the alternative, a petition for declaratory judgment in the circuit court of Bartholomew County, Indiana. The Mooneys appeared in that proceeding, contested jurisdiction of the court and also the merits. The Indiana court granted the petition for writ of habeas corpus on January 22, 1980, and overruled the motion to dismiss for want of jurisdiction on February 7, 1980. At the request of the Mooneys, it continued the hearing on the merits to February 20, 1980, at which time the court entered the following judgment:

This cause came on for Summary Hearing the 20th day of February, 1980, concerning the Writ of Habeas Corpus granted by this Court on the 22nd day of January, 1980, with respect to the alleged restraint by Respondents William Joe Mooney and Jean W. Mooney of one Julia Ann Hanlon (a/k/a Melana Susan Mooney), a child born December 3, 1978, in Jackson County, Indiana, to Petitioner Pamela Sue Hanlon Sullivan Petitioner was present in person and by counsel, while Respondents were represented by counsel who appeared for the purpose of contesting the taking of jurisdiction of this cause by this Court and who objected to any consideration by the Court of the merits of Petitioner's claim;

And the Court, being advised, and having elected to hear testimony of witnesses and to examine the exhibit presented and admitted into evidence, now finds as follows:

1. This Court can and should consider the prayers of Petitioner for an award of custody of Julia Ann Hanlon to Petitioner and for a declaration of the invalidity of the purported Consent to Adoption executed by Petitioner on or about October 28, 1978, in addition to her prayer for delivery of the child to her, because of the seeming inseparability of those issues, one from another;

2. Jurisdiction, having originally been taken for the purpose of addressing Petitioner's January 22, 1980 Petition for Writ of Habeas Corpus, has thus led this Court to consideration of the validity of the aforementioned October 28, 1978, Consent to Adoption, and if that purported consent is not invalid on its face by being executed before the birth of the child whose placement was sought, it certainly is based on the testimony of Petitioner concerning the reportedly extreme pressure placed on her by her attending physician during her pregnancy term to so consent, his promises that her consent could easily be revoked by her, her lack of opportunity to read the proposed consent in its entirety before executing it and the fact that the notarization of her signature was not even made in her presence; thus, this Court finds that the Consent should be set aside as invalid and void ab initio;

3. And even if there was an ascription of validity possible respecting the aforementioned Consent to Adoption, the absence from this record of any involvement of any County Department of Public Welfare of this State or any duly licensed child-placing agency operating in this State should void an adoption wherever and by whomsoever granted;

4. And this Court having found the consent void and invalid from the date of its execution and the entire adoption proceeding...