Pontiff v. Behrens
| Decision Date | 22 December 1987 |
| Docket Number | No. CA,CA |
| Citation | 518 So.2d 23 |
| Parties | In re Mr. & Mrs. James Myles PONTIFF Applying for Adoption v. Dawn BEHRENS. 86 1580. 518 So.2d 23 |
| Court | Court of Appeal of Louisiana — District of US |
H. Sanders O'Neal, Houma, for plaintiffs and appellees--Mr. & Mrs. James M. Pontiff.
M. Michell Fournet, Baton Rouge, for defendant and appellant--Dawn Behrens.
Before COVINGTON, SAVOIE and LeBLANC, JJ.
The issues presented in this appeal from an interlocutory decree of adoption are the validity of the act of surrender executed by the child's natural mother and determination of the child's best interest.
When approximately six months pregnant, Dawn Behrens visited an abortion clinic to discuss the possibility of an abortion, although she testified that she knew her pregnancy was too far advanced for an abortion. Ms. Behrens was eighteen years old, unmarried and living with her mother and stepfather at the time. Ms. Behrens was examined by Dr. Sidney Knight, who confirmed she could not have an abortion because of the advanced state of her pregnancy. Dr. Knight gave her the name and telephone number of Donald Perez, a Metairie attorney who could help if she wished to arrange a private adoption. Dr. Knight explained that he had an agreement with Mr. Perez to refer pregnant women who were too far advanced for an abortion; in exchange for which Mr. Perez performed legal work for the physician without charge. Mr. Perez charged no fees for his assistance in placing children for private adoption. He stated that his endeavors in this regard were motivated entirely by his personal belief against abortion.
Mr. Perez stated that his first contact in this matter was with Ms. Behrens' mother, Joan Botman. However, Ms. Behrens herself testified that she initially telephoned Mr. Perez and left a message for him to contact her. When Mr. Perez returned the call, he spoke to Ms. Behrens' mother, who gave him directions to their home in Zachary. He subsequently visited with Ms. Behrens, her mother and her stepfather at their home and advised them that he could help place her child for private adoption and arrange for all of her pregnancy-related medical expenses to be paid. After he was told to proceed, Mr. Perez contacted James and Laura Pontiff, a couple which he knew wanted to adopt a child, and arranged for them to pay Ms. Behrens' medical expenses with the hope that after the child was born, it would be surrendered to them for adoption. Thereafter, Ms. Behrens either sent Mr. Perez all her medical bills or telephoned him in this regard. Mr. Perez would then obtain the necessary money from the Pontiffs and forward it to her, in order to maintain the Pontiffs' anonymity.
On November 30, 1985, Ms. Behrens gave birth to a baby girl. The child's father was not listed on her birth certificate. On December 7, 1985, Ms. Behrens signed an act of surrender of her child for the purpose of adoption. The prospective adoptive parents, the Pontiffs, were not named in the act of surrender; Mr. Perez was named as the party to whom custody of the child was surrendered on their behalf. Mr. Perez also acted as Notary and his law partner, A. Russell Roberts, as Ms. Behrens' attorney for purposes of the act of surrender. However, within thirty days of signing the act of surrender, Ms. Behrens sent a written notice of revocation of consent to Mr. Perez. The record does not reflect that Ms. Behrens sought a return of custody at this time.
On January 30, 1986, the Pontiffs filed a petition to adopt the child surrendered by Ms. Behrens. Subsequent to receiving service of this petition, Ms. Behrens filed an answer opposing the adoption and seeking a return of custody to herself on the basis that her consent was procured through fraud, misrepresentation and duress. She also alleged that the adoption was not in the child's best interest.
A hearing was held on April 15, 1986, on the issues of: (1) the validity of the act of surrender, and (2) the best interest of the child. After hearing all pertinent witnesses, the trial court ruled that Ms. Behrens' consent to the act of surrender was freely and voluntarily given. The court then heard evidence as to whether the adoption was in the child's best interest. At the conclusion of the hearing, the court took this matter under advisement. Subsequently, the trial court rendered judgment on June 20, 1986, granting an interlocutory decree of adoption in favor of the Pontiffs. Ms. Behrens has appealed this judgment.
Ms. Behrens alleges the invalidity of the act of surrender on two grounds: (1) that her consent to this act was induced by duress; and, (2) that she lacked effective representation of counsel as required by La.R.S. 9:422.7.
The record reflects that the only parties who exerted any pressure on Ms. Behrens to put her child up for adoption were her own mother and stepfather, Joan and George Botman. This pressure took the form of an ultimatum that she either put the baby up for adoption or else she could not continue to live with them. There is no allegation that either Mr. Perez or anyone else pressured Ms. Behrens in any way to give up her baby or were even present when the Botmans did so.
In support of her contention that her consent was not freely given, Ms. Behrens points to a conversation her mother had with Mr. Perez on the morning that the act of surrender was executed. During this conversation, Mrs. Botman stated that Ms. Behrens did not want to give her baby up for adoption, but could not afford to raise her unless she went on welfare. While we believe this statement evidences Ms. Behrens' naturally conflicting emotions regarding her decision to place her child for adoption, we do not believe it proves that her consent was legally vitiated. It is not at all unusual for a mother faced with this difficult decision to vacillate in making it. Nor is it unusual that an unwed mother may desire to keep her child, but nevertheless decide that it is best for all concerned to place the child for adoption.
We conclude that the pressure exerted by Mr. and Mrs. Botman did not amount to duress invalidating Ms. Behrens' consent. While their ultimatum certainly put Ms. Behrens in a difficult situation, it appears that Ms. Behrens did not even explore the possibility of alternatives to placing the child for adoption. Although Ms. Behrens had no relatives in Louisiana other than her mother, she had a father and siblings in Indiana who could have perhaps assisted her. She apparently made no attempt to contact them for assistance. Further, while not a pleasant prospect, if she had been determined to keep her baby, she could have explored the possibility of receiving public assistance.
The present case is quite similar to In Re Adoption of Giambrone, 262 So.2d 566 (La.App. 4th Cir.1972). In Giambrone a twenty year old, unwed woman, who immediately prior to and after her child's birth resided with her mother, consented to her child being placed for adoption. However, she later opposed the adoption of the child, alleging that her consent was given under duress because her mother would not allow her to return to her home. The court concluded with respect to this argument that:
We also do not find duress from petitioner's allegations that her mother would not let her return to the parental home, especially in view of petitioner's age and lack of showing that she sought any means of support for the child before or immediately after its birth ... p. 569.
In another case with similarities to the present one, Allen v. Volunteers of America, 378 So.2d 1030 (La.App. 2d Cir.1979), writ denied, 381 So.2d 509 (La.1980), a nineteen year old, unwed woman was told by her father that she could not resume living at home unless she placed her child for adoption. He also exerted other forms of pressure on his daughter. However, the court concluded that this was insufficient to constitute duress invalidating her consent.
Further, Wuertz v. Craig, 458 So.2d 1311 (La.1984), a case relied upon by Ms. Behrens in support of her position, is clearly distinguishable from the present one. In Wuertz, a nineteen year old, unwed mother was threatened by her grandmother with the possibility of criminal charges of child abuse unless she surrendered her child for adoption. These threats were made in the presence of the attorney hired by the grandmother to represent Ms. Wuertz. In fact, the attorney himself discussed the ramifications of such criminal charges with Ms. Wuertz. The record contained no evidence that such charges were justified. The supreme court found that under these circumstances Ms. Wuertz's consent was vitiated because it was given under duress, consisting of the threat of criminal charges. It is immediately clear that the threats in Wuertz were of an entirely different nature from the pressure exerted in the present case and therefore do not support Ms. Behrens' contention of duress.
For the above reasons, we find no manifest error in the trial court's finding that Ms. Behrens' consent was freely and voluntarily given.
Ms. Behrens also argues that the act of surrender is invalid because she did not have adequate representation of counsel. R.S.La. 9:422.7 provides that a "surrendering parent ... shall be represented by an attorney at the execution of the act of surrender." In this case, Mr. Perez was accompanied at the act of surrender by his law partner, Mr. A. Russell Roberts. Mr. Perez acted as notary and Mr. Roberts represented Ms. Behrens for purposes of the act of surrender. Before the execution...
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J.M.P., In re
...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 ad......
- Pontiff v. Behrens