Unwed Father v. Unwed Mother

• Decision Date: 14 August 1978
• Citation: 177 Ind.App. 237,379 N.E.2d 467,64 Ind.Dec. 8
• Parties: UNWED FATHER, Appellant (Plaintiff below), v. UNWED MOTHER, Appellee (Defendant below).
• Court: Indiana Appellate Court

Page 467

379 N.E.2d 467

177 Ind.App. 237

UNWED FATHER, Appellant (Plaintiff below), v. UNWED MOTHER, Appellee (Defendant below).

Court of Appeals of Indiana, Third District.

Aug. 14, 1978.

Patrick E. Donoghue, Michigan City, for appellant.

Michael Brennan, Michigan City, for appellee.

STATON, Judge.

Unwed Father (Father) initiated this action in order to obtain judicial protection of his parental rights and to determine his parental responsibilities. Father is the natural father of a child born to Unwed Mother (Mother). The trial court concluded that Father is the father of the child, but, paternity notwithstanding, denied Father's suit for custody. The court also awarded Mother damages on her counterclaim.

Father appeals. We reverse.

I. Unwed Mother's Rights

Father and Mother were students in Minnesota when the child was conceived. Neither party considered marriage. Mother did consider abortion, but she rejected that alternative. Mother favored placing the child for adoption, but she particularly desired anonymity of the adoptive parents. Father maintained that if Mother placed the child for adoption he wanted the child. Mother was adamantly opposed to any relationship between Father and the child.

Approximately two weeks before the birth of the child, Mother moved, leaving no forwarding address. She gave birth to a girl on July 2, 1976, somewhere outside of the State of Indiana. On July 12, 1976, Father wrote to Mother and to her father at his Michigan City, Indiana, address, and tendered a guaranty of payment for all medical expenses, again expressing his interest in the child, and requesting information regarding the child's birth. At that time, Father did not know that the child had already been born.

On July 26, 1976, Father began a series of legal proceedings in which he attempted to assert parental rights over the child. We shall not burden this opinion with each of Father's motions. It is sufficient to note that, beginning with his petition for a writ of habeas corpus on July 26, 1976, and culminating in the court's November 3, 1976, ruling, Father demonstrated diligence in seeking an adjudication of his parental rights. From the birth of the child on July 2, 1976, to the judgment on November 3, 1976, a little over four months elapsed.

A. Mother's Rights During Pregnancy.

Mother and Father discussed the pregnancy many times. Abortion and adoption were discussed. Although Father was opposed to the idea of abortion, when Mother made an appointment to secure an abortion, Father provided money for her. Mother favored adoption, but Father resisted, insisting that he wanted his biological child. Mother participated in a counseling program for unwed mothers, and Father attended at least one session with her. When Mother was told by the clinic that the putative father would have to consent to an adoption, Mother became very upset.

Father testified that, understanding what Mother was going through, he finally told her that he would sign a consent to adoption. He stated at trial that he verbally agreed because he wanted to ease Mother's anguish. He reasoned that Mother was upset at the prospect of knowing where her child was (I. e., with Father); he intended to adopt the child himself and not tell Mother.

In April, 1976, Father told Mother that he did not intend to consent to the adoption. Mother was now beyond the point in her pregnancy wherein an abortion was an alternative. She knew that once she had the child, Father's consent was legally necessary. She decided to leave and not inform Father of the birth of the child.

The judgment of the trial court reveals the following pertinent circumstances:

"After confirming her pregnancy on November 8, 1975, defendant's (Mother's) first impulse was to have an abortion performed. Plaintiff (Father) never denied defendant this choice. It was only after defendant felt it more acceptable to (Sic ) morally to give birth to the child and then place it for adoption that differences arose between the parties. Defendant felt neither she nor plaintiff were equipped to raise the child. Plaintiff took the position he would prefer to take the child rather than consent to its adoption. Numerous discussions and arguments followed between the parties, frequently charged with emotion. Incomplete understandings were reached to be followed by vacillations and repudiations.

On December 5, 1975, parties met with a counselor from a private agency, whose purpose was to provide alternatives to abortions, and plaintiff advised the counselor that he would not provide the proper consent for adoption. Defendant had met with this counselor previously and had remained in contact with her until she left St. Paul on June 22, 1976.

Between December 5 and December 9, arguments between the parties intensified, and on December 8, defendant arranged for an abortion the following day, and plaintiff provided her with the required abortion clinic charges. December 9th was preceded by a long and emotional discussion between the parties wherein plaintiff agreed to consent to an adoption. Nevertheless, defendant proceeded to the clinic, discussed the abortion with the counselor, and returned home without having the procedure.

Conflicting testimony was presented in regard to the several conditions attached to plaintiff's agreement to give his written consent to the adoption. However, based on all of the testimony and evidence presented, the Court resolves the same in favor of the defendant and that a promise of the consent to adoption was given by plaintiff to defendant.

Thereafter, the parties met only once, in January of 1976, when the subject of defendant's pregnancy was avoided. By February 1, 1976, defendant had moved from plaintiff's building and had previously changed colleges. No contact was made between the parties until April 25, 1976. On that date, plaintiff informed defendant that he would not consent to an adoption, and for that matter, he had never intended to give such consent. Plaintiff's reasoning for this revelation provides some interesting observations.

Finally, the parties were placed in juxtaposition as to their respective rights regarding abortion and adoption under the laws of Minnesota. Defendant had an absolute right to an abortion during the first three months of pregnancy and under certain conditions, the period could extend up to six months. Defendant was now almost seven months pregnant. Plaintiff's consent to adoption would not be required until after the birth of the child. Clearly, on April 25, 1976, it was no longer legal or safe for defendant to have an abortion performed while plaintiff's right would not accrue until July 2, 1976.

The only remaining question before the court is whether plaintiff conducted himself in such a manner, and whether the defendant so relied upon plaintiff's conduct that he may now be estopped from asserting his parental rights regarding the child. The court finds that estoppel does exist, and it is its judgment that plaintiff is estopped from asserting his parental rights. Accordingly, plaintiff's petitions for writ of habeas corpus and for the appointment of a guardian ad litem are denied. The court further assesses damages for the defendant, and against the plaintiff in the sum of $3,000.00."

A woman's rights to control the disposition of her unborn child have been discussed at length by the United States Supreme Court. In Roe v. Wade (1973), 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, the Court held that the right of privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Id. at 153, 93 S.Ct. at 727. Roe v. Wade, supra, then prescribed boundaries for the exercise of that right; the boundaries related to the three trimesters of pregnancy and the viability of the child. In Planned Parenthood v. Danforth (1976), 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788, it was held that spousal or parental consent was not required before a woman could procure an abortion.

Father has not disputed Mother's legal prerogative to abort. In fact, recognizing that he had no right to prohibit such an abortion, Father provided the necessary money to pay for the abortion. Mother complains, though, that she relied upon Father's promise to consent to the adoption, and that she did not go through with her intention to abort because of her reliance. The trial court accepted her argument and thereafter found that Father was "estopped" to assert any parental rights.

Mother has refused throughout the litigation to disclose the whereabouts of the child. In fact, she refused to disclose in what state the birth, or the giving up for adoption, took place. She has only stated that the child was not born in Indiana or Minnesota. Therefore, we are handicapped in executing a precise analysis of the problem. Adoptions are statutory in nature, and the legislative requirements control.

It is a general rule, however, that written consent to the adoption must be obtained from the mother of an illegitimate minor child and the father of such child whose paternity has been established by a court proceeding and who has contributed to the support or care of such child. See IC 1971, 31-3-1-6(a)(2), Ind.Ann.Stat. § 3-120 (Burns Code Ed.). The consent is to be executed after the birth of the child. See IC 1971, 31-3-1-6(b), Ind.Ann.Stat. § 3-120 (Burns Code Ed.). It is obvious, then, that Father could not have consented to the adoption of the child before the child was born. The trial court specifically recognized the fact that Father's rights did not accrue until after the child was born. However, the court did find that Father had promised to consent and that the breach of that promise to consent created an estoppel against Father for the assertion of his now-accrued parental rights.

We disagree. A consent to adoption is only a portion of the legal adoption proceeding. It has no legal significance outside of that proceeding....