In Matter of Petition of Steve B.D. v. Steve B.D. , 111 Idaho 285 ( 1986 )

SHEPARD, Justice.

This is an appeal from an order of the district court which affirmed an order of the magistrate court, which denied a petition to revoke consent to the adoption of a child. We affirm.

Appellant Mary Ann DeBernardi gave birth to a child on March 5, 1984. On March 7,1984, before a magistrate, DeBernardi executed a consent to the adoption of that newborn child by Mr. and Mrs. D. Mr. and Mrs. D. filed a petition for adoption of the child on March 9, 1984. DeBernardi filed a written revocation of her consent to the adoption of the child on March 20, 1984. A hearing was held on the attempted revocation of consent in May of 1984 before a magistrate who denied the attempted revocation. That order of the magistrate was appealed to the district court which affirmed the order of the magistrate in March of 1985. The appeal before this Court was heard in January 1986. In the interim there have been no further adoption proceedings and no decree of adoption. The child has lived with Mr. and Mrs. D. since March 7, 1984.

In 1982 DeBernardi, a 36-year-old woman who had four children, was recently divorced after a long marriage, and had minimal financial resources. She responded to a newspaper advertisement which sought surrogate mothers. She consulted with attorney Bert Osborn who had placed the advertisement. He informed her that prospective adoptive parents were willing to pay her $7,000.00 plus her medical and legal expenses to be a surrogate mother. Negotiations for such surrogate parenthood were never completed.

Sometime later DeBernardi met and sporatieally began living with one Chet Swan during 1982 and 1983. In July 1983 DeBernardi learned she was pregnant, allegedly by Swan. Swan left DeBernardi in September 1983. Thereupon DeBernardi recontacted Osborn to inform him of her pregnancy and of her desire to have the child placed for adoption. Osborn advised DeBernardi to hire another attorney, and she then sought advice from McDonald, an attorney who had previously handled her divorce.

On September 15,1983 a written contract was executed between DeBernardi and Mr. and Mrs. D. in which DeBernardi agreed to give up her as yet unborn child for adoption, and Mr. and Mrs. D. agreed to adopt the child when born. The contract provided for the payment of DeBernardi’s legal and medical costs, but did not provide for any payment to be made to DeBernardi herself. The contract provided for the payment of costs of artificial insemination, and was generally in the format of a surrogate mother contract. Evidently that format was utilized because the contract provided that the prospective adoptive parents could not refuse to accept the child if it were born with a defect or if there were multiple births. The contract further provided that the parties were not to meet each other nor to know each other’s names.

Prior to, and again after the execution of the contract, DeBernardi met with and discussed the proposed adoption with Davenport, a counselor with the Department of Health and Welfare. In December 1983 attorney Osborn withdrew from the proceedings and referred the prospective adoptive parents to attorney McDonald who in turn referred them to attorney Fouser.

DeBernardi gave birth to a child at 2:00 a.m., March 5, 1984. During the time that she was in the hospital she twice consulted with Bev Putnam, director of social services for the hospital. Putnam testified that she spent over an hour reviewing the question of adoption, and the alternatives thereto, with DeBernardi. The child was delivered to Mr. and Mrs. D. who took the child home on March 7, 1984.

On March 7, 1984 DeBernardi appeared before Magistrate Birnbaum to execute a consent to the adoption of the newborn child by Mr. and Mrs. D. and to terminate her parental rights. At that time she testified under oath that she did not know the identity of the child’s father, and that she had contemplated the adoption for nine months. She testified that no one had threatened or coerced her into giving her consent. DeBernardi then executed the consent document before the magistrate.

On March 17, 1984, the current counsel for DeBernardi notified Mr. and Mrs. D. that DeBernardi had revoked her consent, and on March 20, 1984 DeBernardi filed with the court a written revocation of consent. A hearing on DeBernardi’s petition to revoke her consent and dismiss the adoption petition of Mr. and Mrs. D. was held on May 11,1984, before Magistrate Drescher. Swan made a motion to intervene in the adoption proceeding and sought custody of the child. Swan was permitted to intervene, but it was held that Swan’s consent to the petition for adoption was unnecessary and Swan’s request for custody was denied. Swan has filed a separate appeal but is not a party to this appeal.

At the conclusion of the hearing, Magistrate Drescher denied DeBernardi’s attempted revocation and her petition to dismiss the adoption petition. That decision of the magistrate was appealed to the district court, which affirmed the magistrate.

Magistrate Drescher rendered his decision denying DeBernardi’s attempted revocation of her consent and denying her petition to dismiss the adoption proceedings on the basis of what he perceived to be the standards of Matter of Andersen, 99 Idaho 805, 589 P.2d 957 (1978). Magistrate Drescher therefore held that DeBernardi was estopped from revoking her consent to the adoption.

In Andersen, a young unwed mother decided to privately place her child for adoption, and she chose the Crapos as the adoptive parents. As she went into labor she changed her mind and informed the Crapos that the baby would not be adopted. Shortly after the birth of the child the mother married the father of the child. A month later she called the Crapos to inform them that they could adopt the child. The Crapos and the Andersens met, and the baby was delivered to the Crapos. The parties signed an adoption form and had their signatures notarized at a bank. The Andersens went to California and twice called the Crapos requesting the return of the child. During a third telephone call the Andersens apologized for the demands for the return of the child, and indicated they would not attempt to regain custody. An adoption proceeding was initiated by the Crapos and a decree of adoption was issued. Approximately two months later the Andersens again demanded the return of the child, and when met with a refusal filed a petition for writ of habeas corpus. After a hearing before the district court the adoption decree was set aside and the child ordered returned to the Andersens.

The adopting parents appealed to this Court, and the district court order was affirmed. A majority of this Court held that a natural parent should be permitted to revoke a valid consent to adoption unless estopped from doing so. The Andersens were held not to be estopped from revoking their otherwise valid consent. The Court held that the following factors were to be considered in determining whether or not natural parents should be estopped to revoke their otherwise valid consent to adoption:

“the circumstances under which the consent was given; the length of time elapsing, and the conduct of the parties, between the giving of consent and the attempted withdrawal; whether or not the withdrawal was made before or after the institution of adoption proceedings; the nature of the natural parent’s conduct with respect to the child both before and after consenting to its adoption; and the ‘vested rights’ of the proposed adoptive parents with respect to the child.” Id. at 811, 589 P.2d at 963.

As above noted, Magistrate Drescher held that DeBernardi was estopped to revoke her consent, and DeBernardi asserts that the magistrate failed to give adequate consideration to the fact that there was prompt revocation of consent (within ten days), and the circumstances surrounding her giving of consent.

At the hearing before Magistrate Drescher, DeBernardi testified that she had received no counseling prior to the birth of the baby, and that at the time she entered the hospital she had decided not to go through with the adoption. She indicated that she had purchased various furniture and clothes in anticipation of bringing the baby home. She further testified that attorney McDonald had told her to state at the hearing before Magistrate Bimbaum that she did not know who the father was. She also testified that in February she decided to make her consent to adoption conditional upon agreement that the child would be raised out-of-state, that it would be reared in the Catholic faith, and that the adoptive parents would be childless. She further testified that attorney McDonald had exerted influence upon her to give the child up for adoption.

On the other hand, McDonald testified at the hearing that he had reviewed the consent form with DeBernardi and discussed its legal ramifications, and denied that De-Bernardi ever attached any conditions to the adoption. He testified that DeBernardi had never expressed any desire to take her child home with her from the hospital, and that one of the continuing concerns of De-Bernardi was the fact that she worked a night shift. McDonald denied that he had ever coached DeBernardi to testify that the father was unknown at the hearing before Magistrate Birnbaum, and testified that DeBernardi gave conflicting versions of the paternity of the child.

Although DeBernardi testified that while she was in the hospital she told the director of social services that she was being pressured to consent to the adoption, Putnam, the director of social services at the hospital, testified that she counseled with De-Bernardi at least twice, and that DeBernardi appeared to be firm in her decision to consent to adoption and give up the child.

Mr. and Mrs. D both testified at the hearing. Both testified that they have had uninterrupted custody of the child since March 7, 1984, and that they love the child and consider him a part of the family. Mrs. D testified that adoption had been contemplated since July 1983, and that she and her husband had paid DeBernardi’s legal fees in the amount of $2,000.00 to McDonald, and $2,500.00 for DeBernardi’s medical expenses.

Upon appeal to the district court that court stated:

“While the Magistrate did not enter a document literally entitled Findings of Fact and Conclusions of Law, and while the Memorandum and Order, to a considerable extent, simply recites the conflicting testimony of key witnesses without specifically stating that one witness’s testimony was given greater credence by the Court than that of another witness, this Court concludes that it is abundantly clear from a reading of the entire Memorandum and Order what facts the Magistrate accepted and what law he acted upon. Furthermore, this Court finds that the Memorandum and Order is well supported by the testimony appearing in the transcript.

“... The trial Court’s ultimate finding that the appellant simply changed her mind is well supported, and the decision of Judge Drescher is affirmed by this Court.”

Magistrate Drescher reviewed the five factors set out in Andersen to be considered by a court in passing upon a revocation of consent to adoption. Magistrate Drescher contrasted the mature woman in the instant case, and the distress of a young woman without any advice, as in Andersen. He indicated that DeBernardi was a mature woman who “had the benefit of counsel throughout the period of pregnancy and for a material period of time before; she had reviewed the matter on a number of occasions with her attorney and also discussed and reviewed the pros and cons of the adoption versus other alternatives. She also had the benefit of consultation with a social worker during the term of her pregnancy____” Magistrate Drescher contrasted DeBernardi’s situation with that of the natural mother in Andersen who attempted to care for the child for some considerable period of time in the home of her parents. In the instant case DeBernardi had very brief contact with the child at the hospital. The magistrate indicated that Mr. and Mrs. D. had uninterrupted custody of the child since March 1984, that they have renamed the child, that they had expended considerable sums in regard to medical attention as well as legal fees. The magistrate found that the above factors, together with the emotional attachment to the child, required a holding that DeBernardi was estopped. from revoking her consent. Additionally, the magistrate court noted that there was “not the slightest bit of evidence that the consent was induced by fraud or duress” and that in contrast to the Andersen proceeding De-Bernardi had a full judicial proceeding in the securing of her execution of consent and “Mrs. DeBernardi in fact executed the consent freely, voluntarily, intelligently, knowingly and with full knowledge of its consequence.”

We hold, therefore, that under the standards enunciated in Andersen, that the magistrate court as affirmed by the district court, was correct in its holding that De-Bernardi was estopped to revoke her consent to the adoption, and in denying DeBernardi’s petition to dismiss the adoption proceedings brought by Mr. and Mrs. D. Although we have held that the trial court was correct in its decision that the facts in the instant case satisfied the estoppel requirements as set forth in Andersen, supra, we today overrule Andersen and its “estoppel” approach to an attempted revocation of a consent to adoption.

The central issue in Andersen, as in the case at bar, is whether in the absence of fraud, duress or undue influence a natural parent who has executed a consent to adoption has the right for an indeterminate period to simply change his or her mind and revoke consent as in Andersen, even after an adoption procedure has been completed. We now hold that in the absence of fraud, duress, or undue influence, consents to adoption become final and irrevocable upon execution of the consent to adoption by the natural parents, and delivery and surrender of the child to the adoptive parents. We so hold in the view of thus promoting the child’s welfare and subordinate to that welfare the protection of the interests of the natural and the adoptive parents. See, Department of Social Welfare v. Superior Court, 459 P.2d 897 (Cal. 1969); Stjernholm v. Mazaheri, 506 P.2d 155 (Colo.1973). See also, In re Adoption of Randolph, 227 N.W.2d 634 (Wis.1975); Mawhinney v. Mawhinney, 66 Wis.2d 679, 225 N.W.2d 501 (1975).

It was well stated that the estoppel approach of Andersen inevitably will breed litigation and uncertainty with the future of potentially adoptive children remaining in a state of limbo for years.

“Uncertainty, as this case verifies, breeds litigation which, regardless of how the issues are ultimately decided by the courts, often results in tragedy for the child____ Much of this could be avoided by a clear, decisive and easily ascertainable standard for determining, short of prolonged litigation, when and if a consent is revocable. In this respect the majority opinion fails egregiously. The standard adopted by the majority, estoppel, does not provide the public with any clear guidelines. It is a standard only the courts can apply. Under that standard, questions concerning revocation cannot be resolved with any certainty without litigation.” Andersen, 99 Idaho at 818-819, 589 P.2d at 970-971 (Bakes, J., dissenting).

We perceive the majority opinion in Andersen as focusing unduly on the rights of and consideration for the interests of the natural parents to the exclusion of the welfare of the child. Although this Court has long recognized the right of natural parents to the care and custody of their own children, case law pre-Andersen does not establish any rule primarily favoring the rights of natural parents in a case such as presented here. As well pointed out by the dissenting opinion of Bakes, J., in Andersen, where the child has been delivered to and has been for some period of time in the custody of the prospective adoptive parents, emotional ties and bonds are established between the child and the adoptive parents, the severance of which will be as traumatic, if not more so, than the severance of the ties between the child and the natural parents.

As stated in the dissenting opinion of Bakes, J., in Andersen:

“However, the natural parents actually have the least interest in the specific point at which a consent becomes irrevocable, though they certainly have a strong interest in knowing when it is. Unlike the child and the adoptive parents, the natural parents have complete control over when the consent is given. There is no deadline for the natural parents. They can surrender the child and consent to the adoption at any time which best fits their needs and interests. That most natural parents choose to give the child for adoption at birth recognizes the sociological fact that the longer the decision for adoption is delayed the more difficult it is to sever the emotional bonds between the mother and the child. But the decision is solely the natural parents’ to make, and in the absence of fraud, coercion, or undue influence they should be bound by it, because after the consent is given and the child placed with the adoptive parents, the same emotional bonds are forged with the new parents. By changing her mind the natural mother is not merely exercising what the majority apparently finds to be the natural right of an ‘extremely distraught, concerned and upset’ woman, but is destroying the emotional bonds which the child has forged with its new parents and, in most cases, the only parents and family it has ever known.

“Nevertheless, I do believe the fact that the natural mother, subsequent to consenting to the adoption, has had a change of heart and now is desirous and willing to care for the child may be significant in the adoption proceedings. I.C. § 16-1507 requires that before entering a final order of adoption the judge must be ‘satisfied that the interests of the child will be promoted by the adoption.’ Certainly the natural parents’ desire to regain custody of the child and their present willingness to assume the parental responsibility for the child are relevant to the judge’s determination whether the proposed adoption is in the child’s best interests. If convinced that the best interests of the child would be promoted by returning the child to the natural parents, the judge, in my view, would be entitled under I.C. § 16-1507 to deny the adoption petition and order the child returned to the natural parents. However, such decision must be based upon careful findings that such action would in fact serve the child’s best interests and not merely upon the fact that the natural parents have changed their minds. This interpretation of Idaho’s adoption act best ensures that its primary purpose, the promotion of the welfare of children, will be served. It also conforms to the principles embodied in the Uniform Adoption Act prepared by the National Conference of Commissioners on Uniform State Laws.” 99 Idaho 805 at 820-822 [589 P.2d 957],

We hold that while natural parental ties are one factor to be considered in determining the best interests of the child, such ties are not to be treated as a presumption in favor of the natural parents. When, in the absence of fraud, duress, or undue influence a consent to adoption has been executed and the child has been delivered to the potential adopting parents, the general rule favoring natural parents is inoperative and rather a judicial inquiry is triggered into the best interest of the child. See Matter of Adoption of R.P.R., 98 Wis.2d 613, 297 N.W.2d 833 (1980). The best interest of the child test is much more than a mere comparison of the social status and economic means of the competing sets of parents, and our courts are well equipped to make inquiry into the child’s best interest, going well beyond a balance sheet financial comparison. As indicated in S.O. v. W.S., 643 P.2d 997 (Alaska 1982), the best interest of the child standard is not a mere comparison of the economic and social benefits which competing sets of parents can provide. The Alaska court in its holding, quoted extensively from the dissenting opinion of Bakes, J., in Andersen.

In brief, we adopt the philosophy enunciated by Bakes, J., in his dissenting opinion in Andersen.

We further note, as did the Andersen majority, that case law from other jurisdictions must be studied critically as it is impossible to find another case in which both the circumstances of the parties and the statutory framework of the jurisdictions are identical. One factor, however, appears to remain constant in all cases. When the natural mother changes her mind and litigation is instituted, there will be a considerable passage of time before there is any resolution. In the instant case the custody of the child has been in the adoptive parents for more than two years, with the strong ties and emotional attachments which inevitably form.

Finally, we examine DeBernardi’s assertion that her attorney-client relationship with attorney McDonald was tainted because McDonald’s fees were paid by Mr. and Mrs. D. Our Disciplinary Rule 5-107 provides:

“A. Except with the consent of his client after full disclosure, a lawyer shall not:

1. Accept compensation for his legal services from one other than his client.

2. Accept from one other than his client anything of value related to his representation of or his employment by his client.

“B. A lawyer shall not permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal services.” (Emphasis added.)

In the instant case the record clearly indicates that DeBernardi, in the written agreement, not only consented to the payment of her legal fees by Mr. and Mrs. D., but undoubtedly insisted upon it, since at that time she was in severe financial straits. While such an arrangement is less than ideal, under such circumstances and absent an offer of pro bono assistance, there appears no other practical method by which DeBernardi, nor most natural mothers giving up a child for adoption, could obtain legal advice. Further, there is no evidence in the record, and we see no inference, that McDonald allowed Mr. and Mrs. D. to regulate his professional judgment in rendering services to Mrs. DeBernardi.

Magistrate Drescher reviewed not only the transcript, but also the taped recording of the hearing before Magistrate Bimbaum, at which time DeBernardi executed the consent to adoption. Magistrate Drescher found, “The hearing [before Magistrate Bimbaum] was most thorough in nature. Although it does not appear from the naked transcript, the ambiance upon listening to the recorded record is one of a relaxed, unhurried and deliberate inquiry. DeBernardi did not testify that her relinquishment of parental rights was conditional.” As herein noted, Magistrate Drescher indicated there was “not the slightest bit of evidence that the consent was induced by fraud or duress,” and “Mrs. Debernardi in fact executed the consent freely, voluntarily, intelligently, knowingly and with full knowledge of its consequence.” Hence the record demonstrates clearly the absence of fraud, duress or undue influence necessary under our standard enunciated today of factors justifying the revocation of consent.

Although DeBernardi argues that Magistrate Drescher’s order must be reversed because his written memorandum opinion does not expressly state it constitutes findings of fact and conclusions of law, we agree with and affirm the district court who noted: “This court concludes that it is abundantly clear from a reading of the entire memorandum and order what facts the magistrate accepted and what law he acted upon.” The decisión of Magistrate Drescher permits meaningful appellate review, and while perhaps technically violative of I.R.C.P. 52(a), such does not require a remand in this case. Accord Matter of Adoption of Baby Girl Chance, 4 Kan.App. 576, 609 P.2d 232 (1980).

While we have overruled Andersen insofar as it enunciates the estoppel standard in evaluating an attempted revocation of consent to adoption, we reiterate the holding of Andersen as it pertains to the execution of consents to adoption before a judicial officer.

All parties to the instant action have endured a lengthy and undoubtedly painful litigation which has perhaps best demonstrated the unworkability and unfairness of the “estoppel” rule enunciated by the majority in Andersen, and lends even greater credence to the Bakes, J. dissent in Andersen. Under the rule of today’s case the decision of the district court affirming the orders of the magistrate is affirmed. Costs to respondents.

DONALDSON, C.J., and BAKES and HUNTLEY, JJ., concur.