Bruce v. Dillahunty

David Newbern, Justice. This is a habeas corpus case brought by a minor, through her parents as next friends, to cause the appellees, an attorney and unknown other persons, to produce her baby girl. The chancellor denied the writ on the basis that the minor appellant, Cheryl Bruce, had executed a lawful consent to the adoption of the child. We must reverse and remand the case, as we hold Ms. Bruce has shown a right to the custody of her child, and the record does not demonstrate that any such right to custody was shown to have been in the appellees. The facts reviewed by the chancellor were stipulated by the parties. Cheryl Bruce is an unmarried minor who, at the age of sixteen, gave birth to a daughter on July 28,1986. The following day she executed an instrument entitled “Consent to Adoption and Release of Custody” by which she purported to release all her rights to custody of her child and to give her full consent to the adoption of the baby. The instrument did not name the prospective adoptive parents, but stated Cheryl Bruce was “. . . willing for her physician to place the infant child with a married couple for the purpose of seeing that the infant is properly maintained and cared for and for the purpose of having the infant adopted by reliable and fitting persons. . . .” Ms. Bruce’s parents, who are also appellants, executed separate consents to the adoption of the baby. On August 1,1986, three days after she had executed the document, Ms. Bruce called W. H. Dillahunty who, she had been told, was the attorney representing the prospective adoptive parents and revoked her consent and attempted to regain custody of the baby. Later, on August 25,1986, she obtained counsel and formally withdrew her consent by affidavit. Her parents also revoked the consent instruments they had executed. The baby was not returned to Ms. Bruce despite her request and her revocation of the instrument described above. In their petition for a writ of habeas corpus, filed on September 8,1986, Ms. Bruce and her parents do not allege, nor have they contended since, that the consent and relinquishment instruments were executed other than voluntarily by them. They alleged that the instrument Ms. Bruce signed was ineffective because it failed to comply with Ark. Stat. Ann. § 56-220 (Supp. 1985) which states that the instrument by which parental rights are relinquished is invalid unless it contains a statement acknowledging that it may be revoked within ten days after it is executed. The petition concluded by alleging that the detention, and the assertion of the right to custody of the baby by “the respondents is not authorized by any judgment, decree or order or by any provision of law and therefore is illegal and invalid.” The chancellor denied the petition, finding that § 56-220 is inapplicable because it applies only to “agency” adoptions as opposed to “direct” adoptions with respect to which the matter of consent is governed by Ark. Stat. Ann. § 56-208 (Supp. 1985) which contains no requirement that the right to revoke be stated in the instrument of consent to adoption. 1. The statutes In Temple v. Tucker, 277 Ark. 81, 639 S.W.2d 357 (1982), a minor contested the adoption of her child after the adoption had taken place. She contended that, because she was a minor, the adoption was illegal absent the appointment of a guardian ad litem for her, citing Schrum v. Bolding, 260 Ark. 114, 359 S.W.2d 415 (1976), a case holding pursuant to our previous adoption law that a guardian ad litem was required for a minor parent whose consent was necessary to the adoption, and Ark. R. Civ. P. 17(b). We held that under the Revised Uniform Adoption Act, the act which contains the sections noted above, a minor who has consented to adoption need not even be notified of the formal adoption proceedings, and thus no guardian ad litem was necessary. In our decision in Temple v. Tucker, supra, we uttered the following obiter dicta: We might point out the act does not preclude a careful practitioner from seeking the appointment of a guardian ad litem for a minor mother and certainly that precaution would lessen the probability of an attack on the adoption decree in a later proceeding, as occurred in this case, and of a subsequent contention that the minority of the parent contributed to an invalid consent. See 2 UALR L.J. 135 (1979). We might well point out that the new adoption act provides yet another method of surrendering parental rights which is intended to be followed where the consenting mother surrenders her child, not directly to the adopting couple, as here, but to an agency, which may later place the child for adoption by parents it selects. The latter method is set out in Section 20 of the act (Ark. Stat. Ann. § 56-220[)] . . . and provides that the consenting parent, regardless of age, can appear before a judge of a court of record or before a representative of the agency and relinquish her parental rights as well as the rights to later withhold her consent. Under this procedure the consenting parent has ten days in which to revoke her consent and the relinquishment is invalid unless this right of withdrawal is stated. [277 Ark. at 84-85, 639 S.W.2d at 358-359] It is the latter of these statements upon which the chancellor relied in this case to hold that the protections offered to a minor parent in § 56-220 do not apply where the consent is to a “direct” adoption, as provided for in § 56-208, and thus the consent executed by Ms. Bruce was valid. At least some doubt is cast upon our statement that § 56-220 applies only to “agency” adoptions by the fact that after our decision in Temple v. Tucker, supra, the general assembly, by Act 879 of 1985, amended that section to reinstate the requirement that a guardian ad litem be appointed for a minor parent purporting to relinquish her parental rights. If called upon to do so, we might have difficulty today saying that the general assembly’s intent was to distinguish between so-called “private” adoptions and “agency” adoptions in this respect. A second difficulty we would have in applying our earlier decision to this case is that, although this was not a case in which an adoption agency was involved, there clearly were intermediaries here, i.e., Mr. Dillahunty and the physician, and the record indicates that Ms. Bruce was not told, and may not know to this day, who was to adopt her child. We can see no logic in providing that a minor can relinquish her rights in this situation, where she is neither protected by a guardian ad litem nor told of her right to revoke her relinquishment, and then providing such protections when an adoption agency is involved. We need not, however, answer that question in this case. 2. Habeas corpus This is not an adoption case. We are not deciding, as we had to in Temple v. Tucker, supra, the validity of an adoption. Literally translated, “habeas corpus” means, “You have the body.” State Department of Public Welfare v. Lipe, 257 Ark. 1015, 521 S.W.2d 526 (1975). The procedure for issuance of the writ of habeas corpus is set out in Ark. Stat. Ann. §§ 34-1701 through 34-1746 (Repl. 1962). While much of the language of those sections refers to custody of a “prisoner,” the writ was obviously intended to be available in the situation before us now. Section 34-1704 refers to seeking the writ “. . . against any person who shall unlawfully have or detain in custody or bondage any infant. . . .” When the person to whom the writ is directed has custody of “the body” pursuant to lawful process the court in which the writ is sought clearly may not, according to § 34-1734, “inquire into the legality or justice of the process, judgment, decree or order of any court, legally constituted, nor into the justice or propriety of any commitment for contempt made by any court, officer, or body corporate, according to law, and plainly charged in such commitment,. . . .” The point to be made here, however, is that there is no such order. We have no idea why, but the record before us shows no temporary custody order, and it does not even show that any party or person has filed a petition for adoption of the child. A chancery court may, in response to a request for a writ of habeas corpus, entertain a full-blown custody hearing and make a determination of who should have custody in accordance with the best interests of the child. Tucker v. Tucker, 195 Ark. 632, 113 S.W.2d 508 (1938). We have found three cases in which such a hearing resulted in denial of the writ where custody of the child was placed in a party other than the natural parent of the child and the writ was pursued by the natural parent. In Verser v. Ford, 37 Ark. 28 (1881), the child’s mother died shortly after giving birth, and the father allowed the grandparents to care for the child for some three years thereafter. In response to the father’s request for a writ of habeas corpus, it was held that where the father had allowed the special ties to grow between the grandparents and the child, it would be wrong to allow him to regain custody of the child even though there was no question of his fitness to have the custody of his daughter. The court made strong references to the highly satisfactory arrangement of leaving the child with the grandparents upon whom the duty of caring for the child would devolve if something happened to the father. It is evident from the opinion that the trial court had before it both the father and the grandparents and was making a determination of which home would suit the best interests of the child. In Washaw v. Gimble, 50 Ark. 351, 7 S.W. 389 (1887), a child was given by a father to members of his church congregation, who were not related to him or the child, when the child was three days old. Some three years later he began proceedings to regain the custody of the child, and ultimately sought a writ of habeas corpus. The writ was denied, and we affirmed. We recognized the paramount right of a parent to a child, but, as in the Verser case, we held that where the father had allowed the familial ties to grow and be nurtured the welfare of the child required that those ties not be abruptly terminated. We said the father could forfeit his natural preference by his own conduct in allowing the child to remain in such a situation over a long period. Again, we noted, “[t]he circuit judge had the parties, the witnesses and the child before him, and was charged with the exercise of a sound discretion in disposing of the question.” 50 Ark. at 355, 7 S.W. at 390. In Massey v. Flinn, 198 Ark. 279, 128 S.W.2d 1008 (1939), a habeas corpus petition resulted in a fitness hearing in which the chancellor, on the basis of the child’s best interests, divided custody between the child’s father and Mrs. Flinn, an unrelated woman the father had allowed to keep the child since the death of the child’s mother. Eleven months after the child had gone to live with Mrs. Flinn, the father and Mrs. Flinn had entered an agreement in writing spelling out the right of Mrs. Flinn to custody of the child and the father’s right to visit. While we recognized the instrument as indicative of the father’s state of mind when it was entered, we noted it was an unenforceable agreement because public policy prohibits recognition of an agreement by which a father “gives away” his child. In this case the stipulated facts before the chancellor made no reference to allegations of unfitness or findings of fitness of Ms. Bruce or any other person. Nor has there been any hearing with respect to the best interests of the child. We have no previous order conferring custody of the child upon anyone. Given the natural right of the parent to the custody of her child mentioned in the cases cited above, and again alluded to in Feight v. Feight, 253 Ark. 950, 490 S.W.2d 140 (1973), and in Massey v. Flynn, supra, we conclude that the chancellor had no basis for denial of the writ. Although it is now some eighteen months since Ms. Bruce’s child was born and presumably placed with a married couple, the passage of time has not been the fault of Ms. Bruce, as she has tried to obtain the return of her child since the fourth day of its life. We reverse the chancellor’s decision because the respondents did not show entitlement to the child’s custody in the face of the mother’s claim as the child’s natural parent, thus the writ should have issued. We remand the case for the entry of an order consistent with this opinion, and we note that our decision is without prejudice to the seeking of a temporary custody order pending the filing and adjudication of a petition for adoption. Reversed and remanded. Hickman and Hays, JJ., dissent. Glaze, J., concurs.