The opinion
UHLENHOPP, Justice
(concurring specially).
I. We are not dealing here with a consent to adoption. The child was released to a licensed child-placing agency, and in such a case the agency consents to the adoption. Code 1973, § 600.3. The agency is not seeking to set aside any consent it may have given.
We are dealing instead with a parent’s release of a child under chapter 238 of the Code. That chapter authorizes parental releases of children to regulated child-placing agencies, not only for adoption placement but also for other purposes.
Two aspects of releases under chapter 238 are involved: the original invalidity of a release, and the subsequent revocability of a release which is not itself claimed to be invalid.
Chapter 238 nowhere touches upon the problem of invalid releases — such as those induced by fraud, duress, or mistake. The sections of the chapter implicitly assume that the releases themselves are valid. I think the legislature did not purport to deal *130 with invalid releases and that it is inconceivable the legislature intended invalid releases should be valid. Hence if a parent, acting with reasonable promptness, proves by a preponderance of the evidence that a release was not understanding^ or voluntarily given, the release should be set aside. The evidence should be scrutinized carefully, however, as an attempt to invalidate a release may result from a change of mind of a parent rather than invalidity of the release, and the child and his custodians also have interests to be considered.
But chapter 238 does deal with the problem of revocability of releases which arc not themselves challenged. The legislature could have been silent on that subject too, in which event this court would have to say whether valid releases are subsequently revocable and, if so, on what grounds. The legislature itself, however, chose to deal with the problem, and provided that a child who has been released can only be recovered upon proof that he is neglected. Section 238.29 states:
Children so surrendered may not be recovered by the parents except through decree of court based upon proof that the child is neglected by its foster parent, guardian, or custodian, as neglect is defined by the statute relating to neglected children.
In this section the legislature balanced the interests of all the individuals involved. When the original surrender of the child is itself unchallenged, the parents can only recover the child by “proof that the child is neglected.” I think we are bound by this statute as written.
II. In the case before us, Debra Statler claims that the release itself was invalid from its inception because she was mistaken as to its import — she did not give it understandingly. She acted promptly, and if she has proved her claim by a preponderance of the evidence we should set the release aside. Upon carefully scrutinizing the evidence, however, f conclude that she did not sustain her burden of proving that the release is invalid. I therefore concur in reversal of the judgment.
McCORMICK, J., joins this special concurrence.