Petition — Van Wey v. O'Neal
Supreme Court brief1984
Ask Donna
What actually matters in this document.
Text
Office - Supreme Court, U.S
83-1123 FILED
No. JAN 6 1984
a CEXEESER L. STEVAS.
CLERK
SUPREME COURT OF THE UNITED STATES
October Term, 1983
CHRISTINE VAN WEY, . - - - Petitioner
versus
RAYMOND F. O’NEAL,
DONNA O’NEAL and
BABY BOY VAN WEY, .- . - - Respondents
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF KENTUCKY
ELLEN GAIL FRIEDMAN*
ROBERT FREDERICK SMITH
Legal Aid Society, Inc.
425 W. Muhammad Ali Boulevard
Louisville, Kentucky 40202
Telephone (502) 584-1254
Counsel for Petitioner
*Counsel of Record
January 6, 1984
WESTERFIELO-BONTE CO... 619 W. KENTUCKY~-P.O. BOX 3251, LOVISVILLE, KY.
QUESTIONS PRESENTED
I. Where a parent first files but then revokes a volun-
tary petition to terminate her parental rights, does the
Fourteenth Amendment Due Process Clause permit the
State to terminate those rights without complying with the
statutory procedures for involuntary termination?
II. Does the federal constitutional right to family
privacy and integrity preclude the termination of parental
rights based upon the best interests of the child without a
showing of parental unfitness?
TABLE OF CONTENTS
PAGE
SEIS Sc occ sveccvcccssccesccccccccce i
LCR ER a eesione esses ccccscseses ii-iii
eee ca isenccccccccecscns iv
ee TLE ESs bees ceciesscccvccess 1
Nee LU Ce psc cecaceccopecccces 1- 2
Constitutional Provisions Involved ................. 2
Statutory Provisions Involved ..................... 2
eGR ee sh ccccccesccesvccncse 2- 6
Te JUDE Sane cacessccccvecsese 2- 4
B. Federal Questions Raised Below .............. 4- 6
EE So vccccecedecccccccccess 7-11
I. The Kentucky Supreme Court Has Set a Dan-
gerous Precedent by Publishing an Opinion
Which Flagrantly Disregards Basic Procedural
Due Process Guaranteed by the U. S. Consti-
IRE SEE Gui wb nieGesceee css cocsccce 7-9
II. The Use of a “Best Interests” Standard to Ter-
minate Parental Rights Without Any Finding
of Parental Unfitness Seriously Erodes the
Fundamental Liberty Interest in Family Integ-
rity Historically Recognized by This Court ... 9-11
es ease e ab dacessdsscccsccces 11
Appendix A—(Opinion of the Supreme Court of
Kentucky, July 6, 1983) ...........c.ceeceees la-1l3a
Appendix B—(Dissenting Opinion by Justice Vance
of the Supreme Court of Kentucky) ........... 14a-17a
Appendix C—(Order of the Supreme Court of Ken-
tucky Denying Petition for Rehearing) ........ 18a
Appendix D—( Original Petition for Voluntary Ter-
mination of Parental Rights) ................. 19a—22a
iil
PAGE
Appendix E—(Original Petition for Immediate En-
titlement, Possession and Custody) ............ 23a-25a
Appendix F—( Affidavit filed with Petition) ...... 26a-27a
Appendix G—( Affidavit Filed With Petition) ....28a-29a
Appendix H—( Affidavit Filed With Petition) .... 30a
Appendix I—( Unsigned Affidavit Filed With Peti-
DE Scvc0s. cP eReis sons keene sieob onecuey 31la-32a
Appendix J—(Sworn Testimony Adopting Affi-
re Mi IRS BO occ cccacensresusedpeens 33a-34a
Appendix K—( Affidavit Filed With Petition) ....35a-36a
Appendix L—(Plaintiff’s Exhibit 2, Report From
the Department of Social Services, Muscatine
OS er rrr rrr ree
Appendix M—(Plaintiff’s Exhibit 3, Report From
Housing Code Officer, Muscatine, Iowa) ....... 40a
Appendix N—(Opinion and Order of Jefferson Cir-
Ss Cs SUS Es SOME) oc ceccuwtesuaceweces 4la-—5la
Appendix O—(Supplemental Findings of Fact and
Conclusions of Law of the Jefferson Circuit
Ce ee , BOULD ic cedce désseeabonaewuvans 52a-55a
Appendix P—(Order Terminating Parental Rights,
Jefferson Circuit Court, August 10,1981) ...... 56a-57a
Appendix Q—(Order o1 Jefferson Cireuit Court
Overruling Motion for Additional Findings and
ES SONNE oon cnc vo ccebns tnoveceds 58a-59a
Appendix R—(Opinion of the Court of Appeals of
Kentucky, as Modified August 13, 1982) ....... 60a-69a
Appendix 8—(Order of Court of Appeals of Ken-
tucky Denying Petition for Rehearing) ....... 70a
T—(Kentucky Revised Statutes 199.601
ee page ena RR te ete Tla-76a
Appendix U—(Transcript of Record, pp. 3-4) ..... 77a
ETE LEP PEELE OF Te Le TEE 78a
TABLE OF AUTHORITIES
Cases: PacR
Galloway v. Pruitt, Ky., 469 S. W. 2d 556 (1971)... 3
IMD. Sikdcas conceontuechutebincnt cee 4,8
Sees es tn 5, 7-8
Stanley v. Illinois, 405 U. S. 645, 92 S. Ct. 1208
SEE S45 osws oes bes cena kon ceueiuiacl ee 5, 6, 7
Santosky v. Kramer, 455 U. S. 745, 102°S. Ct. 1388
SUC DAU CEs bs wecubawkedouset: ds sche. 4, 6, 7, 10
In Re J. P., 648 P. 2d 1364 (Utah 1982) .......... 6
Meyer v. Nebraska, 262 U. S. 390, 43 S. Ct. 625
TET re ee ee MIP 4 6
Skinner v. Oklahoma, 316 U. S. 535, 62 S. Ct. 1110
[EEE civceneyecseae ld oantck lettin 6
May v. Anderson, 345 U.S. 528, 73 S. Ct. 840 (1953) 6
Lassiter v. Department of Social Services of Dur-
ham, North Carolina, 452 U. S. 18, 101 S. Ct.
tec cess MO Oe NE ON aS 6,7
Matthews v. Eldridge, 424 U. S. 319, 96 S. Ct. 893,
oe ELECTR TE EE es 7, 8,10
Quilloin v. Walcott, 434 U. S. 246, 98 S. Ct. 549
UE C4ks sp hss Seead esau en ee ee 10
Smith v. Organization of Foster Families, 431 U. 8.
816, 97'S, Ct. 2094, 53 L. Ed. 2d 14 (1977)...... 10
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1983
No.
CHRISTINE VAN WEY - - - - Petitioner
v.
RayMonp F. O’NEAL
Donna O'NEAL
Baspy Boy VAN Wey - - - - Respondents
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF KENTUCKY
The Petitioner, Christine Van Wey, respectfully
prays that a writ of certiorari issue to review the judg-
ment and opinion of the Supreme Court of Kentucky
entered in this proceeding on July 6, 1983.
OPINION BELOW
The opinion of the Supreme Court of Kentucky,
entered July 6, 1983 and reported at 656 S. W. 2d 731
(1983), appears in Appendix A.
JURISDICTION
The judgment of the Court of Appeals of Ken-
tucky was entered, as modified, on AuguSt 13, 1982.
The Court of Appeals also denied a timely petition for
rehearing on August 13, 1982. The Supreme Court of
Kentucky granted Discretionary Review on October 28,
2
1982 and entered judgment on July 6, 1983. A timely
petition for rehearing was denied on October 12, 1983,
and this petition for certiorari was filed within 90 days
of that date. This Court’s jurisdiction is invoked
under 28 U.S.C. §1257(3).
CONSTITUTIONAL PROVISIONS INVOLVED
Constitution of the United States, Amendment
XIV, Section 1:
All persons born or naturalized in the United
States and subject to the jurisdiction thereof, are
citizens of the United States and of the State
wherein they reside. No State shall make or en-
force any laws which shall abridge the privileges
or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty
or property, without due process of law; nor deny
to any person within its jurisdiction the equal pro-
tection of the laws.
STATUTORY PROVISIONS INVOLVED
Kentucky Revised Statutes 199.601 (App. T)
Kentucky Revised Statutes 199.603 (App. T)
STATEMENT OF THE CASE
A. Material Facts ®
Christine Van Wey (petitioner), a resident of Iowa,
contacted Louisville attorney Katie Brophy to ask her
assistance with the adoption of Ms. Van Wey’s unborn
child. Ms. Brophy contacted the O’Neals, who agreed
to adopt the baby following his birth. Petitioner
3
traveled to Louisville, Kentucky, and she and her two
children were placed in the home of Ms. Brophy’s
secretary for the two months prior to birth on Jan-
uary 22, 1981. While in the hospital Ms. Van Wey
became very attached to her baby and from the moment
the child was removed from the hospital has sought
his return.
She contacted an attorney at the Legal Aid Society
who in turn notified Ms. Brophy that petitioner no
longer wished to have her parental rights terminated.
There is a dispute as to what occurred next. Ms. Van
Wey stated that Ms. Brophy pressured her to go to
court the next morning by threatening the removal of
Ms. Van Wey’s two older children. Ms. Brophy testi-
fied that Ms. Van Wey changed her mind and requested
that the termination proceed. In any event, Ms. Van
Wey did sign a petition for the voluntary termination
of her parental rights (App. D). She was questioned
by the circuit court judge, but no order terminating
her rights was entered.
Immediately upon her return to Iowa petitioner
wrote a letter to the circuit court judge alleging that
she had consented to the termination of her rights
under duress and indicated her desire not to have her
parental rights extinguished. Within three months
Ms. Van Wey filed a Petition for Immediate Entitle-
ment’ seeking the return of her child. Still no order
1A Petition for Immediate Entitlement is a derivative of the
traditional writ of habeas corpus used in Kentucky where custody
of children is involved. See Galloway v. Pruitt, Ky., 469 8S. W. 2d
556 (1971).
4
of termination had been entered and her parental
rights remained intact.
A hearing was held wherein Ms. Van Wey at-
tempted to prove her legal right to her child. The
court at the outset limited the trial to the issue of im-
mediate entitlement only (App. U). At the conclusion
of the hearing Ms. Van Wey’s petition was denied
(App. N). The O’Neals subsequently moved the trial
court to sign an order ‘‘voluntarily’’ terminating Ms.
Van Wey’s parental rights, and without any further
proceedings such an order was entered on July 8, 1981
and again on August 10, 1981 (App. O and App. P).
B. Federal Questions Raised Below
Petitioner first raised the procedural due process
issue in the trial] court in response to the O’Neals’ mo-
tion to terminate her parental rights referred to above.
If this court proceeds at all, it must treat the mat-
ter as an involuntary termination and provide
Ms. Van Wey with all the rights and protections
to which she is entitled by state and federal law.
Specifically, KRS 199.603 requires pleading and
proof by a preponderance’ of evidence that aban-
donment or substantial or continuous or repeated
neglect or abuse occurred. In addition there are
numerous mitigating factors that the court must
consider before reaching its decision. Due proc-
ess mandates a full hearing on the merits before
parental rights can be involuntarily terminated.
(Record at 166-168)
2Santosky, infra, raised the standard of proof to ‘‘clear and
convincing.’’ (Footnote added)
5
The trial court responded by terminating petitioner’s
parental rights on the basis of KRS 199.601, the volun-
tary termination statute (App. O and App. T). That
court did not address itself to the issue of due process
of law.
Petitioner appealed the decision of the trial court
and in her brief as one ground for reversal argued that
her Fourteenth Amendment rights had been violated.
The right to family integrity, including the protec-
tion of the parent-child relationship, is a liberty
interest protected by the Fourteenth Amendment.
The United States Supreme Court has ‘‘fre-
quently emphasized the importance of the family.
The rights to conceive and to raise one’s children
have been deemed ‘essential’ . . . ‘basic civil
rights of man,’ . . . and ‘(r)ights far more
precious . . . than property rights.’ ’’ Stanley
v. Illinois, 405 U. S. 645 (1972).
(Brief for Appellant in the Kentucky Court of Ap-
peals at 28)
The Court of Appeals of Kentucky reversed the
lower court and held: ‘‘Even assuming the consent
was voluntary and freely given at the time the petition
was signed, it was properly withdrawn prior to any
final action which would otherwise have terminated
Ms. Van Wey’s rights to her child. There is no basis,
in fact or law, for an involuntary termination.”’
(App. R) The Court of Appeals, while not specifically
addressing the constitutional guarantees, did state that
‘‘so long as the parents are fit for the care, custody,
and control of a child, their rights are not involuntarily
6
terminated simply because a child’s economic, social or
emotional environment can be improved by placing it
in another home. Such considerations have never been
approved as an adeqaute basis for the termination of
parental rights, at least in this country.’’ (App. R)
The Supreme Court of Kentucky granted Discre-
tionary Review upon the motions of respondents herein.
In her brief to that court, petitioner reiterated her
constitutional claims. Citing In Re J.P., 648 P. 2d
1364 (Utah 1982), petitioner argued, ‘‘In addition to
offending the due process clause, . . . ‘the right of
a parent not to be deprived of parental rights without
a showing of unfitness, abandonment, or substantial
neglect is so fundamental to our society and so basic
to our constitutional order . . . that it ranks among
those rights referred to in . . . the Ninth Amend-
ment.’’’ Petitioner further directed the court to
Santosky v. Kramer, 455 U. S. 745, 102 S. Ct. 1388
(1982); Meyer v. Nebraska, 262 U. S. 390, 43 S. Ct.
625 (1923); Skinner v. Oklahoma, 316 U. 8S. 535, 62
S. Ct. 1110 (1942) ; May v. Anderson, 345 U. 8. 528, 73
S. Ct. 840 (1953); Stanley v. Illinois, 405 U. 8. 645, 92
S. Ct. 1208 (1972); and Lassiter v. Department of
Social Services of Durham, North Carolina, 452 U. 8.
18, 101 S. Ct. 2153 (1981). (Brief for Respondent,
Christine Van Wey, in the Supreme Court of Ken-
tucky at 36 and 38-39.)
The opinion of the Supreme Court of Kentucky,
reversing the Court of Appeals and upholding the de-
cision of the trial court, is devoid of any reference to
the federal constitutional arguments raised by Ms. Van
‘
Wey (App. A). Ms. Van Wey’s petition for rehearing
was subsequently denied and this petition for a writ of
certiorari followed.
REASONS FOR GRANTING THE WRIT
I. The Kentucky Supreme Court Has Set a Dangerous
Precedent by Publishing an Opinion Which Flagrantly
Disregards Basic Procedural Due Process Guaranteed
by the U. S. Constitution.
It is now axiomatic that the interest of natural
parents in the care and custody of their children is a
liberty interest protected by the Due Process Clause of
the Fourteenth Amendment. Santoshy v. Kramer, 455
U. S. 745, 102 S. Ct. 1388 (1982), Stunley v. Illinois,
405 U.S. 645, 92 S. Ct. 1208 (1972). Three factors are
balanced to determine how much process is due: the
private interests at stake, the government’s interest,
and the risk that the procedures used will lead to er-
roneous decisions. Matthews v. Eldridge, 424 U. S.
319, 336, 96 S. Ct. 893, 903 (1976).
In Lassiter v. Department of Social Services of
Durham, North Carolina, 452 U. S. 18, 28, 101 S. Ct.
2153, 2160 (1981), this Court diseussed the Eldridge
test in the context of a termination case. Althouch an
extra factor was involved in that case, the presumption
against the right to appointed counsel, the other three
factors alone balanced in favor of the parent. Although
due process is a flexible concept, the importance of
yarental rights in relation to the relative de minimus
interest of the state mandates a high degree of due
process in cases involving the termination of parental
rights. Lassiter, supra, and Santosky, supra.
8
In this case Mrs. Van Wey signed a petition to vol-
untarily terminate her rights pursuant to KRS 199.-
601,* but withdrew her consent before her rights were
terminated. The trial court indulged itself in the
fiction that Ms. Van Wey acquiesced at the time her
rights were terminated, but it was abundantly clear
that she strenuously objected. To the extent that KRS
199.501 is applied to allow termination in the absence
of present consent, it violates due process.
Once the illusion of voluntariness is dismissed, it is
even clearer that petitioner’s rights were violated. It
is inconceivable that any interest of the state would
suffice to completely deny petitioner the basic due
process requirement of ‘‘the opportunity to be heard
‘at a meaningful time and in a meaningful manner.’ ”’
(Citations omitted) Eldridge, supra, at 334.
The trial court expressly limited the scope of the
_ hearing to the issue of immediate entitlement (App. U).
The hearing was to determine neither permanent cus-
tody nor to terminate parental rights, yet, without any
notice or further proceedings, permanent custody was
awarded to the O’Neals and Ms. Van Wey’s rights were
summarily terminated.
The court made no attempt to follow the procedural
requirements of the involuntary termination statute,
KRS 199.603 (App. T). There was no proof of aban-
donment or substantial or continuous or repeated neg-
lect or abuse. To the contrary, petitioner’s evidence
showed her to be a fit parent. (App. L and M) Sig-
nificantly, there were never any findings that Ms. Van
* Petitioner has consistently claimed it was signed under duress.
9
Wey was an unfit mother. The court instead chose to
close its eyes and ears to reality and ‘‘voluntarily”’
terminate the parental rights of a woman obviously
objecting.
The Kentucky Supreme Court never addressed the
due process issue. This casual yet complete severing
of all family ties is totally repugnant to the concept of
fundamental fairness embodied in the Due Process
Clause. This flagrant disrespect for the federal consti-
tution diminishes the rights of all.
II. The Use of a “Best Interests” Standard to Terminate
Parental Rights Without Any Finding of Parental Un-
fitness Seriously Erodes the Fundamental Liberty In-
terest in Family Integrity Historically Recognized by
This Court.
In deciding whether or not petitioner’s parental
rights should be terminated, the Supreme Court of
Kentucky not only denied her prior notice and an op-
portunity to be heard, but it erroneously based its
decision upon its determination of the best interests of
the child. There was no credible proof, and certainly
never any judicial finding, that Ms. Van Wey was unfit
as a parent. In fact, the report from the Department
of Social Services states: ‘‘She certainly appears to be
settled and able to provide for her baby at this time.”’
(App. L)
In support of the best interest standard, the Ken-
tucky Supreme Court relies primarily upon child
custody cases. ‘*The legal principle involved does not
turn on whether the issue is adoption or custody.’’
(App. A) That Court’s interpretation is in direct
10
conflict with the balancing test consistently applied by
this Court to resolve Due Process questions. Eld-
ridge, supra and Santosky, supra, at 1394. ‘If any-
thing, persons faced with forced dissolution of their
parental rights have a more critical need for procedural
protections than do those resisting state intcrvention
into ongoing family affairs.’’ Id.
The application of a best interest standard to the
termination of parental rights also infringes upon the
substantive constitutional right to family integrity. In
Quilloin v. Walcott, 434 U. 8. 246, 98 S. Ct. 549 (1978),
this Court upheld a ‘*best interests of the child”’ test,
but only under the specific circumstances of that case.
In that case, the natural mother’s husband was adopt-
ing her eleven year old child, and the three of them had
shared a home for some eight years. The natural
father had never petitioned for legitimation nor pro-
vided regular support. This Court, however, added
that:
(W)e have little doubt that the Due Process
Clause would be offended ‘‘(i)f a State were to
attempt to force the breakup of a natural family,
over the objections of the parents and their chil-
dren, without some showing of unfitness and for
the sole reason that to do so was thought to be in
the children’s best interest.’’ Smith v. Organiza-
tion of Foster Families, 431 U. 8S. 816, 862-863, 97
S. Ct. 2094, 2119, 53 L. Ed. 2d 14 (1977) (Stewart,
J., concurring in judgment). Quilloin, supra, at
255.
Obviously, this Court understands the frightening im-
plications of routinely applying a best interest test
11
without regard to parental fitness. There will always
be a ‘‘better’’ home available, but the Constitution pre-
cludes the shuffling of children based upon that factor
alone. Applying the same best interest standard to
custody and termination cases alike seriously erodes
substantive due process with potentially dangerous
consequences to family life.
CONCLUSION
For these reasons, a writ of certiorari should issue
to review the judgment and opinion of the Supreme
Court of Kentucky.
Respectfully submitted,
ELLEN GAIL FRIEDMAN
Rospert FREDERICK SMITH
Legal Aid Society, Ine.
425 West Muhammad Ali Blvd.
Louisville, Kentucky 40202
Telephone: (502) 584-1254
Counsel for Petitioner
APPENDIX
la
APPENDIX A
RENDITION DATE: JULY 6, 1983
TO BE PUBLISHED
SUPREME COURT OF KENTUCKY
82-SC-706-DG
82-SC-707-DG
Basy Boy Van Wey - - : : - - Movant
v.
CuristixnE Van Wey,
Raymonp F. O’Neat and
Donna O’NeaLn - - - - = = Respondents
AND
Raymonp F, O’Neat and Donna O’NEaL,
His Wife - - - - - - - Movants
v.
CuristineE VAN Wey - - - - = Respondent
On Review From Court of Appeals
No, 81-CA-2181-MR
Jefferson Circuit Court—No., 81-AD-0037-T
OPINION OF THE COURT BY JUSTICE LEIBSON
REVERSING
In November 1980, Christine Van Wey, a resident of
Muscatine, Iowa, contacted attorney Katie Brophy of Louis-
ville, Kentucky and solicited her aid in arranging for the
birth and placement for adoption of her unborn child.
Ms. Van Wey, the mother of two daughters, ages 5 and 7,
2a
was separated from her husband, deserted by the man she
was living with, and apparently destitute.
Ms. Brophy arranged for Ms. Van Wey to come to
Louisville to deliver the unborn child. She also arranged
for a prospective adoptive couple, Raymond F. and Donna
O’Neal. The O’Neals assumed financial responsibility for
all fees and expenses attendant to birth and adoption of the
child by the O’Neals.
Ms. Van Wey came to Louisville with her two daughters,
lived in the home of Ms. Brophy’s secretary for approxi-
mately two months preceding the birth of the child, and
with the assistance and direction of Ms. Brophy went
through all the medical and legal steps preparatory for the
birth and adoption of the child. This included a trip to the
Kentucky Department of Human Resources where she met
with an adoption worker and reviewed her application to
place the unborn child for adoption. The worker subse-
quently approved that application. The O’Neals were ap-
proved for placement of the child in their home. Immedi-
ately before the child’s birth, Ms. Van Wey signed a consent
form permitting Ms. Brophy to obtain immediate posses-
sion of the newborn child to deliver to the O’Neals.
Baby Boy Van Wey was born January 22, 1981, at the
Norton-Children’s Hospital, Louisville, Kentucky. On Jan-
uary 25, 1981, Ms. Brophy picked up the infant at the hos-
pital and delivered him to the O’Neals. But by now Ms.
Van Wey had formed an emotional attachment for the
child. She told hospital personnel that she had changed
her mind about her plans to place the child for adoption
and she contacted a social worker for assistance. She later
testified to a heated telephone conversation with Ms. Brophy
and Ms. Brophy’s secretary and to threats and attempts at
intimidation, which are denied. Through the social worker
she contacted an attorney with the Legal Aid Society in
Louisville, who offered assistance and attempted to allay
3a
her fears. The Legal Aid Society attorney then notified
Ms. Brophy that Ms. Van Wey intended to seek return of
the infant. But instead of doing so, later that evening she
contacted Ms. Brophy and indicated to her that she had
again changed her mind, that she wanted to appear the
following day in court for the purpose of terminating her
parental rights, and then take her other two children and
go home to Towa. The O’Neals were so notified. ,
The following morning, January 27, 1981, Ms. Van Wey
went to Ms. Brophy’s office, and then, with her to the court-
house. She executed a “Petition for Voluntary Termina-
tion of (her) Parental Rights,” under oath before the
Deputy Clerk. She went with Ms. Brophy to the chambers
of the Honorable Jack E. Mudd, Jefferson Circuit Court, to
whom the ease was allotted. Judge Mudd conducted a
hearing during which he explained to her the legal conse-
quences of her actions and satisfied himself as to the volun-
tary and informed nature of her acts. At that point, Ms.
Van Wey had taken all steps that would be necessary on
her part in order for a judgment terminating her parental
rights to be entered. However, there were other steps
involved that would not involve Ms. Van Wey. Those were
appointment of a Guardian Ad Litem to accept service for
the child and represent the infant if necessary and a Warn-
ing Order procedure against Ms. Van Wey’s estranged
husband who was named in the petition so that his parental
rights could also be terminated. A copy of the letter to the
O’Neals from the Department for Human Resources ap-
proving them for home placement of the child and subse-
quent independent adoption procedures was filed with the
petition.
Ms. Van Wey took money from Ms. Brophy for her
expenses and returned to Iowa with her two children. But
she did not forget about her newborn baby. Two weeks
later she wrote to Judge Mudd, stating that she had gone
da
through with the hearing because she was threatened and
intimidated by Ms. Brophy, that she did not want her
parental rights terminated and that she wanted “to have
my parental rights reinstated.”
The father of the child was represented as “unknown”
when the petition was sworn to before a Deputy Clerk and
at the time of the hearing before Judge Mudd. But Ms.
Van Wey had now reestablished her former living arrange-
ments with another man, and he filed an affidavit that he
was the father of the child and stated “I do not want to
give up my parental rights.”
Ms. Van Wey then recontacted the Legal Aid Society
attorney. On April 30, 1981, through this new attorney,
Ms. Van Wey filed a “Petition for Immediate Entitlement,
Possession and Custody,” stating that the Petition for Vol-
untary Termination was signed under “duress,” that she
“revokes” her consent to the termination of her parental
rights, and seeks possession and custody of Baby Boy Van
Wey.
Thus, the issue is joined. On the one hand, the O’Neals
ask the court for a judgment terminating Ms. Van Wey’s
parental rights, so they can proceed with the adoption. On
the other hand, Ms. Van Wey seeks to revoke her consent
to termination of her parental rights and regain possession
and custody of her child. But this is not just a two-sided
law suit. The third party, with an interest in the outcome
at least as great as the first two, is Baby Boy Van Wey.
He is represented in this litigation by a Guardian Ad Litem,
appointed by the court to protect his interests and his in-
terests alone. The report of the Guardian Ad Litem was
“that the welfare and best interests of the child will con-
tinue to be protected in the home of the prospective adop-
tive parents.”
Judge Mudd conducted a full-seale hearing on June 17,
1981. The issues at that hearing included:
5a
1) Was Ms. Van Wey’s consent obtained in the first
instance by duress or coercion?
2) Did Ms. Van Wey have a right to revoke her consent
or withdraw her petition at any time before judgment re-
gardless of whether or not her acts were initially volun-
’ tary?
3) Should the question of termination be decided on the
basis of the law that relates to voluntary termination, KRS
199.601, or the law that relates to involuntary termination,
KRS 199.6031
The voluntary termination statute provides that “the
best interest of the child shall be considered paramount,”
The involuntary termination statute also provides for ter-
mination “in the best interest of the child,” but decides the
question on the narrow grounds of parental “abandonment,
neglect or abuse.” In other words the parent must be
found unfit before involuntary termination takes place.
The trial court made extensive Findings of Fact and
Conclusions of Law in an order dated June 22, 1981 and
supplemented July 8, 1981. It concluded that whatever the
evidence as to Ms. Van Wey’s emotional distress and her
fears before the time of the hearing in the court’s presence
on January 27, 1981, the “legal steps to complete the volun-
tary termination of her parental rights . . . taken by her
before this court (on that date) were not the result of
threats or duress at that time.” There was ample evidence
to support the conclusion of the court that Ms. Van Wey,
who had first wanted the placement and adoption and then
changed her mind, had again changed her mind at the time
she was in court January 27, 1981.
Having found that the consent should not be set aside
for duress, the court then concluded:
“The final and most important factor in reaching a
decision in this case is the best interest of the baby
6a
himself. This should be of paramount concern and no
decision can be or should be made in conflict with this
best interest.”
Using the “best interest of the child” standard, the
court recited several significant findings as to why the
child’s best interest would be served by remaining with the
O’Neals. Ms. Van Wey’s Petition for Immediate Posses-
sion and Entitlement to Custody, which included her effort
to revoke her consent, was denied and her parental rights
were terminated. The court also terminated the parental
rights of her husband, who denied being the child’s father
and made no defense. The person now represented as the
child’s father did not intervene and was not a party to the
litigation.!. Neither the husband nor the putative father is
a party to this appeal.
On appeal to the Court of Appeals the judgment was re-
versed and remanded. The opinion of the Court of Appeals
is somewhat contradictory. First, in dealing with the find-
ing of the trial court that Ms. Van Wey was not acting
from undue influence or duress at the time of the voluntary
termination proceedings on January 27, 1981, the court
stated “we need not, and therefore do not, specifically deter-
mine that the trial judge’s finding is clearly erroneous.”
On the other hand, the Court held that “the consent in this
case cannot be considered to be voluntary.” If the Court of
Appeals means that the consent given at the time of the
hearing before Judge Mudd cannot be considered to be vol-
untary, there is ample evidence in the record to support
Judge Mudd’s conclusion to the contrary.
However, the key issue on this appeal stems from the
decision by the Court of Appeals “that Ms. Van Wey made
1]f and when the putative father undertakes legal steps, he will
be faced with the United States Supreme Court decision in Quil-
loin v. Walcott, 434 U. S. 246, 98 S. Ct. 549, 54 L. Ed. 2d (1978),
reh. den, 435 U. S. 918, 98 S. Ct. 1477, 55 L. Ed. 2d 511.
7a
a timely revocation of any consent which she originally
gave, even if such was voluntary.” It is undisputed that
Ms. Van Wey has notified the court that she revokes her
consent. But the question is whether she has an absolute
right to Mus terminate the proceedings, so that thereafter
she can only have her parental rights terminated on stan-
dards related to involuntary termination, “abandonment,
neglect or abuse,” or whether the court, having found that
cose yopapeeegind given, should now consider the best
interest of the child in deciding whether to allow Ms, Van
Wey to revoke her consent or withdraw her petition. The
Court of Appeals concluded:
“As a matter of law, sufficient reason was given to re-
voke the petition to'terminate. In order to thereafter
issue a judgment in opposition to the wishes and con-
sent of the natural mother, the conditions required for
the involuntary termination must be clearly proven.
There was no finding that Ms. Van Wey was an unfit
‘+ mother.”
We disagree. We agree with the trial court that, hav-
ing found that the petition was initially voluntary, when
the mother later attempted to revoke her consent, the court
had a responsibility to consider the overall welfare of the
child in deciding whether or not to permit such revocation.
“Sufficient reason” means more than emotional distress at
the time the petition for voluntary termination is filed. In
the cases cited denying adoption when a mother revokes
consent for “sufficient cause,” there were elements of coer-
cion or deception or the mother was not legally able to give
consent. Skaggs v. Gannon, 293 Ky. 795, 170 S. W. 2d 12
(1943); Warner v. Ward, Ky., 401 S. W. 2d 62 (1966).
Mother love alone would be sufficient reason to seek to re-
voke one’s consent if “sufficient reason” had no limitations.
8a
But Ms. Van Wey embarked upon a course of conduct
over a period of two months directed at giving up pos-
session and custody of her child and placing the child in a
proper home for adoption. She has now changed her mind
at least once, and, according to the view of the trial judge
who heard the evidence, twice more—once back to giving
up the child and then back once more to keeping the child.
Something has changed. This child has been placed in the
O’Neal’s home for care, custody and adoption. Ms. Van
Wey bears at least a share of the responsibility for this
action. Once these steps have been taken, the fact situation
has changed, The steps taken have legal consequences.
The legal situation has also changed. We have sympathy
and concern for both Ms. Van Wey and the O’Neals. But
the Solomon type decision which must now be made does
not turn on the feelings or wishes of either. The child’s
legal situation has changed. The legal decision is now
squarely where the trial! court put it: “The best interest of
the child shall be considered paramount.”
The handwritten letter from Ms. Van Wey to Judge
Mudd dated February 9, 1981 shows that the infant was
delivered voluntarily to the O’Neals. Ms. Van Wey writes
that after the infant was discharged to the care of Ms.
Brophy and had left the hospital “I knew I wanted him
with me.” KRS 405.020 establishes the initial right of the
parent to custody of her child, but not the continuing right
once custody has been relinquished. A long line of Ken-
tucky cases beginning with Lee v. Thomas, 297 Ky. 858, 181
S. W. 2d 457 (1944), where the mother signed her consent
for adoption in the hospital and then attempted to revoke
her consent and resist the adoption procedure, hold that the
interest and welfare of the infant must then be considered.
The right of the parent to reclaim the child is not extin-
guished, but the parent’s superior statutory right to cus-
tody has been waived so that thereafter the court will look
9a
primarly to the child’s welfare in awarding custody. Gali-
lean Children’s Home vy. Ball, 308 Ky. 319, 214 8. W. 2d 403
(1948); Shaw v. Graham, Ky., 310 S. W. 2d 522 (1958) ;
Higgason v. Henry, Ky., 339 S. W. 2d 929 (1960).
The legal principle involved does not turn on whether
the issue is adoption or custody. In Rose v. Ledford, 306
Ky. 662, 208 S. W. 2d 957 (1948), a father was seeking to
regain custody from the child’s maternal grandparent. The
court held that “a parent may not take (children) away
from those to whom he surrendered them without first
showing that it would be for the best interest of the child
to do so.” There is no reason, legal or factual, to distin-
guish this case from its predecessors simply because in this
case the mother seeks to withdraw her consent to the ter-
mination of her parental rights. The principal issue in the
case, as shown by the fact that the mother asserts her rights
through a petition for possession and entitlement to the
child, is the same issue as in Rose v. Ledford, Lee v.
Thomas, and Shaw v. Graham, supra. The fact that the
mother had understandable “reasons” to give up her child
and “cause” to wish to regain her child does not obviate
the burden on her to show that to return custody to her
would be for the child’s best interest. The mother must
bear this burden even in the absence of proof that she is
unfit in the context of the standard established by the in-
voluntary termination statute (abandonment, neglect or
abuse).
The child’s Guardian Ad Litem filed a report following
the initial hearing summarizing the facts that showed why
this child would be much better off with the O’Neals, as
opposed to being returned to Ms. Van Wey. Significantly,
the Guardian Ad Litem, representing Baby Boy Van Wey,
has appealed the judgment of the Court of Appeals order-
ing that the child be returned to its natural mother. The
record is replete with reasons why the child’s welfare is
10a
best served by remaining with the O’Neals. He has pros-
pects there for a stable home environment, capable parent-
ing, and economic and social advantages in sharp contrast
to his prospects with Ms, Van Wey. We cannot overlook
the fact that through no fault of anyone, neither the O’Neals
nor Ms. Van Wey, the child is now two and a half years old
and has been with the O’Neals since birth. The delay re-
sults from the time necessary to try a case of this com-
plexity, prepare the record for appeal, and go through two
appellate courts. The natural bonding that has taken place
in six months between the child and the O’Neals and the
child’s home environment was a factor considered by the
trial court when he decided the case. No doubt this bond-
ing is much greater now, some two years later.
On the other hand, the strong ties of blood and the
natural love of a mother were also factors for the court to
consider. They were considered. But they are not the only
considerations.
The trial court concluded with obvious regret that in
“eases such as this, someone is always hurt,” but “a deci-
sion must be made.” That the decision made by the trial
court is in the best interest of the child is amply supported
by the evidence.
The situation seems to create a legal paradox because
the judgment terminating the mother’s parental rights is
entered against her consent. But this conforms to the gen-
eral rule in civil cases, A plaintiff’s right to dismissal is
no longer absolute once the issue has been joined. At that
point:
“The matter of dismissal lies within the judicial dis-
cretion of the court. The essential question is whether
the dismissal would be prejudicial to the defendant.”
Clay, Ky. Prac., 3rd Ed., Civil Rule 41.01,
lla
Baby Boy Van Wey is a named defendant in the ter-
mination petition. The O’Neals were “joined as party re-
spondents in the above-styled case on motion of the peti-
tioner, Ms. Van Wey, by order dated May 26, 1981.” These
defendants all had an interest in the litigation that barred
Ms. Van Wey from the right to dismiss except after appro-
priate consideration of prejudice to their rights. Actually,
Ms. Van Wey was in a dilemma of her own, in that she
wished to revoke her consent, but wished to use the same
action as a vehicle to pursue her claim to possession and
entitlement of the child.
Perhaps recognizing that the baby has now adapted to
a new environment and new relationships is a factor miti-
gating against her claim, Ms. Van Wey argues that to con-
sider such a factor in this case is unreasonable because the
O’Neals were told almost immediately after they received
the baby that Ms. Van Wey had changed her mind. Un-
fortunately, they were also told later that same night that
Ms. Van Wey had once more changed her mind and would
go forward with the voluntary termination the next morn-
ing. It was three months later when Ms. Van Wey filed
her petition for immediate entitlement that the O’Neals first
learned that custody and adoption would be contested. We
see nothing in the conduct of the O’Neals that makes it
inequitable to consider the baby’s new environment as a
factor in the decision as to the best interest of the child.
In any event, the determination of this question, or indeed
of this case, does not turn on the equities between these two
parties, but on the paramount interest of Baby Boy Van
Wey, who is not estopped by the actions of either.
In a similar vein, the conduct or misconduct, as the case
may be, of attorney Brophy is not a factor critical to the
decision in this case, The trial court referred to Ms.
Brophy’s conduct as “one final blackmark in this case,
which we cannot overlook.” She continued to be attorney
12a
of record for Ms. Van Wey after there was an obvious con-
flict with her client of which she had been notified by an
attorney from the Legal Aid Society. She revealed none
of this to the trial judge. It may be that present statutes
permitting private placement and adoption should be given
serious reconsideration by the legislature. The potential
for postpartum conflict between the natural mother and the
prospective adoptive parents who agree to pay the prospec-
tive mother’s expenses, medical and legal, creates a situa-
tion too fraught with the possibility of abuse. The Court
of Appeals’ opinion strongly suggests an interest in inhibit-
ing the private placement of children through a scheme of
this nature by stating the converse of the proposition, that
the court’s decision is not intended to “inhibit the successful
placement of children in adoptive homes . . . through
a legitimate child-care agency or when the child is placed
in a home subsequent to a final termination of parental
rights.” But the need for restrictions in private placement
procedures addresses itself to the legislature. The trial
court correctly looked past both the attorney’s conflict of
interest problems and the need for “a close look” at our
adoption laws. The trial court pointed up the problem here
where the law permits a nonresident, “who is in indigent
circumstances and in a desperate state of need, to come to
this state for the sole purpose of giving birth to a child to
be adopted.” The trial court correctly concluded, with ob-
vious reluctance:
“At present, our state laws tolerate it and our Depart-
ment for Human Resources grants permission for the
acceptance (placement) of such children for adoption.”
The placement of the child followed the procedures speci-
fied by the legislature. The petition for voluntary termina-
tion of Ms. Van Wey’s parental rights did likewise. We
hold with the trial court that the initial voluntary consent
l3a
placed this case squarely in the category of cases holding
that a parent who has transferred possession and custody
of his or her child to another has surrendered the primary
right of custody and thereafter the court shall determine
custody on the basis of the best interest of the child. In
the circumstances of this case the determination of custody
and the termination of parental rights go hand in hand.
They are joined together in the same legal problem and sub-
ject to the same resolution. Baby Boy Van Wey is not a
piece of property. He is an important human being. When
Ms. Van Wey filed her Petition for Voluntary Termination
she invoked the jurisdiction of the Court of Justice to look
out for the welfare of this human being.
The decision of the Court of Appeals is reversed. The
final judgment of the trial court is affirmed.
Aker, Leibson, Stephenson, and Wintersheimer, J.J. con-
cur. Vance, J., files a dissent in which Stephens, C.J. and
Gant, J. join.
Attorneys for Movants:
IRENE P. LONG
Bedford, Kentucky 40006
STEPHEN P. SMITH, JR.
1526 Ky. Home Life Bldg.
Louisville, Kentucky 40202
Attorneys for Respondent:
ELLEN G. FRIEDMAN
ROBERT F. SMITH
Legal Aid Society, Inc.
425 W. Muhammad Ali Blvd.
Louisville, Kentucky 40202
Guardian Ad Litem for Baby Boy Van Wey:
CHARLES W. DOBBINS, JR.
600 W. Main Street
Louisville, Kentucky 40202
l4a
APPENDIX B
SUPREME COURT OF KENTUCKY
82-SC-706-DG
82-SC-707-DG
3aBy Boy Van Wey . - - - - - Movant
v.
CuHrisTIneE Van Wey,
Raymonp F. O’Neau and
Donna O’Neau - - - - = = Respondents
On Review from Court of Appeals
No. 81-CA-2181-MR
Jefferson Circuit Court—No, 81-A D-0037-T
AND
Raymonp F. O’Neat and Donna O'NEAL,
His Wife - - - - - - - Movants
v.
CuristineE Van Wey - - - - = Respondent
On Review from Court of Appeals
No, 81-CA-2181-MR
Jefferson Circuit Court—No, 81-AD-0037-T
DISSENTING OPINION BY JUSTICE VANCE
This action commenced with the filing of a petition by
a mother to terminate her parental rights to a child pur-
suant to K.R.S. 199.601. <A short time after the filing of
the petition for voluntary termination, the mother notified
l5a
the trial judge by letter that the petition was filed under
duress and that she did not wish to voluntarily terminate
her parental rights. Subsequently, an amendment was filed
in which the mother sought to have the immediate posses-
sion of her child restored to her. It was originally con-
templated that the child, when born, would be placed for
adoption. Proceedings to terminate parental rights, pro-
ceedings for immediate possession of children, and pro-
ceedings for adoption are entirely separate proceedings;
however, the majority opinion discusses the issues as if the
same criteria for decision were interchangeably applicable
to each of them.
Thus the issue of whether a parent can dismiss ar revoke
a petition for voluntary termination of parental rights is
decided here in the context of what the court considers to
be the best interest of the child rather than the basis of
whether the parent desires to voluntarily terminate paren-
tal rights.
I dissent from that portion of the opinion which ap-
proves termination of the mother’s parental rights. There
are two ways in which the parental rights of a parent to
a child may be terminated. One is an involuntary termina-
tion, against the will of the parent, on the grounds of
abandonment or continuous neglect and abuse. Such a pe-
tition may be instituted by the Cabinet for Human Re-
sources, a licensed child caring agency, certain officers, or
a parent. No such petition for involuntary termination
of the parental rights of this Mother was ever filed.
The other method is voluntary termination whereby
a parent files a petition in circuit court asking that the
parent be permitted to voluntarily terminate parental
rights and stating the reason therefor. A person cannot
terminate his parental rights, even voluntarily, until a
judicial hearing has established that such a voluntary ter-
l6a
mination would be in the best interest of the child and an
order of termination has been entered.
The point is that such a termination is voluntary on the
part of the parent. To say that a proceeding is voluntary
and that the parent voluntarily relinquishes and terminates
parental rights, when as here, the mother made it plain
that she did not want to terminate her parental rights is
contradictory on its face.
There was much testimony of threats and overreaching
pressure brought to bear upon this mother which allegedly
caused her to file the petition against her will. Regardless
of whether the filing of the petition was voluntary or in-
voluntary, any subsequent termination of her parental
rights was not voluntary if she opposed it. A voluntary
termination is one which the parent willingly pursues, is
desirous of obtaining, and requests the court to approve.
The majority cites C.R. 41.01 to support a holding that
the mother in this case could not as a matter of right revoke
her petition to terminate her parental rights. C. R. 41.01
provides:
Subject to the provisions of Rule 23.02, of Rule 66, and
of any statute, an action, or any claim therein, may be
dismissed by the plaintiff without order of court, by
filing a notice of dismissal at any time before service
by the adverse party of an answer or of a motion for
summary judgment, whichever first occurs,
(Emphasis mine.)
This rule permits an unrestricted right to dismiss an
action or any claim therein at any time before service of
an answer by the adverse party or a motion for summary
judgment.
Even if the filing of a petition to terminate parental
rights be considered to be an adversary proceeding — no
answer had been filed by any party when the revocation
l7a
of the petition was attempted and no motion for summary
judgment had been made. So it would seen that this
mother had an absolute right to revoke, withdraw or dis-
miss her petition for voluntary termination of her parental
rights. Having made it plain that she did not wish to pro-
ceed to voluntarily terminate her parental rights, it was
error for the trial court to terminate those rights on the
basis of the “so-called” voluntary petition.
Stephens, C. J., and Gant, J., join in this dissent.
18a
APPENDIX C
SUPREME COURT OF KENTUCKY
82-8C-706-DG
82-8C-707-DG
Basy Boy Van Wey - - - - - - Movant
Vv.
CurisTINE Van Wey,
Raymonp F. O’Neat and
Donna O'NEAL - - - = = = Respondents
On Appeal from Jefferson Circuit Court
#51-A D-0037-T
Honorable Jack E. Mudd, Judge
AND
Raymonp F. O’Neat and Donna O'NEAL,
His Wife - - - - + + -+- £Movants
v.
CurisTInE Van Wey - - - - = Respondent
ORDER DENYING PETITION FOR REHEARING
Respondent Christine Van Wey’s petition for rehearing
is denied.
Stephens, C. J., and Aker, Gant, Leibson, Stephenson,
and Winhersheimer, J.J., concur.
ENtTereD October 12, 1983.
(s) Robert F. Stephens
Chief Justice
19a
APPENDIX D
JEFFERSON CIRCUIT COURT
SIXTH DIVISION
No. 81-AD-0037-T
CHRISTINE Van WEY . “ . . é Petitioner
v.
StanLey Van Wey
WarninG OrperR anp Miuitary ATTORNEY
To Be Appointed
Basy Boy Van Wey, an infant under
14 years of age
GuarpiaN Ap LITEM TO BE APPOINTED
(Serve: Guardian ad Litem) - . Defendants
PETITION FOR VOLUNTARY TERMINATION
OF PARENTAL RIGHTS
PETITION FOR INVOLUNTARY TERMINATION
OF PARENTAL RIGHTS
AND
AFFIDAVIT FOR APPOINTMENT OF WARNING
ORDER AND MILITARY ATTORNEY
1. The Petitioner, Curistise Van Wey, states that she
is the natural mother of a child, Basy Boy Van Wey, born
January 22, 1981.
2. The Petitioner, CuristineE Van Wey, states that she
is willing to relinquish all of her parental rights in and to
the child, Basy Boy Van Wey, to the couple approved by
the Department for Human Resources.
3. The Petitioner, Curistrxe Van Wey, is authorized
under KRS 199.601 to institute this action.
20a
4. The Petitioner, Curistine Van Wey, states that the
infant Defendant, Basy Boy Van Wey, was born January
22, 1981, in Louisville, Jefferson County, Kentucky.
5. The Petitioner, Curistine Van Wey, states that she
was married at the time of the birth of the infant Defendant
to Stanley Van Wey. Petitioner states that Stanley Van
Wey is not the natural father of the infant Defendant and
that the natural father of the infant Defendant is unknown.
However, due to the marital relationship Stanley Van Wey
is made a party to this action so that any parental rights
he may have to the infant Defendant may be terminated.
6. The Petitioner, CuristineE Van Wey, states that the
Defendant Stanley Van Wey has never acknowledged the
infant Defendant and therefore has abandoned and deserted
same.
7. The Petitioner, Curistrine Van Wey, states that it
will be in the best interest of the infant Defendant, Basy
Boy Van Wey, to have the parental rights of the Defend-
ant, Stanley Van Wey, terminated, and to have the care,
custody and control of the infant Defendant, Basy Boy
Van Wey, placed in the home approved by the Department
for Human Resources.
8. The Petitioner, Curistine Van Wey, states that the
couple approved by the Department for Human Resouces,
Commonwealth of Kentucky, has adequate facilities avail-
able and is willing to accept the care, custody and control
of the infant Defendant, Basy Boy Van Wey.
9. The Petitioner, Curistrixne Van Wey, states that the
infant Defendant, Basy Boy Van Wey, has no guardian,
curator or committee appointed for him in this state or
elsewhere.
10. The Petitioner, Curistine Van Wey, states that
the Defendant Stanley Van Wey, is a nonresident of Ken-
tucky and is known to be absent therefrom and his last
known address is 128 Sheridan, Muscatine, Iowa 52761.
2la
Wuererore: The Petitioner, Curistine Van Wey,
prays:
1. ‘That a guardian ad litem be appointed to accept
service of summons for the infant Defendant, Basy Boy
Van Wey, and to represent him when he is properly before
the Court.
2. That a Warning Order and Military Attorney be
appointed to attempt to locate the Defendant, Stanley Van
Wey, for the purpose of informing him of the nature and
pendency of this action;
3. For a judgment terminating the parental rights of
CurisTINE Van Wey to the infant Defendant, Basy Boy
Van Wey.
4. For a judgment terminating all of the parental
rights of the Defendant, Stanley Van Wey, to the infant
Defendant, Basy Boy Van Wey, and that the care, custody
and control of the said infant be granted to and vested in
the couple approved by the Department for Human Re-
sources, Commonwealth of Kentucky.
5. For any and all other relief to which the Petitioner,
and the infant Defendant, Basy Boy Van Wey, may appear
entitled.
(s) Christine Van Wey
Christine Van Wey
I, Curistine Van Wey, hereby certify that I have read
the foregoing petition and that all allegations contained
therein are true to the best of my knowledge and belief.
(s) Christine Van Wey
Christine Van Wey
22a
(s) Katie M. Brophy
Katie M. Brophy
Attorney at Law
Suite 200
123 South Seventh Street
Louisville, Kentucky 40202
Phone: (502) 583-1711
I, the undersigned Clerk of Jefferson Circuit Court do
certify that the foregoing Petition for Voluntary Termina-
tion of Parental Rights, Petition for Involuntary Termina-
tion of Parental Rights and Affidavit for Appointment of
Warning Order and Military Attorney was this day ac-
knowledged before me in said State and County and was
delivered, sworn, acknowledged and signed by the Peti-
tioner, Curistine Van Wey, to be her free and voluntary
act and deed for the purposes therein contained.
Paulie Miller, Clerk
Jefferson Circuit Court
By: Marfa Jones
Deputy Clerk
Jan. 27, 1981
Date
23a
APPENDIX E
JEFFERSON CIRCUIT COURT
SIXTH DIVISION
No. 81-AD-0037-T
CHRISTINE Van Wey - - - - - Petitioner
503 Park Avenue
Muscatine, lowa 52761
v.
StranLey Van Wey,
3aBy Boy Van Wey - - - es Defendants
PETITION FOR IMMEDIATE ENTITLEMENT
POSSESSION AND CUSTODY—Filed April 30, 1981
Comes the Petitioner, Christine Van Wey, by counsel,
and for her petition for immediate entitlement, possession
and custody states as follows:
1. Petitioner is the natural mother of infant child Baby
Boy Van Wey, born on January 22, 1981.
2. Petitioner was legally married to Respondent,
Stanley Van Wey, at the date of birth of said child.
3. John W. Adler is the natural father of said infant
child.
4. The Court record of the above-styled case contains
no order terminating the rights of any of the persons
named in paragraphs one, two and three above.
5. On January 27, 1981, Petitioner signed a petition to
voluntarily terminate her parental rights to said infant
child.
24a
6. That petition was signed under extreme duress at a
time when Petitioner was emotially upset, physically weak-
ened, and financially destitute, miles from her home; Pe-
titioner was also in fear for the well-being of her other
two children. (See Petitioner’s Affidavit attached herein
as Exhibit 1.)
7. Due to severe financial hardship and emotional
strain, before the baby was born, Petitioner hired Katie
Marie Brophie, :ttorney at law, to represent her in ter-
minating her parental rights.
8. Immediately after Ms. Brophie removed the baby
from the hospital, Petitioner realized she did not want to
give up her child.
9. Petitioner attempted to get the baby back by con-
tacting the Department for Human Resources, the Louis-
ville Bar Association, and the Legal Aid Society, Inc., for
help.
10. Petitioner told Ms. Brophie that she no longer
wished to terminate her rights, and that she had a new
attorney to represent her, but nevertheless, Ms. Brophie
coerced Petitioner to sign the voluntary termination pa-
pers. (See Exhibit 1, paragraph 3.)
11. Petitioner would not have signed the petition for
voluntary termination but for undue pressure placed upon
her at a time when she was emotionally upset, physically
weakened, and financially destitute, miles from her home.
12. Petitioner is presently physically, emotionally and
financially able to care for her baby, and she is the fit and
proper person to have possession and custody of said child.
13. Although Petitioner did not freely give consent to
terminate her parental rights, she hereby revokes said
“consent”, such as it was.
Wuenrerorg, Petitioner prays this Court grant her im-
mediate entitlement, possession and custody of infant child,
Baby Boy Van Wey.
25a
Tendered By :
(s) Ellen G. Friedman
Ellen G. Friedman
Attorney for Petitioner
(s) Robert Frederick Smith
Robert Frederick Smith
Attorney for Petitioner
Legal Aid Society, Inc.
425 West Muhammad Ali Blvd.
Louisville, Kentucky 40202
Telephone: (502) 584-1954
CERTIFICATE
I hereby certify that a copy of the foregoing Petition
was on the 29th day of April, 1981, mailed to Mr. Charles
Dobbins, Attorney at Law, 2310 First National Tower,
Louisville, Kentucky 40202, and Mr. and Mrs. Raymond
O’Neal (a/k/a Donna & Frank O'Neal), Route #2, Bed-
ford, Kentucky 40006.
(s) Ellen G. Friedman
Ellen G. Friedman
Attorney at Law
26a
APPENDIX F
JEFFERSON CIRCUIT COURT
SIXTH DIVISION
No. 81-AD-0037 T
CyrisTINE VAN Wey “ . - ° . Petitioner
v.
StanLey Van Wey,
Bapy Boy Van Wey - - - - Defendants
AFFIDAVIT—Filed April 30, 1981
I, Christine Van Wey, after being duly sworn, hereby
state as follows:
1. Under great duress and pressure from Katie Bro-
phie on her own, and through her secretary, Sandy Hafer,
I signed papers which terminated my parental rights to my
new-born son.
2. My two other children, my car, and my personal
belongings were at the home of Sandy Hafer, with whom I
had lived for a time while awaiting the birth of my baby.
While I was still in the hospital recovering from my cae-
sarean section, I changed my mind and decided to keep my
baby. Sandy Hafer called me at the hospital and told me
that if I did not sign the termination papers, she would
leave my children someplace and not tell me where, and
that she would hold my car and personal belongings so that
I could not get them.
3. Katie Brophie told me that I had to sign the termi-
nation papers at 10:00 a.m., Febraary 2, January 27, CVW
Zia
1981. I told her that I had an appointment with my attor-
ney at the Legal Aid Society, Ellen G. Friedman, that after-
noon, and I wished to consult with her first. She told me
that Legal Aid could not help me, and that if Legal Aid
tried, she would sue my attorney there. Katie Brophie
knew that I was penniless and had no place to stay, and she
agreed to give me One Hundred and Fifty Dollars ($150.00)
for transportation back to Iowa, if I signed the papers.
She said that if I did not sign the papers that she would
leave me stranded here in Louisville.
(s) Christine Van Wey, Affiant
Subscribed and sworn to before me this 20th day of
February, 1981, by Christine Van Wey, Affiant.
My Commission Expires: September 30, 1982.
(s) Terrence L. Mealy
Notary Public, State-at-Large, Iowa
28a
APPENDIX G
JEFFERSON CIRCUIT COURT
SIXTH DIVISION
No. 81-AD-0037-T
CurisTINE Van Wey a r - . ° Petitioner
v.
StanLtey Van Wey,
Basy Boy Van Wey - - : - = Defendants
AFFIDAVIT—Filed April 30, 1981
Comes the Affiant, Martha Nall, and after being duly
sworn, states as follows:
I am a registered nurse employed as the Obstetrical
Nursing Supervisor at Norton-Children’s Hospital.
On Thursday, January 22, 1981, I was called to the
nursing office because of a problem on the post-partum
unit. When I arrived, Katie Brophie was angrily insisting
that Christine Van Wey be moved off the maternity floor.
I checked with Ms. Van Wey and found that she did not
wish to move off the maternity floor, and, since the attend-
ing physician’s orders allowed her this choice, she was not
moved.
I again saw Christine Van Wey on Monday, January 26,
1981, immediately before she left the hospital. I was called
to the floor by the nurse on duty who reported to me that
Ms. Van Wey had changed her mind about giving up her
baby. I attempted to get Ms. Van Wey some help as she
told me she had no money and that her car was being held
2Ya
at the home of Katie Brophie’s secretary. I eventually
reached Mary Krider who agreed to assist Ms. Van Wey.
During the time I was with Ms. Van Wey she appeared
frightened, upset and quite agitated.
s) Martha Nall
Affiant
SUBSCRIBED AND Sworn to before me by Martha Nall,
Affiant herein, on this the 9th day of April, 1981,
My Commission expires: July 27, 1984.
(s) Marie A. Farmer
Notary Public, Jefferson County,
’
Kentucky
[Sear]
30a
APPENDIX H
JEFFERSON CIRCUIT COURT
SIXTH DIVISION
No. 81-AD-0037-T
CHRISTINE VAN WeEy 2 . - - - Petitioner
Vv.
StanLey Van Wey,
Basy Boy Van Wey - - - - - Defendants
AFFIDAVIT—Filed April 30, 1981
Comes the Affiant, Muff Dubose, and after being duly
sworn, states as follows:
I am employed by Norton Children’s hospital as a pa-
tient representative. I was called to the maternity floor on
Monday morning, January 26, 1981, to assist Christine Van
Wey. Ms. Van Wey had changed her mind and wanted her
baby back. I spent most of the morning with her trying to
help. Throughout the morning Ms. Van Wey was crying
and wringing her hands. She appeared terrified and
seemed ver’ distraught.
(s) Muff Du Bose
Affiant, Muff Dubose
Subscribed and sworn to before me by Muff Dubose, on
this 25th day of March, 1981. My commission expires:
October 24, 1983.
(s) Jane H. Benson
Notary Public, State at Large-Ky.
3la
APPENDIX I
JEFFERSON CIRCUIT COURT
SIXTH DIVISION
No. 81-AD-0037-T
CHRISTINE Van WEY . o . ° ° Petitioner
v.
STANLEY Van Wey,
Basy Boy Van Wey - - - - - Defendants
AFFIDAVIT—Filed April 30, 1981
Comes the Affiant Jena Avery and after being duly
sworn states as follows:
I am a registered nurse employed as the day-shift
charge nurse of The Newborn Nursery at Norton Children’s
Hospital.
While I was at work, Sunday, January 25, 1981, I re-
ceived a call from Katie Brophie. She inquired if the Van
Wey baby was ready for discharge. I explained to her the
hospital policy that the baby is not to be discharged until
the mother leaves the hospital. She objected to this and
demanded to speak to the doctor. I gave her his telephone
number.
The doctor subsequently came to the floor and ordered
that the baby be discharged after the mother, Christine
Van Wey, was done seeing her baby.
I took the baby to Christine Van Wey. While Ms. Van
Wey was in her room with her baby, Katie Brophie came
to the Obstetrics floor and after discovering Ms. Van Wey
with her baby, Ms. Brophie became extremely angry. Her
32a
face was red and her voice was raised. Her tone of voice
was very intimidating. She yelled, “What is that baby
doing in there? That mother has no right whatsoever to
have that baby!” She tried to get me to remove the baby
from Ms. Van Wey, but I refused.
Katie Brophie claimed she was in a hurry to get the
baby out of the room because there were people waiting
who had to catch an airplane. She said that we, (the hos-
pital staff), were “a bunch of nuts.” Ms. Brophie disap-
peared for a few minutes and when she returned she said
that Christine Van Wey was done with the baby and I
should go get him.
Katie Brophie was loud, pushy, rude, intimidating, and
appeared desperate to get Ms. Van Wey’s baby away from
her.
(s) Jena Avery
Affiant
>
Subscribed and sworn to before me by Jena Avery, this
—___— day of __-__, 1981. _ My commission expires:
Notary Public, State at Large-Ky.
33a
APPENDIX J
[6]
Q.1. Would you state your name, please?
A. Jena Avery,
Q.2. And, what is your occupation?
A. I’m a registered nurse.
Q.3. Where are you employed, Ms, Avery?
A. Norton-Children’s Hospital.
Q.4. How long have you worked there?
A. Seven years.
Q.5. Have you had an oceasion to have contact with
either Christine Van Wey or her baby?
A. Yes, I have.
Q.6. Would you describe the form of that contact?
A. She and her baby were a patient at our hospital.
Q.7. And, how did you happen to get involved with
her.
A. When her baby was delivered it was admitted to
our nursery. I had contact with Ms. Van Wey the day
before her baby was delivered. I had her sign the release
form that released her baby to Katie Brophy upon dis-
missal from the hospital.
Q.8. And, was that signed before the birth of the
baby?
A. Yes, it was.
Q.9. Are you familiar with the circumstances sur-
rounding the discharge of the baby from the hospital?
A. Yes, I am.
Q.10. Would you describe those circumstances?
* * 7 * + * *
[14]
A. Yes. If the mother requests, we do take the
baby to her.
Q. 54.
lar case?
Q. 56.
request?
A.
34a
Did you have such a request in this particu-
Yes, we did.
Who'd you have the request from?
Christine Van Wey,
And, do you know when it was that you got this
She told me when I had her sign the release
paper the day before the baby was delivered, she did plan
to see her baby.
Q. 57.
Ms. Avery, I believe that you have previously
signed an affidavit that’s been filed in this case?
A.
Q. 58.
A.
Yes.
Did you prepare this affidavit?
I believe Ms. Ellen Friedman did.
She prepared it?
I talked with her and gave her my deposition,
and she’s the one who mailed it to me, I believe.
Q. 60.
A.
Q. 61.
A.
Q. 62.
this?
A.
Q. 63.
She mailed it to you?
I believe so,
This is a copy. Is that your signature?
Yes, it is.
And, when did Ms. Friedman talk to you about
I don’t know the date.
Do you know when you signed it?
35a
APPENDIX K
JEFFERSON CIRCUIT COURT
SIXTH DIVISION
No, 81-AD-0037-T
CurRIsTINE Van Wey . ° - ° - Petitioner
v.
Stantey Van Wey,
Basy Boy Van Wey - - - =) = Defendants
AFFIDAVIT—Filed April 30, 1981
I, Mary Krider, after being duly sworn, hereby state as
follows:
1. I am presently employed by the Louisville Area
Family Planning Council and was formerly employed as an
adoption worker with the Department of Child Welfare
(now the Department for Human Resources).
2. In an individual capacity, outside the scope of my
employment, I became acquainted with Christine Van Wey’s
situation.
3. On January 26, 1981, I was contacted at my home
by Martha Nall, Obstetrical Nursing Supervisor at Norton-
Children’s Hospital. Ms. Nall asked me if I could assist
Ms. Van Wey, particularly in recovering her children
and car.
4. I drove Christine Van Wey to the home of Sandy
Hafer, where Ms. Van Wey’s car was parked. She tried to
start the car, but the engine would not “turn over”.
36a
5. I then drove her to get her two children at the school
they were attending.
6. I then drove her to a police station to try to enlist
help in securing her personal belongings, at the home of
Sandy Hafer, and her car, which Ms. Van Wey believes had
been tampered with.
7. I drove her back to my office and assisted her in
securing legal assistance to get her baby back,
8. We later returned to Sandy Hafer’s home, after Ms.
Van Wey’s Legal Aid attorney, Ellen G. Friedman, re-
ported her conversation with Ms. Hafer, indicating that
Chris Van Wey could now pick up her belongings and car.
When we arrived, the car was filled with her belongings,
and started immediately.
9. During the entire time we were together, Christine
Van Wey appeared to be under a great strain, both phys-
ically and emotionally, and had difficulty walking and held
her stomach as if in pain. She was visibly upset and cry-
ing. She seemed depressed and discouraged, asking me if
Katie Brophy and her secretary could really carry out their
threats.
10. Christine Van Wey indicated to me that she wanted
her baby and it is my belief that she voluntarily terminated
her parental rights only as a result of intolerable duress.
(s) Mary Krider, Affiant
Strate or Kentucky }
CounTY oF JEFFERSON
Subscribed and sworn to before me by Mary Krider
this 19 day of Feb., 1981.
My Commission expires 4-9-83.
(s) Catherine M. Ford
Notary Public, State at Large, KY
37a
APPENDIX L
Exhibit 2
[LETTERHEAD OF STATE OF IOWA, DEPART-
MENT OF SOCIAL SERVICES]
June 10, 1981
Honorable Judge Jack E. Mudd
Cireuit Court} Sixth Division.
Hall of Justice
Jefferson County
Louisville, Kentucky 40202
Re: VAN WEY, Christine
Your Honor:
This is in response to your order for a Home Evalua-
tion, and a followup to our letter by Frances McRoberts of
June 5, 1981.
We felt a brief description of the Van Wey home situa-
tion might assist you preliminarily, at your hearing sched-
uled for June 17, 1981.
I met with Christine Van Wey in my office on June 5,
1981 and at her home on June 8, 1981.
HOME
Christine Van Wey rents a large ground level apartment
at 503 Park Avenue in Muscatine, Iowa. There is a large
kitchen, bathroom, living room and two large bedrooms,
There is a large foyer area off the bedrooms that could
serve as a third bedroom and is perfectly adequate for a
young child.
Mrs. Van Wey rents this apartment for $80.00 per month
(Low Rent Housing program). She is currently renovat-
ing it, stripping floors and woodwork, wallpapering, ete.
This project is completed except for the girls bedroom and
kitchen. She also has a full unfinished basement which the
38a
girls use for riding toys in the cold weather. The home is
quite adeqate to accommodate another child,
CHILDREN
Mrs. Van Wey has two daughters:
Jennifer Van Wey, b.d. 8/23/73
Chelese Van Wey, b.d 9/9/75
Both girls appear to be normal, healthy, active children.
They were clean and well dressed, They interact with their
mother appropriately—seek affection, attention and ask
permission to do things. They respond to her requests or
orders. Both seem happy and secure with their mother.
Mother reports that Jenny’s grades suffered during the con-
fusion this past year but have improved this last semester.
Otherwise she loves school.
REFERENCES
Mrs. Van Wey gave two references. Both gave positive
feedback, One, Kathy Gray, has provided child care for
these two children intermittently over the past seven years
while Mrs. Van Wey has been employed. Kathy Gray stated
that even when Christine went.to work at 6:00 or 7:00 AM,
she had the children dressed and fed before they arrived in
the morning.
FATHER
Baby Boy Van Wey’s father is reported by Christine to be
one John Adler, a 41 year old person with whom she has had
a relationship for the past four years. Mr, Adler lives with
Mrs. Van Wey. He was unavailable to interview, because
he works very long days.
MOTHER
Christine Van Wey admits she was very confused and dis-
traught during the last trimester of her pregnancy. She
was considering releasing for adoption until shortly after
delivery.
39a
She certainly appears to be settled and able to provide for
her baby at this time. She also realizes the difficulties in-
volved for the baby, the adoptive parents, as well as her-
self and her daughters.
SUMMARY
1. Mrs. Van Wey is able to undertake the care of her child.
2. The issue appears to be an entirely legal and ethical one
at this point.
3. fhe Iowa Departmen: for Social Services, Muscatine
County Office, will, by Court Order, provide supervision
of this child in the mother’s home, should the Court de-
cide to return him. If so, I suggest custody be main-
tained by your Court for a period of time (6 months?),
with our Department reporting to you.
4. That if the child is returned to the mother and then
must be placed for adoption, that he be returned to the
family with whom he was originally placed.
If you have any questions about my report, please feel
free to contact me.
Respectfully submitted,
(s) Kay Jackman
Social Worker III
KJ :de
40a
APPENDIX M
Exhibit 3
[LETTERHEAD OF CITY OF MUSCATINE]
June 9, 1981
Honorable Jack Mudd
Judge uf Jefferson Circuit Court
Sixth Division
Hall of Justice
Louisville, Kentucky 40202
Honorable Jack Mudd:
My office was contacted to reinspect this rental unit
occupied by Christine Van Wey and her daughters at 503
Park Avenue. I have found Ms. Van Wey to be an excellent
housekeeper. The unit she occupies has been a rental unit
for quite some time and had become pretty run-down by
the time she moved in. Since she moved in, the unit has
not only been thoroughly cleaned, but she has also pro-
ceeded to restore most of the floors and woodwork to their
original wood finish. In the process of cleaning, she has
also wallpapered or painted three of the five rooms they
occupy and is now working on the fourth. This has all
been done within the last seven months.
I am, therefore, happy to send this recommendation for
her. We wish all our rental units were cared for in the
same manner.
Sincerely,
(s) Madalyn A. Figg
Housing Code Officer
xc: Christine Van Wey
4la
APPENDIX N
JEFFERSON CIRCUIT COURT
SIXTH DIVISION
No. 81-AD-0037-T
CHRISTINE Van WEY ‘ R ‘ - . Petitioner
v.
Stantey Van Wey, et al. . . - Respondents
OPINION AND ORDER—Entered June 22, 1981
The petitioner, Christine Van Wey, a resident of Musca-
tine, Iowa, mother of two children, 5 and 7 years of age,
is seeking the return to her of a child born to her at
Norton’s Hospital in Louisville, Kentucky, on January 22,
1981, by a petition for possession and immediate entitle-
ment.
Based on prior arrangement between them, under which
Christine Van Wey came to Louisville, Kentucky for the
purpose of giving birth to her child and placing him for
edoption through her attorney, Katie Brophy, on Sunday,
January 25, 1981, Katie Brophy took the child from the
Norton Hospital and placed him with a couple in Trimble
County, Kentucky, who planned to adopt him.
On January 27, 1981, Christine Van Wey, with her at-
torney, Katie Brophy, appeared before this Court with a
petition to voluntarily terminate her parental rights, that
had been signed by her, earlier that morning, at the direc-
tion of her attorney, before a deputy circuit clerk.
Even though the appearance was made, no order was
entered then or has since been entered, terminating the
42a
parental rights of Christine Van Wey. Consequently, there
was no change in the custody status of Christine Van Wey
as the mother of the child involved in this matter. Also,
none of the events brought out by the evidence in the trial
of this case before this Court were made known to the
Court during the above appearance and proceedings by
either the attorney, Katie Brophy, or by the petitioner her-
self. The events of the day before were not disclosed.
When the father of her child, with whom she had been
living, abandoned her without funds in the fifth month of
her pregnancy, Christine Van Wey, in a state of despera-
tion and in the belief that she could not provide for this
third child, sought outside help. Being unable to find
acceptable help in Iowa, she turned to Katie Brophy, an
attorney, to help her place her child for adoption. She
learned of Katie Brophy through a television program she
saw about that time, concerning Miss Brophy’s activities in
the field of surrogate parenting.
An arrangement was made by which the prospective
adopting couple would assume payment of her medical fees
and costs, and, in addition, would pay legal fees of Katie
Brophy.
Receiving $100.00 from these participants to cover her
expenses, Christine Van Wey and her two children drove
to Louisville, Kentucky in her car. On arriving and being
unable to find a place to stay, she made arrangements with
Sandy Hafer, secretary to Katie Brophy, to take up resi-
dence in her home, also occupied by Mrs. Hafer’s husband
and two children, in return for household services she
was to render.
Several weeks later, Mrs. Van Wey entered the Norton’s
Hospital and on January 22, 1981, she gave birth to a baby
boy a cesarean section. Prior to the birth of the child, she
had signed a release of the child to the hospital.
43a
Following the birth, nurses at the hospital permitted
the mother to have the child with her. It is, perhaps, this
repeated contact that brought about the process of “ma-
ternity infant bonding” and through this emotional develop-
ment emerged her change of mind about giving up the child
for adoption.
This contact between the mother and child was strongly
objected to by Katie Brophy, who was directing the placing
process and acting as attorney for the mother. In spite
of the objection, the change of mind did occur and it was
made known later that day to both the attorney and her
secretary. This brought about a heated conversation be-
tween the mother and Miss Brophy’s secretary, in which
some threats were made concerning Christine Van Wey’s
children, automobile and personal belongings.
Christine Van Wey became concerned that her two chil-
dren would be taken from her and, in this state of mind,
she immediate!y sought to have herself discharged from the
hospital, over objection of the attending physician because
of her condition as the result of the cesarean.
Two of the nurses and the chaplain at the hospital
talked to her about the matter, offered her some limited
help, and all testified in her behalf and totally supported her
version of the case with respect to her state of mind and
concern, as well as her change of mind about the adoption.
The child was removed from the hospital on Sunday,
January 25, 1981. The next day, January 26, 1981, Chris-
tine Van Wey left the hospital and proceeded to get her
children. Through the chaplain at the hospital, a social
worker with the Louisville Family Planning Council stayed
with her that entire day, giving her what help she needed
and drove her to Sandy Hafer’s house to pick up her car.
The car could not be started, and both of them left without
any attempt to contact anyone there at the house. Both
of them went to the school and picked up the children.
d4a
Contact was made with an attorney at the Legal Aid
Society and, through the attorney, they went again to the
house of Sandy Hafer and this time all her personal be-
longings were in the back of her car and the car started.
At this time, she had her car, personal belongings, and the
» two children, but had no place to go. They were then taken
to a shelter house on Brook Street in Louisville, Kentucky,
where they stayed overnight. It was here that the social
worker left them.
Up to this point there is no question about Christine
Van Wey’s changing her mind about the adoption, which
she had a right to do. Her fears about her children up to
this point were well supported by the testimony of the
nurses, chaplain, and the social worker who stayed with
her throughout the entire day on Monday, January 26, 1981,
into the evening, when she left her at a place to stay.
However, from here on the facts become vague and
conflicting.
Christine Van Wey had the support of several people
who were offering her help and assisting her in various
ways. That Monday afternoon she had made an appoint-
ment to see her attorney the next day, on Tuesday, January
27th, concerning her baby. It was also on that afternoon
that her attorney at Legal Aid notified Katie Brophy that
they wanted the baby back and were planning to take legal
steps to accomplish this. A social worker left Christine
Van Wey with her childen and belongings and a place to
stay overnight. She knew the people who wanted to help
her and how to reach them. None of them heard any more
from her from that time on. Although she had an ap-
pointment to see her attorney the next day about getting
her baby, she never called the attorney or kept the appoint-
ment. Instead, she showed up the next day, on the 27th,
at the Hall of Justice, the Circuit Court Clerk’s office, with
her children, and signed a petition and then appeared,
45a
along with Katie Brophy as her attorney, before this Court
for the purpose of terminating her parental rights.
None of the events which occurred on the day before
and the day prior, Sunday, were brought to the attention
of this Court by either Miss Brophy or by Christine Van
Wey. Both appeared, without an appointment, with a
petition voluntarily terminating the parental rights of
Christine Van Wey, which had been signed by her before
a circuit clerk that morning. This Court had them wait
about twenty minutes in his courtroom, while he checked
with the Department for Human Resources and the Jeffer-
son County Department for Human Services concerning
any existing regulations as to non-resident mothers coming
to this state for the sole purpose of giving birth to children
for adoption. Finding no existing restriction against such
proceeding within this state, the Court called the parties
into chambers and a hearing was held. For a while, Chris-
tine Van Wey was alone in the courtroom and had occasion
to see my secretary. At no time did she voice any sug-
gestion to any member of my staff that she wanted to
confer with me in private. No objections or concern were
raised by anyone. Christine Van Wey answered a few
questions, satisfying the court that she understood the na-
ture of the proceedings and that she voluntarily wanted to
terminate her parental rights for the purpose of having
her child adopted. This Court was never advised by either
Christine Van Wey or Katie Brophy that the mother was
having any second thoughts about adoption. There was
nothing to suggest to this Court that Christine Van Wey
was operating under any fear and if she was she had ample
opportunity during the absence of Katie Brophy, while she
waited in the courtroom, to have made some statement
either to me or to a member of my staff.
Christine Van Wey, in her testimony, stated she did not
want to attempt adoption in Iowa because of having to
46a
advertise for the child’s father and did not know his where-
abouts. Yet, while living here in Louisville she made phone
calls to Iowa and located the father through some connec-
tion she had at a poolroom. Although the father abandoned
Christine Van Wey in her fifth month of pregnancy, yet,
while she lived in Louisville, the father moved back into
the apartment of Christine Van Wey in Muscatine, Iowa.
Following the hearing on January 27, 1981, the father,
John Adler, filed an affidavit under date of February, 1981,
stating his willingness and ability to accept and provide
for the child.
In order to accomplish an adoption in Kentucky, a
notarized written consent of the birth parent must be ob-
tained or the parental rights of the birth parent must be
terminated by an order of court. Absent either, the adop-
tion may be concluded upon proof of facts as would sup-
port an order of termination in an involuntary termination
action against either or both birth parents.
If Christine Van Wey was acting under duress or threat
when she appeared before this Court on January 27, 1981,
then such petition of termination should not be entered.
The couple who have the child received him under writ-
ten permission of the Kentucky Department for Human
Resources as approved parents for adoption. There is
no issue over their suitability and there is no showing that
they are holding the child illegally or wrongfully.
Christine Van Wey has taken all necessary steps to
conclude the voluntary termination of her parental rights.
It is true that no such order has been entered. No such
order was tendered at the time of the hearing, for the rea-
son that her husband had to be named a defendant by
reason of the birth of the child during their marriage and
that he could not be brought before the court under con-
structive service until after the expiration of fifty days.
It was then that it was contemplated that an order of
47a
termination would be tendered and entered terminating
the rights of both parties.
Now, since John Adler has now been disclosed as the
actual or birth father of the child, it will be necessary that
he be joined as a defendant under KRS 199.480(b). Under
this provision of the statute and the decision of the U. S.
Supreme Court in J/linois v. Stanley, either his consent will
have to be obtained or his right as a putative father will
have to be terminated either voluntarily or by involuntary
proceedings.
The petition prepared by Miss Brophy, as attorney, and
signed by Christine Van Wey, alleges that the name of the
actual father was unknown. The testimony of this case
reveals that Christine Van Wey had full knowledge of who
he was.
Christine Van Wey places great weight on her claim
that she acted in fear of something happening to her
children. Perhaps, following her conversation on Sunday,
January 25, 1981, with Katie Brophy and Sandy Hafer as
to the changing of her mind about the adoption and their
heated reaction thereto, did give rise to her fear and this
appears to be borne out by the testimony of the nurses
and the social worker.
Yet, on the day when legal steps were to be taken to
get her baby back, she dropped all contact with her at-
torneys, who are again representing her in this case which
began some four months later. Also, she apparently made
no effort to call those at the hospital or the social worker
who offered her help on that Sunday and Monday. Failing
to hear from her, the social worker made repeated efforts
to contact her and to find out what happened. This is
unexplained.
In addition, Christine Van Wey said nothing about her
concerns and fears while in Court, even while she was alone
outside the presence of Miss Brophy while waiting in the
48a
courtroom. This action on her part raises a serious ques-
tion in the mind of this Court as to the validity of her fear
at that time. Her statement that she failed to speak up
in court for fear of threats to her children is not consistent
with the ability she demonstrated to speak up on the two
days before and more so inconsistent when she had available
to her several persons willing to assist and help her.
One thing is certain, she was not acting under any
threat or fear when she took steps or made arrangements
to have her child adopted.
Setter practice would have had the child placed after
an order of termination was obtained. Also, better practice
would call upon the attorney, at the time of the termination
proceedings, to reveal to the court the turmoil of the day
and a half before, so that any doubts or questions could
have been clearly aired and dealt with in an appropriate
manner.
In such proceedings as this when the attorney holds
herself out as a locater and an arranger for adoption of
children, it is difficult to define her role as an attorney and
who she is representing and to who she owes a duty in
representing one or the other as an attorney. At one point
it appears that her interest as an attorney is placed between
the conflicting interests of the mother on one hand and the
prospective adopting couple on the other. This is very
tragic and some steps of professional measures will have
to be taken in order to assure that a situation like this will
not reoccur.
It is in this area of private adoptions that conflicts such
as in this case occur and when it does occur, it creates a
tragic result, affecting and leaving lasting scars on the lives
of many people.
Christine Van Wey arrived here totally dependent upon
others for the needs of herself and her two children and ina
state of desperation. This should not happen here or else-
49a
where. A close look should be given our adoption laws that
permit a non-resident, who is in indigent circumstances and
in a desperate state of need, to come to this state for the
sole purpose of giving birth to a child to be adopted. Under
such conditions, she is made subject to those who arrange
to bring her here. At present, our state laws tolerate it
and our Department for Human Resources grants permis-
sion for the acceptance of such children for adoption. No
thought or investigation is made as to the mother or her
welfare.
The final and most important factor in reaching a de-
cision in this case is the best interest of the baby himself.
This should be of paramount concern and no decisi#@n can
be or should be made in conflict with this best interest.
The child has been with the family under placement for
adoption for about six months and the family has been
investigated and approved as a suitable home.
Christine Van Wey’s decision in seeking adoption for
her child was on the basis that she could not provide for
him and at the same time provide for her two daughters
living with her. The father of the child abandoned them in
the fifth month of her pregnancy. Yet, while she was living
here in Louisville, awaiting the birth of her child, the father
moved back into her apartment in Muscatine, Iowa.
Christine Van Wey does some work as a babysitter and
assists John Adler two days a week as a clam digger, for
which they receive $30.00 a ton. There is no indication
what their weekly or monthly income is.
There has been a long bonding relationship between the
child and his present family, of about six months. There is
no showing that either party does not love the child. The
interrelation and interaction between the child and the
family has not been questioned. To remove this child
would no doubt disturb an already established relationship
within that family. This would have a detrimental effect
50a
upon the child, as well as upon the family. This court will
stand corrected if such is shown to the contrary.
In all cases such as this, someone is always hurt. For
this court to reach a decision, it has been a matter of deep
and prolonged concern. It is not expected that all parties
and those concerned will equally accept the result brought
about by the decision of the court or the decision itself.
This is understandable. Yet, in spite of what may be looked
upon by some as a harsh result, a decision must be made.
This matter is before the Court on the sole question of
possession and immediate entitlement to custody of the
child of Christine Van Wey. Any adoption action as may
be taken must occur in the Circuit Court of Trimble County,
Kentucky, the place of jurisdiction for such action.
Accordingly, the following order is entered.
ORDER
This matter having come before this Court on a petition
for immediate possession and entitlement to custody, and a
trial being held at which testimony was presented in the
presence of all parties and their counsel, and, in accordance
with the foregoing opinion and findings of this Court based
on the evidence presented and the Court being sufficiently
advised, Ir Is OrnpERED anv ApJuDGED as follows:
1. This Court finds that the O’Neal family is not hold-
ing the child involved herein in their possession illegally or
improperly.
2. Christine Van Wey, the mother of the child in-
volved, has taken all necessary legal steps to complete the
voluntary termination of her parental rights and such
steps taken by her before this Court were not the result of
threats of duress at that time.
3. The petition of Christine Van Wey for immediate
possession and entitlement to custody of her child be and
is hereby denied.
5la
4. The pending termination action shall remain on the
Court’s docket, subject to further orders of Court.
5. The rights of the natural father of the child involved
herein must be resolved within the provisions of KRS
199.480(b).
(s) Jack E. Mudd
Date: June 22, 1981.
Ce:
Ellen Friedman and
Robert Frederick Smith
Legal Aid Society, Ine.
Attorneys for Christine Van Wey
Irene P. Long and
Stephen P. Smith, Jr.
Attorneys for Respondents, O’Neal
Charles W. Dobbins, Jr.
Guardian Ad Litem
ee: 6/23/81
Ms. Frances McRoberts
Service Supervisor
Iowa Department of Social Services
Muscatine, Iowa 52761
52a
APPENDIX 0
JEFFERSON CIRCUIT COURT
SIXTH DIVISION
No. 81-AD-0037-T
CHRISTINE Van WEY . . - - . Petitioner
v.
StanLey Van Wey, Et AL. - - . Defendants
SUPPLEMENTAL FINDINGS OF FACT AND
CONCLUSIONS OF LAW—Entered July 8, 1981
This action is before the Court on motion of,
1) Petitioner, Christine Van Wey, to modify the Court’s
findings and made further findings herein; and
2) Respondents, Frank and Donna O’Neal, to terminate
the parental rights of Christine Van Wey and her husband,
Stanley Van Wey, in and to the child involved herein; and
3) Respondents, O’Neal, to file a cross-petition joining
John Adler herein as cross-defendant for the purpose of
involuntarily terminating his parental rights, for the rea-
son that he has filed an affidavit asserting paternity to the
child involved herein.
On the basis of the affidavit he has filed, John Adler is
alleged to be the putative father of Baby Boy Van Wey
who is now in the custody of the O’Neals for the purpose of
adoption.
KRS 199.480 requires that the putative father be named
as party defendant to any adoption action and his consent
is required under KRS 199.500, but shall not be required if
his parental rights have been terminated.
53a
Christine Van Wey did not join John Adler as a de-
fendant to terminate his rights in her petition to volun-
tarily terminate her parental rights. Instead, she joined
her husband by reason of the birth of the child during her
marriage, on the legal presumption that he is the father of
the child. In fact, she alleged the father of the child to be
unknown.
The question presented is whether proposed adopting
parents may join the putative father in a petition to invol-
untarily terminate his parental rights.
The right to file an adoption action and to file a termi-
nation action is fixed by the state legislature, and short of
that such action could not be filed.
The legislature enacted KRS 199.603(7), which defines
who may file or institute such involuntary termination ac-
tion. This right is limited to:
“. . , the department, any child-placing agency
licensed by the department, any probation officer, any
state or local law enforcement officer, any county or
commonwealth’s attorney or parent.”
The O’Neals do not come within any of those groups set
forth in the statute. Consequently, their motion to file the
cross-petition joining John Adler as a party herein is
hereby denied.
This Court in its opinion, on page i2, stated,
“The final and most important factor in reaching
a decision in this case is the best interest of the baby
himself. This should be of paramount concern and no
decision can be or should be made in conflict with his
best interest.”
Clearly, the best interest of this child directs that his
custody remain with the O’Neals, where he has been living
since shortly after his birth.
54a
This Court denied the petition of Christine Van Wey
for immediate possession and entitlement to custody. This
opinion still stands and petitioner’s motion to modify same
is overruled. Accordingly, the permanent custody of the
child should be and is hereby vested with Mr. and Mrs.
O’Neal. Moore v. Dawson, Ky., 531 8S. W. 2d 259; Paynter
v. Smith, Ky., 481 8. W. 2d 270.
This Court in its opinion containing its findings of fact
and conclusions of law adjudged in part, as follows:
“Christine Van Wey, the mother of the child involved
has taken all necessary legal steps to complete the
voluntary termination of her parental rights and such
steps taken by her before this Court were not the re-
sult of threats or duress at that time.”
Christine Van Wey, in a proceeding before this Court
and under circumstances which established before this
Court her full understanding of the proceedings in which
she declared her willingness to terminate her parental
rights, thereby completed all steps necessary to conclude
the termination. The entry of the order was withheld until
her husband, a defendant, was before the Court by con-
structive service. This has now been accomplished; he has
filed no response although he has knowledge of the pro-
ceedings. There is clear evidence before this Court to
warrant termination of his parental rights.
KRS 199.611 provides that if the Court determines that
all parties are before the Court and that the termination
of parental rights are in the best interest of the child, and
that each is fully aware of the purpose and consequences
of the proceedings, it (the Court) shall make an order ter-
minating all parental rights and obligations in the parent
in whom they have existed. . . . () added.
Therefore, pursuant to the provisions of KRS 199.611
this Court enters an appropriate order terminating the
5da
parental rights of Christine Van Wey and her husband,
Stanley Van Wey, and within the provisions of that statute
grants unto the Kentucky Department for Human Re-
sources the power to consent to the adoption of such child
in such proceedings as may be filed. Com., Dept. of Child
Welfare v. Helton, Ky., 411 S. W. 2d 932 (p. 934).
Other motions of the petitioner to further modify the
Court’s original findings of fact and conclusions of law and
to make further findings are hereby overruled.
This is a final and appealable order and there is no just
reason for delay in its entry.
(s) Jack E. Mudd
Judge
Date: 7/8/81.
Cos
Ellen G. Friedman
Legal Aid Society, Inc.
Attorney for Petitioner
Stephen P. Smith, Jr.
Irene P. Long
Counsel for Respondents, O’Neal
Charles W. Dobbins
Guardian Ad Litem
John R. Wilson
Warning Order Attorney
56a
APPENDIX P
JEFFERSON CIRCUIT COURT
SIXTH DIVISION
No. 81-AD-0037-T
CHRISTINE VAN WEY . . . Petitioner
v.
STanLeEY Van Wey, et al. : . - . Defendants
ORDER TERMINATING PARENTAL RIGHTS—
Entered August 10, 1981
At a Court held on the 10 day of August, 1981.
This cause having been heard and submitted before this
court on January 27, 1981 and the Petitioner, Christine
Van Wey, having personally appeared, and the Court hav-
ing examined the Mother of Baby Boy Van Wey, who ad-
mitted the facts stated in her Petition to be true, and it
being proved to the satisfaction of this Court that the
herein termination will be for the benefit of the child, and
the Court being sufficiently advised, it is hereby Ordered
and adjudged; all of the parental rights of Christine Van
Wey, mother of Baby Boy Van Wey, born on the Janu-
ary 22, 1981, in Louisville, Jefferson County, Kentucky, be
and they are hereby terminated.
It further appearing to the Court that Stanley Van Wey,
Respondent herein, husband of Christine Van Wey has
abandoned said infant child; and continuously neglected,
and failed to provide Baby Boy Van Wey with adequate
food, clothing, shelter, or other care and control necessary
for his physical, mental, or emotional health and develop-
0/8
ment, and it having been proved to the satisfaction of this
Court that the termination of his parental rights will be
for the benefit of Baby Boy Van Wey, and the Court being
sufficiently advised it is hereby Ordered and Adjudged;
All of the parental rights of Stanley Van Wey, husband
of Petitioner, Christine Van Wey, in and to Baby Boy Van
Way, born of January 22, 1981, in Louisville, Jefferson
County, Kentucky, be and they are hereby terminated.
(s) Jack E. Mudd
Judge
Dated: Aug. 10, 1981
58a
APPENDIX Q
JEFFERSON CIRCUIT COURT
SIXTH DIVISION
No. 81-AD-0037-T
CHRISTINE Van WeEyY . : . . . Petitioner
).
STanLtey Van Wey, et al. . . . . Defendants
NOTICE—MOTION—ORDER FOR ADDITIONAL
FINDINGS AND AMENDMENT TO JUDGMENT
—Filed June 25, 1981
To: Stephen P. Smith, Jr.
Attorney for Defendants
1526 Kentucky Home Life Bldg.
Louisville, Kentucky 40202
Charles Dobbins, Jr.
Attorney at Law
First National Tower
Louisville, Kentucky 40202
Ms. Irene P. Long
Attorney for Defendants
Bedford, Kentucky 40006
Take notice that the undersigned, on June 29, 1981, at 11:00
AM, in the court room of the above Court, will make the
motion and tender the order set out below.
CERTIFICATE
It is hereby certified that a copy hereof was, on June 24,
1981, mailed to the persons and addresses listed above.
59a
MOTION
Petitioner, by counsel. pursuant to CR 52.02, moves this
al findings on the issue of whether
Petitioner revoked her alleged consent to termination of
her parental rights. and further, Petitioner respectfully
moves this court to amend its yu
Judgment accordingly,
Court to make addition
Ellen G. Friedman
Attorney for Petitioner
Lega] Aid Society, Ine.
+29 West Muhammad Ali Blvd.
Louisville, Kentucky 40202
(902) 584-1254
(s) Robert F, Smth
Attorney for Petitioner
Legal Aid Society, Inc.
42) West Muhammad Ali Blvd.
Louisville, Kentucky 40202
(502) 58 4.1954
ORDER
Motion having been made it is hereby ordered that, pur-
suant to CR 52.02, this court hereby amends its judgment
of June 22, 1981, by granting petitioner’s motion for im-
mediate entitlement, possession, and custody of infant child
Baby Boy Van Wey, in accordance with its additional find-
ings on the issue of Petitioner’s revocation of consent.
Judge
Date
6Va
APPENDIX R
OPINION RENDERED: MAY 28, 1982, 2:00 P.M.
TO BE PUBLISHED
AS MODIFIED: AUGUST 13, 1982; 10:00 A.M.
COURT OF APPEALS OF KENTUCKY
81-CA-2181-MR
CHRISTINE Van Wey . : - - . Appellant
v.
Raymonp F. O’ Neat,
Donwa O’NEaL and
Basy Boy Van Wey : . : . : Appellees
A ppe al from Jefferson Circuit Court
Honorable Jack E. Mudd, Judge
Action No. 81-AD-0037-T
REVERSING AND REMANDING
Berore: Hocce, Howerton, and Wuire, Judges.
Howerton, Jupce. Christine Van Wey appeals from a
Jefferson Circuit Court order denying her petition for
immediate entitlement to possession and custody of her
infant son and from a supplemental order terminating her
parental rights and granting permanent custody of the
child to the O’Neals. She presents five allegations of error.
1. The trial court’s conclusion that the appellant was
not acting under duress when consenting to the
termination of her parental rights was clearly
erroneous,
2. The trial court erred in refusing to find that the
appellant made a timely revocation of her consent
to terminate her parental rights.
6la
3. The trial court erred in applying the best interest
of the child standard.
4. The trial court abused its discretion in awarding
permanent custody to the appellees,
5. The trial court abused its discretion in terminating
the appellant’s parental rights.
After considering the complete record, we must conclude
that the events and results which led to this appeal demand
reversal.
The essential procedural facts are as follows: On
January 27, 1981, Mrs. Van Wey signed a petition for
voluntarily termination of her parental rights in the baby
boy. On February 9 she wrote a letter to the trial judge
informing him of some of the events which led to the ex-
ecution of the petition and advised him that she did not
wish to give up her child. No action was taken on the
petition, and on April 30, Mrs. Van Wey filed a petition
for immediate entitlement to possession and custody of
the child. She asserted that the petition was signed under
duress and that she was presently able to care for the child.
The O’Neals were joined as respondents and a hearing was
held on June 17 which resulted in the denial of the petition.
The trial court found, among other things, that although
Mrs. Van Wey may have been acting under duress through
January 26, 1981, she was not under duress at the time she
executed the petition for voluntary termination. The court
was critical of the actions of the attorney accompanying
Mrs. Van Wey in that there was no revelation of the tur-
moil which had preceded the appearance in court, but it
concluded that there was nothing to suggest that Mrs. Van
Wey was operating under any fear while in court.
The court indicated that the most important considera-
tion in reaching a decision was the best interest of the child.
At the time of the court’s order, the child had been with
62a
the O’Neals for several months, and they were providing
a suitable home. It was determined that to disturb the
child in this established relationship would have a detri-
mental effect upon him, as well as upon the family. The
case was left on the docket for further orders.
On June 29, 1981, Mrs. Van Wey moved the court for
additional findings on the issue of whether she revoked her
consent to the termination of her parental rights and for
an amended judgment. Her motions were overruled, and
the court entered its supplemental order awarding per-
manent custody of the child to the O’Neals and terminating
Mrs. Van Wey’s parental rights. She has now appealed
her case to this Court.
The O’Neals moved to dismiss this appeal on the ground
that there is no appeal from a voluntary termination of
parental rights, citing KRS 199.611(2). The motion was
passed to this panel for consideration with the merits of
the case. We will assume, without deciding that the stat-
ute is valid, but we conclude that what appeared to begin
as a petition for voluntary termination was concluded in
an involuntary manner. This Court therefore has juris-
diction to consider Mrs, Van Wey’s appeal.
This tragic situation began in Muscatine, Iowa. Mrs.
Van Wey resided there with her two daughters. She was
married to Stanley Van Wey, but the parties had been
living separately for several years. Mrs. Van Wey was
pregnant with her third child, and the natural father is
admitted to be John Adler.
Mrs. Van Wey was in a desperate situation in that she
was alone, unemployed, and unable to obtain adequate
assistance. She contacted a Louisville attorney (herein-
after referred to as the attorney) whom she had seen on
television discussing surrogate motherhood. Within two
hours, arrangements had been made for Mrs. Van Wey
to travel to Louisville and for the O’Neals to pay her ex-
63a
penses until the birth of the child. It was agreed that the
O’Neals would thereafter be permitted to adopt the infant.
The appellant was forwarded $100.00 for travel ex-
penses and she came to Kentucky on December 3, 1980.
She and her daughters resided in the basement of the home
of the attorney’s secretary (herein called the secretary).
The baby was delivered at Norton’s Children Hospital
by cesarean section on January 22, 1981. Mrs, Van Wey
was permitted to see and feed her baby, and she even named
it. On Sunday, January 25, the attorney obtained the child
from the hospital and placed it with the O’Neals. As
soon as Mrs. Van Wey learned of the baby’s removal, she
began taking action to effect the return of her child. On
Monday, January 26, a staff physician called the secretary
and informed her that Mrs. Van Wey wanted her baby
returned. Mrs. Van Wey testified that the secretary tele-
phoned the hospital and threatened to have Mrs. Van Wey’s
two daughters taken from her, if she refused to consent to
the termination. The secretary denied doing this, but later
testified that she was so upset she wasn’t certain what she
said. The testimony of hospital personnel supports Mrs.
Van Wey’s statement that she feared for the welfare and
eafety of her children. She left the hospital, against the
advice of her attending physician, and she picked up her
children at school, so that they would not return to the
secretary’s home.
The appellant attempted to recover her possessions and
automobile, but her car would not start. A social worker
assisted her in finding temporary shelter with a local
charity, and she alsé assisted her in calling an attorney
with the Legal Aid Society. An appointment was scheduled
for Tuesday, January 27. The Legal Aid attorney im-
mediately contacted the secretary and the attorney han-
dling the baby transaction to arrange for return of Mrs.
Van Wey’s possessions and to advise them that she in-
64a
tended to represent Mrs. Van Wey. Thereafter, Mrs, Van
Wey recovered her possessions, which had been placed in
her automobile. The vehicle was then operable.
Mrs. Van Wey contacted the attorney on Monday night
regarding her baby and some of her possessions which
were not in her car. We have no way of knowing exactly
what took place between the two at that time, although
Mrs. Van Wey testified of threats of “conjunctions,” prob-
lems for the Legal Aid attorney, and actions which the
attorney’s policeman boyfriend might take. Mrs. Van Wey
nevertheless accompanied the attorney to the circuit court
on the following morning where she signed the petition
for voluntary termination of her parental rights. She was
given an additional $150.00, which enabled her to travel
back to lowa.
There are four elements of undue influence: (1) a per-
son who is subject to influence; (2) an opportunity to exert
undue influence; (3) a disposition to exert influence, and
(4) a result indicating influence. See Annot., A.L.R. 3d
918 « 2 (1973). All four elements appear to exist in this
‘ase. Mrs. Van Wey was in dire circumstances when she
arrived in Louisville. She was dependent upon the at-
torney and the secretary for all her needs. Even after
removing her children from the secretary’s home, she was
alone in the city with two children, ages five and seven,
without sufficient funds to feed them or return to Iowa.
She was without her baby. She obviously felt threatened
by people in a position of apparent power.
A consent for voluntary termination of parental rights
or a consent to adoption, like any other consent, must be
given free from undue influence or duress to be effective.
Pierce v. Pierce, Ky., 522 S. W. 2d 435 (1975). Although
we need not, and therefore do not, specifically determine
that the trial judge’s finding is clearly erroneous, Mrs.
Van Wey’s “voluntary” consent was highly suspect at best.
65a
She may not have shown any evidence of intimidation at
the time she signed the termination papers, but in light of
all the evidence, it is unlikely that her actions were com-
pletely free and independent until she was free of the
attorney involved in the baby placement.
The point which is dispositive in this case is that Mrs.
Van Wey made a timely revocation of any consent which
she gave, even if such was originally voluntary. No final
order had been entered on the petition at the time she
originally notified the court of her situation nor at the time
she filed her petition for immediate entitlement. Until a
court actually terminates parental rights, through an ap-
propriate order, those rights remain in effect. Kentucky
law is clear that where suflicient reason is shown, there
may be a revocation of consent to adopt before a final
judgment is entered. Skaggs v. Gannon, 293 Ky. 795, 170
S. W. 2d 12 (1943). In this sense, there is no significant
difference between a voluntary termination of parental
rights and a consent to adoption.
In Hill v. Poole, Ky., 493 S. W. 2d 482 (1973), a change
in circumstances constituted sufficient reason to withdraw
a consent to adoption. The father had remarried, estab-
lished a home, had a job, was making sufficient money to
support himself and his family, and desired for his son to
be with him. The revocation occurred one year after the
father voluntarily left his son with his neighbors.
Sufficient reason to revoke a consent to adoption is
present when the consent is given under circumstances of
temporary distress. Warner v. Ward, Ky., 401 S. W. 2d 62
(1966). Temporary distress is an understatement of the
situation in this case. The trial court found in this action,
and we are in complete agreement, that Mrs. Van Wey was
in a desperate state of need and subject to those who ar-
ranged for her travel to Kentucky for the birth and even-
tual adoption of her child. A change of mind by a natural
66a
mother is not an evii, but it is to be accorded great sym-
pathy and in the proper case encouraged and favored.
Scarpetta v. Spence-Chapin Adoption Service, 28 N.Y. 2d
185, 269 N. E. 2d 787 (N. Y. Ct. App. 1971). Generally, a
natural parent has the primary and superior right to the
custody of offspring above all others. Lee v. Thomas, 297
Ky. 858, 181 S. W. 2d 457 (1944).
Since there was a timely revocation of consent, the trial
court abused its discretion in terminating Mrs. Van Wey’s
parental rights. As a matter of law, sufficient reason was
given to revoke the petition to terminate. In order to
thereafter issue a judgment in opposition to the wishes and
consent of the natural mother, the conditions required for
an involuntary termination must be clearly proven. There
was no finding that Mrs. Van Wey was an unfit mother.
In fact, a report from the Iowa authorities was very favor-
able in regard to her current circumstances and ability to
care for the infant and in regard to her relationship with
her daughters.
It is true that in a voluntary termination, the best in-
terest of the child is to be considered paramount. KRS
199.601(7). But, so long as the parents are fit for the care,
custody and control of a child, their rights are not involun-
tarily terminated simply because a child’s economic, social
or emotional environment can be improved by placing it in
another home. Such considerations have never been ap-
proved as an adequate basis for the termination of parental
srights, at least in this country. Small v. Andrews, 530 P.
2d 540 (Ore. App. 1975). The trial court also considered
the emotional bond that had developed between the baby
and the O’Neal’s during the time the child had been in their
home. This may be a strong argument and consideration,
but “those hoping to become adoptive parents cannot create
their best argument for keeping a child’s custody by thwart-
ing a natural parent’s known wishes.” Small v. Andrews,
67a
530 P. 2d 540 (Ore. App. 1975), at 545. The O’Neal’s may
not be allowed to benefit from their delays in returning the
child.
All of the parties involved in this situation were made
aware of Mrs. Van Wey’s change of mind within 24 hours
of the infant’s removal from the hospital. The attorney
notified the O’Neal’s on January 26, but the O’Neal’s refused
to return the baby. A follow-up call at 11:30 p.m. that
same night advised the O’Neal’s to “sit tight,” as she be-
lieved she could obtain Mrs. Van Wey’s signature for a
termination on the following morning.
While we sympathize with the O’Neals and have no
doubt as to their parental qualifications, the record also
shows that they were advised of the dangers in independent
adoption by an employee of the Department for Human
Resources. Furthermore, their payments to the attorney
do not entitle them to a child when the rights of the natural
parent have been ignored.
Should the decision of the trial court be allowed to
stand, the problems facing the O’Neals are not necessarily
settled. This case is further tainted with such problems
as the termination of the father’s parental rights. Both
Stanley Van Wey and John Adler requested the court by
letter not to terminate their rights. The trial court sum-
marily terminated the rights of Stanley Van Wey, but no
action has been taken involving the admitted biological
father. See, KRS 199.480, Goldfuss v. Goldfuss, Ky., 565
S. W. 2d 441 (1978), and Stanley v. Illinois, 405 U. S. 645,
31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972).
One final black mark in this case, which we cannot over-
look, is the matter of legal representation provided to Mrs.
Van Wey at the time she signed the petition for voluntary
termination. According to the record, the O’Neals believed
the attorney was representing their interest, but she testi-
fied that she was representing Mrs. Van Wey and that the
68a
O’Neals were merely paying her fees. It appears to us
that she was primarily representing her own interests on
the morning of January 27. There was an obvious conflict
with her “client,” as she was well aware of Mrs. Van Wey’s
desire to keep her baby. She had even been notified by
Legal Aid that Mrs. Van Wey had made an appointment to
seek their representation. None of these facts were re-
vealed to the trial judge. Although it is conceivable that
the attorney thought Mrs. Van Wey had freely, independ-
ently, and voluntarily changed her mind again, the facts
make such a view highly suspect, at best.
It has been held that a natural mother, not represented
by counsel at the time consent to adoption is given, will not
be denied the legal effect of a withdrawal when reasonable
steps are taken to regain custody of her child. Neither the
so-called vested rights nor the superior economic position
of the adoptive parents will preclude a withdrawal of con-
sent in such circumstances. Skaggs, supra, and Small,
supra.
Our decision in this case should in no way inhibit the
successful placement of children in adoptive homes when
such is done through a legitimate child-care agency or when
the child is placed in a home subsequent to a final termina-
tion of parental rights. This case is an example of what
can happen if attorneys use the courts to conduct a baby
placement business and then put their business interests or
a third party’s interests above those of their “client.”
The problems in this case not only involve the facts and
the law, but also its peculiar odium. It is the opinion of
this Court that the infant child must be returned immedi-
ately to its natural mother. The alleged voluntary consent
was not of a continuous nature. Even assuming the consent
was voluntary and freely given at the time the petition was
signed, it was properly withdrawn prior to any final action
which would otherwise have terminated Mrs. Van Wey’s
69a
rights to her child. There is no basis shown, in fact or law,
for an involuntary termination. The orders of the Jeffer-
son Cireuit Court are reversed, and this case is remanded
for entry of a new order consistent with this opinion.
ALL Concur.
Attorneys for Appellant:
ELLEN G. FRIEDMAN
ROBERT FREDERICK SMITH
Legal Aid Society, Inc.
425 W. Muhammad Ali Blvd.
Louisville, KY 40202
Attorneys for Appellees:
IRENE P. LONG
Route 2
Bedford, KY 40006
STEPHEN P. SMITH, JR.
1526 Ky. Home Life Bldg.
Louisville, KY 40202
Guardian Ad Litem for the Infant:
CHARLES DOBBINS, JR.
600 W. Main
Louisville, KY 40202
70a
APPENDIX 8
COURT OF APPEALS OF KENTUCKY
No. 81-CA-2181-MR
CurisTInE Van WEY . . - - . Appellant
v.
Raymonp F. O’NEat,
Donna O’NEaL, and
Basy Boy Van Wey - - - - - Appellees
Appeal from Jefferson Circuit Court
Honorable Jack E. Mudd, Judge
Action No. 81-AD-0037-T
ORDER DENYING PETITION FOR REHEARING
Berore: Hoccr, Howerton and Wuirte, Judges.
This case being submitted upon the Petition for Rehear-
ing by appellees O’Neals and the Guardian ad litem and
the Court after considering same and being sufficiently ad-
vised Orpers that said Petitions for Rehearing be and they
are hereby Dentep.
It is further ordered that the opinion rendered herein
on May 28, 1982, be modified on its face, and the attached
pages 1 through 13 be substituted for the corresponding
pages as originally rendered.
EntTerep: August 13, 1982
(s) John D. White
Judge, Court of Appeals
7la
APPENDIX T
TERMINATION OF PARENTAL RIGHTS
199.600 Repealed
HISTORY: 1978 H 98, § 18, eff. 6-17-78
1976 H 99, H 731, § 99; 1974 H 368, § 38, S 259, § 10;
1972 S 173; 1968 S 90; 1966 e 219; 1962 ¢ 211, § 5;
1950 ¢ 125, § 23
Note: For provisions similar to 199.600, see now
199.603.
199.601 Voluntary termination of parental rights; peti-
tion; hearing 2
Note: See also following repeal of this section eff.
7-1-82,
(1) A petition for the voluntary termination of paren-
tal rights may be filed by a parent.
(2) No petition may be filed under this chapter prior
to five (5) days after the birth of the child.
(3) The cireuit court shall have jurisdiction of pro-
ceedings under this chapter to terminate parental rights.
A petition for voluntary termination of parental rights may
be filed in any circuit court of the Commonwealth.
(4) The petition for the voluntary termination of pa-
rental rights under this section shall be verified and contain
the following:
(a) Name and place of residence of each petitioner;
(b) Name, sex and date of birth of the child;
(c) Relationship of each petitioner to the child;
(d) Reasons for desiring the termination of parental
rights;
(e) Name and address of the person or of the depart-
ment or authorized agency to which parental rights are
sought to be transferred.
72a
A statement that the person, department or authorized
agency to whom custody is to be given has facilities avail-
able and is willing to receive the custody of the child shall
be filed with the petition.
(5) When a petition for the voluntary termination of
parental rights is filed, the court shall set a date for a
hearing thereon. The court shall require notice to be
served upon the department for human resources in any
case where a statement from the department of willingness
to accept custody of the child has not been filed with the
petition, or custody of the child is to be placed with an
individual and not the department or a licensed agency.
(6) All hearings shall be held before this court, pri-
vately for the purpose of determining the facts.
(7) The best interest of the child shall be considered
paramount.
(8) At the time of the hearing, the court, after full and
complete inquiry, shall determine whether each petitioner
is fully aware of the purpose of the proceedings and the
consequences of KRS 199.601 to 199.617.
HISTORY: 1978 H 98, § 8, eff. 6-17-78
Note: See also following repeal of this section eff.
7-1-82.
CROSS REFERENCES
See Baldwin’s Kentucky Practice, Vol. 4, Adoption 1.17,
3.01 et seq.
Annotations from former section
199.620 VOLUNTARY TERMINATION OF PAREN-
TAL RIGHTS
561 SW (2d) 106 (App 1977), Hill v. Garner. A volun-
tary termination of parental rights constitutes a final re-
linquishment of all legal rights and such parent has no
standing to oppose an adoption of child. ’
73a
OAG 65-505. Since KRS 2.015 was intended to only
amend those statutes falling within generic class:“cation,
e.g., “infant”, “majority”, and since CR 17.03(1), relating
to actions brought by unmarried infants, uses the term
“infant” and makes no reference to specific number of
years, an unwed mother over eighteen can bring an action
for termination of parental rights on her own, individually,
and CR 17.03(1) does not apply to a person of that age.
1955 OAG 35,632. An unwed infant mother can only
file an action or application to terminate her parental rights
to her child through her guardian or committee, and in the
absence of a guardian or committee, or their unwillingness
to file such action, it must be filed by a next friend through
permission of the court.
199.601 Repealed
HISTORY: 1980 ¢ 280, § 152, eff. 7-1-82
1978 H 98, § 8
Note: See also preceding section in effect until 7-1-82.
199.603 Involuntary termination of parental rights of
parent of dependent, neglected or abused child
Note: See also following repeal of this section eff.
7-1-82.
(1) In a proceeding involving a dependent, neglected
or abused child, as defined in KRS 199.011, the circuit
court may terminate all parental rights of the parent of
such child, and declare the child to be a ward of the state,
and vest the care and control of the child in the department,
or in any licensed child-caring or child-placing agency or
institution, if facilities are available to receive the child, and
if it is pleaded and proved by preponderance of the evidence
in a private hearing that the termination is in the best in-
terest of the child based on the existence of one (1) or both
of the following conditions:
(a) The child has been adandoned; or
74a
(b) The child has been substantially or continuously or
repeatedly neglected or abused.
(2) In the case of conditions described in subsection
(1)(a) or (b), no finding by the court is necessary that
the abandonment, neglect or abuse was intentional if in
fact the abandoninent, neglect or abuse occurred.
(3) Factors to be considered by the court in determin-
ing the best interests of the child in circumstances of
abandonment, neglect, or abuse shall include:
(a) Emotional illness, mental illness, or mental defi-
ciency of the parent rendering the parent consistently un-
able to care for the immediate and ongoing physical or
psychological needs of the child for extended periods of
time based on psychological or psychiatric evidence;
(b) Acts of abuse or neglect toward any child in the
family ;
(c) Repeated or continuous failure by the parents to
provide the child with adequate food, clothing, shelter, or
other care and control necessary for his physical, mental,
or emotional health and development except that poverty
alone shall not be grounds for involuntary termination of
parental rights;
(d) If the child has been placed with the department
or a child placing or child caring agency, the services pro-
vided or offered to the parent to facilitate a reunion, includ-
ing the parents’ testimony concerning such services;
(e) The effort the parent has made to adjust his cir-
cumstances, conduct, or conditions to make it in the child’s
best interest to return him to his home in the forseeable
future;
(f) The extent to which the parent has maintained
regular visitation or other contact with the child as part
of a plan to reunite the child with the parent;
75a
(g) The payment of a reasonable portion of substitute
physical care and maintenance if financiallly able to do so;
(h) Whether additional services would be likely to
bring about lasting parental adjustment enabling a return
of the child to the parent within an ascertainable period of
time.
(4) If the circumstances described in subsections (1),
(2), or (3) of this section exist with respect to only one
(1) of the two (2) parents, the parental rights of that
parent may be terminated, in which case the child shall
not be declaré@ to be a ward of the state, unless with the
voluntary consent of the other parent, or if one (1) of the
two (2) parents has willfully, substantially, and contin-
uously refused for a period of at least one (1) year to
give or pay any support, the parental rights of that parent
may be terminated immediately by order of the court, in
which case the child shall not be declared a ward of the
state, unless with the voluntary consent of the other parent.
(5) In the event the infant is made party defendant to
the action, the boarding home or foster parent shall not
be served with summons notwithstanding provisions of
CR 4.04(2).
(6) The court may be convened at any time wherever
the judge thereof may be found within the district irre-
spective of the regular term for the purpose or terminating
parental rights under this section, and shall complete the
same as soon as possible.
(7) Proceedings under KRS 199.601 to 199.617 may be
instituted upon petition by the department, any child-plac-
ing agency licensed by the department, any probation offi-
cer, any state or local law enforcement officer, any county
or Commonwealth’s attorney or parent.
(8) In the event a parent who is a defendant in an
action for involuntary termination of parental rights is
for financial reasons unable to obtain legal representation,
the court shall appoint an attorney for such person if de-
76a
fendant requests counsel. The court shall inform the de-
fendant of his right to counsel if possible. The court shall
appoint counsel for any defendant under this statute if in
the opinion of the court justice will be served. Unless the
attorney appointed receives a salary or fee from another
source, he shall be paid a reasonable fee for his services
which shall be taxed as costs not to exceed three hundred
dollars ($300).
(9) In any action for involuntary termination of pa-
rental rights, te child to whom the action directly relates
shall be made a party defendant to the action and a guar-
dian ad litem shall be appointed to represent his interest.
HISTORY: 1978 H 98, § 10, eff. 6-17-78
77a
APPENDIX U
[3]
Mr. Smith: Well, in the past times when we have ap-
peared here it has been the contention of counsel for the
petitioner that this was a hearing for the sole purpose of
immediate entitlement. It is our position, and has been
from the beginning, that this is a hearing to determine not
only that, but, also, the court has the authority to make a
decision concerning permanent custody.
The Court: No, I’m not fixing custody. We’re here
on a motion for possession of immediate entitlement, as
[4]
far as I know.
Ms. Friedman: That’s correct, Your Honor.
Mr. Smith: There is a case that holds that the court
is also within its province to determine at the same time
the question of —
The Court: Well, a certain amount of that overlaps.
You can’t help but get into both issues; if it is developed
that the best interest and welfare of the child would be
endangered by granting immediate entitlement, the court
would not grant that.
Mr. Smith: Well then, if I understand the court cor-
rectly, the only question before the court today is the
question of immediate entitlement?
The Court: Principally, that’s the main issue here, the
question of immediate entitlement.
PROOF OF SERVICE
I, Ellen G. Friedman, the counsel of record for peti-
tioner, having been admitted to practice before the Su-
preme Court of the United States, do hereby certify that
three (3) copies of the Petition for a Writ of Certiorari
in the above-styled case were mailed, first class postage
prepaid, to Irene P. Long, Counsel for Respondent, Route
2, Bedford, Kentucky 40006; Stephen P. Smith, Jr., Counsel
for Respondent, 1526 Kentucky Home Life Building, Louis-
ville, Kentucky 40202; and Charles Dobbins, Jr., Counsel
for Baby Boy Van Wey, 600 West Main Street, Louisville,
Kentucky 40202, on the a a day of January, 1984. I
further certify that to my knowledge all parties required
to be served have been served.
Eien G. FrrepMan
Counsel for Petitioner
Legal Aid Society, Inc.
425 West Muhammad Ali Blvd.
Louisville, Kentucky 40202
Telephone: (502) 584-1254
(THIS PAGE INTENTIONALLY LEFT BLANK)
(THIS PAGE INTENTIONALLY LEFT BLANK)
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.