# Petition — Van Wey v. O'Neal > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1064%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 465 U.S. 1066 ## 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. 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) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1064%3A1. Public record. Not legal advice.