D-P v. Social Service & Child Welfare Department of the Relief Society General Board Ass'n of the Church of Jesus Christ of Latter-Day Saints

CROCKETT, Chief Justice

(dissenting).

With deference to the opinions of my colleagues, which I think show a commendable intensity of concern in this case, and notwithstanding the already rather full treatment therein, there are some aspects of the issues involved upon which I desire to set forth my own ideas. The multifarious complexities and uncertainties of a human life are such that I say in sincerity that I have no firm conviction that I am wise enough to have absolute prescience as to the direction in which the welfare and happiness of this child will best be served. But the several considerations stated below incline me to believe that the judgment of the trial court should be sustained and I therefore concur in dissenting with Justice ELLETT.

Since time immemorial for various reasons there have been children left without a home or parents. It is a credit to the race of man and to civilized society that a substitute means is usually found to supply this vital need. To do this it is essential that there exist in the law an orderly, efficient and binding method of placement, which is as practical and available as possible to those concerned.1 The benefits to the homeless child, to the relinquishing parent when there is one, to those willing to take the child as their own, and to society itself, are so obvious that mention without elaboration is sufficient for my purpose here.

This Court on numerous occasions has stated, and other courts invariably affirm, that where custody of a child is in issue the matter of paramount concern should be the welfare and happiness of the child.2 This meets accord in my thinking for numerous reasons, including the fact that usually, as here, there is an innocent baby who has become a pawn between the tensions that have arisen in a dispute between adults. A fact which seems to argue quite persuasively in support of the trial court’s determination is that in my experience of many years as a lawyer and judge it-is my observation that social workers and social scientists who have had both education and practical ex*327perience in such matters uniformly agree that in most cases the wise course for an unwed mother is to place the child for adoption.3 Consistent with this and of significant import in this case is the fact that each of the persons in whom petitioner appeared to have confidence and sought counsel, including those who should have, and I suppose did have, both interest in and love for her, advised her that in their judgment the wise course was to place the baby for adoption.

I readily agree that the foregoing does not deprive petitioner of her rights as the mother of the child, nor of the right to make the decision for herself. The observation made by Justice TUCKETT that the release and consent in this case was taken too quickly is not entirely without merit. Hindsight now shows plainly that it is indeed unfortunate that under the particular circumstances shown it was done so hastily as to allow a question to be raised as to whether petitioner had sufficient opportunity to make that decision for herself after the baby was born. Whether she did so is in my mind the critical issue of fact in this case. But it has been decided after a plenary trial and by the proper authority.

The release and consent having been executed in the form and in the manner authorized by law should stand protected by certain principles. It is presumed to be valid and should not be rescinded unless overcome by proof that the petitioner was acting under some form of duress or undue influence, or a combination of them, so that signing it was not her free and voluntary act.4 To overcome such a written instrument should require clear and convincing evidence.5 Whether that degree of proof was met is for the trial court to determine.6 Consideration should be given to the advantaged position of the trial court in judging the credibility of witnesses and in fact in determining all of the issues in the case.7 I trust that I am correct in assuming that the majority believe that the evidence does so preponderate against his finding and that they have concluded that the appellant did not voluntarily sign the release and consent. In that connection at the risk of being unduly repetitious, I summarize some facts which impress me as giving adequate support to the trial court’s determination.

*328The appellant is not the usual immature young girl who finds herself pregnant. She is of mature years, age 34, she is employed and no question is raised as to her competency to make up her own mind. She had from the time she learned she was pregnant to decide what to do. She undoubtedly did a great deal of thinking about it and had ample opportunity and did consult with others including her brother and sister. She appears to have arrived at a decision by September, about three months before the baby was born. The signing of the release about 24 hours after that event indicates that she was still of the same mind.

At this point it is of vital importance to note that the evidence is in conflict as to her degree of awareness and alertness at the critical time of signing the release and consent. Her doctor who observed her during the day says that the dosage of Demerol given at 9:40 in the morning would have worn off within two hours. This would have been a minimum of about four hours before the release was signed and he was of the opinion that she was fully competent to sign it. This was fully supported by the testimony of Mrs. Stewart who presented the release to her for signature. I cannot understand how it can be concluded that the trial court did not have the prerogative of believing these witnesses. Further corroborating the idea that she knew what she was signing and did so voluntarily is the fact that she was still of the same mind three days later when she signed the consent that the hospital release the baby. This completed the relinquishment.

I certainly do not desire to minimize the ordeal which the combination of emotional distress and physical suffering must have been for this young woman, nor to fail to sympathize with her plight after she underwent a change of heart and desired to get the baby back. My heartfelt wish is that there were two babies so that the void which must exist on one side of the case or the other co«!.*l be filled. There is some consolation in realizing that, just as in the laws of physics, “nature abhors a vacuum,” and fills it up; so it is with human emotions. The void will be filled some way, and that if time does not completely heal, it surely will assuage the wounds. But as earlier indicated herein, there are considerations which transcend concern for the adults affected. It appears to have been considered judgment of those who should know the most about the matter, that the best prospect for a well adjusted and happy life for this little child would exist by sustaining the release and not undoing that which has been done. Additionally, this would reinforce rather than to tend to upset the orderly processes of law by which such social ills are treated.

On the basis of the considerations discussed above it is my opinion that the judgment of the trial court should be affirmed.

. As to desirability of giving protection and assurance to prospective adoptive parents, see statement in Jacob v. State, 7 Utah 2d 304, 306, 323 P.2d 720.

. See In Re Adoption of D_, cited in main opinion.

. The Child Welfare League of America, Standards for Services to Unmarried Parents, published 1960, Sec. 3.5, page 18; Adoption, Viola W. Bernard, M.D., published 1964 by Child Welfare League of America, Inc., page 73; The Child Welfare League of America, Standards . for Adoption Services, page 4.

. See discussion of duress in Thomas v. Children’s Aid Society of Ogden, 12 Utah 2d 235, 364 P.2d 1029.

. Jardine v. Archibald, 3 Utah 2d 88, 279 P.2d 454.

. See Child v. Child, 8 Utah 2d 261, 332 P.2d 981.

. See statement in Nokes v. Continental Min. & Mill. Co., 6 Utah 2d 177, 308 P.2d 954.