Scott v. Pulley

KOCH, Judge,

concurring.

I concur in the majority’s opinion in this case in all respects. I do so because of the surrender hearing conducted by the trial judge on January 13, 1984. The record concerning this proceeding convinces me, as it did the majority, that the appellant was fully informed of her rights and the consequences of her decision and thereafter did not take timely steps to rescind her decision to surrender her child for adoption. However, the conduct of the Christian Counseling Services should not go without comment. Had it not been for the intervening action of the trial court, I would not hesitate to find that this agency’s conduct was improper and that it fatally tainted the validity of the surrender process in this case.

As in many cases of this type, we are dealing here with a young woman at one of the most emotionally vulnerable periods in her life. The appellant in this case was an unmarried teenager from a strict, religious family who feared ostracism if her pregnancy were discovered. Thus, she decided to carry her child in secret and to give the child up for adoption immediately after its birth. To carry out this plan, she was referred to the Christian Counseling Services approximately one week prior to her child’s birth. She was told that the agency would pay for all of her medical expenses if she would agree to surrender her child. She accepted this offer because she had no means to support herself. The appellant agreed since she had no means to support herself other than her parents. Thus, within hours after the birth of her son on December 13, 1983, a representative of the agency visited the appellant in the hospital and obtained her signature on papers placing the infant with the agency for the purpose of observation at an agency facility. One of the forms indicated that this was not a final surrender of the child and specifically stated, in part:

It is also my understanding that any time prior to signing a relinquishment, I may request and be granted my child’s release to me.

This document also informed the appellant that she would be required to reimburse the agency for her medical expenses should she ultimately decide not to go through with the surrender of her child.

Soon thereafter, having reconciled with her parents, the appellant requested that she be permitted to see her child for the first time. The agency refused to permit her to do so but promised her that she could see her son after she had executed the formal surrender documents and after the period of time within which she could rescind the surrender had elapsed. The appellant made other requests to see her child and each time was met with the same response.

The reasons for the Christian Counseling Services refusal to permit the appellant to see her child are evident even if unstated. The agency, being primaily interested in placing the child in an “Evangelical protestant home,” did not desire to run the risk of the appellant’s changing her mind and deciding to keep her child after having the chance to hold it in her arms for the first time. Thus, I can only conclude that the agency was placing its own interests ahead of those not only of the mother but also of the child.1

While the best interests of the child is of paramount importance in proceedings such as this one, we should never lose sight of the fact that the natural parents also have certain fundamental constitutional rights that must be observed and honored. San*674tosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599 (1982); Lassiter v. Department of Social Services of Durham County, North Carolina, 452 U.S. 18, 38, 101 S.Ct. 2153, 2165, 68 L.Ed.2d 640 (1981) (Blackmun, J., dissenting); Bryan v. Bryan, 620 S.W.2d 85, 87 (Tenn.App.1981); and In re Riggs, 612 S.W.2d 461, 469 (Tenn.App.1980), cert. denied, 450 U.S. 921, 101 S.Ct. 1370, 67 L.Ed.2d 349 (1981). We are all at risk if these rights are forgotten or ignored.2 The Christian Counseling Services ignored the appellant’s rights in this case as well as the terms of its own agreement with the appellant signed on December 13, 1983. She should have been permitted to see her child when she requested to do so.

However, the agency’s conduct must ultimately be judged in light of what transpired at the private surrender interview conducted by the trial court on January 13, 1984. At that time, without question, the appellant was informed by the trial judge that she could change her mind and regain custody of her son if she decided to do so within thirty days. The appellant candidly admits that she was told this. There is no evidence in the record that she was incapable or unable to understand the significance of what she was told. Thus, her inaction following the execution of the formal surrender documents must, in the final analysis, be found to be an irrevocable decision to surrender her son.3

. There is no evidence in this record to show that the appellant would be an unfit parent or that she had done anything that would require terminating her parental rights involuntarily.

. See Tennessee Department of Human Services v. Riley, 689 S.W.2d 164, 172-73 (Tenn.App. 1984) (Nearn, J., dissenting).

. We need not reach the question in this case concerning whether conduct of a child placement agency prior to the formal surrender of a child can be so coercive that it will taint the surrender proceeding notwithstanding the intervention of the trial court.