¶1dissenting. The majority has simply misread the law. No statute or case law requires that a court order exist to legally justify persons other than natural parents to hold a child. Ark. Stat. Ann. § 34-1704 (Repl. 1962) reads:
[The writ of habeas corpus shall be granted] upon the application, and in the name of the father, mother, guardian, or next friend of any married woman or infant, against any person who shall unlawfully have or detain in custody or bondage any infant or married woman; and like proceedings shall be had for hearing and determining the cause, and affording the relief demanded, as in other cases.
¶2Ark. Stat. Ann. § 37-1734 (Repl. 1962) provides:
No court under this act shall in any other matter, have power to inquire into the legality or justice of the process, judgment, decree or order of any court, legally constituted, nor into the justice or propriety of any commitment for contempt made by any court, officer, or body corporate, according to law, and plainly charged in such commitment, as hereinbefore provided.
¶3These statutes mean that if an order or judgment exists, its legality cannot be challenged in a habeas corpus proceeding. They do not say that a legal consent to adoption is worthless. Those who have a child pursuant to a valid consent have the infant child “lawfully”; therefore, the trial judge properly denied the petition.
¶4It was not denied that the written consent, signed by the mother and her parents, was voluntary. The trial judge held the consent valid according to the law. The majority does not challenge that finding. That legal consent gave these appellees a perfect legal right to custody of the child and the right to adopt the child. It has not been declared void, set aside, nor withdrawn, and until one of these is done, it should stand.
¶5The legal question is whether a mother can withdraw her consent to the adoption of her child? The answer is yes, but the manner and circumstances in which it can be done vary. In this case the mother simply wants to withdraw her consent; she alleges no fraud, mistake or other good cause. She can attempt to withdraw that consent, just as she did, by filing a petition for habeas corpus. See French v. Catholic Community League, 69 Ohio App. 442, 44 N.E.2d 113 (1942). Alternatively, she may do so by intervening if adoption proceedings have been filed. See Ark. Stat. Ann. § 56-209 (Supp. 1985).
¶6In Combs v. Edmiston, 216 Ark. 270, 225 S.W.2d 26 (1948), this court discussed the two rules of law that had evolved regarding the rights of natural parents to withdraw consent, citing Annotation, Right of natural parent, or other person whose consent is necessary to adoption of child, to withdraw consent previously given, 138 A.L.R. 1038 (1942) and Annotation, Right of natural parent, or other person whose consent is necessary to adoption of child, to withdraw consent previously given, 156 A.L.R. 1011 (1945). The court stated the general rule as follows:
‘The rule in a majority of the jurisdictions wherein the question has arisen is that a natural parent’s consent to the proposed adoption of a child, duly given in compliance with a statute requiring such consent as a prerequisite to an adoption, may be effectively withdrawn or revoked by the natural parent before the adoption has been finally approved and decreed by the court.’
¶7The other rule recognized in Combs is:
‘. . . that the trend of the more recent authority is toward the position that where a natural parent has freely and knowingly given the requisite consent to the adoption of his or her child, and the proposed adoptive parents have acted upon such consent by bringing adoption proceedings, the consent is ordinarily binding upon the natural parent and cannot be arbitrarily withdrawn so as to bar the court from decreeing the adoption, particularly where, in reliance upon such consent, the proposed adoptive parents have taken the child into their custody and care for a substantial period of time, and bonds of affection, in the nature of a “vested right,” have been forged between them and the child.
¶8The court said that it did not have to choose the better of these two rules because the teenage mother had signed the consent under duress. In Martin v. Ford, 224 Ark. 993, 227 S.W.2d 842 (1955), the court followed the rule announced in A. v. B., 217 Ark. 844, 233 S.W.2d 629 (1950), to govern withdrawal of consent by a parent. It reads:
The question whether the natural parent may revoke consent previously given depends upon all the circumstances of the particular case, which may include such a variety of matters as the terms of the particular statute; the circumstances under which the consent was given; the length of time elapsing, and the conduct of the parties between the giving of the consent and the attempted withdrawal; whether the withdrawal was made before or after institution of adoption proceedings; the nature of the natural parents’ conduct with respect to the child both before and after consenting to its adoption; the “vested rights” of the proposed adoptive parents with respect to the child; and, in some cases, the relative abilities of the adoptive parents and the natural parents to rear the child in a manner best suited to its normal development, and other circumstances indicative of what the best interests of the child require.’
¶9Statutory law recognizes that before withdrawal of consent is permitted, the best interests of the child must be considered. Ark. Stat. Ann. § 56-209 (Supp. 1985), provides:
(a) A consent to adoption cannot be withdrawn after the entry of a decree of adoption.
(b) A consent to adoption may be withdrawn prior to the entry of a decree of adoption if the Court finds, after notice and opportunity to be heard is afforded to petitioner, the person seeking the withdrawal, and the agency placing a child for adoption, that the withdrawal is in the best interest of the individual to be adopted and the Court orders the withdrawal.
¶10A recent annotation deals with the entire spectrum of the problem; consent before any adoptive proceedings are initiated, before the placement of a child, and after court orders. Annotation, Right of natural parent to withdraw valid consent to adoption of child, 74 A.L.R.3d 421 (1976).
¶11I think the majority decision is wrong for several reasons. A valid lawful consent was granted; it has not been withdrawn in a proper proceeding, and until it has been, the custodians of the child have a superior legal right. Absent good cause to withdraw the consent, such as fraud or duress, a determination of whether withdrawal is in the best interests of the child must be made.
¶12In Van Wey v. Van Wey, 656 S.W.2d 731 (Ky. 1983), the Kentucky court adopted what I think is the best rule:
We hold with the trial court that the initial voluntary consent 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.
¶13The decision is wrong in my judgment from a legal standpoint, but what is more disturbing is that it is irresponsible. We have a young child’s future at stake, and we should not decide that future without foremost consideration of the child’s best interests.
¶14I would remand the case for that determination.
¶15dissenting. The majority opinion directs the chancellor to return the custody of this infant girl to the petitioners without prejudice to the unnamed respondents to establish their adoptive rights to this child. Thus the petitioners, about whom we know nothing except that they knowingly gave up the custody of the child for adoption, will regain custody under this opinion by the summary process of habeas corpus and without any determination of the welfare and best interest of the child. The tragic consequence is that a fifteen month old girl who bears no part of the responsibility for this unhappy situation and who has known only one set of parents from birth is removed from familiar surroundings to foreign surroundings and into the custody of persons who are, to her, total strangers, albeit her biological parent and grandparents. If that wrenching experience must occur, it ought to come, if at all, after, rather than before, the legal issues are fully resolved, governed by the best interest of the child. I do not question the right of the petitioners to have the validity of their consent judicially determined, but I earnestly disagree with the majority that the custody of the child should be changed before those issues are decided.
¶16The majority opinion makes only passing mention of the best interest of the child, applying instead the stylized properties of habeas corpus — which do not lend themselves readily to the just determination of adoption disputes. Yet even where habeas corpus is the procedural mode we have consistently looked first to the welfare of the child and denied the writ where the welfare of the child warranted, even in cases where the custody was far more ambiguous than here. In all of the cases cited by the majority where habeas corpus was sought, the court weighed the best interest of the child as decisive: Feight v. Feight, 253 Ark. 950, 490 S.W.2d 140 (1973) (“The fitness of the petitioner to have custody is the pivotal issue.") (my italics); Massey v. Flinn, 198 Ark. 279, 128 S.W.2d 1008 (1939) (“The prime concern and the controlling factor is the best interest of the child.”) (my italics). Tucker v. Turner, 195 Ark. 632, 113 S.W.2d 508 (1938); Washaw v. Gimble, 50 Ark. 351, 7 S.W. 389 (1887) and Verser v. Ford, 37 Ark. 27 (1881).
¶17In deciding this case as it has, the majority, I believe, has disregarded two important and overriding considerations: (1) The Revised Uniform Adoption Act
¶18 Ark. Stat. Ann. § 56-201 et seq. (Supp. 1985).