Webb v. Wiley , 600 P.2d 317 ( 1979 )

IRWIN, Vice Chief Justice.

Presented for review is a trial court order denying appellant’s Application to Withdraw Consent to Adoption of her child by appellees and an Interlocutory Decree of Adoption entered pursuant to 10 O.S.1971, § 60.15.

Appellant’s child was born in August, 1977, and on February 28, 1978, appellant appeared before a district judge and executed her consent to the adoption. On March 3,1978, appellees filed their petition for adoption and on March 15, 1978, appellant filed her application to withdraw consent. After a full hearing the trial court denied appellant’s application to withdraw consent and entered an Interlocutory Decree of Adoption.

Appellant contends that Oklahoma’s provisions for adoption of children born out of wedlock are unconstitutional since they deprive the father of the right to object to the adoption. Appellant argues that Oklahoma statutory law as it now stands will permit the adoption of an illegitimate child without the consent of the putative father if the mother has given her consent freely. She argues that such a scheme violates the constitutional rights of the putative father as recognized in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); and Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962).

Because of the posture of this case we need not determine whether appellant correctly interprets Oklahoma’s statutory scheme or whether such an interpretation would render it unconstitutional. The threshold issue is appellant’s standing to assert the constitutional rights of the putative father because, ordinarily, constitutional rights are personal and may not be asserted vicariously. Broadrick v. Oklahoma, 43 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Although various exceptions have been carved out of this general principle, they are only because of “the most weighty countervailing policies.” Broadrick, supra. None of them are applicable in the facts of the instant case. Appellant’s child was bom out of wedlock and the only positive evidence introduced as to the identity of the putative father was the testimony of the appellant. The putative father himself denied under oath that the child was his. He disclaimed any “rights” to the child. To allow the appellant standing to assert the alleged constitutional rights of another individual who has refused to assert them would undermine the salutary principles upon which the doctrine of standing is based. We hold that appellant had no standing to challenge Oklahoma’s statutory scheme for adoption of children born out of wedlock based upon alleged violations of the constitutional rights of the father.

Appellant contends the trial court committed reversible error in failing to allow appellant the right to examine the investigative report prepared by DISRS. Appellant argues that the information in the report would have provided her with vital information concerning the names and references allegedly furnished by appellees. She argues such information may well have gone to their credibility and fitness and would have a bearing on what would and would not be in the child’s best interest.

The record discloses that appellant was furnished the investigative report during the hearing. Appellant has failed to show in what matter she was prejudiced by not receiving the reports earlier, and her argument is not sufficient to overcome the presumption in favor of the correctness of the judgment of the trial court that appellant was not prejudiced. Keel v. MFA Mutual Insurance Co., Okl., 553 P.2d 160 (1976).

The remaining issues raised by appellant all relate to the trial court’s application of the law to the evidence. 10 O.S.1978 Supp. § 60.10 provides that a withdrawal of any consent to adoption filed in connection with a petition for adoption shall not be permitted unless the court “finds that the best interest of the child will be furthered thereby.” In addition, we held in In Re Adoption of Graves, Okl., 481 P.2d 136 (1971) that the natural parent may set the consent aside where fraud, coercion, misrepresentation, or undue influence is shown.

Appellant produced evidence tending to establish that she was induced into consenting to the adoption when Mrs. Wiley (appel-lee) informed her that her (appellant’s) step-mother was trying to have DISRS take the child. Mrs. Wiley, on the other hand, testified no such conversation took place. Appellant contended that Mrs. Wiley had promised that she would be able to see the child, a promise which allegedly had not been kept. Appellees denied making such a promise, or that appellant had ever been denied a request to see the child. A statement by the district judge who witnessed the consent was admitted by stipulation and showed that appellant did not appear to be under stress. It also indicated that appellant expressed the opinion that it would be better if she did not see the child very often. The trial court heard evidence about the circumstances of both homes as well.

The trial court determined that appellant consented to the adoption voluntarily without coercion, undue influence or fraud, and that the best interest of the child would not be furthered by withdrawing the consent to adoption. In reviewing that decision, in a case of equitable cognizance, this Court will weigh the evidence to insure that the trial court order is supported by sufficient evidence, but we will not reverse that decision unless it is against the clear weight of the evidence. Crowell v. Whitmire, Okl., 548 P.2d 221 (1976). The record contains ample support for the conclusion reached by the trial court, and its order is affirmed.

AFFIRMED.

LAVENDER, C. J., and BARNES, SIMMS, HARGRAVE and OPALA, JJ., concur. WILLIAMS, HODGES and DOOLIN, JJ., concur in part, dissent in part.