Opinion
No. 35826.
April 9, 1945. Suggestion of Error Overruled May 14, 1945.
1. ADOPTION.
When mother of minor child appeared and objected to adoption of child by another, her consent to adoption previously given became ineffective (Code 1942, sec. 1269).
2. ADOPTION.
"Abandonment" imports any conduct of parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to child.
3. ADOPTION.
A mother who gave child to another shortly after birth, concealed fact that child was hers, exercised no control over child, and contributed nothing to and exhibited little interest in child's welfare until just before woman to whom she gave child instituted adoption proceedings several years later, "abandoned" the child (Code 1942, sec. 1269).
4. ADOPTION.
Whether abandonment of minor child by parent, once established, has been terminated or can be terminated consistently with welfare of child is a judicial question.
5. ADOPTION.
Whether mother who abandoned child shortly after birth and evinced little, if any, interest in child's welfare until just before woman to whom she gave child instituted adoption proceedings really desired to resume her parental rights over child, and whether she could be accorded such rights consistently with welfare of child, was primarily for decision of trial court.
6. ADOPTION.
Petitioner's husband who did not join in petition for adoption of minor child should not have been named in decree as one of adopting parents, and for such error decree must be reversed and cause remanded, where child's mother testified that her confidence in petitioner's former husband, since divorced, influenced mother in giving child to petitioner, and it appeared that trial court may have been influenced in rendering decree by fact that it was giving child to petitioner and her then husband and not to petitioner alone (Code 1942, sec. 1269).
APPEAL from chancery court of Coahoma county, HON. R.E. JACKSON, Chancellor.
John T. Smith, W.D. Jones, and Henry M. Hezel, all of Cleveland, for appellant.
Complainant in adoption proceedings relying solely on consent of parent of illegitimate child for statutory authority to adopt cannot thereafter, in absence of amended pleadings, change position and rely on abandonment.
Roberts v. Cochran, 177 Miss. 546, 171 So. 6; Rutland v. McIntosh, 121 Miss. 437, 83 So. 635; Code of 1942, Sec. 1269 (Code of 1930, Sec. 358); Griffith's Mississippi Chancery Practice, Secs. 30, 165, 613.
The court cannot adjudicate rights or grant relief to persons not a party to the proceedings.
Griffith's Mississippi Chancery Practice, Sec. 612.
Consent as used in adoption statutes means voluntary surrender of child for adoption, and agreement between mother and married couple for permanent custody and permission to adopt child entered into shortly after birth of child solely because mother had no means of providing for infant is not such consent as will support adoption four and one-half years later by one of parties to contract, who has been divorced and remarried, and present husband, over protest of mother who has in the meantime become able to provide a good home for child.
Hibbette v. Baines, 78 Miss. 695, 29 So. 80; Bullard v. Welch, 171 Miss. 833, 158 So. 791; Amis on Divorce and Separation in Mississippi, Sec. 221.
The mother has the superior legal right to the custody and control of illegitimate minor child and before a court would be warranted in finding that the mother had "abandoned" her child so as to lose the right to reclaim its custody, it must be clearly shown that she, without just cause or excuse, deserted the child for such length of time and under such circumstances as to show an intent to shirk or evade the duty, trouble or expense of rearing it, or a callous indifference to its wants or a reckless disregard of its welfare.
Bullard v. Welch, supra; Nickle v. Burnett, 122 Miss. 56, 84 So. 138; Cook v. Echols (Ala.), 80 So. 680; Jensen v. Earley (Utah), 228 P. 217; State of Louisiana ex rel. Kearney v. Steele, 121 La. 215, 46 So. 215; Amis on Divorce and Separation in Mississippi, Secs. 212, 216.
Creekmore Creekmore, of Jackson, for appellee.
Complaint is first made that appellee in the adoption proceedings relied solely on consent of parent of the child for statutory authority to adopt, and could not thereafter in absence of amended pleadings change position or rely on abandonment. Appellee relied, not only on the agreement, but also on the facts set up in her amended petition, which charged facts sufficient to show abandonment. Much evidence was taken tending to show abandonment of the child by the appellant, and some testimony to show the contrary, and none of the testimony on this issue was objected to by appellant.
See Stamps v. Frost, 174 Miss. 325, 164 So. 584; Knox v. Henderson Taylor, 160 Miss. 476, 135 So. 214; Arkansas Fuel Oil Co. v. Trinidad Asphalt Mfg. Co., 189 Miss. 366, 198 So. 41.
Appellant contends that the court cannot adjudicate rights or grant relief to persons not a party to the proceedings, and urges that it was error to include the name of V.G. Fitzgibbons in the decree as one of the persons to whom the child was adopted. If it be true, as contended, that the name of V.G. Fitzgibbons should not have been in the decree, this is not a matter of which the appellant may complain. But if she may, the balance of the decree is correct and should be amended or corrected only by striking his name therefrom and leaving the adoption to the appellee in full force. The rights of appellee and V.G. Fitzgibbons are not joint, and if it be true that the decree is void as to V.G. Fitzgibbons that does not affect the rights of appellee.
The next point made by appellant is that the court was in error in holding that appellant had abandoned her child. Where a parent deserts his child for such a length of time and under such circumstances as to show an intent to shirk the duty, trouble or expense of rearing it, he or she is guilty of such abandonment of it as to bar his or her right to thereafter reclaim its custody from any person who may have ministered to and protected it during such period of desertion.
McAdams v. McFerron, 180 Miss. 644, 178 So. 333; Amis on Divorce and Separation, Sec. 216.
Argued orally by Rufus Creekmore, for appellee.
Mrs. Fitzgibbons filed a petition in compliance with Section 1269, Code 1942, for the adoption of a child of which Mrs. Wright was the mother. Mrs. Wright appeared, filed an answer objecting to the adoption and a cross-petition praying that the custody of the child be awarded to her by a writ of habeas corpus. The appellee's petition alleged that the appellant had consented to this adoption and also that she had abandoned the child. After hearing the evidence, both for and against the adoption of the child, the court rendered a decree reciting that the child, which was then about five and a half years old, had been "abandoned by the defendant when about three weeks of age," that it was for the best interest of the child to be adopted by the petitioner, granted the appellee's petition for the adoption of the child and dismissed the preliminary writ of habeas corpus that had previously been granted to the appellant. The appellant having appeared and objected to the adoption of her child, her consent thereto theretofore given for its adoption, as will hereinafter appear, became ineffective and in order for the decree of the court below to be sustained it must appear that it was warranted in finding from the evidence that the child had been abandoned by the appellant. Section 1269, Code 1942.
It appears from the evidence without conflict that in July, 1938, the appellant, then seventeen years of age and unmarried, became an expectant mother and entered a Salvation Army Home for Unmarried Mothers for the purpose of giving birth to the expected child. At the suggestion of a sister of the appellant the appellee agreed to take and care for the child. This she communicated to the appellant, who thereupon wrote her a letter saying, among other things, "Odie, you said you wanted the baby, well you can have it, but I will take it to Jax to you and you will have to go there and get it." After then requesting the appellee to send her clothing, "a bottle and a thermos bottle and nipple" for the expected baby, she said, "Odie, please don't tell anybody about me." On July 27th, after the birth of the child, a girl, she again wrote the appellee, saying, among other things, "I finally made up my mind you can have my baby, I hate to do it but I know it is best for me and it too." After stating that she had no job and nothing to look forward to, she said, "Odie, you have not told anyone have you?" The Salvation Army Home was at Tampa, Florida, and pursuant to a request from the appellant in a letter written August 2, 1938, the appellee went to Tampa and brought the appellant and her baby to the appellee's home in Daytona, Florida, at which place the appellant's grandfather also lived. On August 23rd the appellee, who was then the wife of Oscar S. Eastman, and the appellant entered into a written agreement, which the Reporter will set out in full, by which the appellant agreed that the appellee and her then husband should "have the full and absolute care, custody and control and education of the said child," and that the appellant "consents and agrees to any adoption proceedings hereafter to be instituted by the said Eastmans and agrees to in no way hinder, or assert or attempt to assert any control or authority over the said child from and after this day."
From this point on the evidence is in conflict. But from the evidence introduced by the appellee, which the court below had the right to, and evidently did, believe, it appears that the appellant concealed the fact that the child was hers, enjoined on the appellee to so do, and exercised no sort of control over the child, contributed nothing to, and exhibited little, if any, interest in, its welfare until just prior to the institution of this adoption proceeding, when she notified the appellee that she wanted the child back.
"Abandonment imports any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child." 1 Am. Jur., Adoption of Children, Sec. 42; Amis on Divorce and Separation, Section 216. If this evidence does not bring this case within that rule, it would be hard to conceive what evidence would do so. Consequently, the court below committed no error in holding that she had abandoned the child. The appellant is now happily married and lives in Cincinnati, where she and her husband together earn about $500 per month. It may be that she has repented of her former conduct and desires to resume her parental rights over the child, and we are not prepared to say that this can not in a proper case be done, "but when abandonment is shown to have existed, it becomes a judicial question whether it really has been terminated, or can be, consistently with the welfare of the child." 1 Am. Jur., Adoption of Children, Sec. 42. This question was primarily for the decision of the court below and we are unable to perceive that it committed any error in reaching the decision it did.
Mrs. Eastman and her former husband, Oscar S. Eastman, have been divorced and she is now the wife of V.G. Fitzgibbons, who did not join in the petition for the adoption of the child. The decree here rendered, however, recites "that the said minor Marie Louise Brown be and she hereby is adopted to the petitioner Odie Eastman Fitzgibbons and V.G. Fitzgibbons, her husband," etc. Her husband should not have been included in this decree and as to him it is binding on no one, but the appellee says that if it was error to include him therein this Court may nevertheless eliminate him therefrom and then affirm the decree. But, as counsel for the appellant say, the court below may have been influenced in rendering its decree by the fact that it was giving the child not alone to Mrs. Fitzgibbons but to her husband also, without which it may not have denied the appellant her parental rights over the child. She herself had testified that she was influenced in giving the child to Mr. and Mrs. Eastman by the fact that she had confidence in Mr. Eastman and was willing to trust the child's welfare to him. For this error in the decree, and for this alone, it will be reversed and the cause remanded.
Reversed and remanded.
"Agreement.
"This Agreement, Made and entered into this 23rd day of August, A.D. 1938, by and between Oscar S. Eastman and his wife, Odie Eastman of Daytona Beach, Florida, and Stella Mae Brown, single, of Jacksonville, Florida, witnesseth:"Whereas, there was born to the said Stella Mae Brown on the 16th of July, 1938, a daughter, who has been named Sandra G., said child being born out of wedlock and its Mother being unable financially and otherwise to properly care for the said child, and desiring that it shall have a good home and the proper care and education, therefore, it is agreed by and between the parties hereto that the said Oscar S. Eastman and his wife, Odie Eastman, shall have the full and absolute care, custody and control and education of the said child from and after this day and they hereby agree in consideration thereof, to properly support and care for the said child and to educate her to their fullest ability and it is further agreed by the said Stella Mae Brown that in consideration thereof, she hereby consents and agrees to any adoption proceedings hereinafter to be instituted by the said Eastmans and agrees to in no way hinder or assert, or attempt to assert any control or authority over the said child from and after this day.
"In Witness Whereof, the parties hereto have affixed their signatures the day and year first above written.
"Oscar S. Eastman "Odie Eastman "Stella Mae Brown"
ON SUGGESTION OF ERROR.
The suggestion of error filed by appellees invites attention to the probable effect of our reversal of the cause upon that part of the chancellor's decree which quashed the writ of habeas corpus granted under the prayer of appellant's cross-bill. Our former opinion distinctly stated that the cause was reversed upon the ground that the adoption was decreed to appellee and her husband, whereas the former alone was a party to the proceeding, and that it was "for this error in the decree, and for this alone" that it was reversed.
The entire decree was reversed, yet final disposition of the writ of habeas corpus is left to abide the event of the hearing upon remand.
Overruled.