Adoption of Bryant, In re

• Citation: 134 Ind.App. 480,189 N.E.2d 593
• Decision Date: 19 April 1963
• Docket Number: No. 19649,No. 2,19649,2
• Parties: In the Matter of the ADOPTION OF Edith Ann BRYANT. Gerald BRYANT, Appellant, v. Arza E. KURTZ and Mildred L. Kurtz, Appellees
• Court: Court of Appeals of Indiana

Page 593

189 N.E.2d 593

134 Ind.App. 480

In the Matter of the ADOPTION OF Edith Ann BRYANT Gerald BRYANT, Appellant, v. Arza E. KURTZ and Mildred L. Kurtz, Appellees.

No. 19649.

Appellate Court of Indiana, Division No. 2.

April 19, 1963.

Leon J. Mills, White & Mills, John P. Price, White & Mills, Indianapolis, Hollowell, Hamill & Price, Indianapolis, of counsel, for appellant.

Sparrenberger, Duvall, Sullivan & Sharp, Joseph P. Sullivan, Indianapolis, for appellees.

HUNTER, Acting Presiding Justice.

This was an adoption proceeding commenced under the provisions of § 3-115 et seq., Burns' 1946 Replacement, and tried as an adversary proceeding in the Marion Probate Court. Dorothy Ann Bryant, mother of Edith Ann Bryant, deceased former wife of the respondent, Gerald Bryant, suffered a tragic death by burning as a result of an automobile collision on July 14, 1959. The appellees (petitioners below) filed an application for guardianship for Edith Ann Bryant in the Marion Probate Court on July 22, 1959. The appellees filed original petition for adoption on the 28th day of July, 1959 alleging their residence to be in Sunland, California. Thereafter on September 28, 1959 they (appellees) filed their amended petition for adoption of said child alleging their residence to be in Indianapolis, Indiana.

The appellant, Gerald Bryant, (respondent below) never executed a consent to the adoption of his danghter, Edith Ann Bryant. It was stipulated that the appellant and Dorothy Ann Bryant, deceased, were the natural parents of Edith Ann Bryant.

The petition for adoption was granted by the Marion Probate Court on December 16, 1960.

The appellant filed his motion for new trial in due time, which motion challenged the decision of the court as being contrary to law and not sustained by sufficient evidence. Thereafter, the trial court overruled said motion for new trial from which ruling the appellant perfected this appeal.

It will be noted from an examination of the chronological resume of the proceedings that the appellant within fourteen (14) days following the death of his former wife and natural mother of said child was in court resisting the adoption proceeding and opposing the appointment of a guardian.

Undisputed facts having a direct bearing on the result of these proceedings are these: that from its birth the child was continuously in the custody of its mother until the latter's death; at the time of the death of its mother, the child was twelve (12) months and nineteen (19) days of age; that during all of said time the mother and child resided in the home of the maternal great grand-parents of said child; that the appellant visited with his child frequently; that he offered support for said child which was refused by its mother; that the appellant father carried a life insurance policy on his child; that the appellant carried hospitalization insurance for her; and acknowledged her as his child; that after the death of his former wife, appellant offered to support his child while she was in the custody of the maternal great grand-parents almost immediately following the death of its mother and said support was finally accepted and he continuously paid the sum of twelve dollars ($12.00) per week to and including the time of the granting of the petition for adoption.

The pertinent portions of the adoption statute, Burns' Annotated § 3-120 are as follows:

'If such child have parent or parents living, he, she or they shall consent in writing to such adoption. * * * Such consent of parent or parents may be dispensed with if such child is adjudged to have been abandoned or deserted for six (6) months or more immediately preceding the date of the filing of the petition. * * * In all cases where the father of any child or children has failed to pay any support money for a period of one (1) year immediately prior to the filing of adoption proceedings for the adoption of his child or children, the court may in its discretion not require the filing of a consent of the father in such instances. (Acts 1941, ch. 146, § 6, p. 438; 1943, ch. 40, § 5, p. 89.)'

The decree of the court as it applies to the issues here presented is set forth as follows:

'And the Court being duly advised in the premises finds:

'That upon the filing of the original petition herein, and at the time of filing the amended petition herein on September 28, 1959 the father of said child had never supported said child, and that said child at such time was abandoned and deserted by the father under the terms of the Statute;

'The Court further finds that at the time of the divorce of the father and mother of said child said child was unborn and was not mentioned in the divorce decree, and that its existence was unknown to the father, but that even after learning of the child being born to the mother the father failed to support and provide for said child until after the filing of the amended petition for adoption herein;

'The Court further finds that under the terms of the Statute the consent of the father is not necessary under the circumstances above related and that, thereupon, the Court had jurisdiction of this cause at the time of the filing of the petition and of the amended petition, and once having jurisdiction it becomes the Court's duty to make a finding and decree for the best interests of said child;' (Transcript p. 45 and 46). (our emphasis).

An order and decree of adoption was entered by the court consistent with the above findings.

The appellee relies principally on the case of Emmons v. Dinelli et al. (1956), 235 Ind. 249, 133 N.E.2d 56 as support for the trial court's finding of abandonment and desertion by the appellant of his child.

The rules governing the issue were enunciated by our Supreme Court in the Emmons v. Dinelli et al., supra, case and may be summarized, we believe, as follows:

. . . 'there can be no adoption in the absence of consent, unless the ultimate fact of abandonment or desertion is found to exist.' p. 259, 133 N.E.2d p. 60.

'As a prerequisite to every adoption, a relinquishment by the natural parents must be found to exist.' p. 265, 133 N.E.2d p. 63.

. . . 'relinquishment by consent is the voluntary act of the parent, relinquishment by abandonment is by operation of law. In the latter case, it is only necessary that the 'intention' or 'settled purpose' of the parent exist as to his non-performance of his required parental 'duties and obligations." p. 265, 133 N.E.2d p. 63 . . . 'the careless and negligent failure to perform the duties of parenthood is a significant element of the offense of abandonment or desertion, which neglect is to be considered regardless of any actual 'intention' or 'settled purpose' by the parent to relinquish the proprietary claim of the parent to his child.' p. 260, 133 N.E.2d p. 61.

A parent's 'legal title' or 'proprietary claim' to a child's filial affection and obligation depends upon the parent's acceptance of correlative duties and responsibilities and where a parent neglects his duties to care for, support, educate, give moral and spiritual guidance and provide a home and the love and security which a home provides, he will have relinquished his claim to his child by operation of law. p. 269, 133 N.E.2d p. 65.

It was also stated in the Emmons v. Dinelli et al., supra, case re the determination of the ultimate fact of abandonment and desertion that the law should receive a liberal construction to the end that unfortunate children who have been bereft of home and parental care may be afforded the benefits of an adoptive home and parental care citing the case of Leonard v. Honisfager (1909), 43 Ind.App. 607, 609, 88 N.E. 91, and further that . . . 'the statute is not to be so strictly construed as to defeat its purposes. * * *' Emmons v. Dinelli et al., supra, quoting from Bray v. Miles (1899), 23 Ind.App. 432, 436-437, 54 N.E. 446, 448, 55 N.E. 510. We believe that no court could seriously disagree with any of the above quoted rules and we cannot envision a different result on the statement of facts there presented.

However, since the relationship between parent and child is a bundle of human rights of such fundamental importance, it has generally been held that adoption statutes being in derogation of the common law should be strictly construed in favor of a worthy parent and the preservation of such relationship. ¹ Therefore the rules in the above paragraph need be tempered by the rule that neither should the statute be so liberally construed that it would destroy safeguards erected for preservation of family relationships.

On the question of parent and child relationship we quote with appropriate pertinency from Duckworth v. Duckworth (1932), 203 Ind. 276, 179 N.E. 773:

"Of the many ties that bind humanity, that which unites the parent and the child is the earliest and the most hallowed * * * and in all civilized countries it is regarded as sacred.' * * * Therefore 'parents have the natural right to the custody of their children,' and 'where one parent is dead the surviving parent, if fit, has the right to the custody." ²

A point of caution perhaps should be injected at this juncture.

Adversary proceedings for the adoption of a child must be carefully distinguished from those involving a question of its custody as the former involve more serious consequences and are of real import. Custody may be awarded for a temporary duration but a decree of adoption severs forever every part of the parent and child relationship; severs the child entirely from its own family tree and engrafts it upon that of another. For all legal and practical purposes a child is the same as dead to its parents. The parent has lost the right to ever see said child again or to have any real knowledge of its whereabouts. The Duckworth case quoted above and the cases mentioned immediately below in this paragraph are all cases involving guardianship, divorce, or habeas corpus proceedings and in...