Adoption of Infants Reynard, In re

• Decision Date: 15 October 1969
• Docket Number: No. 668,668
• Citation: 251 N.E.2d 413,252 Ind. 632,18 Ind.Dec. 721
• Parties: In the Matter of the ADOPTION OF the INFANTS REYNARD, by Charles Ray Kelly, Petitioner. Nathan H. REYNARD, Appellant, v. Charles Ray KELLY, Sydney K. Kelly, Appellees. S 99.
• Court: Indiana Supreme Court

Page 413

251 N.E.2d 413

252 Ind. 632

In the Matter of the ADOPTION OF the INFANTS REYNARD, by Charles Ray Kelly, Petitioner Nathan H. REYNARD, Appellant, v. Charles Ray KELLY, Sydney K. Kelly, Appellees.

No. 668 S 99.

Supreme Court of Indiana.

Oct. 15, 1969.

Jack Welchons, Marion, Albert W. Ewbank, Indianapolis, for appellant.

Kiley, Osborn, Kiley & Harker, by Albert C. Harker, Marion, for appellees.

GIVAN, Judge.

This is a matter of the adoption of two minor children whose natural mother, Sydney K. Kelly, is now married to one Charles Ray Kelly, who seeks to adopt her natural children. The natural father of the children is the appellant, Nathan H. Reynard, who appeared in the trial court and objected to the granting of the adoption.

It was the decision of the Trial Court that the natural father and deserted and abandoned the minor children and had failed to pay support for them for a period of one year immediately prior to the filing of the petition and, therefore, his consent was unnecessary to the adoption.

The Court further found that it was in the best interest of the children that the adoption be granted.

The appellant, who is the natural father of the children, assigns as error in this Court the overruling of his motion for a new trial contending that the Trial Court's decision is not sustained by sufficient evidence and is contrary to law. It is appellant's contention that the evidence shows that he did not, in fact, abandon the children within the meaning of the statute which would authorize the Court to grant the adoption without his consent.

An examination of the evidence shows that the appellant is a fighter pilot in the United States Air Force now stationed in Vietnam. He was formerly married to appellee, Sydney K. Kelly, who, after divorcing the appellant, married Charles Ray Kelly, who is also an appellee. At the time of the divorce the natural mother obtained the custody of the children, and the appellant was ordered to pay support for the children. This he did until June of 1965, which was two months after the marriage of the mother to Charles Ray Kelly.

Following the remarriage of the mother, difficulties arose concerning visitation with the children. This difficulty was aggravated at least in part by reason of the appellant's military duties which prevented visitation on a regularly scheduled basis. The appellant testified that he had during this period of time employed seven different attorneys attempting to arrange suitable visitation with his children but had never been able to accomplish this.

During the entire year of 1966 of appellant was on duty in Vietnam and Thailand, during which time he could not have visited with his children under any circumstances.

During the period of time following June of 1965 until the present the appellant had without benefit of a modification order taken it upon himself to refuse to make regular support payments to the extent that at the time of the hearing in the trial court in this cause he was in excess of $5,000.00 in arrears.

In the summer of 1966 the appellant made three $25.00 payments at a time when his monthly income was approximately $1330.00.

In March or April of 1967, immediately upon appellant's return from Vietnam, he sent a $1500.00 Cashier's check to his attorney for presentation to his former wife as a partial payment of back support. However, this check was refused by his former wife and returned to the appellant.

Charles Ray Kelly had filed his petition for adoption on the 24th day of January, 1967. There is also evidence in the record that there had been a change for the better in the children after their mother had married Mr. Kelly. Mr. Kelly himself testified to his love for the children and an interest in then.

The appellant testified that he had remarried, and that he was returning overseas to continue his tour of duty.

There was evidence in the record that the appellant had great difficulty in attempting to visit with his children and it would appear very little cooperation except from his former wife's parents, who appeared to remain on friendly terms with him and aided him somewhat in maintaining a small degree of contact with his children.

There is evidence in the record that the appellant suffered a nervous breakdown during this period of time, and that he himself ruled out visitation on occasion because of his emotional instability and The question before this Court is whether or not the decision of the Trial Court was supported by the evidence and is in keeping with the statute. The statute in question reads as follows:

that he was fearful he would upset the children too much by a display of emotion in their presence.

'If such child have parent or parents living, he, she or they shall consent in writing to such adoption. The minority of any parent shall not in or of itself be a bar to such consent: Provided, however, That if either parent be a minor, consent of such parent must be accompained by the written approval of the investigating agency aforesaid if any there be and if none, of the state department of public welfare. 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. If it appears by indorsement on the petition and by the oath or affirmation of two (2) disinterested persons that such parent or parents or both are nonresidents or that their residence after diligent inquiry is unkown, then such parent or parents shall be notified of the pendency of the action by publication as provided by law in civil cases. If the parent or parents have been legally deprived of their parental rights over such child for reasons other than economic, the written consent of such parent or parents shall not be necessary to such adoption and no notice of the pendency of such adoption proceedings to such parent or parents shall be necessary: Provided however, That notice of the pendency of such adoption proceedings shall, in such case, be given to such agency or county department of public welfare of which such child may be a ward. In every case where such child shall have been born out of wedlock consent of the mother of such child shall be deemed sufficient, except that where the paternity of such child has been established by law and the father is adequately supporting such child, or where for any reason in the discretion of the court it is deemed advisable that he be heard, he shall have such notice as to the court seems necessary and the opportunity to file his objection if any, and oppose such adoption, which objection shall be considered and determined by the court. If such child be fourteen (14) years of age or over, his consent shall be deemed necessary before adoption. In all cases where consent of the parent or parents is required such consent shall be signed in the presence of a duly authorized agent of the state department of public welfare or of such investigating agency and so attested by such agent; or by notary public: Provided, however, That such attestation shall not be necessary to the consents signed before the taking effect of this act (§§ 3--115--3--125). Such state department is hereby authorized to furnish to clerks of courts as aforesaid prescribed forms for use by parents or other persons when giving consent. Copies of such consent when same have been signed shall be filed with the investigating agency aforesaid and with the clerk of the court in which the petition for adoption is pending. Such court may cause notice of hearing and opportunity to file objection to be given to the known kindred of the child and any other person or persons deemed entitled to such notice before granting such 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 of 1941, ch. 146, § 6, p. 438; 1943, ch. 40, § 5, p. 89.)' Burns' Ind.Stat.Ann. Sec. 3--120.

The above statute has been interpreted by this Court as follows:

'Admittedly, there can be no adoption in the absence of consent, unless the ultimate fact of abandonment or desertion is found to exist. The issue with which we are concerned involves the criterion or evidentiary facts necessary to support the ultimate fact of such abandonment or desertion. In determining the elements or criterion of the words 'abandoned or deserted,' as used in our adoption statute, we look first to the language and purpose of the statute. (Here the Court cited the statute.)

'Significantly our adoption statute omits the use of the word 'wilful,' as characterizing the abandonment or desertion. In contrast, the Ohio statute uses the term 'wilfully abandon' and, in construing that statute, the probabate court of that state stated with reason that '* * * The word 'wilfully' as used in the statute has a definite meaning which requires that neglect of the parents must be intentional. Without the word being used the neglect of duty could be caused by carelessness and neglect and, therefore, be unintentional. * * *' In re Adoption of Gates (1948), 84 Ohio App. 269, 270, 85 N.E.2d 597, 598. Therefore, looking to the language of our statute, we conclude that 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.'

Emmons v. Dinelli (1956), 235 Ind. 249, 259, 133 N.E.2d 56, 60--61.

The fact that appellant had made some token payments prior to the filing of the petition for adoption and had subsequent to...