Adoption of Mary, Marilyn Shelton and Ernest Wall

• Decision Date: 18 November 1946
• Docket Number: No. 20744.,20744.
• Citation: 199 S.W.2d 68
• Parties: IN THE MATTER OF THE APPLICATION OF JOHN MILTON GRAHAM AND BONITA GRAHAM FOR THE PROPOSED ADOPTION OF MARY FAY SHELTON, MARILYN KAY SHELTON AND ERNEST WILLIAM WALL.
• Court: Missouri Court of Appeals

199 S.W.2d 68

IN THE MATTER OF THE APPLICATION OF JOHN MILTON GRAHAM AND BONITA GRAHAM FOR THE PROPOSED ADOPTION OF MARY FAY SHELTON, MARILYN KAY SHELTON AND ERNEST WILLIAM WALL.

No. 20744.

Kansas City Court of Appeals, Missouri.

November 18, 1946.

REVERSED.

Appeal from Clay Circuit Court. — Hon. James S. Rooney, Judge.

Robert F. Sevier for appellants.

(1) Under the provisions of Sec. 9609 R.S. Mo., 1939 — adoption, without the consent of the parents, may only be decreed where certain specified conditions exist. None of those conditions were present in this case. The court therefore erred in decreeing the adoption. In re McAvoy's, 173 S.W. (2d) 109; In re Perkins v. Brownlee et al., 117 S.W. (2d) 686, 234 Mo. App. l.c. 726. (2) Proponents of this adoption contend "abandonment" or neglect within the meaning of the provisions of Sec. 9609, R.S. Mo., 1939, of adoption can be accomplished in "five minutes." The parents insist that such an "abandonment" or neglect must be for the period of time set forth in Sec. 9609, R.S. Mo., 1939. In re Perkins v. Brownlee, 234 Mo. App. l.c. 726; In re McAvoy's, 173 S.W. (2d) 109. (3) A parent once having given consent in writing or orally to the adoption of a child may at any time prior to judgment, withdraw such consent, even though the custody of the child has been transferred and even though the natural parent has abandoned the child, and an adoption based upon a consent that has been withdrawn is void. 2 C.J.S., page 386; State v. Beardley, 183 N.W. 956; In re Nelms, 279 Pac. 748. (4) Adoption statute should be strictly construed in favor of the right of natural parents and when controversy arises between natural parents and those seeking to destroy their parental status, every reasonable intendment should be made in favor of the natural parents' claim. In re Perkins, 117 S.W. (2d) 686; Fienup v. Stroyer, 28 S.W. (2d) 437; State ex rel. Buerk v. Calhoun, 52 S.W. (2d) 742; 2 C.J.S., p. 386. (5) Courts do not decree adoptions merely because petitioners are able to furnish the children with finer homes or clothes than parents. Child Savings Ins. v. Knobel, 327 Mo. 609.

Lawson & Hale and Martin E. Lawson for respondents.

(1) Abandonment of children need not continue for two years, as a ground for adoption of the children without consent of the parents. Revised Statutes of Missouri, 1939, Sections 9609 and 9613. (2) Abandonment may be consummated at once. In re McAvoy's Adoption, 173 S.W. (2d) 108, l.c. 111; In re Watson's Adoption, 195 S.W. (2d) 331, l.c. 336. (3) Consent to an adoption made and filed can only be voided by consent of the court. In this case no consent of the court was granted. In re McAvoy's Case, 173 S.W. (2d) 108 l.c. 112. (4) The basic question in an adoption case is the best interest of the child. The interest of natural parents will be protected so far as is consistent with the welfare of the child, but its welfare is paramount. In re Perkins v. Brownlee, 234 Mo. App. 716, l.c. 726; In re McAvoy's Adoption, 173 S.W. (2d) 108, l.c. 112; In re Adoption of Billy Gene Snow, 226 Mo. App. 340; 2 C.J.S., p. 425.

DEW, J.

This is an appeal from decrees of adoption rendered by the Juvenile Court of Clay County, Missouri. On the petitions of John Milton Graham and Bonita Garmond Graham, his wife, to adopt Marilyn Kay Shelton, Mary Fay Shelton and Ernest William Wall, all infant children, decrees were granted as prayed, over the written objections of J.W. Shelton and Dorothy Shelton, parents of the two first named children, and over the objection of Dorothy Shelton, mother of the last named child. Previous to the objections filed, the consent of the appellants in writing had been filed by respondents. The three proceedings were combined and tried as one case, although separate judgment entries were made in each. At the close of the evidence of the petitioners (respondents), the above named objecting parents (appellants) orally demurred to the evidence of the petitioners, which demurrer was overruled. Appellants introduced no evidence and have appealed from the judgments granting the adoptions and changing the names of said children.

As to each of the infant girls the court found that "the parents have abandoned the child, so far as care, nurture, and necessary protection are concerned, and by their consent heretofore given to the proposed adoption, and by turning said child and birth certificate over to petitioners". As to the infant boy there was a similar finding that the mother and step-father had so abandoned him, and that his father was unknown.

According to the evidence and the admissions in the pleadings, the appellants are the parents of Marilyn Kay Shelton and Mary Fay Shelton, who, at the time of trial, were each eight months old. Appellant Dorothy Shelton is also the mother of Ernest William Wall, three years of age, whose father, according to his mother's filed objections, is Ernest William Wall, Sr., engaged at the time of trial in the armed forces of the United States somewhere in Germany. The appellant J.W. Shelton is the stepfather of the said infant Ernest William Wall. The appellants and all of said children were living at the time in question in Excelsior Springs, Missouri.

On September 10, 1945, respondents filed in respect to each of said minor children, a like petition for adoption, setting forth that the parents were so unsettled in their relations "and otherwise" as to be unable to care for such child; that the employment of the petitioners by the Salvation Army would insure the child a good home and security during its minority; that the petitioners are paid $25 a week by the Salvation Army, have a permanent position, and are furnished free of charge with a home of five rooms and bath, with all water, light and heat bills paid. Each petitioner prays for a decree of adoption and a change of the last name of the child to Graham. Each petition was later amended to allege that if such child should be adopted, the salary of the petitioners would thereby be increased $3 for each child adopted, and that each of the respondents had a life insurance policy of $2500, payable to the other.

Upon the filing of the above petitions the court appointed a guardian ad litem for each child, which guardian filed a report on the same date as to each petition, favorable to the petition and to the petitioners.

Previously, on July 3, 1945, appellant J.W. Shelton executed the following instrument on the stationery of the Salvation Army, prepared by respondent John Milton Graham:

                              "THE SALVATION ARMY
                  233 East Broadway              Phone 972
                                   Excelsior Springs, Missouri
                                           July 3, 1945
                

To whom it may concern:

I Joseph Willis Shelton do this day 7/3/45, relinquish all rights and claims on my children Mary Fay Shelton and Marilyn Kay Shelton age 6 months, to Captain & Mrs. J.M. Graham.

                  Dec. 23, 1944
                                   Joseph Willis Shelton
                                     signature"
                

On the same instrument appellant Dorothy Shelton executed the following:

"To whom it may concern:

I Dorothy Shelton do this day 7/3/45, relinquish all rights and claims on my children Mary Fay & Marilyn Kay age 6 months, to Capt. & Mrs. J.M. Graham,

                  Dec. 23, 1944
                                   Dorothy Shelton
                                     signature"
                

Both acknowledged the above instruments on the same day and delivered same to Captain Graham. Appellant Dorothy Shelton also signed, acknowledged and delivered the following instrument, prepared on the same kind of stationery:

                         "THE SALVATION ARMY
                  233 East Broadway           Phone 972
                              Excelsior Springs, Missouri
                                   June 29th 1945
                

I Dorothy Shelton do this day 7/3/45 relinquish all rights and claims on my child Earnest William Wall, age 3 yrs. to Capt. &

                  First Middle Last
                  & Mrs. J.M. Graham
                                   Dorothy Shelton
                                     signature"
                

There was also filed on September 10, 1945, in connection with each petition, a formal consent by appellants to the adoption prayed, each dated July 6, and signed by the appellants, making reference to Chapter 56, Article I, Revised Statutes Missouri, 1939, waiving service of summons and agreeing to an order of adoption forthwith, without further notice. These instruments were witnessed by two witnesses.

Before the beginning of the trial, which was held four days after the petitions were filed, appellants, appearing at the hearing in person and by attorney, filed objections to said adoptions, asking return of the children to them, alleging that they had never deserted the children for more than two years prior to this proceeding, that neither was under a prison sentence, and that neither had neglected to provide proper care and maintenance for said children for two years preceding said date; alleging further that Dorothy Shelton desired to withdraw her consent to the adoption of said Earnest William Wall for the same reasons, adding that said child's father was Earnest William Wall, Sr., then engaged in the armed forces of the United States, and somewhere in Germany. They alleged further that they loved their said children, desired the opportunity to raise them as their own, and asked dismissal of the petitions.

Motions to dismiss the petitions were filed by appellants on the ground that it appears on their face that they did not comply with the statutes governing them. Both the objections and motions were overruled and all the petitions were tried in one hearing.

In the motion to set aside the judgments, for dismissal of the petitions, and in their motion for new trial, the points were made that the evidence failed to show that the parents had wilfully abandoned the children for a period of two years preceding the date the petitions were filed, and that the alleged consent of the parents having been withdrawn, such wilful abandonment of such children for such period was essential to the...