Adoption of McCauley, In re, 35717

• Decision Date: 06 November 1964
• Docket Number: No. 35717,35717
• Citation: 131 N.W.2d 174,177 Neb. 759
• Parties: In the Matter of the ADOPTION OF Barry Gene McCAULEY, a minor child. Robert McCAULEY and Bonnie McCauley, husband and wife, Appellees, v. Eugene E. STEWART and Carolyn A. Stewart, husband and wife, Appellants.
• Court: Nebraska Supreme Court

Page 174

131 N.W.2d 174

177 Neb. 759

In the Matter of the ADOPTION OF Barry Gene McCAULEY, a minor child.

Robert McCAULEY and Bonnie McCauley, husband and wife, Appellees, v. Eugene E. STEWART and Carolyn A. Stewart, husband and wife, Appellants.

No. 35717.

Supreme Court of Nebraska.

Nov. 6, 1964.

Syllabus by the Court

1. Section 43-104, R.R.S.1943, provides in part: 'No adoption shall be decreed unless the petition therefor is accompanied by written consents thereto executed by * * * (3) both parents, if living; * * * except that consent shall not be required of any parent who shall: (a) have relinquished the child for adoption by a written instrument; (b) have abandoned the child for at least six months next preceding the filing of the adoption petition; * * *.'

2. Section 43-106, R.R.S.1943, provides in part: 'Consents required to be given under sections 43-104 and 43-105, except under subsection (2) of section 43-104, must be signed in the presence of at least one witness and acknowledged before an officer authorized to acknowledge deeds in this state.'

3. An acknowledgment is the act by which a party who has executed an instrument goes before a competent officer and declares or acknowledges the same as his genuine and voluntary as and deed.

4. The matter of adoption is statutory, and the manner of procedure and terms are all specifically prescribed and must be followed.

5. A court of equity, in dealing with legal rights, adopts and follows the rules of law, in all cases to which those rules are applicable, and whenever there is an explicit statute or a direct rule of law governing the case in all its circumstances, a court of equity is as much bound by it as would be a court of law.

6. Adoption proceedings do not depend upon equitable principles. Where the essential statutory requirements have not been met, equity cannot decree an adoption.

7. To warrant an adoption under section 43-104, R.R.S.1943, it must clearly appear that the natural parents, if living, had abandoned the child for a period of at least 6 months.

8. In adoption proceedings the welfare of the child is not material until either relinquishments, signed, witnessed, and acknowledged as provided for by statute, or abandonment as prescribed by statute, have been established.

Merril R. Reller, John McArthur, Lincoln, for appellants.

Bump & Bump, Charles A. Fisher, John B. Henley, Chadron, for appellees.

Heard before WHITE, C. J., CARTER, MESSMORE, YEAGER, BOSLAUGH and BROWER, JJ., and DIERKS, District Judge.

MESSMORE, Justice.

This is an adoption proceeding brought in the county court of Dawes County. The petition for adoption was filed on September 28, 1962. The petitioners, Eugene E. Stewart and Carolyn A. Stewart, were husband and wife and residents of Dawes County. The petition alleged that the petitioners desired to adopt Barry Gene McCauley, a minor child born in Sheridan County; that the care and custody of the minor child was given to the petitioners on April 28, 1962; and that the minor child was born of the marriage between Robert McCauley and Bonnie McCauley, both of whom executed a relinquishment of the child for adoption. The county court entered a decree of adoption finding that all persons interested in the adoption of the minor child had been notified of the time and place of hearing. Robert McCauley and Bonnie McCauley, husband and wife and the natural parents of Barry Gene McCauley, appealed to the district court for Dawes County.

Petition for adoption was filed in the district court for Dawes County by Eugene E. Stewart and Carolyn A. Stewart, alleging that Barry Gene McCauley had been in the exclusive care of Eugene E. Stewart and Carolyn A. Stewart since the date of his birth; that the said monor child had been abandoned by its natural parents, the McCauleys; that on the date of birth of said minor child, the McCauleys had delivered to Dr. Bernard A. Owens an authorization to place the child in a foster home for the purpose of future adoption; that to serve the best interests of Barry Gene McCauley, the custody of said child should be retained by the petitioners; and that the natural parents of the minor child, the McCauleys, were not fit or proper persons to have the care and custody of the monor child. The prayer was for an affirmance of the adoption decree entered by the county court.

The McCauleys moved to strike from the petition all reference to the abandonment of the minor child, Barry Gene McCauley. This motion was sustained.

The McCauleys filed an answer wherein they denied that a consent and relinquishment for adoption as claimed by the petitioners had ever been acknowledged by the natural parents before a notary public; and that the decree of adoption entered by the county court was a nullity and void.

The petitioners, the Stewarts, filed a reply to the answer alleging that they were unaware of any irregularities in the consent and relinquishment given by the McCauleys.

There was a motion to strike certain allegations of the reply relating to the abandonment of the minor child by the McCauleys. This motion was sustained.

A pretrial conference was held. The parties agreed that the issues would be: (a) Have the requirements of the statutes been sufficiently satisfied to constitute a valid adoption of Barry Gene McCauley, and if so, are the McCauleys fit, suitable, and proper persons to have the care and control of this minor child? (b) If the adoption proceedings have not satisfied the requirements of the statutes on adoption, has there been an abandonment of the minor child by the natural parents thereof? And (c) if there has been no valid adoption, and if there has been no abandonment by the natural parents of the said minor child, may the court consider the question of the fitness and suitability of the natural parents to have the care, custody, and control of the child, and if so, are the natural parents fit and suitable persons to have the custody of the child?

The trial court ruled that if there was no valid adoption, and if there was no abandonment, the suitability of the natural parents to have the custody of the minor child would not be an issue in this case. The trial court further ruled that all evidence relating to the fitness and suitability of the natural parents to have the custody of the minor child be excluded, and all evidence relating to that issue be stricken from the record.

The trial court further ruled that the motion to strike all evidence dealing with the issue of abandonment be sustained; that all evidence theretofore taken relative to the issue of abandonment be stricken; and that further evidence offered on such issue of abandonment be excluded. These rulings also applied to the offer to prove certain facts regarding the issue of abandonment, the suitability or unsuitability of the natural parents, and the suitability of the adoptive parents.

The one issue then remaining before the trial court was whether or not the adoption proceedings sufficiently and substantially complied with the statutes to make the decree of adoption entered by the county court valid.

The trial court ordered that the decree of adoption entered by the county court of Dawes County be vacated and set aside; and that Barry Gene McCauley be awarded to the natural perents of such child, Robert McCauley and Bonnie McCauley.

The petitioners, the Stewarts, filed a motion for a new trial which was overruled. The petitioners appealed.

For convenience Eugene E. Stewart and Carolyn A. Stewart will be referred to as appellants and Robert McCauley and Bonnie McCauley will be referred to as appellees. On occasion, when required, we will refer to the parties by their names, or first names, and to other witnesses by their names.

The appellants assign a number of errors, the most pertinent of which the appellants claim necessary to be determined are as follows: The trial court erred in not finding and determining that Barry Gene McCauley was abandoned and neglected by his natural parents and failing to receive evidence on this issue; the trial court erred in not receiving evidence of the unlawful and improper conduct of the McCauleys and each of them before and after the birth of Barry Gene McCauley; the trial court erred in limiting its decision on the evidence pertaining only to the question of whether or not there had been proper relinquishments executed by the McCauleys; the trial court erred in not hearing testimony of appellants as to their suitability, character, and financial circumstances as adopting parents of Barry Gene McCauley; and the trial court erred in not considering that the best interests of Barry Gene McCauley require that he not be placed in the custody and control of his natural parents.

The record discloses that Barry Gene McCauley was born on April 28, 1962.

Dr. Bernard A. Owens, physician and surgeon, testified that he practiced his profession in Hay Springs; that he owned a clinic located in a building of brick construction; that he had two aids and everything thing needed for private practice; that he had known the McCauleys since April 1960; that as their doctor he attended to their needs and delivered two children born to Bonnie, one of which was Barry Gene; and that he attended Bonnie during her pregnancy with Barry Gene. The doctor further testified that when he first saw Barry Gene he was on the back seat of the McCauley car; that he took the baby into the clinic and attended to him; that the child was born in the car in front of the clinic; that he carried the child into the clinic and wrapped him in a towel; and that the clinic had towels and blankets, but no clothing for the baby. He further testified that prior to the birth of Barry Gene he had several conversations with Bonnie relative to adopting the baby out, and told her to talk over with her husband whether or not they wanted to put the baby out for adoption; that he asked Bonnie if she had talked...