Adoption of McKinzie, In re

• Decision Date: 08 February 1955
• Docket Number: No. 7264,7264
• Citation: 275 S.W.2d 365
• Parties: ADOPTION of Baby Randy Howard McKINZIE, a Minor. Opal Hutchens and Howard Hutchens, Petitioners, Appellants.
• Court: Missouri Court of Appeals

Page 365

275 S.W.2d 365

ADOPTION of Baby Randy Howard McKINZIE, a Minor. Opal Hutchens and Howard Hutchens, Petitioners, Appellants.

No. 7264.

Springfield Court of Appeals, Missouri.

Feb. 8, 1955.

A. T. Parrish and E. C. Hamlin, Springfield, for appellants.

RUARK, Judge.

On July 1, 1953, Opal Hutchens and Howard Hutchens filed petition in the juvenile division of the Circuit Court of Greene County, Missouri, for adoption of Baby Randy Howard McKinzie.On the same day there was filed the written consent to said adoption which had been executed and acknowledged two days previously by one Lois Bell Burke.In such consent she stated that she was parent of the child.On August 5, 1953, the judge of said court, evidently having been informed by some source not shown in the record that the mother diesired to revoke her consent, had what is designated as a preliminary hearing to determine whether such revocation should be permitted.There was no question of notice, the petitioners were present at least by their attorney, and the mother, Lois Bell Burke, was also present.She, being without counsel, was aided in presenting her evidence by the juvenile officer of Greene County.The only witness called was the mother, who testified in substance that she was not yet eighteen years old when the child was born (November 29, 1952); she had been married previously but such marriage had terminated in divorce in 1950; at the time the child was born she was living with Mr. and Mrs Hutchens, Mrs. Hutchens being her half-sister; about a month and a half after the birth she, Burke, got work and moved away, leaving the child with her half-sister and husband, who since that time had kept it in their home and cared for it; prior to the birth the question of adoption had been discussed with Mr. and Mrs. Hutchens and it had been agreed that they would adopt the child and give it their name.She said at that time such was her wish and she voluntarily signed the consent in the office of petitioners' attorney.After that, at a time not shown in the record, the mother married her present husband, Burke, and she testified that she had changed her mind in regard to her plans for the future of the child, desired that the adoption be not allowed and wished to have custody returned to her; that she was in position to assume care of the child; that her husband was going to school on the GI bill and worked in the afternoon; that she had discussed the subject with her husband and he felt the same way she did.

On cross-examination the witness stated that she lived with her half-sister for approximately five months before the baby was born and that her sister took care of her during that period and paid the bills.She admitted that prior to the birth of the child she had said she did not care anything for the child and thought she didn't ever want to see it but had changed her mind.She gave as one reason for her change of mind that she had been told by a representative of the State Department of Public Health and Welfare that the adoption by petitioners would not be permitted because there had been too many divorces in the family, but that was not the only reason, that 'I want the child myself.He is my child.I want him.'

On this evidence the court found that the consent of the parent had been revoked, wherefore it was ordered that the petition be dismissed and the infant returned to his natural mother.

The only error assigned by the appellant-petitioners is that 'the court should have heard all of the evidence in the case and not just the evidence on the question of the mother's right to revoke her consent given for the adoption of the child.'It is their contention that evidence should have been heard on the fitness of the petitioners and the fitness of the mother.No brief has been filed on behalf of the mother.

We think the petition for adoption should have been dismissed for insufficiency.Such petition named neither of the parents of the infant, but stated 'that the mother of said child is a resident of Greene County, Springfield, Missouri; that the father of the above-mentioned child is unknown.'RSMo 453.020, V.A.M.S., states the requirements of the petition, one of which is 'the name of his parents, if known to the petitioner.'Statutes of adoption, being repugnant to the common law, must be strictly construed (seepost).That this requirement is not an empty technicality is illustrated by the situation here.The name of the infant is stated to be McKinzie, yet the subsequent consent is signed by one Burke, who claims to be the mother.The pleadings, in so far as possible, should make apparent who the parents are when they are known, and the relationship should not be left the subject of any doubt where it is possible to exclude such doubt by complying with the statute.

Although complaint is made that the court unduly restricted the inquiry, the record shows no offer of proof nor in fact any sustained objection.It does appear that at a point where the petitioners' attorney was cross-examining the mother in regard to the amount of house rent she was then paying there ensued a colloquy between court and counsel and the court did express the opinion that it had no right to require any qualifications of the natural mother except in a neglect proceeding.

However, the question intended to be raised is the power, or the extent of discretion, of the trial court in permitting the withdrawal of consent of the mother as affected by the provisions of sec. 453.050 (2), and since we believe this to be a matter of first impression and many lawyers and no doubt numerous judges have expressed a desire that the question by clarified as a matter of public interest, we are constrained to pay some attention to the subject.

While adoption is a practice of great antiquity, having been known to ancient civilizations and recognized in the Roman civil law, it did not come to us through the common law and it exists in this country solely and only by statute.In Missouri the first statute, enacted in 1857, provided for a partial adoption to the extent that one could make a person his heir by executing and recording a deed.Persons who did not join in the deed were not bound by it.Until 1865 the General Assembly by special act could declare one person to be the heir of another.In 1909 the law was expanded, still retaining adoption by deed but vesting some powers in the county and probate courts in reference to the adoption of orphan children.In 1917 was passed our first general adoption law.In 1947 the old sections were repealed and the present adoption law was enacted.Some of the significant additions to the law were the provision for a nine months waiting period, 453.080, the prohibition of transfer of custody without order of the juvenile court, 453.110, and the provisions of 453.050, subsection 2, 'Any waiver mentioned in subsection 3 of section 453.040, or the written consent to adoption by any parent, shall be valid and effectual even though such parent was under the age of twenty-one years at the time of the execution thereof, and any such waiver or consent shall be irrevocable without leave of the court having jurisdiction of the child given at a hearing, notice of which has been given to all interested parties.'The italicized portion should be construed in the light of and along with the other provisions of the adoption act and also with consideration given to the law as it existed at the time of the enactment.

Adoption, being purely a creature of statute and repugnant to the common law, has always been and still is strictly construed where it involves the destruction of the parent-child relationship against the consent of the parents.Hyman v. Stanley, Mo.App., 257 S.W.2d 388;Rumans v. Lighthizer, 363 Mo. 125, 249 S.W.2d 397;In re Adams, Mo.App., 248 S.W.2d 63;Robertson v. Cornett, 359 Mo. 1156, 225 S.W.2d 780, loc. cit. 784;In re Watson's Adoption, 238 Mo.App. 1104, 195 S.W.2d 331, loc. cit. 336;In re Perkins, 234 Mo.App. 716, 117 S.W.2d 686;Rochford v. Bailey, 322 Mo. 1155, 17 S.W.2d 941, loc. cit. 945.

In re Perkins, above, decided in 1938, states, 117 S.W.2d loc. cit. 691, 'Conceding that the state, in its role of parens patriae, may, where the circumstances warrant, provide for the adoption of a child even as against the consent of its natural parents, yet it must always be borne in mind that the rights of natural parents to the custody and possession of their children are among the highest of natural rights, and, being so, are not to be interfered with by the state except where it clearly appears that the natural parents have forfeited their rights by their own misconduct and that the child's best interests will be served by allowing it to be adopted by some one else.Consequently, it is uniformly held as a simple matter of natural justice that adoption statutes are to be strictly construed in favor of the rights of natural parents, and that when controversy arises between natural parents and those who seek to destroy their parental status, every reasonable intendment is to be made in favor of the formers' claims.'

The old rule, and we think still the majority rule, has been that the consent of the parent as required by the statute is a continuing consent which must be in force and effect at the time the adoption decree is entered.This being so, the natural parent, in the exercise of her parental right, could revoke the consent at any time prior to judgment and thus deprive the court of jurisdiction to proceed.138 A.L.R., p. 1038, 2 C.J.S., Adoption of Children, Sec. 21(4)Withdrawal, p. 386.¹

Prior to the 1947 act there can be no doubt that the law of Missouri was with the majority.It was said in Re Application of Graham, 1946, 239 Mo.App. 1036, 199 S.W.2d 68, at loc. cit. 73, 'It is the clear intent of the Adoption Code that the consent in writing of the parents or other guardian be had at the time of and as...