Adoption of Siler, In re, 6869

• Decision Date: 06 December 1949
• Docket Number: No. 6869,6869
• Citation: 240 Mo.App. 1097,225 S.W.2d 379
• Parties: In re Adoption of SILER.
• Court: Missouri Court of Appeals

Page 379

225 S.W.2d 379

240 Mo.App. 1097

In re Adoption of SILER.

No. 6869.

Springfield Court of Appeals, Missouri.

Dec. 6, 1949.

Ruark & Ruark, Neosho, for appellant.

VANDEVENTER, Presiding Judge.

This is an action for adoption. Margaret Johnson is the natural mother of the child sought to be adopted. John Johnson is her stepfather. These facts were alleged in the petition, and it was further alleged that Diana Marie Siler is a girl of the age of six years, now residing with petitioners in Newton County, Missouri. Her natural father died about the 15th day of July, 1944. The petitioners were married on the 4th day of January, 1946, and have lived together continuously from that time as husband and wife. John Johnson had for more than 9 months last past shared with Margaret the legal and lawful custody of the child, and that he as head of the family, had assumed responsibility for the support and maintenance of the child sharing with her mother the duties incident to her care and education with the consent and understanding of Margaret Johnson. John Johnson is gainfully employed, mentally and physically sound and is able to care for, maintain and educate said child, suitable in all respects for the adoption therein prayed for, that it would be best for the child that John Johnson adopt her and assume and maintain the position of a lawful father. Margaret joined in the petition for the purpose of expressly consenting to the adoption, asking the court to enter a decree of adoption so that John Johnson may hereafter share with Margaret all responsibility as a lawful parent of said child.

An application was made for appointment of a guardian ad litem, one was appointed and qualified and he filed an answer admitting that the best interests of the child would be conserved by entering an immediate decree of adoption, admitted all the allegations of the petition but stating that the custody of John Johnson had been entered into and abided by without an order of the court sitting as a Juvenile Court, that no such consent had been asked for or given and that the matter was called to the court's attention for the sole purpose of getting it ruled upon. The guardian ad litem was of the opinion that the care and custody had been lawful and actual for more than nine months in accordance with the provisions of Section 9613, R.S. No. 1939, as amended, Mo.R.S.A. Sec. 9613. The prayer was that the petition be dismissed because they had not previously obtained an order of the Probate Court.

A reply to the answer of the guardian ad litem was filed, asserting that the custody of the minor child by the said John Johnson was lawful, that an immediate decree would be beneficial to the interests of the child because she was about to enter her first year of school, must furnish her birth certificate and that unless the adoption is decreed, upon entering school, she will be referred to by a name different to her parents, causing embarrassment and misunderstanding. Further, that the petitioner, John Johnson had business opportunities that might make it necessary for him, in the near future, to move from the State of Missouri.

An investigation was made as to the fitness of the petitioners and as to the background not only of each of them but of the child and nothing was found detrimental to such adoption. In fact, the welfare worker of Newton County spoke of the petitioners, of the child and of its paternal and maternal background in the most glowing terms. It is practically conceded by everyone that petitioners are high class people and well qualified in every way. The court refused the adoption solely because John Johnson had not obtained the consent of the Juvenile Court of Newton County to assume custody of the child, Diana Marie Siler, more than nine months before the petition was filed.

The only question before us is, under the facts in this case was it necessary to have procured that consent before filing the petition for adoption and obtaining the decree?

We do not think such consent was necessary. The report of the Child Welfare Worker showed Margaret Johnson was the natural mother of the child, its natural father had been killed in a plane crash in July, 1944, while in the armed services. The child had lived constantly with its mother from the time of its birth to the filing of the petition for adoption. However, she had married John Johnson on the 4th day of January, 1946 and they had lived together thereafter, the child living with both of them. Johnson had treated the child with all the kindness and affection that he showed to his own children. Petitioners had two other children born of the marriage and the three had been raised in the household as if they all had the same father and mother, in fact, Diana Marie Siler did not know that John Johnson was not her natural father.

The report closed: 'There seemed to be no negative factors in this situation...