Adoption of Smith, In re

• Decision Date: 02 June 1958
• Docket Number: No. 22801,22801
• Parties: In the Matter of the Adoption of Mary SMITH, John Doe and Mary Doe, Petitioners.
• Court: Missouri Court of Appeals

Page 464

314 S.W.2d 464

In the Matter of the Adoption of Mary SMITH, John Doe and Mary Doe, Petitioners.

No. 22801.

Kansas City Court of Appeals, Missouri.

June 2, 1958.

Hugh B. Downey, Downey, Abrams & Sullivan, Kansas City, for petitioners.

Norman E. Greene, Warrick & Lamkin, Kansas City, amicus curiae.

MAUGHMER, Commissioner.

Appellants filed a petition to adopt and at the same time filed an application for legal custody of a minor child, age five years. The application for legal custody was dismissed 'for want of jurisdiction' and petitioners have appealed. In this court appellants, joined by the guardian ad litem and amicus curiae, moved that the caption of this cause be changed from the true names of the parties to 'In re the Adoption of Mary Smith, John Doe and Mary Doe, Petitioners'. For good cause shown, such motion was granted and the caption changed accordingly. The issues presented by the appeal arise not from disputed facts, but rather as to the legal results which flow from the application of substantially uncontroverted facts.

Without reciting the details, it may be said that the minor child was born February 4, 1952, illegitimate, in Jackson County, Missouri, to a mother whose residence was in the State of Kansas. Under date of February 11, 1952, the mother executed and there was filed in the Juvenile Court of Jackson County a document styled: 'Application for permission to waive necessity of consent to future adoption'. This application set forth the names of the mother and child, date of birth, and alleged the child was at the time 'in Jackson County, Missouri and within the jurisdiction of this court'. Therein it was declared that because of the mother's circumstances she believed it would be for the best interest of the child for her 'to waive the necessity of consent to a future adoption of said child', and requested that Saint Anthony's Home for Infants and Catholic Welfare Bureau, Inc., or either of them, be authorized to place the child for adoption. The application then recited that applicant subjects herself and said child to the jurisdiction of the court 'for all purposes wherein the welfare of said child may be concerned, including the right of this court to determine from time to time the lawful and actual custody of said child pending its adoption'. The prayer was 'that she be permitted to waive the necessity of her consent to the future adoption of said child'. The procedure as described in both the caption and prayer of the application is specifically provided for by Section 453.050, Par. 1, Adoption, V.A.M.S., 1949, which reads: 'The juvenile court may, upon application if it appears wise, permit a parent of a child or the mother of a child born out of wedlock to waive the necessity of his or her consent to a future adoption of such child'.

On February 25, 1952, the Juvenile Court considered the application, but heard not one scintilla of evidence ans signed an order reading in part as follows: 'Now, Therefore, be it ordered, adjudged and decreed that said parent be and she is hereby permitted to waive the necessity of her consent to a future adoption of her said child, and that the child may be placed for adoption by St. Anthony's Home for Infants and Catholic Welfare Bureau, Inc. (each a Missouri corporation), or either of them, and this Court hereby retains jurisdiction of said child for the purpose of determining and awarding from time to time the lawful and actual custody of said child pending its adoption, and for such other purposes as the welfare of said child may require'. This order was not filed in the Juvenile Court until April 15, 1957, when the petitioners instituted their proceedings for adoption and for legal custody. Under date of October 3, 1953, nearly 20 months after the court's order, the mother executed a formal written waiver of consent to future adoption.

From the testimony of Sister Mary Pius, Director of Saint Anthony's Infants' Home, and Father Lawrence J. McNamara, Director of the Catholic Welfare Bureau, Inc., it appears that these two organizations, which apparently work together, immediately after the child's birth, or at least immediately after the Juvenile Court order, took actual custody and supervisory control of the infant. On or about March 25, 1952, the child was by these organizations placed in the home of and in the actual custody of petitioners, where she has been ever since with the agencies' continuing supervision. Petitioners at all times herein mentioned and for many years before were residents of and lived within the State of Kansas.

On April 15, 1957, petitioners filed in the Circuit Court of Jackson County, Missouri, Juvenile Division, a pleading in two parts. One was a petition to adopt and change the name of the minor child. The other was an application for an order granting to them the 'lawful and actual custody of said child'. The Court heard testimony, took the matter under advisement and on December 9, 1957, dismissed the application for legal custody for want of jurisdiction, finding that 'There is not sufficient competent evidence to show that this Court has jurisdiction under Section 453.010 RSMo 1949 [V.A.M.S.]'. A motion to set aside and grant a new trial was denied, and petitioners have duly appealed.

Although adoption was known and recognized under many ancient legal systems it was unknown under our common law. Menees v. Cowgill, Mo.App., 214 S.W.2d 561; In re Perkins, 234 Mo.App. 716, 117 S.W.2d 686. Our adoption statutes constitute a complete code and the various sections thereof should be construed together. In re Adoption of Sypolt, 361 Mo. 958, 237 S.W.2d 193; In re McAvoy's Adoption, 237 Mo.App. 1099, 173 S.W.2d 108.

Section 453.010, Par. 1. Adoption, V.A.M.S., 1949, provides: 'Any person desiring to adopt another person as his child may petition the juvenile division of the circuit court of the county in which the person seeking to adopt resides, or in which the person sought to be adopted may be, for permission to adopt such person as his child'. (Italics ours). It is completely evident that the petition to adopt and the application to grant legal custody were not filed 'in the county in which petitioners reside'.

Section 453.110 reads: '1. No person, agency, organization or institution shall surrender custody of a minor child, or transfer the custody of such a child to another * * * without first having filed a petition before the circuit court sitting as a juvenile court of the county where the child may be, praying that such surrender or transfer may be made, and having obtained such an order from such court approving or ordering transfer of custody.

'2. This section shall not be construed to prohibit the placing of a child in a family home for care by any parent, agency, or organization or institution, if the right to supervise the care of the child and to resume custody thereof is retained'.

We are not here concerned with the situation that would arise where the Juvenile Court finds a child to be 'neglected' or 'delinquent' and makes him a ward of the Court. This child was never adjudged to be 'neglected' or 'delinquent' and was never made a ward of the Court. In determining this appeal, therefore, we consider only our adoption laws.

Petitioners say first that complete and continuing jurisdiction for adoption and transfer of legal custody was conferred on the Juvenile Court of Jackson County by the act of the natural mother in proceeding under Section 453.050 and obtaining permission to waive her consent to a future adoption. We do not agree. If a natural mother executes a proper waiver and consent for adoption or obtains the court's permission to waive consent to a future adoption as was done here, such acts, or either of them, merely eliminate the requirement that she be notified of the adoption proceeding. Section 453.060, V.A.M.S., 1949. Such action, with or without court authorization, is not, standing alone, an actual commencement of adoption proceedings. It merely dispenses with the necessity of serving the mother with a summons and copy of the petition, if and when an adoption petition is filed. Such procedure serves a salutary purpose in that it lessens the likelihood of the mother being able to identify the adoptors and the adoptors learning the name of the mother.

Petitioners' second point it that at the time the petition was filed 'The child sought to be adopted was a resident of Jackson County, Missouri for the purpose of adoption'. In the brief filed amicus curiae, exactly the opposite contention is made, namely, that at such time the child was not a resident of Jackson County. Both parties are expressing their conclusions as to the proper construction of Sections 453.010 and 453.110, supra, although these sections no longer refer to the child's 'residence'. Prior to 1947, the adoption law provided that adoption proceedings were to be filed in the county where the adoptee resides, but in 1947, the law was changed in this specific particular.

An article titled 'The New Adoption Act' appearing in Volume 4, No. 9, Journal of the Missouri Bar, explains the change: 'Section 9608 of the old law provided that petitions for adoption were to be filed in the county 'in which the person sought to be adopted resides, or if such person has no place of abode in this state, of the county in which the person seeking to adopt resides'. This section posed a troublesome question for lawyers concerning the establishment of legal residence of the minor to be adopted.

'The petition for adoption under the new law must be filed either in the county in which the petitioner or petitioners reside or in which the person sought to be adopted may be. Residence of the person sought to be adopted is no longer the controlling factor.

'Although there is some question as to whether this statute is a venue statute or one fixing jurisdiction, the Supreme Court in Banc apparently thought it...