Ainsworth v. Natural Father, 53167

• Decision Date: 26 May 1982
• Docket Number: No. 53167,53167
• Citation: 414 So.2d 417
• Parties: In the Matter of the Adoption of a Minor Child: John Harold AINSWORTH and Elizabeth Anne Ainsworth v. NATURAL FATHER.
• Court: Mississippi Supreme Court

Page 417

414 So.2d 417

In the Matter of the Adoption of a Minor Child: John Harold AINSWORTH and Elizabeth Anne Ainsworth v. NATURAL FATHER.

No. 53167.

Supreme Court of Mississippi.

May 26, 1982.

Thomas T. Buchanan, Billie J. Graham, Laurel, for appellants.

McKenzie & Pickering, Franklin C. McKenzie, Jr., Laurel, for appellee.

EN BANC.

DARDEN, Justice, for the Court:

This is an adoption case that comes to us from the Chancery Court of Jones County. John and Elizabeth Anne Ainsworth filed a petition for Ainsworth to adopt M. D., Anne's son of a former marriage. Anne's former husband, M. D.'s father, is here called Roe, ¹ and he objects to the adoption.

The questions presented are whether Roe deserted or abandoned the infant M. D. within the meaning of Mississippi Code Annotated section 93-17-7 (Supp.1981), and the effect, if any, of the amendment of that statute in 1980 referring to the 1980 statute found as Mississippi Code Annotated section 93-15-103, subsections 3(a), (e) (Supp.1981).

The chancellor was of the opinion that the actions (or inactions) of Roe, as he found the facts, did not amount to an abandonment or desertion of the child, and that the amendment of 1980 had no effect in this case. We disagree with these conclusions of law, and reverse and remand the case.

Anne's marriage with Roe ended in divorce in January, 1976, when their son, M. D., was about six months old. The divorce decree provided for monthly payments of child support. Roe had moved to Arkansas by the time the decree was rendered, but was furnished a copy. He made support payments directly to Anne until November, 1976, about the time he lost his job and moved in with his mother in Monroe, Louisiana.

During 1976 Roe saw M. D. about five times. On at least one of those occasions he was accompanied by his mother in trips to Laurel. He had relatives in the vicinity of Laurel, but once stayed at the Laurel Holiday Inn and visited with M. D., who was then about thirteen months old. This is the last time Roe saw M. D. He sent him no Christmas present in 1976 nor any Christmas, birthday or other present or card since then.

In March, 1977, Roe and a brother borrowed $15,000 and opened a clothing store in Tallulah, Louisiana. At some later time the brother left the business and Roe continued to operate it. Whether the brother was bought out, or how Roe acquired his interest is not shown.

On March 20, 1977 Roe sent Anne $200 for support money and medical bills and made one more payment in April, 1977. Since then he has contributed nothing to M. D.'s support. There is no indication that the decree for support and provisions for M. D.'s education has ever been modified.

Roe undertakes to excuse his failure to make support payments on financial difficulties and the fact that he did not know where to send the money after Anne moved from an old address following her marriage to Ainsworth in July, 1977. The facts are he has repaid the initial loan of $15,000, established credit sufficient to build up an inventory he values at more than $50,000, and acquired a second clothing store in Orange Beach or Gulf Shores, Alabama. He has also supported himself and the new wife he married in August, 1978.

Anne did not leave Laurel after her remarriage. Roe knew of Anne's parents' address and met friends he and Anne had known in Laurel when he attended clothing markets in Dallas and elsewhere. He made no inquiry as to Anne's whereabouts or M. D.'s condition. He knew the identity of Anne's lawyer from October, 1978. His sole effort to communicate with Anne were unanswered telephone calls to Anne's parents' residence from Hattiesburg and the vicinity of Magee on an occasion when he was driving from Gulf Shores to Tallulah, and sent a letter in July, 1977, and "maybe two" more.

The chancellor found as a fact that Roe did not make a reasonable effort to see M. D. or provide for M. D.'s welfare. We have determined that this finding is supported by clear and convincing proof.

Adoption is a privilege unknown to the common law and exists in Mississippi solely by virtue of statute. Eggleston v. Landrum, 210 Miss. 645, 50 So.2d 364 (1951); Mayfield v. Braund, 217 Miss. 514, 64 So.2d 713, suggestion of error overruled, 217 Miss. 514, 65 So.2d 235 (1953); Brassiell v. Brassiell, 228 Miss. 243, 87 So.2d 699 (1956). In consequence we must look to the statute on the subject, Mississippi Code Annotated sections 93-17-3, et seq. (1972).

Section 93-17-7, dealing with adoption after objection by a parent, was amended effective July 1, 1980. This case was filed August 20, 1980, and was tried under the amended statute.

With the 1980 amendments emphasized, the statute reads as follows:

No infant shall be adopted to any person if either parent, after having been summoned to sign the petition for adoption, shall appear and object thereto before the making of a decree for adoption, unless it shall be made to appear to the court from evidence touching such matters that the parent so objecting had abandoned or deserted such infant or is mentally, or morally, or otherwise unfit to rear and train it, including, but not limited to, being within any of the grounds requiring termination of parental rights as set forth in subsections (2) and 3(a), (b), (d), or (e) of section 93-15-103 in either of which cases the adoption may be decreed notwithstanding the objection of such parent, first considering the welfare of the child, or children, sought to be adopted. Provided, however, the parents shall not be summoned in the adoption proceedings nor have the right to object thereto if the parental rights of the parent or parents have been terminated by the procedure set forth in sections 93-15-101 through 93-15-111, and such termination shall be res judicata on the question of parental abandonment or unfitness in the adoption proceedings. (Emphasis added).

Section 93-15-103 provides in part:

(3) Grounds for termination of parental rights shall be based on one or more of the following factors:

(a) A parent has deserted without means of identification or abandoned and made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year; or

....

(e) When there is an extreme and deepseated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent's serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment.

There was no issue or showing made as to Roe's mental or moral fitness or unfitness to rear and train M. D. and those statutory provisions are not involved here.

Section 93-17-7 provides that adoption may be had despite the objection of a parent who has abandoned or deserted an infant child. Evidently, the Legislature made a distinction between desertion and abandonment by the use of the disjunctive. ² The statute gives us no help in determining either that distinction or the meaning of either term. Turning to the decisions of this Court, we have neither found, nor had our attention called to one that makes a distinction between the two terms.

The term "abandonment" imports any conduct on the part of the parent which evinces a settled purpose to forego all duties and relinquish all parental claims to the child. Wright v. Fitzgibbons, 198 Miss. 471, 21 So.2d 709 (1945).

The Oxford English Dictionary (The Clarendon Press, Oxford, 1933, Reprinted 1961) gives us this definition of abandon 2. To give up the control or discretion of another; to leave to his disposal or mercy; to yield, cede, or surrender absolutely a thing to a person or agent.

Webster's Third New International Dictionary (G. & C. Merriam Co., Springfield, Ma., 1967) has this as a definition of abandon:

1. To cease to assert or exercise an interest, right, or title to especially with the intent of never again resuming or reasserting it.

The O. E. D. (supra), gives us this as a definition of desert (as a verb):

2. To forsake (a person, institution, cause, etc. having moral or legal claims upon one).

3. To forsake one's duty, one's post or one's party.

Webster (supra) has this definition of desert (as a verb):

3a. To break away from or break off associations with (some matter involving legal or moral obligation or some object of loyalty).

It would appear then, that abandonment has to do with the relinquishment of a right or claim, whereas desertion involves an avoidance of a duty or obligation. The definition of abandonment in Wright v. Fitzgibbons, supra, seems to include both avoidance of duty and relinquishment of right.

We believe, and now hold, that where there is a complete disregard for the welfare of a child of tender years over a period of more than three and a half years, and a contumacious refusal to abide by a valid decree of support, with no effort to have it modified, this amounts to desertion of the child. Such desertion, under the statute as we construe it, results in a forfeiture of parental rights whether or not there was an intent to relinquish them.

The appellants contend that the 1980 amendment of section 93-17-7 bringing portions of section 93-15-103 within the purview of the adoption statute had the effect of raising a presumption of abandonment when the time lapses set out in subsection 3(a) had expired. The chancellor held that subsection 3(a) did not undertake to define abandonment nor create any presumption, but, on the contrary, limited the finding of abandonment in certain cases. This holding is in accord with the decision in In Re: Adoption of a Female Child: Miller v. Arrington, and Arrington, 412 So.2d 1175 (Miss., 1982), in which the sole issue of abandonment was addressed.

Miller is distinguishable on the question of abandonment from this case. Furthermore, neither the Miller case, nor the...