Allen v. Morgan

• Decision Date: 03 October 1947
• Docket Number: No. 31714.,31714.
• Citation: 44 S.E.2d 500
• Parties: ALLEN et al. v. MORGAN et al.
• Court: Georgia Court of Appeals

44 S.E.2d 500

ALLEN et al.

v.MORGAN et al.

No. 31714.

Court of Appeals of Georgia, Division No. 1.

Oct. 3, 1947.

Syllabus by the Court.

Under the adoption laws of this State the written consent of the living parent or parents is required before a court may grant a prayer for the adoption of a child, where there is no question of abandonment involved; and, in carrying into effect the letter and spirit of the law, the court may inquire into the question of whether the consent was given freely, deliberately and voluntarily in considering whether it is to the best interest of the child--the paramount purpose of the law--that the adoption be decreed; and, in such a proceeding, a contract to adopt is of no force or effect, save whatever bearing it may have upon the question of consent; and where on the final hearing the court finds that the consent was not freely given and in the interest of the child revokes the temporary order awarding custody and denies the prayer for adoption his discretion in the matter will not be disturbed, unless as a matter of. law it can be shown that the court has abused its discretion.

Error from Superior Court, Chatham County; D. S. Atkinson, Judge.

Adoption proceeding by Ross Guerard Allen and Mary Ellen Allen for the adoption of Michael Joseph Morgan, the son of David E. Morgan and Ernestine Alice Morgan, wherein the parents filed an answer praying that temporary custody order be set aside and that petition for adoption be denied. To review revocation of the temporary order and the judgment denying the adop Hon, Ross Guerard Allen and Mary Ellen Allen bring error.

Judgment affirmed.

Ross Guerard Allen and Mary Ellen Allen filed in the Superior Court of Chatham County a petition for the adoption of Michael Joseph Morgan, a boy born May 18, 1946, the son of David E. Morgan and Ernestine Alice Morgan. The petition alleged that the written consent of both of the parents of the child had been obtained in compliance with Code, § 74-403, and that the parents had waived all notice and service in connection with the adoption proceedings. A copy of each instrument is attached to the petition as exhibits "A" and "B". Exhibit "A" sets forth the following: "State of North Carolina, County of Buncombe. Know all men by these presents, that we, David E. Morgan and wife, Ernestine Alice Morgan, of said county and state, father and mother of Michael Joseph Morgan, who was born on the 18th day of May, 1946, and is now lawfully in our care, and for whose support we are now providing, do hereby consent to, and do give our said son to Ross G. Allen and Mary Ellen Allen, husband and wife, for the purpose of adopting him as their own child. And we, the said David E. Morgan and wife, Ernestine Alice Morgan, hereby agree that the said Ross G. Allen and Mary Ellen Allen shall have immediate custody of said child, and we hereby authorize Dr. Les-essne Smith, Children's Clinic, Saluda, N. C. to immediately turn over to the said Ross G. Allen and Mary Ellen Allen the custody and care of said child. We do hereby agree to sign and execute any and all papers, petitions or notices necessary for the said Ross G. Allen & Mary Ellen Allen to complete the legal adoption of the said child in any state whatsoever. And we, the said Ross G. Allen and Mary Ellen Allen do each of us hereby consent to receive said child for the purpose of adopting him as our own child and to confer upon him all the rights privileges and responsibilities which would pertain to him had he been born to us. We further agree that upon receiving said child from Dr. Lesessne Smith, Children's Clinic, Saluda, N. C. topay any charges or expenses now due for the custody of said child, at the said Clinic and thereafter charge ourselves with all custody and maintenance of said child as though the said child were our own. Witness our hands and seals this the 26th day of June, 1946. Mrs. Ernestine Alice Morgan, David E. Morgan, Mary Ellen Allen, Ross G. Allen." This instrument was acknowledged before a notary public by both the Aliens and the Morgans. Exhibit "B" reads as follows: "State of North Carolina, County of Buncombe. Know all men by these presents, that we, David E. Morgan, and wife, Ernestine Alice Morgan, of said State and County, father and mother of Michael Joseph Morgan, who was born on the 18th day of May, 1946, having by agreement executed June 26, 1946, consented to release custody and control of said child to Ross Guerard Allen and Mary Ellen Allen, in consideration of their agreement to adopt said child as their own and the conferring upon him of all the rights and privileges that would have been had by him had he been born their own child, now then, in consideration of the premises, we hereby expressly waive any and all notice and service of any kind that may be required at any time in connection with adoption proceedings or otherwise as provided by the laws of the State wherein adoption proceedings are filed. In witness whereof, we have hereunto set out hands and seals this 8th day of July, 1946. David E. Morgan, Ernestine Alice Morgan." This instrument was likewise acknowledged before a notary public.

A conformed copy of the petition was forwarded to the State Department of Public Welfare together with a request for investigation, report, etc. On October 4, 1946, the court signed an interlocutory order and awarded the temporary custody of the child to the petitioners. On February 24, 1947, the parents of the child filed an answer in the case in which they prayed that the temporary custody order be set aside and that the petition for adoption be denied. The answer set forth several reasons why it was contended that the prayers of the petition for adoption should be denied: (1) It was alleged that respondents were sweethearts for several years and that the child was conceived before marriage, and that the consent to the adoption was not freely and voluntarily given but was the result of undue and improper pressure exerted by members of the family of David E. Morgan; (2) that the contract attached to the petition was not binding because the names of the petitioners were not disclosed at the time respondents signed it; (3) that the negotiations and the procuring of respondents' consent was in violation of certain statutes of North Carolina; (4) that Mrs. Morgan was a minor at the time she signed the consent agreement; (5) that whatever consent was given was withdrawn; (6) a final order permitting the adoption was opposed by the Welfare Department of both Georgia and North Carolina. After a full hearing the court passed the following order: "In this case the petitioning parties who seek to adopt the above named child, have been shown to be well qualified in every respect to adopt and raise the child. If this were the only question, the Court would unhesitatingly grant the petition for adoption. The natural parents have also been shown to be people of good standing with splendid prospects and qualified to bring up their child. The question presented is whether or not the acts of the natural parents in surrendering the child to the adopting parties were such to preclude them from now claiming the infant child. There was a written gift of the child by the natural mother and natural father to the petitioners. This was induced largely if not entirely by aggressive action of some of the relatives (though not by blood) of the natural father who was shown to be 22 years of age at the time he signed the agreement. The natural mother was then 18 years of age. This agreement was not handled through the Public Welfare Department of either North Carolina or Georgia, and the court is not at all sure that it was legal and binding as a contract. This contract has now been repudiated by the natural parents. The evidence does not show an abandonment of the child. The law of Georgia provides that except as otherwise specified no adoption shall be permitted except with the written consent of the living parents of the child. Code, § 74-403. The Courtis of the opinion that both of the natural parents (one being a minor and the other a young man just out of the Army and not yet stable in business) were suffering from intense mental stress, which while not induced by the petitioning parties, was of sufficient force to prevent them from freely exercising their own judgment, over the disposition of their child which was their most precious possession. The Court is of the opinion that free and voluntary consent was not given to the adoption by either of the natural parents, and holds as a matter of law that the natural mother, being a minor, could not give the consent required by Georgia law as a condition precedent to the adoption, without proper judicial proceedings undertaken for that purpose in a court of competent jurisdiction. The Court sees no reason why the child should not be raised by its natural parents and believes it is far better that this should be done for peace of mind of the fine young people who are parties to these proceedings and also for the best interests and well being of the child itself. The court thereupon orders and decrees: 1st. That the Interlocutory Order of adoption granted October 4, 1946, be vacated and set aside. 2nd. That the petition for adoption of the child be denied. 3rd. That the child be returned by the petitioners to the natural parents at a time and place to be determined by the parties or hereafter ordered by the Court. Signed and dated this June 10th, 1947."

The evidence showed that the Aliens were of splendid character and qualified and fit in every particular to become the adoptive parents and that they did not participate in any coercion which might have been brought to bear on the Morgans to elicit their consent to the adoption. The evidence does not show that the attorney, Mr. Wall, who represented the Aliens knew of any coercion or undue influence exercised in connection with the giving of the consent to the adoption...