Armstrong's Adoption, In re

• Decision Date: 15 September 1965
• Docket Number: No. 5618,5618
• Parties: In re ADOPTION OF Mollie Page ARMSTRONG, a Minor.
• Court: Texas Court of Appeals

Page 552

394 S.W.2d 552

In re ADOPTION OF Mollie Page ARMSTRONG, a Minor.

No. 5618.

Court of Civil Appeals of Texas, El Paso.

Sept. 15, 1965.

Morgan & Boling, El Paso, for appellant.

W. O. Craft, William Duncan, El Paso, for appellee.

CLAYTON, Justice.

Under mandate of the Supreme Court of the United States issued pursuant to the ruling of that Court on Writ of Certiorari to this court in Cause No. 149, April 27, 1965, styled Armstrong, Petitioner v. Manzo, et ux., 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62, the former opinion of this court in the above styled and numbered cause (Tex.Civ.App., 371 S.W.2d 407, err. ref., n. r. e.) is withdrawn, and this opinion substituted therefor. For clarity, and to avoid any possible misinterpretation by paraphrasing the opinion of the United States Supreme Court, that opinion is hereinbelow set out verbatim, as follows:

'The petitioner, R. Wright Armstrong, Jr., and his wife were divorced by a Texas court in 1959. Custody of their only child, Molly Page Armstrong, was awarded to Mrs. Armstrong, and the petitioner was granted 'the privilege of visiting with said child at reasonable times, places, and intervals.' The divorce decree ordered the petitioner to pay $50 a month for his daughter's support. In 1960 Mrs. Armstrong married the respondent, Salvatore E. Manzo. Two years later the Manzos filed a petition for adoption in the District Court of El Paso County, Texas, seeking to make Salvatore Manzo the legal father of Molly Page Armstrong. ¹

'Texas law provides that an adoption such as this one shall not be permitted without the written consent of the child's natural father, except in certain specified circumstances. One such exceptional circumstance is if the father 'shall have not contributed substantially to the support of such child during (a) period of two (2) years commensurate with his financial ability.' In that event, the written consent of the judge of the juvenile court of the county of the child's residence may be accepted by the adoption court in lieu of the father's consent. ²

'Preliminary to filing the adoption petition, Mrs. Manzo filed an affidavit in the juvenile court, alleging in conclusory terms that the petitioner had 'failed to contribute to the support of' Molly Page Armstrong 'for a period in excess of two years preceding this date.' No notice was given to the petitioner of the filing of this affidavit, although the Manzos well knew his precise whereabouts in Fort Worth, Texas. On the basis of the affidavit, and without, so far as the record shows, a hearing of any kind, the juvenile court judge promptly issued his consent to the adoption. In the adoption petition, filed later the same day, the Manzos alleged that 'consent of the natural father, R. W. Armstrong, Jr., to the adoption herein sought is not necessary upon grounds that the said father has not contributed to the support of said minor child commensurate with his ability to do so for a period in excess of two (2) years, and the Judge of a Juvenile Court of El Paso County, Texas * * * has consented in writing to said adoption.' No notice of any kind was given to the petitioner of the filing or pendency of this adoption petition.

'An investigator appointed by the court made a detailed written report recommending the adoption, and a few weeks later the adoption decree was entered. The decree provided in accord with Texas law that 'all legal relationship and all rights and duties between such Child and the natural father shall cease and determine, and such Child is hereafter deemed and hold to be for every purpose the child of its parent by adoption, as fully as though naturally born to him in lawful wedlock,' ³ and further provided that 'the

said Molly Page Armstrong shall be known by the Christian and surname as Molly Page Manzo, from this day forward.'

'During this entire period the petitioner was not given, and did not have, the slightest inkling of the pendency of these adoption proceedings. On the day the decree was entered, however, Salvatore Manzo wrote to the petitioner's father, advising him that 'I have this date completed court action to adopt Molly Page as my daughter and to change her name to Molly Page Manzo.' The petitioner's father immediately relayed this news to the petitioner, who promptly filed a motion in the District Court of El Paso County, asking that the adoption decree 'be set aside and annulled and a new trial granted,' upon the ground that he had been given no notice of the adoption proceedings. ⁴

'The court did not vacate the adoption decree, but set a date for hearing on the motion. At that hearing the petitioner introduced evidence, through witnesses and by depositions, in an effort to show that he had not failed to contribute to his daughter's support 'commensurate with his financial ability.' ⁵ At the

conclusion of the hearing the court entered an order denying the petitioner's motion and providing that the 'adoption decree entered herein is in all things confirmed.'

'The petitioner appealed to the appropriate Texas court of civil appeals, upon the ground, among others, that the trial court had erred in not setting aside the adoption decree, because the entry of the decree without notice to the petitioner had deprived him 'of his child without due process of law.' The appellate court affirmed the trial court's judgment, ⁶ and the Supreme Court of Texas

refused an application for writ of error.

'We granted certiorari. 379 U.S. 816, (85 S.Ct. 46, 13 L.Ed.2d 26.) The questions before us are whether failure to notify the petitioner of the pendency of the adoption proceedings deprived him of due process of law so as to render the adoption decree constitutionally invalid, and, if so, whether the subsequent hearing on the petitioner's motion to set aside the decree served to cure its constitutional invalidity.

'In disposing of the first issue, there is no occasion to linger long. It is clear that failure to give the petitioner notice of the pending adoption proceedings violated the most rudimentary demands of due process of law. 'Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.' Mullane v. Central Hanover Bank & Tr. Co., 339 U.S. 306, at 313 (70 S.Ct. 652, at 656, 94 L.Ed. 865). 'An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Milliken v. Meyer, 311 U.S. 457 (61 S.Ct. 339, 85 L.Ed. 278); Grannis v. Ordean, 234 U.S. 385 (34 S.Ct. 779, 58 L.Ed. 1363); Priest v. Town of Las Vegas, 232 U.S. 604 (34 S.Ct. 443, 58 L.Ed. 751); Roller v. Holly, 176 U.S. 398 (20 S.Ct. 410, 44 L.Ed. 52).' Id., at 314 (70 S.Ct. at 657). Questions frequently arise as to the adequacy of a particular form of notice in a particular case. See, e. g., Schroeder v. City of New York, 371 U.S. 208 (83 S.Ct. 279, 9 L.Ed.2d 255); New York v. New York, N. H. & H. R. Co. 344 U.S. 293 (73 S.Ct. 299, 97 L.Ed. 333); Walker v. Hutchinson City, 352 U.S. 112 (77 S.Ct. 200, 1 L.Ed.2d 178); Mullane v. Central Hanover Bank & Tr. Co., supra. But as to the basic requirement of notice itself there can be no doubt, where, as here, the result of the judicial proceeding was permanently to deprive a legitimate parent of all that parenthood implies. Cf. May v. Anderson, 345 U.S. 528, 53 (73 S.Ct. 840, 843, 97 L.Ed. 1221).

'The Texas Court of Civil Appeals implicitly recognized this constitutional rule, but...