Austin v. Collins

• Decision Date: 14 February 1947
• Docket Number: No. 14815.,14815.
• Citation: 200 S.W.2d 666
• Parties: AUSTIN et al. v. COLLINS et ux.
• Court: Texas Court of Appeals

200 S.W.2d 666

AUSTIN et al. v. COLLINS et ux.

No. 14815.

Court of Civil Appeals of Texas. Fort Worth.

February 14, 1947.

Rehearing Denied March 28, 1947.

Appeal from District Court, Tarrant County; Thomas J. Renfro, Judge.

Suit by Charlene Austin and husband against Clarence Lisle Collins and wife to review and set aside a judgment of adoption and recover custody of a child. From an adverse judgment, plaintiffs appeal.

Judgment affirmed.

James H. Knapp, of Arlington, and Eva Barnes and Arthur Lee Moore, both of Fort Worth, for appellants.

Jack Carter, Clyde C. Thomas and Garrett Middlebrook, all of Fort Worth, for appellees.

J. Everett Cline and Sproesser Wynn, both of Fort Worth, amicus curiae.

SPEER, Justice.

This is an appeal from an adverse judgment entered at a non jury trial wherein Charlene Austin and husband Elwood Austin sued Clarence L. Collins and his wife, Laura Mae Collins. Plaintiffs sought dual relief; namely: (1) Review and setting aside of a judgment of adoption for specified reasons, and (2) By habeas corpus to recover custody of a child.

The record before us, in chronological order, shows the following matters leading up to the judgment from which this appeal was prosecuted: Charlene Bice (now Charlene Austin) was 18 years old and unwed, living in another part of the state. She was soon to become a mother; she went to Fort Worth to live in the home of her grandmother about April, 1945; there she and her grandmother discussed the future of herself and her baby that was to be born. They decided she would go to the "Volunteers of America" an institution rendering benevolent aid in such cases and where babies left there for that purpose were placed by adoption in suitable homes. She intended to leave her baby with that institution if it could not be placed, by agreement with adoptive parents, where she could see it occasionally. In the meantime, the grandmother was to locate such private home for the baby if she could do so. The young prospective mother did not want to leave her baby at the benevolent home, where it would be adopted out to some person where she would not know what became of it, but would do so if it could not be avoided. The baby was born July 26, 1945.

About two weeks before its birth the grandmother contacted a close neighbor, Mrs. Laura Mae Collins, who had an adopted 5 year old daughter and wanted another baby to adopt; the grandmother and Mrs. Collins went to Volunteers of America and contacted Miss Bice; it was there definitely agreed between Miss Bice and Mrs. Collins that the latter should take the baby and adopt it and permit Miss Bice to visit it "once in awhile." Miss Bice seemed delighted with the arrangements.

When the baby was about two weeks old, on August 8, 1945, Mrs. Collins went to the Home and took the baby and Miss Bice away with her; they went by the office of an attorney where the whole situation was fully explained, and had a full and complete consent agreement drawn, by the terms of which Mrs. Collins and her husband Clarence L. Collins could adopt the baby at once. This agreement bore date of August 8, 1945, and was signed by Miss Bice, and duly acknowledged before a Notary Public.

On September 5, 1945 (without the aid of next friend or guardian ad litem), Miss Bice filed an application for an injunction to restrain the Collinses from adopting the child. Notice of that suit was served on the Collinses on September 6, 1945. On that day Miss Bice and her father and mother went to the home of Mrs. Collins and when Mrs. Collins expressed surprise at the action, a rather heated conversation followed, especially with the girl's father and Mrs. Collins. Their differences apparently subsided during the conversation and it was agreed that Miss Bice would dismiss her injunction case and that the Collinses could go on and adopt the child at an early date. Mrs. Collins, Miss Bice and her father and mother went immediately to the office of an attorney where a short instrument, denominated a "contract" was drawn by the terms of which Miss Bice agreed to dismiss her injunction suit and again agreed that the Collinses could proceed with their adoption suit. This instrument bore date of September 6, 1945, and was signed by Miss Bice, her father and mother, and by Mr. and Mrs. Collins.

On September 25, 1945, Mr. and Mrs. Collins filed application in Cause No. 50459-A in the 96th district court of Tarrant County, to adopt the baby; it had attached the consent agreement by Miss Bice of date August 8, 1945. Based on the consent agreement applicants asked that the court waive the six months probation provision in Sect. 3 of Article 46a, Vernon's Texas Civil Statutes. The court named an investigator and set a final hearing for September 25, 1945; on that date the favorable report of the investigator was considered and approved by the court. On the same day the court entered an order of adoption by the Collinses; the order further provided for the change of the baby's name from Clifford Lisle Bice to Clifford Lisle Collins.

On November 11, 1945, Charlene Bice was married to Elwood Austin. On February 15, 1946, the Austins filed this case in the 96th district court of Tarrant County under docket No. 50459-A seeking the relief first above set out in this opinion. We shall refer to the Austins as appellants and to the Collinses as appellees.

On the phase of appellants' claim for a review of the judgment of adoption, their grounds may be summarized as claiming: That at and before the adoption proceedings Mrs. Austin, (then Miss Bice) was a feme sole and a minor being less than twenty one years of age; that her disabilities as such minor had not been removed by court action nor by marriage; that she had no notice or other process served upon her when the adoption case was heard, and that she had not given her consent for the adoption of her child. There were other allegations of threats, fraud and coercion by Mr. and Mrs. Collins but no complaint is made here of any error committed by the trial court in holding adversely to those contentions. They require no further notice.

If the adoption consent agreement signed by Miss Bice when she was under 21 years old was effective, there is no merit in her contention that the adoption proceedings were void or voidable because she was not served with notice of the proceedings when the adoption suit was filed by the appellees. There is no provision of law by which the natural parents of a child shall be named as parties to an action for adoption; and no provision for notice or process to them in such cases where they have consented to the adoption. If they still have custody and control of the child it is essential that they consent to the adoption, which consent is sufficient notice of the adoption proceedings. Fitts v. Carpenter, Tex.Civ.App., 124 S.W.2d 420; Pearce v. Harris, Tex.Civ.App., 134 S.W. 2d 859; Matthews v. Whittle, Tex.Civ. App., 149 S.W.2d 601. A consent for adoption may be withdrawn by the one making it at any time before it is acted upon by the court. (Fitts v. Carpenter, supra.) It is not contended here that Miss Bice withdrew her consent agreement prior to the time the court acted upon it when the judgment of adoption was entered.

The points of error brought to this court upon which reversal is sought are in substance: (1) Since Article 46a, section 6, Vernon's Texas Civil Statutes, provides that no adoption of a minor child is permitted except with the written consent of the living parents of the child, and since the mother of this child was only 18 years of age at the time she is alleged to have given her consent and she was unwed, the judgment of the 96th district court allowing the appellees to adopt the child was void. (2) That under the conditions set out in first point, the judgment of adoption was voidable. (3 and 4) Court erred in awarding custody of the child to the appellees and not to appellants and in holding that the best interest of the child was for the appellees to retain its custody.

The first two points, which are substantially the same, have given us much concern in a disposition of this case. It is certain that Mrs. Austin (then Miss Bice) was only 18 years of age when she signed the consent agreement. Did her age render the consent either void or voidable? Out statutes relating to adoption are found in Article 46a and the nine sections thereof, Vernon's Texas Civil Statutes. Section 6 was amended in 1937 by 45th Legislature, p. 1324 and now appears in the above cited article.

Section 6 of Article 46a as amended now provides in substance, that no adoption shall be permitted except with the written consent of the living parents of the child. It goes on to provide that if parents have abandoned said child to another for a period of two years, the child may be adopted without the written consent of the living parents. The Act further provides that "In case of a child not born in lawful wedlock the consent of the father shall not be necessary." It is the last quoted part of the Act that is most applicable here. The quoted provision does not specifically provide that the adoption can take place upon the written consent of the unwed mother, but we have no trouble in concluding that the plain implication by the legislative act is that the written consent of the unwed mother is essential to adoption.

At all times since Texas became a member of the Union, our legislatures and the courts have diligently shown a deep solicitude for the children within our borders who were victims of circumstances for which they were in no way responsible. With the belief that human love for the race and a sound public policy demanded it, our law making body has passed laws designed to aid such unfortunate children by adoption into homes suited to making of them useful men and women and to remove them as nearly as is humanly possible, from the shame and disgrace that are so sure to haunt them in years...