Ball v. Campbell

• Decision Date: 05 November 1951
• Docket Number: No. 39623,39623
• Citation: 55 So.2d 250,219 La. 1076
• Court: Louisiana Supreme Court
• Parties: BALL v. COMPBELL.

Page 250

55 So.2d 250

219 La. 1076

BALL v. COMPBELL.

No. 39623.

Supreme Court of Louisiana.

Nov. 5, 1951.

Wisdom & Stone, Saul Stone and Paul O. H. Pigman, all of New Orleans, for Protestant Home for Babies.

Ellis, Ellis & Lancaster, Frank B. Ellis and James E. Wright, Jr., all of New Orleans, for Mr. and Mrs. William Slaughter Ball, plaintiffs and appellants.

Horace G. Pepper, Max M. Schaumburger, Beryl E. Wolfson, Baton Rouge, Henican, James & Cleveland, all of New Orleans, amicus curiae.

C. L. Stiffell, New Orleans, for Wilma Annable Campbell, defendant-appellee.

HAMITER, Justice.

Presented by this appeal for consideration is the matter of the adoption of a female child born in the City of New Orleans on November 19, 1947.

Twenty-four days after such birth (December 13, 1947) the 31 year old unmarried mother, Wilma Annabel Campbell, executed a notarial act by which she formally surrendered unto the Protestant Home for Babies of New Orleans (and it accepted) the full legal care, custody, control and possession of the child. Among other things the instrument recited: 'Appearer further declared that this waiver and complete surrender is executed for the purpose of enabling the said Protestant Home for Babies eventually to find a satisfactory home for the said child, and with the distinct understanding, on her part, the unmarried mother of the said child, that any adoption, which may hereafter be had of the said child, shall be with the full understanding, on the part of all parties thereto, that she has hereby, forever and irrevocably, surrendered and abandoned the said child, and waives any and all rights to the legal care control or custody thereof; the same, in fact, as if the said child were a foundling child, in the legal care and custody, control, possession and guardianship of the Protestant Home for Babies, of the City of New Orleans, Louisiana.'

In force and effect at the time of the formal surrender, and under the authority of which the instrument was executed, was Act No. 91 of 1942. Sections 1 and 2 of this statute provided:

Section 1. '* * * That an unmarried mother, whether over or under twenty-one years of age, shall have the right to surrender the legal care, custody and control of her illegitimate child or children to institutions or social agencies approved by the State Department of Public Welfare * * * by appearing before a Notary Public and two witnesses and executing a formal release of the care, custody and control of the said illegitimate child or children to such institution or social agency approved by the Department of Public Welfare for the State of Louisiana * * * and relinquishing any and all rights which said unmarried mother has or may have to the said child or children, if said institutions or social agencies approved by the Department of Public Welfare of the State of Louisiana * * * consuent to said release and accept the care, custody and control of said child or children.'

Section 2. 'That institutions or social agencies approved by the Department of Public Welfare for the State of Louisiana * * * after having accepted the care, custody and control of said child or chil dren of such unmarried mothers whether over or under the age of twenty-one years, shall have the right to place such child or children for adoption.'

On January 13, 1948, the Protestant Home for Babies (referred to hereinafter as the Home) released the child to Mr. and Mrs. William Slaughter Ball for the purpose of adoption.

Subsequently, specifically on April 8, 1949, Mr. and Mrs. Ball (referred to hereinafter as petitioners) filed a petition in the Juvenile Court for Orleans Parish praying that a final decree of adoption of the child be granted in their favor, they being joined therein by the Home. The mentioned natural mother (referred to hereinafter as opponent), on June 1, 1949, opposed in writing this petition for adoption, she alleging the nullity of the act of surrender for the reasons (1) that the Home was not licensed or approved by the State Department of Public Welfare on December 13, 1947 (the date of the instrument) to engage in child placing and to accept the release of her child, and (2) that she surrendered the child under pressure and coercion of an employee of the Home. Further, opponent alleged that the consent recited in the act of surrender has been withdrawn; that she has since consistently refused to agree to any adoption; and that she has done everything within her power to regain the child, including the institution of habeas corpus proceedings (now pending) in the Civil District Court for the Parish of Orleans.

To the opposition petitioners tendered a plea of prescription of six months (founded on Section 6 of Act No. 227 of 1948, LSA-RS 9:405), an exception of no cause or right of action, and a plea of estoppel. The Juvenile Judge referred the last two of these to the merits. However, on the face of the pleadings, he considered and maintained the plea of prescription, his assigned reasons for the ruling being:

'In the case at bar the act of surrender was executed on December 13, 1947. Act 227 of 1948 [LSA-RS 9:401 et seq.], was approved July 1, 1948, and the opposition to the adoption by Wilma Annable Campbell, mother of the child was not instituted until June 1, 1949, more than six months after the enactment of Act 227 of 1948.

Therefore, under the terms and provisions of Act 227 of 1948, of the State of Louisiana, Section 6, the court maintains the plea of prescription.'

'Thereafter, at the commencement of a hearing on the petition for a final decree of adoption, counsel for the Home moved that the attorney for opponent (she was not present) be removed from the room for the reason that the plea of prescription, directed at the opposition, had been maintained and opponent no longer was interested in the proceeding. The court upheld the motion and excluded opponent's attorney.

The hearing on the adoption petition then proceeded, during which there was offered and received testimony of the prospective adoptive parents and of representatives of both the Home and the Welfare Department. Also received in evidence was a confidential report prepared by the latter respecting the adoption.

After having had the matter under advisement for approximately a week, the court rendered and signed a judgment reading: 'For the written reasons given by the Court, the Court denies to petitioners, Mr. and Mrs. William Slaughter Ball, the right to adopt the child, Barbara Gail Campbell.' This judgment of denial, as we appreciate the mentioned written reasons, was not based on the evidence adduced at the hearing on the adoption petition. Rather, it was rendered solely because of the continued opposition of the child's mother to the adoption and under the authority of Green et ux. v. Paul, 212 La. 337, 31 So.2d 819, a decision of this court in which there was enunciated and applied the doctrine that the continuing consent of the natural parent is vital to the validity of an adoption decree. Thus, the Juvenile Judge, in his written reasons and without discussing the adduced evidence, quoted at length from the Green case; he pointed out that the natural mother here (through counsel) had in writing opposed petitioners' adoption of the child; and he concluded: 'The court...