D---, In re

• Decision Date: 10 October 1966
• Docket Number: No. 8537,8537
• Citation: 408 S.W.2d 361
• Parties: In the Matter of D_ _ and D_ _. OV and MV, Appellants, v. SV, Respondent.
• Court: Missouri Court of Appeals

Page 361

408 S.W.2d 361

In the Matter of D_ _ and D_ _.

OV and MV, Appellants, v. SV, Respondent.

No. 8537.

Springfield Court of Appeals, Missouri.

Oct. 10, 1966.

Motion for Rehearing or to Transfer to Supreme Court Denied

Oct. 31, 1966.

Application to Transfer Denied Dec. 12, 1966.

Claude T. Wood, Richland, John A. Honssinger, Lebanon, for appellants.

Arthur B. Cohn, Waynesville, for respondent.

TITUS, Judge.

This appeal presents one of the most agonizing of all perplexities that can be cast upon mortal tribunals for determination--how best to resolve hostilities involving innocent children of tender years. The paternal grandparents and would-be adoptive parents of two infant girls are the appellants. The natural mother of the two girls is the respondent. The propriety of the judgment of the Circuit Court of Laclede County, Missouri, permitting the natural mother to withdraw her written consent to adoption is the issue. No complaints are voiced as to the jurisdiction of either this or the trial court, nor against the pleadings or procedures had in the circuit court.

S, natural mother of the girls, was seventeen years of age (the best we can figure) when she flew to Pearl Harbor, Hawaii, from her home in Pulaski County, Missouri, to marry J on November 6, 1962. J was then twenty and in the U.S. Navy. Sometime after the nuptials, S returned to Pulaski County to reside with her in-laws and await the arrival of her first born. The baby girl arrived April 15, 1963, and sometime thereafter S joined J in California where they awaited his discharge from the service. Their second child, also a girl, and a first birthday present for her older sister, arrived April 15, 1964. Upon J's release from the Navy, he, S, and the two girls returned to Missouri to set up housekeeping in the near vicinity of the homes of both the paternal and maternal grandparents.

The marriage was difficult from the beginning. The cause of the strife is cloudy, but on trial J's complaints related to the diet S gave the children and her 'not being able to take care of the kids and not keeping things up to snuff.' S was concerned with J's immaturity. The astute judge who tried this case observed there had no 'been a breath of suspicion about' S's 'morality. * * * The evidence jusitifies the finding that S was not the best housekeeper, nor was she the worst. * * * At times she did not keep her children clean. But the proof is not sufficient to conclude that she abused or neglected them. A few times the children were ill, but the illnesses were not due to neglect by the mother.'

Because 'J and I were separating,' S telephoned the paternal grandparents on November 11 or 13, 1964, and asked them to get the children as she was leaving. There was no discussion then or later between S and her in-laws as to the conditions under which the grandparents were given custody of the children and the matter of adoption was never the subject of any conversations between them. When the paternal grandfather obtained the children and took them to his home, S went to the home of her parents. The following day S called her inlaws and told them to return the children to her. The request was refused pending ascertainment by the grandparents as to what J wanted done with the girls. J moved in with his parents and S stayed with her parents for the ensuing few days. The two girls have resided with the paternal grandparents since that time.

Sometime during this separation J conversed with a Richland, Missouri, attorney who also represents the paternal grandparents. J also had one or two conversations with S during this period as to how their differences might be reconciled. S's version of these talks was that J attributed their problems, in part, to the nearness with which they lived to their respective parents and suggested they should leave the children with his parents until such time as they could establish a home elsewhere and have a place suitable for the children. J's implications were that S felt she could be a better wife if not hindered by caring for the girls. J admits that at no time during his discussions with S was the word 'adoption' used. 'As far as 'adoption papers' being used while we were discussing it, we didn't discuss signing adoption papers at the time. * * * I didn't know this was going to be adoption papers until the next day.' At one time J stated there was 'no period mentioned' in these discussions as to 'how long a period of time' his parents were to keep the children, although later on he asserted 'leaving the children was a permanent agreement.'

On November 16, 1964, J and S went to the offices of the Richland lawyer. They did not confer with the attorney but waited while his secretary typed documents for them to sign. S, who was then probably nineteen years old, admits she was handed the document, read it and signed it. The paper was entitled 'Consent for Adoption,' and, inter alia, recited that she, as the 'natural mother of said minors, does hereby consent that (the two girls) minors, may be adopted by the Petitioners (paternal grandparents) as their own children * * * and that she understands that said children will become the legal heirs of the Petitioners.'

The paternal grandmother says she had not discussed with her counsel the possibility of adoption before the consent was signed by S, and the paternal grandfather did not contact his lawyer about the adoption before he was called to his office to sign the petition. S testified she signed the paper because she was afraid of J. 'He told me before if I didn't sign these papers, if I didn't give the (paternal grandparents) the kids or let them take care of them he would either leave town or get rid of me and he didn't intend to leave town.' About the time S was to sign she started crying. She is 'positive' the secretary did not then tell her 'Now, you don't have to sign that,' although this is disputed. S did not remember while she was crying saying, 'I want to sign it,' although 'I may have.' There is no suggestion the lawyer's secretary did anything improper or urged S to sign the consent. The mother says she thought the paper meant the grandparents 'were going to have guardianship of the children' and she did not then know the meaning of the word 'adoption.' S asserts the first time she was aware she had consented to a legal adoption was when she consulted her attorney in February 1965.

When reconcilation was effected in November 1964, J and S first went together to the Lake of the Ozarks for a few days and then departed for Florida. She did not try to visit the girls before leaving Missouri because 'J wouldn't let me.' They stayed in Florida until the first part of February 1965, and resided in a room. Both worked and their income was supplemented by contributions from the paternal grandparents. In February 1965, they went to California where they remained about a week. Much was said in the record concerning the fact S did not write her children (then about twenty-one months of age and nine months old, respectively) during this time, nor attempt by either telephone or letter to communicate with her in-laws. However, the evidence reveals J talked by telephone with his parents most every week while he and S were in Florida and at least one time while they were in California.

The lack of success in efforts made to heal their differences may be gleaned from the fact that on February 9, 1965, J walked out on S while they were at a laundry establishment in California leaving her with seventy-six cents in her pocket. This surprise and unannounced departure left S with no idea of where her husband had gone, although she suspected he had gone home to his mother and father. She received financial assistance from a sister in Texas and managed to return to Missouri and the home of her parents on February 14, 1965.

S apparently had not seen the girls since she called the paternal grandparents to come and get them in November 1964. She indicates she had not done so because J either didn't want her to or wouldn't let her. Upon deserting S in California, J first returned home and then went to Chicago for a short time. Thereafter, he returned to Missouri and took up residence in the home of his mother and father. On February 19, 1965, J filed suit for divorce in the Circuit Court of Pulaski County. When the hearing in this case was held, commencing August 27, 1965, the divorce suit was pending but no service had been obtained on S. Although in his divorce petition, J asked to be awarded the control and custody of the two girls, in the instant case he testified, 'No, I don't want the control and custody of the children.' It seems clear J was in favor of his parents having the children to the exclusion of S.

Shortly before Easter 1965, S called the paternal grandmother who stated, 'She asked if she could see the children and I said 'S, I don't see why you want to see the children, they are adjusted now and you knew when you signed those papers that they were final' and she said 'Yes, I know that.' I said 'The children are in the custody of their father (our emphasis) and' I said 'As far as I am concerned you can see them after church. '' The paternal grandparents' petition for adoption (which they executed November 21, 1964) had been filed on January 4, 1965. In 1965 the paternal grandmother was forty-five years of age and her husband was fifty years old. Since leaving S in California, J had contributed nothing to the support of eithr S or the children.

S's request to withdraw consent for adoption was filed April 5, 1965. No order transferring custody of the children to the paternal grandparents has ever been made. By stipulation, this case was transferred to the Circuit Court of Laclede County for hearing and determination.

To avoid detail we simply take note that both sides were freely permitted to array before the trial judge all the witnesses they desired to testify on every...