Fielding v. Highsmith
| Decision Date | 30 April 1943 |
| Citation | 152 Fla. 837,13 So.2d 208 |
| Parties | FIELDING et al. v. HIGHSMITH. |
| Court | Florida Supreme Court |
R. G. Tittsworth and W. N. Burnside, both of Tampa, for plaintiffs in error.
Elliott Adams, of Jacksonville, and Wm. C. McLean, of Tampa, for defendant in error.
On August 17, 1942 the appellee, Dan Highsmith, instituted a habeas corpus proceeding against appellants to recover custody of his minor daughter, Johnnie Lou. The petition attacks the validity of a proceeding brought in the Circuit Court of Hillsborough County by Libby Rush Fielding--then Libby Rush--for the adoption of his minor daughter, on the ground that the order of adoption was entered without notice to him. On final hearing in the habeas corpus proceeding the trial court found that the father was a fit and proper person and awarded him the custody of the child. There was no direct adjudication in the order of the validity, or invalidity, of the adoption proceedings. We assume, however, that the trial court's judgment was predicated upon a determination that the adoption proceedings were invalid and that consequently the appellee, as the natural father, had the paramount right to the child, for there is no finding whatever concerning the fitness, or unfitness, of the appellants.
By the great weight of authority, an order of adoption procured by a stranger will be declared invalid as against the natural parents unless it is made to appear that the parents have consented to the adoption; or that it is manifestly for the best interest of the child that it be taken from the custody of the natural parents by such a judicial proceeding, of which the parents have notice and an opportunity to be heard; or that the minor has been abandoned, and notice of the proceedings and opportunity to be heard cannot be given to the parents because their whereabouts are unknown; or that the parents have been permanently deprived of the custody of the child by a competent court having jurisdiction of the parents and the child. Even where adoption statutes do not specifically require personal notice to be given, it must be presumed that the legislature intended that the natural parents should have an opportunity to be heard before having their rights to the child declared forfeited; if such statutes are to be upheld as constitutional. Such, we think was the view of this court in the case of In re Whetstone, 137 Fla. 712, 188 So. 576, when considered in the light of the authorities there relied upon. See In re Knott, 138 Tenn. 349, 197 S.W. 1097; 1 Am.Jur. Sec. 40 p. 642; Id. Sec. 44, p. 644; 2 C.J.S., Adoption of Children § 38b, p. 421; Annotations: 24 A.L.R. 416, 76 A.L.R. 1078. To adopt a contrary view would be to recognize that the courts have arbitrary authority to forfeit the rights of the parent to his minor child, without giving him an opportunity to be heard in his own behalf. Such procedure would be despotic in the extreme and contrary to the plainest principles of morality and justice.
In the present case, it is clear from the testimony that consent to the adoption was not procured from the natural parent nor was notice given, or attempted to be given, of the adoption proceedings, although the father could have been located by diligent search and inquiry. We must hold, therefore, that as a matter of law the order of adoption is invalid as against the father.
It does not necessarily follow from this holding, however, that the custody of the child must go back to the father in all events. This is a habeas corpus proceeding brought primarily to determine the custody of a minor child, even though in the process the validity of the adoption proceedings is incidentally involved. In such proceedings the moral, intellectual and material welfare of the child are the matters of chief importance, Bourn v. Hinsey, 134 Fla. 404, 183 So. 614, and the infant should be placed where its interest will be best subserved, without regard to the validity or invalidity of the adoption proceedings. Of course all things being equal, the legal right of the father will generally prevail. But the rights of the parent are not absolute; many other factors must be taken into consideration 'The ties of nature and of association, the character of the applicant for the child, its age, health, and sex, the moral or immoral surroundings of its life, the benefits of education and development, and pecuniary prospects, as well as many other considerations, enter into the judicial determination.' Marshall v. Reams, 32 Fla. 499, 14 So. 95, 96, 37 Am.St.Rep. 118.
The preference of the child is likewise entitled to consideration, where the child has reached the age of intelligent discretion. And while the choice made by the child will not necessarily be conclusive in the matter, it is highly persuasive in cases where the parent has voluntarily allowed the child to remain in the custody of others for such a long period of time that a strong mutual attachment exists between them. Marshall v. Reams, supra.
In the present case it appears that the child's mother died in 1932, at a time when the infant was 3 years of age. She left her husband, Dan Highsmith, and 9 children surviving her. Two of these children were married and maintained their own homes. The remaining seven children were unmarried and lived with their father. After the death of the mother, Mrs. Beatrice Rodgers, a...
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