Hammond v. Chadwick

• Decision Date: 12 December 1946
• Docket Number: No. 2697.,2697.
• Citation: 199 S.W.2d 547
• Parties: HAMMOND et ux. v. CHADWICK et ux.
• Court: Texas Court of Appeals

199 S.W.2d 547

HAMMOND et ux. v. CHADWICK et ux.

No. 2697.

Court of Civil Appeals of Texas. Waco.

December 12, 1946.

Rehearing Denied February 13, 1947.

Appeal from District Court, Dallas County; Dick Dixon, Judge.

Adoption proceeding by Clarence N. Chadwick and his wife against George Hammond and his wife. From the judgment, George Hammond and wife appeal.

Reversed and rendered.

G. H. Crane, of Dallas, for appellants.

McNees & McNees, Frank G. Harmon and Nita Karl Ott Harmon, all of Dallas, for appellees.

LESTER, Chief Justice.

This is a proceeding instituted by the appellees, C. N. Chadwick and wife, to adopt a minor.

The evidence shows that the mother of the child was married but that her husband was overseas in the Air Corps when she became pregnant; that Mrs. Chadwick and her friend, Mrs. Harrison, learning of the coming event, went over to see the expectant mother with the view of seeing if she would give the baby to Mrs. Chadwick when it was born; that they invited the mother to go with them for a ride, whereupon they brought up the subject of the baby and during the conversation the mother promised to give the child to Mrs. Chadwick, the husband at that time still being overseas. After the ride Mrs. Chadwick took the mother to the doctor two or three times and took her to the hospital once or twice prior to the birth of the baby, which occurred on July 1, 1945. In February 1945, the mother wrote her husband concerning her condition and expressed to him a willingness to give the child away. He replied that it would probably be best to give the child away. He returned about a month prior to the birth of the baby but he did not visit the hospital during the five days she was there. He claimed that he was somewhat shocked over the incident and at the time he and his wife signed the instrument evidencing their consent to the adoption he thought it best to give the baby away. On the 5th of July the mother was taken home and Mrs. Chadwick took the baby to her home, then on the same day went with her lawyer to the home of the mother, where the consent agreement was signed by the mother and her husband. Mrs. Chadwick thereupon gave to the mother the sum of $55, representing the amount of her hospital bill.

The petition for adoption was filed the next morning, July 6, at 10:35. The court appointed an investigator and set the date for hearing on the petition for July 17th. On said date the Chadwicks appeared in court with their attorney, but the court was not willing to enter an order granting the adoption on July 17th but required them to wait until the child had remained in the home of the Chadwicks for a period of six months.

Within a very short time after the petition for adoption was filed, the mother began to want the return of her baby, and on the 18th day of September, 1945, filed in court, through her attorney, an answer, wherein she set up that she objected to the adoption of her infant son by relators, or either of them, or by any person. She also filed her second and third amended answers, in each of which she was joined by her husband.

The court tried the case twice, the second time on May 14, 1946, and entered judgment granting the adoption to appellees.

Appellants appeal on one proposition, and that is that appellants, and each of them, had a legal right to repudiate and disaffirm their waiver of or consent to the adoption at any time before a final judgment of the court for adoption, and that any judgment granted for the adoption of any minor over the protest of its parents is null and void and of no effect and not binding on the parents.

There are two lines of authorities, one holding that consent, freely given, may be arbitrarily withdrawn at any time before the court enters its final judgment in the proceeding; the other holding that consent, freely given, cannot arbitrarily be withdrawn after the jurisdiction of the court attaches. Some of the authorities supporting the former view are: 2 C.J.S., Adoption of Children, § 21, p. 386, which states: "Consent may be withdrawn at any time before adoption, even though given in writing, and accompanied by transfer of the custody of the child, and even though the natural parent had abandoned the child and an adoption based upon a consent that has been withdrawn is void." In re White's Adoption, reported in 300 Mich. 378, 1 N. W.2d 579, 138 A.L.R. 1034; Nelms v. Birkland, 153 Wash. 242, 279 P. 748; In re Anderson (Dwinnell et ux. v. Fallon et al.), 189 Minn. 85, 248 N.W. 657; Fitts v. Carpenter, Tex.Civ.App., 124 S.W.2d 420.

Some of the authorities supporting the later view are: In re Adoption of a Minor, 79 U.S.App.D.C. 191, 144 F.2d 644, 156 A. L.R. 1001; Lee v. Thomas, 297 Ky. 858, 181 S.W.2d 457; Wyness v. Crowley, 292 Mass. 461, 462, 198 N.E. 758.

Article 46a of Vernon's Texas Civil Statutes provides the only method for adoption, and reads as follows: "Except as otherwise amended in this Section, no adoption shall be permitted except with the written consent of the living parents of the child; provided, however, that if a living parent or parents shall voluntarily abandon and desert a child sought to be adopted, for a period of two(2) years, and shall have left such child to the care, custody, control and management of other persons, and such parent or parents so abandoning and deserting such child shall not have contributed to the support of such child during such period of two(2) years, then in such event it shall not be necessary to obtain the written consent of the living parent or parents in such default, and in such cases adoption shall be permitted on the written consent of the Judge of the Juvenile Court of the county of such child's residence, or if there be no Juvenile Court, then on the written consent of the Judge of the County Court of the county of such child's residence." Also providing that consent shall not be required of parents whose parental rights have been terminated by order of the Juvenile Court or other court of competent jurisdiction.

Section 3 of the foregoing article provides that "no petition for adoption of any minor child shall be granted until the child shall have lived for six months in the home of the petitioner; provided, that this requirement may be dispensed with upon good cause shown in the discretion of the Court, when the Court is satisfied that the home of the petitioner and the child are suited to each other."

In reference to the requirement that the child shall reside in the home of the petitioner for six months prior to the order of adoption, it is held in the case of In re Cohen's Adoption, reported in 155 Misc. 202, 279 N.Y.S. 427, points 7 and 8 on p. 434:

"Among the `requisites of voluntary adoption' enumerated in section 112 of the Domestic Relations Law, is the following: `3. Where the child to be adopted is under sixteen years of age, the petition must show that the child to be adopted resided continuously with the foster parents, at least six months prior to the date of petition. * *'

"The purpose of this addition, which was made by chapter 323 of the Laws of 1924 (section 3), was to prevent unduly precipitate action in the serious matter of establishing new relationships and severing those of blood and natural affection. Any authority having contacts with such matters is familiar with the frequently untoward results which eventuated from inconsidered action of this variety. The object sought was to give a reasonable time for reflection to the parties affected, to the end that the act of adoption, if finally consummated, would be the result of considered judgment and not of impulse or temporary pressure. It enables the persons who are contemplating the addition of a permanent member to their family to obtain a practical demonstration in miniature of the result, and likewise permits the natural...