Hughes v. Cain

• Decision Date: 14 October 1946
• Docket Number: 4-7951
• Parties: Hughes v. Cain
• Court: Arkansas Supreme Court

196 S.W.2d 758

210 Ark. 476

Hughes v. Cain

No. 4-7951

Supreme Court of Arkansas

October 14, 1946

Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor.

Affirmed.

M V. Moody, for appellant.

Philip McNemer, for appellee.

OPINION

Minor W. Millwee, Justice.

This appeal involves the validity of an order of adoption of Sidney Pat Cain, the seven-year-old son of appellee, Mrs. Sidney Cain, by appellant, Catherine Fink Hughes, the child's paternal great-aunt. Appellee filed her petition for a writ of habeas corpus in Pulaski Chancery Court on October 3, 1945, to secure the custody of her son from appellant.

The record discloses the following facts which appear from the allegations of the petition for habeas corpus and the exhibits thereto attached: Appellee resides with her husband and their second child in the state of Texas where the husband is permanently employed. Appellant was appointed guardian of Sidney Pat Cain by order of the Pulaski Probate Court on October 8, 1941, but this order was declared void by the same court on June 21, 1943. By the last order appellant was awarded temporary custody of the child pending a determination of the child's status by the juvenile court, to which court the matter was referred. On March 16, 1943, appellant filed an amended petition for adoption of the child in the Pulaski Probate Court. This petition states the names of the parents and alleges that they are living together as husband and wife in New Iberia, Louisiana; that the child is abandoned and had been in the custody and care of appellant for more than three years. On October 14, 1943, an order of adoption was entered in the Pulaski Probate Court pursuant to the petition. This order recites the appearance of appellant, her attorney and the referee of the Pulaski Juvenile Court. It also states that an attorney appeared for the parents of the child and opposed the adoption and that the State Department of Public Welfare filed a report recommending the adoption. There is no showing in either the petition or order of adoption that the parents were made parties to the proceedings, or given any notice thereof.

In her petition for habeas corpus filed in the chancery court, appellee alleged that the order of adoption entered in probate court on October 14, 1943, was void in that the record failed to show many facts essential to jurisdiction of the subject-matter and the persons of appellee and her husband. It was alleged that neither the petition nor order of adoption shows legal notice to, or the consent of, the natural parents as required by statute. It was also alleged that appellee had no notice of the adoption proceedings, did not consent thereto, and that the attorney whom the record purports to show as having appeared for her did so without her authority, knowledge or consent.

On November 7, 1945, appellant filed a general demurrer alleging that the petition for habeas corpus, together with the exhibits thereto, failed to state facts sufficient to constitute a cause of action or to invoke the jurisdiction of the chancery court. On November 10, 1945, appellant also filed an answer containing a general denial and alleging the validity of the order of adoption. The demurrer of appellant was overruled at a hearing on November 14, 1945. Appellant elected to stand on her demurrer and declined to controvert the facts alleged in the petition for habeas corpus. Whereupon the petition for writ of habeas corpus was granted and custody of her son was awarded to appellee.

By § 255 of Pope's Digest, it is required that a petition for adoption shall state the name and residence, if known, of the parents of the child to be adopted. Section 256 of Pope's Digest provides that the parents of the child sought to be adopted must be made defendants to the petition by name and notified of the proceedings by personal service of summons, if residents of the state, said summons to be made returnable at any time within twenty days after its date. This section further provides that whenever the petition discloses that the parents are nonresidents, the clerk shall cause publication of an "adoption notice" once in some newspaper of general circulation published in the county, warning such nonresidents to appear within 20 days of the date of the notice. The form of the notice is set out in the statute. It is also required that the clerk shall, within ten days after publication of the notice, mail a copy thereof to those defendants whose place of residence is stated in the petition and who have not been personally served with summons.

Section 259 of Pope's Digest provides that adoption of a child shall not be permitted without the written verified consent of the parents, if living. It is further provided, however, that such written consent may be dispensed with under certain conditions, among which are: (1) the abandonment of the child by the parent for six months next preceding the filing of the petition, or (2) if the parent has lost guardianship of the child by an order of the juvenile court. Sections 255, 256 and 259, supra, were enacted as a part of Act 137 of 1935. By Act 328 of 1937, now a part of § 262 of Pope's Digest, it is provided that service of summons and publication of notice shall not be necessary where the parents appear and file their verified written request and consent to the adoption.

The institution of the petition for a writ of habeas corpus constitutes a collateral attack upon the order of adoption and the only inquiry proper to be made is whether the probate court had jurisdiction to...