Hyman v. Stanley, 7058
| Decision Date | 28 April 1953 |
| Docket Number | No. 7058,7058 |
| Citation | 257 S.W.2d 388 |
| Parties | HYMAN et ux. v. STANLEY et ux. |
| Court | Missouri Court of Appeals |
Max Patten, Jr., Roy Coyne, Joplin, for appellant.
Watson, Richart & Titus, Joplin, for respondent.
This appeal is from a decree of adoption rendered in the Juvenile Division of the Circuit Court of Jasper County. Olin Stanley and Juanita Stanley, husband and wife, filed their petition to adopt Woodrow Hyman, Jr., a minor child, born January 16, 1949.
The petition contains all the essential allegations required by the statute. It alleges that Woodrow Hyman and Lucy Hyman are the parents of the child sought to be adopted and that they willfully neglected to provide proper care and maintenance for said child for more than a year last preceding the filing of the petition.
The evidence is undisputed that the custody of Woodrow Hyman, Jr., was taken over by the Juvenile Division of the Circuit Court as a neglected child and placed with petitioners herein March 17, 1949. All parties were residents of Jasper County. There is no dispute that petitioners are suitable parties to adopt said child.
March 21, 1950, the petition for adoption was filed and, at said time, the child had been in the continuous custody of petitioners by direction of the Juvenile Court for more than one year.
We think the evidence shows that during this entire year appellants furnished no support for the child, except such support as the court, by its order, forced the father to provide.
We think there can be no question that the minor child in question was a neglected child at the time the custody was placed with the court. March 22, 1949, information was filed in the Juvenile Court alleging that Woodrow Hyman, Jr. and others were neglected children, living with a vicious person and that said children suffered from the depravity of their parents or other persons in whose care they were. The Juvenile Court, under this petition, found that Woodrow Hyman, Jr. was a neglected child and this judgment was affirmed by our court, on appeal, State v. Hyman, reported in the 230 S.W.2d 504.
In the trial of the case at bar, the court appointed a guardian ad litem for the minor, had investigation made as to the suitability of petitioners; answer was filed by the guardian ad litem recommending the adoption and report of the investigation was made recommending it.
William Kelley, Probation Officer, testified that on or about March 18, 1949, he was called, by telephone, to Webb City; that there he met Mrs. Hyman, the mother of the child sought to be adopted. She was suffering from injuries inflicted by her husband and asked him to take charge of her children; that he took five of the children on that evening and returned the next day and took charge of Woodrow Hyman, Jr. He stated he made arrangements at the Midwest Hotel in Webb City for the mother, who said at the time, she was afraid of her husband. The witness stated the condition of Woodrow Hyman, Jr., at the time he took custody thereof, was bad; that he had a breaking out, itch or impetigo of a serious nature; his whole body was affected. He said he took the child to his home and, later, by order of the Juvenile Court, placed it in the home of Mrs. Stanley. He stated he investigated this home and found it suitable for the care of the child.
The testimony showed that at the time custody of the child in question was taken by the Juvenile Court, appellants were having family trouble; that the children were being taken out on the streets late at night, dirty and in a much neglected condition; that witnesses who went to the home of appellants found insufficient food for the children. The testimony showed that these children were taken by their mother to the police department and had been appealing to the Red Cross for help for the care of said children; that after the children were turned over to the court she was sent to a hospital in Kansas City.
The evidence shows that appellants' home was completely broken up and they were divorced and the children's care left solely in the hands of the Juvenile Court. These parties were both deaf mutes.
Juanita Stanley testified that Woodrow Hyman, Jr. appeared to be about six weeks old when the court placed the custody of him with her, March 17, 1949. His body was covered with sores, he was dirty, starved and nearly dead. It had not been bathed for days, one ear was almost rotted off and disease had completely eaten into the flesh under one of his arms. The testimony is undisputed that the petitioners had the child treated by at least two doctors and, through careful medical attention, health had been recovered. The medical testimony fully corroborates the serious condition the child was in when custody was taken from appellants; that it was undernourished and diseased and could not have lived under the treatment it was getting by appellants.
The testimony on the part of appellants is that they have remarried; that they have tried to regain their children, yet, just before the trial, there is testimony that the husband was arrested, etc. The testimony is that the court has never seen fit to return these children to the parents because of their condition of life and that, up until the judgment of adoption, the child has been in the custody of the court.
Appellants' first assignment of error is that the statutes of Missouri no where provide for adoption of a minor child where the parents have been deprived of custody by the court.
The right of adoption was unknown to the common law of England. Hockaday v. Lynn, 200 Mo. 456, 98 S.W. 585, 8 L.R.A., N.S., 117; Mo.Law Review, Vol. 12, p. 310.
In Missouri the method and consequences of adoption depends upon statute. Mo.Law Review, Vol. 12, p. 310.
In 1917, effective June 18, 1917, the general assembly of this state repealed all former laws relating to adoption and provided proceedings for such adoption in the Juvenile Division of the Circuit Court. This act, with amendments, constitutes the statutory law of adoptions of Missouri and is designated Chapter 453, Adoptions, Vol. II, RSMo 1949, V.A.M.S.
Our courts have held that the adoption statute must be strictly construed in favor of natural parents' rights in controversies involving termination of the relation of parent and child. Application of Graham, 239 Mo.App. 1036, 199 S.W.2d 68; In re Adams, Mo.App., 248 S.W.2d 63; Robertson v. Cornett, 359 Mo. 1156, 225 S.W.2d 780; In re Wines' Adoption, Mo.App., 239 S.W.2d 101.
Section 453.010 RSMo 1949, V.A.M.S., provides:
'Any person desiring to adopt another person as his child may petition the juvenile division of the circuit court of the county in which the person seeking to adopt resides, or in which the person sought to be adopted may be, for permission to adopt such person as his child.
'If the petitioner has a spouse living and competent to join in the petition, such spouse may join therein, and in such case the adoption shall be by them jointly; provided, however, that if such a spouse does not join the petition the court in its discretion may, after a hearing, order such joinder, and if such order is not complied with may dismiss the petition.'
Under this section of the statute there can be no question but what the petitioners had a right to file the petition. They had complied with the statute requiring that the custody of the child be in their possession for nine months. There is no limitation of the statute as to the manner in which custody was placed with the petitioners.
To support their theory of the case, appellants cite Section 453.040 RSMo 1949, V.A.M.S. This section relates to procedure and requires the consent of the parents shall not be required to adoption where the petition alleges, as it does in the case at bar, that the parents have willfully neglected to provide the child with proper care and maintenance. This could be no authority to show that the child could not be adopted where the court had taken custody from the parents and placed it with petitioners.
Appellants cite Application of Graham, supra. This case supports the law as we have stated above that the adoption statutes must be strictly construed in favor of the natural parents' rights involving termination of their relationship of parent and child. It merely follows the statute above cited as to the exceptions of requiring written consent of the parents. It holds specifically that the written consent of the parents is not required where they willfully abandon the child and by their conduct indicating a settled intention to leave it in the care of others.
This case properly declares the law that where the child is abandoned or, as in the case at bar, is willfully neglected, that the custody is a continuing process which may be terminated.
The judgment of the trial court finding Woodrow Hyman, Jr. a neglected child and placing the custody with respondents did not deprive appellants of the custody of their child permanently. Appellants could have regained the custody of this child by showing to the court their ability to properly care for and maintain it. The custody of the court continues until the parental care and support has been resumed by appellants. There is nothing in the judgment that would preclude the repentance and reacquisition of parental rights.
In Application of Graham, supra, the law is stated, 199 S.W.2d on page 74, thus:
'* * *
Thus, under the rulings of the authority cited by appellants, we hold that the petitioners had the right to bring the action for...
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