In re Adoption of Doe
| Decision Date | 02 November 1949 |
| Docket Number | 111 |
| Citation | 56 S.E.2d 8,231 N.C. 1 |
| Parties | In re Adoption of DOE. |
| Court | North Carolina Supreme Court |
Proceeding for the adoption of a minor child born out of wedlock, at Rocky Mount, in Nash County, N. C., instituted January 1, 1949, before Clerk of Superior Court of Wilson County, N. C., in which proceeding the natural parents, after marriage January 4, 1949, intervened on June 4, 1949 and moved to vacate and dismiss the proceeding.
The record discloses that the procedure in this adoption proceeding up to and including the interlocutory order, dated February 28, 1949, seems to follow the provisions of the General Statutes of North Carolina, Chapter 48, Chapter 281 of P.L.1941, pertaining to the adoption of a minor child, applicable to a case where the child is born out of wedlock, and the mother of the child releases all rights to the child, and surrenders it to the Superintendent of Public Welfare of the county for placement and adoption, and consents to the adoption by any person selected by him. See G.S. s 48-4 and G.S. s 48-5 as amended by P.L.1941, Chapter 281.
The record shows that an order of reference was made on January 7, 1949, by Clerk of Superior Court of Wilson County directing James A. Glover, Superintendent of Public Welfare of Nash County to 'make a full, careful and complete investigation of the conditions and antecedents of the said minor for the purpose of ascertaining whether she is a proper subject for adoption', etc.
The record further shows that an interlocutory order was entered in the proceeding by the Clerk of Superior Court of Wilson County, N. C., on February 28, 1949, in which after reciting the representations set forth in the petition and, further that 'whereas upon examination and consideration of the reports of the investigating officials assigned to this case and other evidence now available to the court, it is found by the court that the home of the petitioners is a proper and suitable home in which to place the said Jane Doe and that the said minor is a fit subject for adoption, and that the adoption of said minor by said petitioners is for the best interest of the said child', the court tentatively approved the adoption of said child by the petitioners, and ordered that she 'be, and is hereby placed in the care and custody of petitioners until further orders of this court '. The court further 'expressly ordered that this order shall be provisional only and may be rescinded or modified at any time prior to final order of adoption which shall be made not less than one year or more than two years after this date', and 'that until said final order of adoption the said minor shall be and remain a ward of this court, and its care shall be under the supervision of Monroe Fulghum, Superintendent of Public Welfare of Wilson County, unless otherwise directed by the court'.
The motion of the intervenors, filed June 4, 1949, in substance and in material part, is predicated upon these allegations That they, the natural parents of the child, the subject of the proceeding, made definite plans on December 31, 1948, to intermarry; that about 8:30 o'clock a. m., on January 3, 1949, they gave oral notice thereof to James A. Glover, County Superintendent of Public Welfare of Nash County; that they were intermarried at 5 o'clock a. m., on January 4, 1949, at Dillon, in the State of South Carolina; that thereby their child was legitimated, upon which 'all basis for adoption expired'; that thereupon they proceeded directly to the office of the said James A. Glover at Nashville, North Carolina, arriving at approximately 10 o'clock a. m., on same day, and gave to him notice of their intermarriage,--exhibiting to him a certificate of their marriage, and demanded to have the care and custody of their child, to which he, the said Glover, answered, 'It's too late', and declined to give them information as to the whereabouts of the child, or as to pendency of the adoption proceeding in Wilson County, and continued to ignore their pleas for, and as to the whereabouts of their child,--as well as to ignore their legal status as legitimate parents of the child, and that despite all of which he continued to participate in the proceeding; that the notice of the marriage given to the Superintendent of Public Welfare of Nash County, and the demand for the child was adequate notice of the legitimation of the child and of the mother's withdrawal of any consent to the custody and adoption of her child which she may have previously given; that by reason of legitimation of the child by the marriage of her parents on January 4, 1949, the order of reference on January 7, 1949, and the interlocutory order of February 28, 1949, as well as intermediate proceedings, whatever such proceedings may have been, their contents being denied to them, were void; and that they, the intervenors, are entitled to the care and custody of their child.
While the petitioners, in reply to the averments in the motion of intervenors, plead the regularity of the adoption proceeding upon the consent of the mother of the child, they say (1) that they 'are advised and so believe that on January 3, 1949, one W. C. Wilder went to see James A. Glover, County Superintendent of Public Welfare of Nash County, at his office in Nashville, North Carolina, and thereupon * * * advised * * * Glover that he, Wilder, was of the opinion that Elizabeth May Jacobs (Wilder) and Hubert C. Wilder might marry in the event that they would thereby be able to secure custody of the child, which is the subject of this proceeding'; (2) that 'it is not denied that Hubert C. Wilder and Elizabeth May Jacobs (Wilder) were married on January 4, 1949'; (3) that 'petitioners are informed, advised, and so aver that on January 4, 1949, Elizabeth May Jacobs (Wilder) went into the office of James A. Glover alone and advised him of her marriage'; (4) that 'it is not denied that Hubert C. Wilder, the alleged father of said child, has not consented to its adoption'; and (5) that 'petitioners admit that Section 12 of Chapter 49 of the General Statutes of North Carolina apply as between Hubert C. Wilder and the child, which is the subject of this adoption proceeding'.
And petitioners further say that the intervenor, Hubert C. Wilder, denied paternity of the child consistently prior to January 4, 1949, and failed and refused to 'make any provision for its maintenance and support prior' thereto, and that in consequence Elizabeth May Jacobs (Wilder) swore out a warrant against him in the Recorder's Court of Nash County on September 13, 1948, alleging his paternity of the child, and failure to support it.
The record also contains purported copy of warrant, and of the affidavit upon which the warrant was issued, together with bond for appearance of Hubert C. Wilder in the Recorder's Court at Nashville, N. C., on October 4, 1948, which the Clerk of Superior Court of Nash County certifies are true copies of such papers 'in a certain criminal action lately pending in the Recorder's Court of this County wherein the State of North Carolina was prosecutor and Hubert Cordell Wilder was the defendant, as the same is taken from and compared with the original which is on file in this office'.
The record also contains affidavits of twenty nine persons, men and women, mostly of Nash County, and some of Franklin County, who say they have known Hubert C. Wilder and his wife, Elizabeth May Wilder, for various periods of time, from 7 to 20 years; that they intermarried subsequent to the birth of their child; that otherwise their general reputation and character in the community in which they live is good; that they are suitable persons to have the care and custody of their child; that each believes they will provide a good home for themselves and their child; and that the custody of their child should be awarded to them.
When the cause came on for hearing on June 27, 1949, upon the said motion of intervenors, and after consideration thereof, the Clerk of Superior Court made extensive findings of fact,--the material portions of which in summary are these:
1. That the child, which is the subject of the proceeding, was born to Elizabeth M. Jacobs (Wilder) out of wedlock, on December 6, 1948, in Park View Hospital, Rocky Mount, N. C.
2. That prior to the birth of this child, Hubert C. Wilder was its putative father, and that (he denied paternity and refused to contribute to its support). (The portion in parenthesis was disapproved by the judge on appeal as hereinafter shown).
3. That Elizabeth May Jacobs (Wilder) caused a warrant to be issued from the Recorder's Court of Nash County, North Carolina, against Hubert C. Wilder on September 13, 1948, in which she complained that he had denied paternity of the child and had failed and refused to maintain and support the child; and that the criminal proceeding was pending at the date of the birth of the child, as well as at the time the child was placed in the custody of the petitioners, and at the time of the institution of this adoption proceeding.
4. That on December 8, 1948, Elizabeth May Jacobs (Wilder) executed a written consent and surrender, in due form, releasing all her rights in, and claim to her said child to the Superintendent of Public Welfare of Nash County, North Carolina, and granting to him authority to place her child in a foster home selected by him with the privilege of legal adoption, without further notice to her.
5. That on December 20, 1948, Elizabeth May Jacobs (Wilder) executed in conformity with law and voluntarily a request for the separation from her of her infant child under six months of age, and James A. Glover, Superintendent of Public Welfare of Nash County, North Carolina, executed his acceptance...
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