In re McFarland

• Citation: 12 S.W.2d 523,223 Mo.App. 826
• Parties: IN THE MATTER OF THE ADOPTION OF JOHN HENRY McFARLAND, A MINOR, BY E. J. GREEN AND MAGGIE O. GREEN, PETITIONER, RESPONDENTS, v. HOWARD KELLETT ET AL., APPELLANTS. [*]
• Decision Date: 21 December 1928
• Court: Court of Appeal of Missouri (US)

12 S.W.2d 523

223 Mo.App. 826

IN THE MATTER OF THE ADOPTION OF JOHN HENRY McFARLAND, A MINOR, BY E. J. GREEN AND MAGGIE O. GREEN, PETITIONER, RESPONDENTS, v. HOWARD KELLETT ET AL., APPELLANTS. ^[*]

Court of Appeals of Missouri, Springfield

December 21, 1928

Appeal from the Juvenile Division of the Howell County Circuit Court.--Hon. E. P. Doris, Judge.

Judgment reversed and remanded.

Rinehart & Rinehart and H. J. Griffin for appellants.

(1) Adoption was unknown to the common law, and is in derogation to the common law, and purely of statutory enactment, and like all other similar statutes must be strictly complied with. Thompson v. Arnold, 208 Mo.App. 106; Sarazin v. Railroad Company, 153 Mo. 485; Lamb v. Feehan, 276 S.W. 78; Holloway v. Jones, 246 S.W. 587; 1 C. J., p. 1373; 1 Cyc., p. 919. (2) Consent lies at the foundation of statute of adoption, and if they require it to be given, the jurisdiction of the subject-matter cannot be required without it. Where certain facts obviate necessary consent, the existence of those facts must be shown. 1 C. J 1384; Lee v. Back, 30 Ind. 148. Where a parent is dead it must be shown that the party who has actual custody and guardianship of the child consents to the adoption. Marsh v. Reed, 56 N.E. 3; In re Bastin, 10 Penn. 570; In Matter Edds, 137 Mass. 346. (3) The decree of adoption is not valid because the guardian did not consent in writing to the adoption, and also for the reason that the minor at the time of the decree of adoption was rendered did not consent in writing to his adoption and for the reason that section 1096, Revised Statutes Missouri 1919, was not strictly complied with. (See authorities above cited.) Sec 390, R. S. 1919; Burger v. Frakes, 67 Iowa 460; U.S. v. Hall, 171 F. 214, 28 C. J. 1387; Jordan v. Smith, 63 S.E. 595; Holmes v. Derrig, 103 N.W. 973. (4) The juvenile court erred in overruling defendant's application for change of venue. Section 1357, Revised Statutes 1919, provides that change of venue may be awarded in any civil suit in any court of record for any of the causes set out in the section. State ex rel v. Riley, 203 Mo. 191; State v. Yeager, 250 Mo. 388; Railroad Co. v. Fowler, 113 Mo. 458. The juvenile court is a division of the circuit court as created by statute. The circuit court has original jurisdiction, hear and determine all cases of juvenile matters. Sec. 2592, R. S. 1919.

Will H. D. Green and W. J. Orr for respondents.

(1) The law as to adoption of children in this State is wholly statutory. Sections 1095 to 1103, inclusive, R. S. 1919; Thompson v. Arnold, 208 Mo.App. 102; State v. Schilb et al., 285 S.W. 748. (2) The jurisdiction vested in the juvenile court is exclusive of the circuit court of which it is a division. State ex rel. v. Trimble, 269 S.W. 617. (3) The petition must contain the allegations required by statute. Section 1099, R. S. 1919; State v. Schilb et al., 285 S.W. 748; Thompson v. Arnold, 208 Mo.App. 102. (4) If the consent in writing of the parties named in section 1096 is not filed with the petition they must be brought into court by process, unless they appear. (See authorities above cited.) (5) There is no provision for a change of venue from the juvenile court, which is a separate court from the circuit court of which it is a division. (Authorities above cited.)

BAILEY, J. Cox, P. J., and Bradley, J., concur.

OPINION

BAILEY, J.

This is a proceeding for the adoption of a minor child based on the provisions of article 1, chapter 11, Revised Statutes Missouri 1919. The petitioners are E. J. Green and Maggie O. Green, his wife. The minor is John Henry McFarland, age thirteen years, who was a resident of West Plains, Missouri, at the time the petition for adoption was filed, April 19, 1928, in the Juvenile Division of the Howell County Circuit Court. His father died some years prior to the institution of these proceedings and his mother also died April 13, 1928. The minor was left with an estate, in property and money, of the value of about $ 60,000. His nearest living blood relations are his maternal grandparents, Silas Monger and Susan E. Monger, residents of the State of Texas. After the filing of the petition for adoption by the Greens, the said grandparents also filed a like petition for adoption of said minor, and term themselves "intervenors."

On the 17th of April, 1928, Susan E. Monger filed an application in the Probate Court of Howell County, requesting the appointment of Howard Kellett as guardian and curator of the estate and person of the said John Henry McFarland, minor, and the said Howard Kellett was thereupon duly appointed by said court and qualified to act as such.

At the time of filing their petition for adoption the Greens also filed John Henry McFarland's written consent to his adoption by them. No consent of the guardian to the adoption was filed. A demurrer to the petition was filed by the guardian and overruled June 7, 1928. On the same day, said guardian filed an answer setting up, among other things, that the court had no jurisdiction to hear the petition for adoption because the guardian had not given his written consent to the adoption. A written repudiation and withdrawal of his previous written consent to the adoption was filed by the said minor John Henry McFarland. The record further shows that on June 7th, Howard Kellett, guardian, filed an application for change of venue in due form setting up the statutory grounds of undue influence of the attorneys for petitioners over the mind of the court and bias and prejudice of the court against said guardian and John Henry McFarland, minor. A similar application was filed by the so-called intervenors. Both applications were overruled and exceptions saved. The hearing was held June 7, 1928, and resulted in a decree granting the petition for adoption filed by the said Greens. From this decree H. C. Kellett, the guardian, and Silas Monger and Sarah E. Monger, grandparents and "intervening petitioners," have appealed.

But two questions are presented. The first point made is that the juvenile court of Howell county had no jurisdiction to hear the petition or render a decree of adoption. This contention is based on the proposition that the written consent of the parents or guardian is a prerequisite to jurisdiction and that since both parents of the minor are dead and the written consent of the guardian was not obtained, the juvenile court had no jurisdiction in the matter. Both sides agree that adoption was unknown to the common law. [Clarkson v. Hatton, 143 Mo. 47, 44 S.W. 761.] It is of purely statutory creation in this country, although known and recognized by the civil law. [Holloway v. Jones, 246 S.W. 587.] From an early day adoption by deed has been provided by law in this state. [Laws 1857, p. 59; Clarkson v. Hatton, 143 Mo. 47, 44 S.W. 761.] In 1917, the law providing for adoption by deed was repealed and since that date adoption may be by decree of the juvenile division of the circuit court. [Laws 1917, p. 193, art. 1, chapter 11, R. S. Mo. 1919.]

The act provides that any reputable 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 sought to be adopted resides. The adoption may be by husband and wife jointly. The law further provides that: "The court shall not decree the adoption, except as hereinafter provided, unless in cases where the child or person to be adopted is of the age of twelve years or over and consents in writing to the adoption; and in cases where the child or person to be adopted is under the age of twenty-one years, the parents or surviving parent and guardian of the child, if any, consent in writing, to the adoption; and the approval of the court shall be requisite in all cases, such approval being given or withheld as the welfare of the child or person sought to be adopted may, in the opinion of the court, demand. The consent of a parent of the child shall not be required if such person is insane, or is imprisoned under a sentence which will not expire until two years after the date of the filing of the petition; or if he or she has willfully abandoned the child or neglected to provide proper care and maintenance for the two years last preceding such date. (Italic ours.) [Sec. 1096, R. S. Mo. 1919.]

The law also stipulates that notice shall be given the parties under circumstances as follows: "If the written consent herein required is not filed in court, the court shall order notice, by personal service on the parties of the writ of summons and a copy of the petition, or if any such party cannot be found within this State, by a publication according to sections 1196 and 1203 of the Revised Statutes of Missouri of 1919. If, after such notice, a person whose consent is required does not appear, the court may act upon the petition without his consent and the judgment of the court shall be binding upon all persons so served: Provided, any such person shall have the right to appeal from such judgment, in the manner and form provided for appeals in the code of civil procedure." The statute further specifies that:

"If the court, after due hearing, is satisfied that the person or persons, petitioning to adopt such child is of good character, and of sufficient ability to properly care for maintain and educate said child, and that the welfare of said child would be promoted by sustaining the petition for adoption, and that it is fit and proper that such adoption should be made, a decree shall be made setting forth the facts and ordering that from the date of the decree the child shall, to all legal intents and purposes, be the child of the petitioner or petitioners, and the court may decree that the name of the child be...