In re Pratt

• Decision Date: 23 March 1945
• Docket Number: No. 33918.,33918.
• Citation: In re Pratt, 219 Minn. 414, 18 N.W.2d 147 (Minn. 1945)
• Parties: In re PRATT. GALE v. LEE et al.
• Court: Minnesota Supreme Court

18 N.W.2d 147

219 Minn. 414

In re PRATT GALE v. LEE et al.

No. 33918.

Supreme Court of Minnesota.

March 23, 1945.

Appeal from District Court, Otter Tail County; D. M. Cameron, Judge.

Proceeding in the matter of the adoption of Martha Ann Pratt, also known as Martha Ann Gale, a minor. From an order denying motions by James Rubert Gale, the minor's stepfather, to vacate a judgment for her adoption by Norman H. Lee and wife, and to obtain an order directing the adoptive parents to deliver possession of the child to the stepfather, he appeals.

Affirmed.

Leonard Eriksson and Field & Field, all of Fergus Falls, for appellant.

Philip R. Monson, of Fergus Falls, for respondents.

PETERSON, Justice.

This is an appeal from an order denying a motion by the stepfather of Martha Ann Pratt, also known as Martha Ann Gale, to vacate a judgment for her adoption by Norman H. Lee and his wife, Rose C. Lee.

Although appellant has resided and worked in Minnesota since 1941, his domicile is in Tennessee. The respondents are domiciled residents of Fergus Falls, Otter Tail county, Minnesota.

The adopted child is a little girl, who at the time of the rendition of the judgment was a little less than five years old. She was born out of wedlock on March 17, 1939, in Shelbyville, Bedford county, Tennessee, where her mother, Ella Mae Pratt, was a domiciled resident. On March 15, 1941, appellant married the child's mother. They maintained their home in Shelbyville, where the child lived with them. The mother died in August 1941, when the child was two years and five months old. Appellant promised the mother on her deathbed that he would provide and care for the child and rear her as his own. No guardian for her had been appointed in Tennessee.

That appellant endeavored to keep the deathbed promise to his wife to care and provide for the child is clear. Within two months after his wife's death he set out in search of work as a farm laborer, taking the child with him. They passed through the states of Indiana and Illinois, where appellant worked for a short time. Then they made their way to the home of appellant's brother, Rolla Gale, in Fergus Falls, where they arrived about October 15, 1941. That the child had been neglected en route is also clear. She was unkempt, dirty, and infested with lice. Being unable to provide the child with a home, appellant placed her with his brother and his wife, who took care of her in their home, except for some short periods which she spent with others, until the judgment of adoption was rendered about two years later. During this two-year period, the child spent about two months with appellant on a farm nearby where he worked, about three months with the adoptive parents, and about one month with appellant's sister, Erma D. Jones, and her husband. During all this time appellant was employed in or near Fergus Falls but did not maintain a home of his own. Appellant's brother and his wife lived next door but one to the adoptive parents. Besides staying with the Lees for the three-month period mentioned, the adopted child visited them almost daily while she stayed with appellant's brother and his wife. Respondents came to love the child and wished to adopt her. Appellant's sister, Erma D. Jones, spoke to him several times prior to the institution of the adoption proceedings concerning respondents' desire to adopt the child.

At the time the adoption proceedings were instituted, Mr. Lee was employed in connection with defense work at Hastings, Nebraska, where he and his wife took up a temporary residence. They returned to Fergus Falls temporarily to adopt the child. Their attorney evidently had prepared all the papers relative to the guardianship and the adoption proceedings, to be presently mentioned, so as to be able to complete both proceedings on the same day. Appellant was then working at the state hospital at Fergus Falls. On December 30, 1943, Mr. Lee and appellant's brother, Rolla, called for him at the hospital and told him that he was wanted at court, and thereupon the three of them went to the courthouse. First, they went to the probate court, where appellant's sister, Erma D. Jones, upon her own petition, was appointed guardian of the person and property of the child. Apparently it was stated to the probate judge that her appointment as guardian was satisfactory to everybody concerned. While the petition for the appointment of the guardian has not been returned to us, the order recites that the child was a "resident" of Fergus Falls in Otter Tail county, Minnesota. Appellant signed as a witness to the sureties on the guardian's bond.

After the guardianship proceedings had been completed, the persons mentioned went to the district courtroom, where a petition by Mr. and Mrs. Lee for the adoption of the child was presented to the district court of Otter Tail county. The guardian executed a written consent to the adoption, which was filed with the petition. Thereupon the district court proceeded with the hearing. It waived an investigation by the director of social welfare and the six-months period of residence of the child with the adoptive parents in their home as required by statute, upon the ground that such investigation was not necessary under the circumstances of the case. In the district court, appellant testified in substance that, because he did not have a home of his own in which to keep the child, he could not object to the adoption; and, that while he would prefer if able to do so, to keep the child himself, the home of the adoptive parents was a good one. The fitness of the adoptive parents and their home is unquestioned. There can be no doubt that appellant has a deep and sincere affection for the child, but, notwithstanding that fact, is an unfit person to have her custody, and that there is little hope, if any, for any improvement in his situation. On January 3, 1944, the district court rendered judgment that the child be the adopted child of Norman H. and Rose C. Lee and that her name be changed to Martha Ann Lee.

Thereafter, and within the time to appeal, appellant moved the probate court to vacate the order appointing the guardian and the letters of guardianship. The motion was granted. An appeal to the district court, which remains undecided, has been taken from that order.

While the motion was pending in the probate court, appellant also made a motion in the district court within the time to appeal to vacate the judgment of adoption, but this motion was dismissed before hearing. Immediately thereafter, on March 6, 1944, the county court of Bedford county, Tennessee, granted appellant's petition for the adoption of the child and decreed that the child be the adopted child of appellant and that her name be changed to Martha Ann Gale. After appellant had procured the Tennessee decree of adoption and after the probate court had vacated the order appointing the guardian and the letters of guardianship, he made another motion to vacate the Minnesota judgment of adoption. At the same time, appellant moved the court for an order directing and adjudging that the adoptive parents forthwith surrender and deliver the possession of the child to appellant. The appeal is from the order denying the motions.

In this court, as he did below, appellant contends that (1) The judgment of adoption is void because the adoption proceedings upon their face show that the basic prerequisites for an adoption under Minn. St.1941, §§ 259.01 to 259.05, Mason St.1927, §§ 8624 to 8627 and 8628, as amended by L.1941, c. 151, are lacking in that no notice of the adoption proceedings was given to the director of social welfare; there was no investigation and report by that official; the adopted child had not resided in the home of the adoptive parents for a period of six months prior to the hearing; and there was no consent by any person or agency authorized to give it; (2) the consent to the adoption given by the child's guardian was without any legal effect because subsequently the order appointing the guardian and the letters of guardianship were vacated and annulled; (3) the trial court failed to give recognition to the Tennessee decree of adoption, where it is claimed the adopted child had her domicile when both the Tennessee decree and the Minnesota judgment were rendered; and (4) appellant has been denied his "day in court."

1. It is true that no notice of the adoption proceedings was given to the director of social welfare; that there was no investigation report by that official; and that the adopted child had not resided in the home of the adoptive parents for a period of six months prior to the hearing, as required by § 259.02 (§ 8625); but the statute, in the following language, explicitly provides that the trial court may waive these requirements: "Such investigation and period of residence may be waived by the court upon good cause shown, when satisfied that the proposed home and the child are suited to each other." The court found that the proposed home and the child were suited to each other. The evidence amply sustains the court's finding.

2. Section 259.03 (§ 8626) provides in effect that no adoption of a minor shall be permitted without the consent of the parents, but that such consent may be dispensed with and "consent may be given by the guardian, if there be one." Here, it appears that there was in fact both a guardian and a consent to the adoption given by the guardian. The order appointing the guardian recited that the child was a "resident" of the county and was in all respects regular and valid upon its face. The guardian gave the consent, and all concerned relied thereon in good faith. Appellant's argument in effect is that both the appointment of the guardian and the consent given were without legal effect, because subsequently both were vacated and annulled and hence that there was no consent at all. If the consent was valid, it satisfied the requirements of the...