In Re Whetstone, in Re

• Decision Date: 09 May 1939
• Citation: 188 So. 576,137 Fla. 712
• Parties: In re WHETSTONE.
• Court: Florida Supreme Court

188 So. 576

137 Fla. 712

In re WHETSTONE.

Florida Supreme Court, Division B.

May 9, 1939

Rehearing Denied May 18, 1939.

Original proceeding by Mattie Whetstone for a writ of habeas corpus or, in the alternative, for writ of certiorari testing the question as to who was entitled to the custody of Mary Elizabeth Whetstone, a minor. A writ of habeas corpus was issued by the Supreme Court, and J. A. Whetstone and Josephine M. Whetstone filed a return thereto. On motion for judgment notwithstanding the return.

Mary Elizabeth Whetstone, a minor, remanded to the custody of the petitioner.

COUNSEL

Edgar W. Waybright, Sr., and Roger J. Waybright both of Jacksonville, for petitioner.

T Rogero Mickler, Bertram Mickler, and Mickler & Mickler, all of St. Augustine, for respondents.

OPINION

PER CURIAM.

Mattie Whetstone filed a petition in this Court for writ of habeas corpus or in the alternative for writ of certiorari testing the question as to who is entitled to the custody of a minor child. A writ of habeas corpus was issued by this Court, and J. A. Whetstone and Josephine M. Whetstone filed a return thereto. The cause is now before the Court on a motion for judgment notwithstanding the return.

The child, Mary Elizabeth Whetstone, was born to Miss Mattie Whetstone out of wedlock on June 17, 1931. On July 10, 1931, a petition was filed in the Juvenile Court of Duval County, Florida, by a probation officer alleging that Mary Elizabeth Whetstone was abandoned and dependent upon the public for support. On July 13, 1931, an order committing the child to the care and custody of the Children's Home Society of Florida was entered by the judge of the Juvenile Court. After three months the child was returned to its mother, and on August 10, 1934, an order was entered by the judge of the Juvenile Court vacating its order of July 13 1931, and committing the child to its mother.

In August, 1936, petitioner, Mattie Whetstone, and the child visited petitioner's brother J. A. Whetstone in St Augustine, Florida, and while visiting there a son of her brother, being about the same age as Mary Elizabeth, became very attached to her. The child was left with J. A. Whetstone for eighteen months, then petitioner contends that she insisted upon having her child with her. Respondents, in their return, allege that the child remained with them upon the distinct understanding with petitioner that she was to stay in respondents' custody indefinitely and until she had reached maturity and received a proper education.

On November 8, 1937, a petition was filed in the Juvenile Court of Duval County, Florida, by a probation officer alleging that the child was dependent upon the public for support and that the mother was unfit and improper to have the care, custody and guardianship of said child.

On the same day the judge of the Juvenile Court committed the custody of the child to Mrs. Joe Whetstone, but on the following day the order was changed and the child was committed to the custody of the parents of petitioner. However, again on November 11, 1937, the judge of the Juvenile Court committed the child to Mr. and Mrs. Joe Whetstone pending investigation, report and recommendation of the Children's Home Society. Then on November 22, 1937, pursuant to the report and recommendation of the Children's Home Society of Florida, the child was committed to Mr. and Mrs. Whetstone under the supervision of the Children's Home Society. Finally on March 11, 1938, the judge of the Juvenile Court entered a further order committing the child to the care and custody of Mr. and Mrs. Joe Whetstone, Mattie Whetstone filed a petition for rehearing and modification of the order of March 11, 1938, which was denied by the court.

Respondents, Mr. and Mrs. Joe Whetstone, then went to North Carolina for their summer vacation. Before leaving they made arrangements with their counsel to proceed with the action for the adoption of the child and directed their counsel to give published notice of such intention. Notice was accordingly given that the respondents intended to apply on July 7, 1938, for an Order of the Circuit Court in and for St. Johns County, Florida, authorizing the adoption of the child. The petition of respondents was presented to the judge on July 7, 1938, a Guardian Ad Litem was appointed and filed a written answer stating that he believed it for the best interest of said minor that an order authorizing said adoption be granted. Respondents, as the persons to whom said minor had been committed as aforesaid, also filed their written consent to the adoption, and the circuit judge on July 8, 1938, entered his order ratifying and confirming the adoption of the child by respondents.

On May 30, 1938, petitioner herein had caused a writ of habeas corpus to be issued to determine the custody of said child by the Circuit Court of Duval County, Florida, but was unable to obtain service upon Mr. and Mrs. Joe Whetstone.

Petitioner contends that the order of the Circuit Judge authorizing the adoption of the child is void because it was entered without petitioner's knowledge or consent and without giving her any notice of the action or an apportunity to be heard.

The law is well settled that the mother of an illegitimate child has all the parental rights of other parents, and hence is entitled to notice of proceedings to adopt her child. Purinton v. Jamrock, 195 Mass. 187, 80 N.E. 802, 18 L.R.A.,N.S., 926; 1 Am.Jur., Adoption of Children, Sec. 37, p. 639, 640; Annotations: 30 L.R.A.,N.S., 152, 24 A.L.R. 428, Ann.Cas.1914A, 224; 2 C.J.S., Adoption of Children, § 21c, p. 387.

Unless the mother forfeited her rights in relation to her child by some misconduct, it is generally held that she is entitled to notice of proceedings to adopt it, and, in the absence of such notice, the proceedings are invalid as against the natural parent. Annotations: 24 A.L.R. 416, 76 A.L.R. 1078; 1 Am.Jur., Adoption of Children, § 40, p. 642; Id., § 44, p. 644; 2 C.J.S., Adoption of Children, § 38b, p. 421.

Section 5077, Compiled General Laws of 1927, provides that any person desiring to make application for the adoption of children shall give four weeks' notice of the intention to apply in a newspaper published in the county of residence of such person. This is the only provision contained in the statutes relating to notice of adoption proceedings.

It has been held that if adoption statutes do not provide for notice to the natural parents of the child to be adopted, but do provide for proceedings in courts of record, it must be presumed that the legislature intended that such proceedings would be in accordance with the usual practice of such courts. Magevney v. Karsch, 167 Tenn. 32, 65 S.W.2d 562, 92 A.L.R. 343; In re Knott, 138 Tenn. 349, 197 S.W. 1097. It could not be thought that the legislature intended that a child should be taken from the custody of either one of its natural parents, unless it was with their consent or made to plainly appear that it was to the interest of the child that it be done. This could not be legally adjudged unless the parents should have notice of the...