Interest of G, In re, s. 8360

• Decision Date: 24 March 1965
• Docket Number: Nos. 8360,8379,s. 8360
• Citation: 389 S.W.2d 63
• Parties: In re INTEREST OF G_____. In re ADOPTION OF G_____.
• Court: Missouri Court of Appeals

Page 63

389 S.W.2d 63

In re INTEREST OF G_____ In re ADOPTION OF G_____.

Nos. 8360, 8379.

Springfield Court of Appeals, Missouri.

March 24, 1965.

Henry Warten, Joplin, for appellant.

George C. Baldridge, Joplin, for respondent.

PUARK, Presiding Judge.

This is a contest between the mother and the paternal grandmother concerning the custody and adoption of male child G_____, who it appears was six years of age at the time the proceedings were commenced. The child is one of four children. The mother with three of the children lived at A_____, Kansas, a small town about fifty miles from Joplin, Missouri. The grandmother had actual or physical custody of G_____ and lived in Joplin. On April 9, 1963, the mother wrote the grandmother and informed her that she was coming over to Joplin to get her child and to please have his clothes ready. The grandmother went to the Juvenile officer in Jasper County and such Juvenile officer, on April 11, 1963, instituted what was designated as Case No. 5050 by filing a petition in Juvenile Court. This petition asserted that the mother resided in A_____ and the father 'resided' in Jefferson City. It stated that the child is 'now in the custody of _____' (no name); that the child was abandoned by both mother and father in 1957, and that both parents signed relinquishment for the grandmother to adopt in 1957. On the same day (April 11, 1963), apparently without investigation, home study report, notice or hearing, an order was made making the child a temporary ward of the court and placing care and custody in the grandmother pending hearing. Both mother and grandmother employed attorneys, and arrangement was worked out by the attorneys whereby the child could visit his mother and sisters and brother pending hearing. On September 19, 1963, the mother filed a motion requesting the Juvenile Court to set aside its order of April 11 and to order custody in her, the natural mother. In support of such motion she alleged that when the child G_____ was born she and the father lived in Kansas City; that she, the mother, was compelled to work at the father's insistence and by necessities of the family; that when G_____ was a newborn infant the grandmother and the father presented to the mother a printed form, already signed by the father; and, in response to the urgings and insistence of the father and grandmother, the mother signed it; that when it was signed the grandmother assured the mother she would return the child whenever the father ceased his wanderings, reformed, and secured gainful employment; that thereafter the mother sought to have the infant reunited with the family but was prevented by the father and grandmother; that finally the mother separated from the father; that thereafter the father was convicted of the crime of burglary and was at the time of filing of the petition in the penitentiary; that shortly thereafter the mother came to Joplin to get her son G_____ so as to reunite him with the family but was prevented by the proceedings instigated by the paternal grandmother; that the petitioner mother had at all times opposed the adoption of her son by the grandmother; that the consent to adopt purportedly given by the written instrument was not willingly or understandably given and she repudiated the same.

On November 15, 1963, the paternal grandmother instituted what was docketed as Case No. 6279 by filing a petition for adoption of her grandson. The petition stated that the father and mother consented in writing to such adoption and that they abandoned the child when he was four days old. Accompanying such petition was a printed form of consent to adoption. None of the blanks in the printed form are filled in, but it is purportedly signed by the father and mother and acknowledged before a notary public. We will refer to this more fully hereafter. The mother filed answer contesting the adoption. On February 18, 1964, the two cases were consolidated and hearing was commenced. On April 22, 1964, after hearings, the court sustained the petition of the grandmother and decreed the adoption in Case No. 6279. On the same day the mother's petition for custody in Case No. 5050 was denied. The mother has appealed.

We first address ourselves to contentions of the appellant as to matters of record: One complaint is that the order placing custody in the paternal grandmother and the decree of adoption unto her were entered without investigation and report, since (it is contended) the decree of adoption was entered on April 22, 1964, whereas the written Home Study report filed by the Juvenile officer is dated April 24, 1964, and was not filed until April 28, 1964. As to this:

Adoption statutes are to be strictly construed against the deprivation of natural parents in regard to the parent and child relationship. ¹ Section 453.070, V.A.M.S. provides that no decree of adoption shall be entered, nor shall transfer of custody to the petitioner be ordered until a full investigation has been made and that the results of the investigation shall be embodied in a written report which shall be submitted to the court.

The requirement of such statute in respect to investigation and report is mandatory. See Sherrill v. Bigler, Mo.App., 276 S.W.2d 473. The object and purpose of such investigation and report is the protection of the child and the public by apprising the court of the circumstances prior to order or decree. A report presented after the decree of adoption has been entered obviously comes too late.

Other of appellant's complaints deal with the appointment of guardian ad litem. It is contended that (a) whereas the principal hearing and presentation of evidence was on February 18, 1964 (and apparently some further hearing was held on February 27, 1964), the record shows that the guardian ad litem was appointed on April 22, 1964, the day adoption was decreed; and (b) the guardian ad litem so appointed was the attorney who had actively represented the petitioner grandmother throughout the proceedings.

Section 453.020, V.A.M.S. (Amended Laws of 1959, RSMo 1959, p. 3957) provides that the court should, in all cases where the person sought to be adopted is under the age of twenty-one years, appoint a guardian ad litem. See State v. Schilb, Mo.App., 285 S.W. 748(4). Such guardian ad litem should be appointed in time to permit proper representation of the minor's interests. The general rule is that he should be appointed as soon as the minority becomes apparent. ² In an adoption case the minority should be apparent at the outset.

The appointment and service of a guardian ad litem is not a mere technical formality. The person so appointed is not a mere 'figurehead.' It is his duty to protect the interests of the child. He should not waive or give up anything which affects the interest of his ward. ³ In this case the decree recites that the court was well and fully advised in the premises and that 'the guardian ad litem now appointed by the court recommends this adoption be made.'

In an adoption proceeding both the child and the state are interested parties. 2 C.J.S. Adoption of Children Sec. 36, Note 59 PP.; see State ex rel. Earnest v. Meriwether, Mo., 270 S.W.2d 20, 22. And it is obvious that the appointment of an attorney representing a party who seeks to terminate the child's physical and legal relationship with the parents is improper. The person so appointed should be in a position to represent the best interests of the child and to fairly advise the court. If he has an are to grind in that he is employed to represent the petitioner for adoption, he should not be appointed. See Sargeant v. Rowsey, 89 Mo. 617, 1 S.W. 823, 824.

It is difficult, from this voluminous and rather confusing record, to ferret out and determine what and when things were done. The matters of the investigation and report, and of appointment of guardian ad litem, if found to be in accordance with appellant's contentions, would call for reversal of the court's judgments but would not necessarily terminate this legal tug-of-war between the mother and the paternal grandmother. It is for the best interest of the child that all questions be finally settled; therefore, we consider and rule upon the appellant's principal contention that all the evidence shows that the child-parent relationship should not be terminated by adoption to the grandmother, and that the best interests of the child require that he be placed in the custody of his mother. This necessitates a more complete examination of the facts.

Appellant mother, who is a junior college graduate, and the child's father were married (March 1954) in Nebraska, where their first child was born. Within the next three and one-half years they had moved to Joplin, Missouri, then to Berkeley, California, where a second child was born, then to Napa, California, back to Joplin again, and then to Kansas City, where the infant G_____ was born on November 13, 1957. After that they moved to Galena, Kansas (which is adjacent to Joplin), and there they lived when the fourth child was born. The family lived a rather pillar-to-post existence. This, it is evident, was due greatly to the irresponsibility and the inability, or lack of inclination, on the part of the father to hold a job. He had a 'drinking problem.' He had frequent 'brushes with the law.' There is mention of repeated lost jobs, of leaving one place of residence because of a 'check.' There were frequent occasions during which the father would be gone from home for varying periods of time. The mother was required to work, even during pregnancies, in order to provide a living for the family. Finally, while they lived in Galena, there was a permanent separation, and after the mother was laid off work at the garment factory, she, with the three children then in her custody, moved to A_____, which is in the vicinity of where her parents live. Her parents are farmers of excellent repute. They help the mother and...