Johnston v. Chapman

• Court: Texas Civil Court of Appeals
• Writing for the Court: NORTHCUTT; PITTS
• Citation: Johnston v. Chapman, 279 S.W.2d 597 (Tex. Ct. App. 1955)
• Decision Date: 09 May 1955
• Docket Number: No. 6497,6497
• Parties: Mildred Mae JOHNSTON et vir, Relators, v. Alton B. CHAPMAN et al., Respondents.

Page 597

279 S.W.2d 597

Mildred Mae JOHNSTON et vir, Relators, v. Alton B. CHAPMAN et al., Respondents.

No. 6497.

Court of Civil Appeals of Texas, Amarillo.

May 9, 1955.

Rehearing Denied June 13, 1955.

A. W. Salyars, Edwin H. Boedeker, Lubbock, for relators.

Ratliff, Conner & Walker, Spur, for respondents.

NORTHCUTT, Justice.

This opinion, concurred in by two members of this Court, becomes the majority opinion of the Court. This matter is before the Court upon petition for a writ of mandamus to require the trial judge to reinstate the jury verdict in the original hearing and to render judgment for relators setting aside an adoption decree entered in Cause No. 2096 of said trial court on September 15, 1949. The relator, Mildred Mae Johnston, was formerly married to Newton Bingham, the son of T. A. Bingham and Rachel Bingham. To the marriage of Newton Bingham and Mildred Mae Bingham was born a son by the name of Joe Wallace Bingham. Newton Bingham and Mildred Mae Bingham were divorced after Joe Wallace Bingham was born. Since such divorce Mildred Mae Bingham has married Eugene Johnston.

T. A. Bingham and Rachel Bingham, grand-parents of Joe Wallace Bingham, obtained a judgment of adoption as to Joe Wallace on September 15, 1949. Since the rendition of such judgment, both T. A. Bingham and Newton Bingham have died and this suit was brought against Rachel Bingham to set aside such judgment of adoption.

It is undisputed that in the adoption proceedings Newton Bingham gave his written consent for such adoption but that the mother, Mildred Mae Bingham, never at any time gave her written consent for such adoption nor was she given any notice of such adoption proceedings and neither was there any showing of proceedings declaring the child dependent and neglected. Such adoption was granted solely upon that portion of Section 6 of Article 46a of Vernon's Texas Civil Statutes which is as follows:

'Sec. 6. Except as otherwise amended in this Section, no adoption shall be permitted except with the written consent of the living parents of a child; provided, however, that if a living parent or parents shall voluntarily abandon and desert a child sought to be adopted, for a period of two (2) years, and shall have left such child to the care, custody, control and management of other persons, and such parent or parents so abandoning and deserting such child shall not have contributed to the support of such child during such period of two (2) years, then in such event it shall not be necessary to obtain the written consent of the living parent or parents in such default, and in such cases adoption shall be permitted on the written consent of the Judge of the Juvenile Court of the county of such child's residence, or if there be no Juvenile Court, then on the written consent of the Judge of the County Court of the county of such child's residence.'

Upon a hearing in the trial court to set aside such adoption decree rendered September 15, 1949, the case was submitted to the jury upon the following four special issues:

'Issue No. 1: Do you find from preponderance of the evidence that Plaintiff Mildred Mae Johnston, then Mildred Mae Bingham, did not voluntarily abandon and desert her child, Joe Wallace Bingham, for a period of two years immediately prior to September 15, 1949?

'Issue No. 2: Do you find from preponderance of the evidence that Plaintiff Mildred Mae Johnston, then Mildred Mae Bingham, did not voluntarily leave her child, Joe Wallace Bingham, to the care, custody, control and management of Rachel Bingham, or other persons for a period of two years immediately prior to September 15, 1949?

'Issue No. 3: Do you find from preponderance of the evidence that Plaintiff Mildred Mae Johnston, then Mildred Mae Bingham did not fail to contribute to the support of her child, Joe Wallace Bingham, for a period of two years immediately prior to September 15, 1949?

'Issue No. 4: Do you find from preponderance of the evidence that Plaintiff Mildred Mae Johnston, then Mildred Mae Bingham, learned of the adoption of her child, Joe Wallace Bingham, by Rachel Bingham and Al Bingham, more than four years prior to May 20th, 1954?'

The jury did not answer Special Issues 1, 2 and 4 but did answer Special Issue No. 3 as follows:

'Plaintiff Mildred Mae Johnston, then Mildred Mae Bingham, did not fail to contribute to the support of her child, Joe Wallace Bingham, for a period of two years immediately prior to September 15th, 1949.'

Upon this answer of the jury to Special Issue No. 3, the relators requested a judgment setting aside such adoption decree but the trial court refused such request and declared a mistrial and continued the case for another trial of the cause on its merits.

It is the contention of relators that since the jury found that the mother of Joe Wallace Bingham had not failed to contribute to the support of her child, Joe Wallace Bingham, for a period of two years immediately prior to September 15, 1949, the date of the adoption, that such adoption was void because said mother had not given her consent to the adoption and the requirements of Section 6 of Article 46a, supra, had not been complied with.

Respondents contend that the relators wholly failed to discharge their burden to show that they had an absolute right to a judgment under all applicable law and that they failed to negative defensive issues.

Since there is no question about the mother not giving her consent to the adoption and the adoption being granted solely upon the theory that Mildred Mae Bingham Johnston had voluntarily abandoned and deserted Joe Wallace Bingham for a period of two years, and had left such child to the care, custody, control and management of other persons and had not contributed to the support of such child during such period of two years, it was necessary that all three of these requirements provided by statute be established before such application for adoption could be properly granted. The above provisions of the statute were in effect at the time of the adoption.

There was also a contention by the respondents that the relators were barred by the four year statute of limitations. The special issue as to limitation inquiring whether the relators learned of such adoption was not answered by the jury. We are of the opinion, and so hold, that this statute of limitations does not apply.

The Supreme Court in the case of DeWitt b. Brooks, 143 Tex. 122, 182 S.W.2d 687 at pages 690-691 stated:

'(4) It is generally held that a statute authorizing such summary proceedings without notice to the parents is constitutional, and that a decree entered in accordance therewith is valid subject only to the right of the parents or guardian who were without notice thereof to a full hearing in a subsequent proceeding on the issue as to whether the child was, in fact, a dependent and neglected child. 39 Am. Jur., p. 604, § 17; 31 Am. Jur., p. 802, § 35; Jensen v. Hinckley, 55 Utah 306, 185 P. 716; People ex rel. Riesner v. New York Nursery & Child's Hospital, 230 N.Y. 119, 129 N.E. 341; In re Sharp, 15 Idaho 120, 96 P. 563, 18 L.R.A.,N.S., 886; Farnham v. Pierce, 141 Mass. 203, 6 N.E. 830, 55 Am.Rep. 452. This question was discussed in the case of Allen v. Williams, 31 Idaho 309, 171 P. 493, 494. That case involved a delinquency proceeding, and not a dependency proceeding, but the rule in this respect is the same. * * *

'(5) But where the parents are without notice of the proceedings, they must be allowed a full hearing in a subsequent proceeding on the issue of whether sufficient facts existed as to authorize the entry of the judgment of dependency. Ex parte Clarke, 82 Neb. 625, 118 N.W. 472, 20 L.R.A.,N.S., 171; Schiltz v. Roenitz, 86 Wis. 31, 56 N.W. 194, 21 L.R.A. 483, 39 Am.St.Rep. 873; Child Saving Institute v. Knobel, 327 Mo. 609, 37 S.W.2D 920, 76 A.L.R. 1068.

'(7) Parents may voluntarily relinquish their right to the custody of their child either by agreement or by abandonment or by such other neglect or mistreatment as will authorize the intervention of the State for the best protection of the child, and when they do so, the State has the lawful right to award the custody of such child to others. While a parent who had no notice of the proceedings in which a child was adjudged to be a dependent child is not cut off from his right to show in a subsequent hearing that he had not allowed his child to become a dependent child, yet, if upon such subsequent hearing it appears that he had, in fact, allowed his child to become a dependent child, then the judgment declaring the child to be a dependent child and awarding its custody to some one else becomes binding upon him.'

To the same effect is the case of Pettit v. Engelking, Tex.Civ.App., 260 S.W.2d 613 at page 616 where it is stated 'However, parental custodial rights come within the protection of the due process clauses of the federal and state constitutions. Fourteenth Amendment to the Constitution of the United States, Article 1, § 19, of the Constitution of Texas, Vernon's Ann.St. Consequently, the Supreme Court has held that 'where the parents are without notice of the proceedings, they must be allowed a full hearing in a subsequent proceeding on the issue of whether sufficient facts existed as to authorize the entry of the judgment of dependency.' DeWitt v. Brooks, 143 Tex. 122, 182 S.W.2d 687, 691. In cases of this kind the question of the fairness of the hearing is always present and has been jealously guarded by the courts.'

See also Strode v. Silverman, Tex.Civ.App., 209 S.W.2d 415.

See also the case of Williams v. Liles, Tex.Civ.App., 245 S.W.2d 551, 552, where it is stated:

'(1) Under Article 46a, Sec. 6, R.C.S., Vernon's Ann.Civ.St. art. 46a, § 6 it is provided, with certain exceptions, which are not applicable to the instant case, that 'no adoption shall be permitted except with the written consent of the living parents of the child'. Where the statutory exceptions...