Jones, In re, 77-401-A
| Decision Date | 29 February 1980 |
| Docket Number | No. 77-401-A,77-401-A |
| Citation | 411 A.2d 910,122 R.I. 716 |
| Parties | In re Karen Mary JONES. ppeal. |
| Court | Rhode Island Supreme Court |
This is an appeal from an order of the Superior Court affirming the denial by a Central Falls Probate Court of an adoption petition in which a 30-year-old married man, Duncan Clinton Fraser (Duncan), seeks to adopt his 20-year-old "lover," Karen Mary Jones (Karen). In affirming the denial, the trial justice noted that Duncan was "probably" the father of Karen's child. Duncan is married to another woman and is the father of the two children born of that marriage. At oral argument we were informed that Karen is now married to someone other than Duncan. However, notwithstanding her present marital status, Karen continues to press her appeal, claiming that the trial justice's affirmance of the Probate Court's denial was totally erroneous.
Karen's first claim of error relates to the lover's claim that there was no evidentiary support for the Superior Court justice's finding that she and Duncan were "lovers." An easy answer to this contention is to be found in the trial justice's written decision, in which he noted "Although no evidence was taken in the case in Superior Court, it is conceded by the attorney for the appellants, who did not desire to present evidence, that the relationship of lovers existed between the proposed parties to this adoption."
This concession amounts to a judicial admission, which certainly takes the place of evidence. Socony-Vacuum Oil Co. v. French, 88 R.I. 6, 15-16, 143 A.2d 318, 323 (1958).
Karen's remaining contention, while novel, is not very persuasive. She takes the position that a justice who presides at an adult adoption proceeding has no discretion whatsoever but must grant the petition as a matter of course. In espousing this claim, Karen points to two provisions of G.L.1956 (1969 Reenactment) chapter 7 of title 15, to wit, §§ 15-7-4(D) and 15-7-5, both amended by P.L.1970, ch. 132, § 1.
The first proviso vests jurisdiction to hear petitions for the adoption of a adult in the Probate Court of the city or town in which the petitioners may live. Section 15-7-5 speaks of the necessity of obtaining the consent of the natural parents to an adoption but specifically excludes the necessity of that consent where the potential adoptee has attained the age of majority. Thus, Karen claims that the Probate Court was foreclosed from considering in any manner, shape, or fashion her past adulterous association with Duncan and its potentially incestuous impact.
In speaking of judicial discretion, many years ago this court remarked:
Strzebinska v. Jary, 58 R.I. 496, 500, 193 A. 747, 748-49 (1937).
In our opinion, a probate...
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