Kugle v. Harpe

• Decision Date: 20 May 1937
• Docket Number: 4 Div. 954
• Citation: 176 So. 617,234 Ala. 494
• Parties: KUGLE et al. v. HARPE.
• Court: Alabama Supreme Court

176 So. 617

234 Ala. 494

KUGLE et al. v. HARPE.

4 Div. 954

Supreme Court of Alabama

May 20, 1937

Rehearing Denied June 28, 1937

Certiorari to Court of Appeals.

Petition of Charle F. Kugle and Sophia Kugle for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in the case of Kugle et al v. Erma Harpe, 176 So. 616.

Writ granted.

Chauncey Sparks, of Eufaula, for petitioners.

Clayton Clayton & Clayton, of Eufaula, opposed.

BOULDIN Justice.

The proceeding was begun by petition to the judge of probate of Barbour county for writ of habeas corpus, to obtain the custody of a child, Annie Nell Taylor, a little girl of five years of age. On the hearing of the petition, said judge held neither the petitioners, Mr. and Mrs. Kugle, nor respondent Mrs. Erma Harpe, the mother of the child, qualified as suitable custodian, for the proper maintenance, rearing, and education of the child, dismissed the petition and ordered the child put into the custody of the Child Welfare Department of Alabama.

In reviewing this ruling, the Court of Appeals said: "The matter being properly, certainly at the instigation of appellants, before the probate court, the duty devolved upon that court to act 'according to the best interests' of the child. And this regardless of the efficacy, vel non of the claimed adoption of the child by appellants under the laws of Georgia. Whatever the status of this 'adoption,' it could place appellants in no stronger position than would it have been had they been the child's natural parents. And, in this latter event, it would still have been the duty of the court to mold his order to fit the 'Welfare of the Child.' Bradley et al. v. Bennett, 168 Ala. 240, 53 So. 262; Kirkbride v. Harvey, 139 Ala. 231, 35 So. 848."

Not dealing with any question of the jurisdiction of the judge of probate, as such, on habeas corpus, to exercise the powers conferred on probate courts in their capacity as juvenile courts under Gen.Acts 1931, pp. 353, 356-359, §§ 3 and 4, we are impressed the adoption proceedings in the state of Georgia are not to be disposed of in this summary manner. Without question, the controlling inquiry in awarding the custody of a child is the welfare of the child.

But a grave question arises under the petition and exhibits, part of the record before the Court of Appeals, whether the rightful jurisdiction of this issue was in a court of competent jurisdiction in the state of Georgia.

The petition discloses that several months before this proceeding was begun, Mrs. Harpe, the widowed mother of three children being unable to support them, through the assistance of a pastor in Americus, Ga., found a home for the two older boys in an orphans' home at Macon, Ga., and this little girl was placed in the home of petitioners in the state of Georgia, where she remained until July 8, 1936. On July 1, 1936, petitioners instituted in the superior court of Sumter county, Ga., proceedings for the adoption of the child, under the laws of the state of Georgia. Mrs. Harpe, who meantime had come to Alabama, acknowledged notice of these proceedings in writing, and gave her written consent to such adoption. Pending a hearing, Mrs. Harpe, accompanied by an aunt of the child, on the father's side, and a son of this aunt, came to the home of petitioners in Georgia, and under a ruse, took the child out to the automobile to see an uncle, hastily put the child in the car and drove back into Alabama. A few days later, and on the day set for hearing, the superior court entered an order as follows: "Upon consideration of the petition of Charles F. and Mrs. Sophia Kugle, for the adoption of Annie Nell Taylor as their child; and it being made to appear, that Mrs. Erma Harpe, the mother of said minor child, did on July 1, 1936, in writing agree and consent, that said Annie Nell Taylor should be adopted by the said petitioners as their child, as is provided by law; and it further appearing, that said petitioners are suitable persons to have the care, maintenance and support of said minor child; it is ordered, considered and adjudged by the Court, that the prayers of said petitioners be, and the same are hereby granted; and that the said Annie Nell Taylor be, and she is hereby legally adopted as the child of said petitioners; and that henceforth her name shall be "Annie Nell Kugle;" that said minor shall, by virtue of this proceeding and of this order, occupy the relation with said petitioners of child and parents; and to receive, by virtue of such relations, all of the rights she would have and share, were she a natural child...