Lutheran Social Service, Inc. v. Meyers, B--2282

• Decision Date: 25 November 1970
• Docket Number: No. B--2282,B--2282
• Citation: 460 S.W.2d 887
• Parties: LUTHERAN SOCIAL SERVICE, INC., Relator, v. James R. MEYERS, Judge et al., Respondents.
• Court: Texas Supreme Court

Page 887

460 S.W.2d 887

LUTHERAN SOCIAL SERVICE, INC., Relator, v. James R. MEYERS, Judge et al., Respondents.

No. B--2282.

Supreme Court of Texas.

Nov. 25, 1970.

Rehearing Denied Dec. 31, 1970.

Coffee, Ritter & Goldston, Donald N. Goldston, Austin, for relator.

Byrd, Davis, Eisenberg & Clark, Tom H. Davis and Bob Roberts, Austin, for respondents.

Crawford Martin, Atty. Gen., Jack Sparks, Asst. Atty. Gen., Austin, for intervenor.

SMITH, Justice.

This is an original proceeding in mandamus. The question for decision is whether a district court has the power to order a duly licensed child-placement agency to deliver citation to the persons with whom they have placed a child for adoption, under Rule 106, Texas Rules of Civil Procedure.

A brief statement of the unusual circumstances surrounding this case is necessary; out of regard for the individuals involved we shall not use their true names. In February, 1970, a minor girl gave birth in this state to a child out of wedlock; two days later the mother executed a consent form in which she expressed her belief that it was in the child's best interests that it be released to Lutheran Social Service, Inc., for the purpose of adoption. This was a regular consent, in accordance with the statute, Article 46a, Section 6(d), Vernon's Annotated Civil Statutes, and is not challenged in this proceeding. Shortly thereafter the Agency placed the child in the home of prospective adoptive parents, where the child (hereinafter referred to as 'Jane Doe') still resides.

If events had run their usual course, Jane Doe would have resided in the home of her prospective adoptive parents for six months, and then the adoptive parents would have filed an adoption petition which would in all probability have been granted. Events, however, took a tragic turn. In April, 1970, Jane Doe's natural mother, along with the mother's parents, were all killed in a common disaster. Jane Doe's grandparents were apparently persons of means, and are said to have left an estate. Jane Doe, even though illegitimate and even if she is adopted by other parties is the presumptive heir of this estate.

In June, 1970, the lawsuit giving rise to this original proceeding was filed by John Doe and his wife. John Doe is Jane Doe's great-uncle; that is, he is the brother of the father of Jane Doe's natural mother. John Doe is the executor named in his brother's will and, in another proceeding, has filed a will construction petition; but this proceeding was for the adoption of Jane Doe. The petition for the adoption of Jane Doe was filed on June 29, 1970, in the 98th District Court of Travis County. In response to certain motions and requests in the petition, the District Judge signed an order, on June 29, 1970. The order states that the Court is of the opinion that the Does' motion for a temporary restraining order and hearing thereon should be granted, and orders that the relator and 'that person or persons having the possession, custody or control over Jane Doe be duly cited to appear' on a stated date, 'to show cause why temporary restraining order and injunction should not issue temporarily restraining and enjoining Lutheran Social Services, Inc., and/or any other person from adopting, causing to be adopted or instituting or prosecuting any proceeding for adoption of the same Jane Doe until further hearing and order of this Court.' The order also directed that 'service of citation upon said person or persons having the possession, custody or control of Jane Doe is allowed and ordered by serving Lutheran Social Services, Inc., by serving Mr. Rolf Norman, its Executive Director, in Austin, Texas, with instructions and a further order by this Court that Mr. Norman forward immediately to said person or persons having the possession, custody or control of Jane Doe the copy of citation and petition served upon him under Rule 106, Texas Rules of Civil Procedure.' The Sheriff's return shows that the citation was served on June 29, 1970, as directed.

On June 30, 1970, Relator filed a motion to dissolve the order discussed above, and a motion for continuance of the hearing on the temporary injunction and restraining order. The District Court held a hearing on Relator's motion on July 1, 1970, at which time the parties stipulated to certain facts not relevant at this point.

As a consequence of the hearing on July 1, 1970, the District Judge determined that Relator's motion for a continuance should be granted, but that his motion to dissolve the order of June 29 should be denied. The Judge drafted another order, reiterating the terms of the order of June 29, outlined above, but refrained from signing the later order so that Relator might test its validity in this Court. To accomplish that purpose Relator has filed in this Court a 'Petition for Writ of Prohibition and/or Mandamus.' The Prayer of that Petition requests that this Court:

'issue its Writ of Prohibition or its Writ of Mandamus directing the District Judge not to sign and enter any Order in Cause No. 181,580 in the District Court which will have the effect of requiring the Agency or any one employed by the Agency to forward any copy of the Citation issued out of such cause or the Petition therein filed by (Mr. and Mrs. John Doe) to the person or persons with whom the Agency has placed such child for adoption or which will have the effect of notifying any such person or persons of the pendency of such proceeding in the District Court, that this Honorable Court will also issue its Writ of Mandamus or its Writ of Prohibition directing the District Judge to dissolve his Order of June 29, 1970, requiring the Executive Director of the Agency to forward immediately to the person or persons having the possession, custody or control of such child the copy of Citation and Petition served upon him under Rule 106, T.R.C.P. * * *.'

Relator's burden is a heavy one. If the District Judge's order is one within his discretionary powers, the relator must show that it is a 'clear abuse of discretion.' Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434 (1959); see also Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648 (1948). We hold that the relator has not satisfied that test. The agency argues, in essence, that after it acquired the consent from Jane Doe's mother, the agency stood in loco parentis, and the District Judge was powerless to interfere with the placement process by ordering notification to the prospective adoptive parents. The agency primarily relies upon Catholic Charities of the Diocese of Galveston, Inc., v. Harper, 161 Tex. 21, 337 S.W.2d 111 (1960), in which we held that:

'where the parents have surrendered their child to the custody of an agency licensed by the State Department of Public Welfare to place children for adoption and have given their written consent that such agency may place the child for adoption, that consent is subject to revocation only by proof of fraud, misrepresentation, overreaching and the like.' 337 S.W.2d at 114--115.

In the course of that opinion we stated, regarding the consent section of the adoption statute, Article 46a, sec. 6, Vernon's Annotated Civil Statutes:

'The effect of the statute obviously is that after the parental consent is given the child-placing agency stands in loco parentis to the child and is clothed with the authority to give or withhold the consent necessary to the entry of a judgment for adoption.' 337 S.W.2d at 112--113.

It is the latter statement on which relator places its greatest reliance; that statement cannot however, be interpreted outside the facts of that case. In Catholic Charities the dispute was between a parent who had relinquished custody of her child and the agency which had gained custody. Our statement that the agency stood in loco parentis must be understood as an adjudication between the agency and the natural parent; nothing in that opinion limits the traditional role and duty of the court as guardian of the best interest of children who come under its control.

Neither does the Adoption Act, Article 46a, purport to limit that traditional function of the court. The statute in fact, repeatedly accords to courts supervisory and discretionary powers. Article 46a, Section 3, Vernon's Annotated Civil Statutes, for example, empowers the court to waive the usual requirement that the child to be adopted live in the home of the adoptive parents for six months prior to the legal adoption 'when the Court is satisfied that the home of the petitioner and the child are suited to each other.' Article 46a, Section 7, Vernon's Annotated Civil Statutes, empowers the court to remove the child from the custody of its adoptive parents and award custody to the natural parents or other persons upon proof of abuse, neglect, or ill treatment of the child by the adoptive parents. Article 46a, Section 10(c) Vernon's Annotated Civil Statutes, makes the records of child-placing agencies confidential, but empowers the court to direct the Agency to open its records for 'inspection and/or copy.' These statutory provisions are indicative of the wide discretion the Legislature has granted the courts to act, when in the court's opinion the best interest of the child would be served thereby.

In Davis v. Collins, 147 Tex. 418, 216 S.W.2d 807 (1949), we affirmed the district court's dismissal of an adoption petition filed by persons who had not received the consent of the person who occupies the same position as the agency in this case. We held that the statutory scheme required that, in order for the petition to be granted they must have received the consent and, since they had not, they were ineligible to adopt the child. In response to the petitioners' argument that the effect of our holding was to deprive the court of power to act in the child's best interest, in the absence of consent by the child's custodian, we stated:

'(I)t has been held in other States (although the matter has not been decided in this State),...