Malpass v. Morgan
| Decision Date | 27 November 1972 |
| Citation | 192 S.E.2d 794,213 Va. 393 |
| Parties | William Don MALPASS v. Edgar M. MORGAN, Jr. |
| Court | Virginia Supreme Court |
Alton G. Hancock, Fairfax, for appellant.
John T. Hazel, Jr., Fairfax (Hazel, Beckhorn & Hanes, Fairfax, on brief), for appellee.
Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN, HARMAN and POFF, JJ.
Edgar M. Morgan, Jr., filed in the trial court a petition seeking the adoption and change of name of his stepson, then six years of age. Linda Bloodworth Malpass Morgan, Morgan's wife and the natural mother of the child, joined in the petition to indicate her consent. William Don Malpass, the natural father of the child, was given notice of the petition, and he filed an answer objecting to the adoption. The trial court, after hearing evidence, ruled that the father's consent to the adoption was withheld contrary to the best interests of the child. A final order was entered allowing the adoption, and the father was granted a writ of error.
The sole question to be decided is whether the trial court erred in permitting the adoption in absence of consent by the father.
The evidence showed that William Don Malpass and Linda Bloodworth, then twenty-one and seventeen years of age, respectively, were married on July 1, 1961. They lived together only a short while and separated in October, 1961. The child was born June 21, 1962. Through the wife's efforts, a reconciliation was effected in May, 1963. The couple lived together, with the child in their home, until October, 1963, when a final separation occurred, the child remaining with the mother.
The evidence was in conflict concerning the father's contacts with and support of the child in the months following the final separation of the parents. The mother testified that the father sought to see the child only occasionally and failed to provide support. The father claimed that he did provide support, although admittedly falling behind at times, and that he was thwarted by the mother in his efforts to see the child. In any event, the mother had to go to court to secure support for the child, which she claimed even then was unsatisfactory, and the father had to resort to the same means to secure visitation rights.
Meanwhile, a strong attachment had developed between the father's parents and the child. He visited them often in their home in Virginia Beach, frequently staying overnight, and he accompanied them on trips. They remembered him with gifts on special occasions, contributed to a savings account for his benefit, purchased savings bonds in his and their names, and provided for trust funds in his favor in their wills.
The marriage of the child's parents formally ended in April, 1965, when the mother was awarded an absolute divorce from the father on the grounds of 'cruelty tantamount to desertion.' Pursuant to a stipulation entered into by the parties and approved by the court, the mother was awarded custody of the child with fixed visitation rights allowed the father.
The father remarried in May, 1965, and moved with his new wife to Ohio. He returned to Virginia twice each year, in the spring and fall, and visited the child. He and his second wife now have a son of their own, and a daughter by the wife's former marriage also lives in their household.
The mother married Morgan, the present petitioner, in November, 1966. They established a home, where the child has since resided, in the Tidewater area of Virginia. An adopted daughter completes the Morgan family.
Following the mother's remarriage, the relationship between the paternal grandparents and the child continued for some time. However, a disagreement between the grandparents and the Morgans, resulting from the enrollment of the child in school under the name of Morgan, caused the mother to end the child's visits with the grandparents.
Morgan's petition to adopt the child was filed in November, 1968. The father was given notice in April, 1969, of the filing of the petition, and he then moved back to Virginia to contest the adoption.
Following his return to Virginia, the father exercised the full visitation rights afforded him by the divorce decree of April, 1965. Those rights were to have the child in his custody between 8:00 a.m. and 5:30 p.m. one day each weekend and to visit the child in the mother's home two days per week.
In resolving the question before us, it is unnecessary to recite the attributes of Morgan, the present petitioner for adoption, which qualify him as a fit parent. Neither is it necessary to detail the qualities of the mother, exemplified by her efforts to care for the child while completing her education and engaging in gainful employment following her separation from the father, which attest her character. Suffice to say, the record shows that the child justifiably looks upon Morgan as his father and that the lad is being reared 'in a warm and loving home.'
It is likewise unnecessary to dissect the character of the father. The trial court noted, in a written opinion, that the homes of both Morgan and the father would furnish 'a proper atmosphere in which children could be raised by parents of moral fiber.' And the court made the specific finding that the father had not been 'guilty of any conduct which would require forfeiture of his parental rights.' Morgan does not contest that finding or otherwise claim that the father is an unfit parent.
So we focus upon the basis of the trial court's ruling that the father had withheld his consent to the adoption contrary to the best interests of the child. In reaching its decision, the court adopted the concept that there were 'too many fathers' in the child's life, a situation characterized by the court to be 'as great a source of potential trouble' as no father at all.
The concept adopted by the trial court stemmed from the fact that when the father returned to Virginia and began to exercise the full visitation rights afforded him by the divorce decree, friction developed between him and the Morgans as a result. They objected to his insistence upon rigid adherence to the visitation schedule set up by the decree and to his permitting the child to visit the paternal grandparents on the one day each weekend he had custody of the child.
The trial court found that the visitation schedule, in addition to creating friction between the father and the Morgans, had 'precipitated some reaction on the part of the child.' The court further found that adherence 'to a rigid weekend schedule is most likely to be the source of further irritation as the child grows older and develops a broader scope of interests.' All this, the trial court concluded, required the holding that the child must 'be allowed to become a fully qualified member of his mother's family,' thereby necessitating severance of the father's rights.
The question thus becomes whether the evidence, when considered in light of the adoption statutes, is sufficient to support the trial court's conclusion. Code § 63.1--225, the statute relating to consent in adoption cases, was worded, before its amendment in 1972, as follows:
'The consent of a parent for the adoption of his or her child shall not be valid unless the child be at least ten days old at the time the consent is signed.
'A parent who has not reached the age of twenty-one shall have legal capacity to give consent to adoption and shall be as fully bound thereby as if said parent had attained the age of twenty-one years.
'Consent by the child shall be necessary if the child is fourteen years of age or older, unless the court finds that the best interests of the child will be served by not requiring such consent.
'Consent shall be...
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...(plurality opinion). Accordingly, although courts focus on the welfare of the child in adoption proceedings, Malpass v. Morgan, 213 Va. 393, 399, 192 S.E.2d 794, 799 (1972), Virginia courts long have recognized that constitutional concerns require that, for a court "to grant a petition for ......
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Todd v. Copeland
...of being at the mercy of a parent who is "obstinately self-willed in refusing to concur" to the adoption, Malpass v. Morgan, 213 Va. 393, 399, 192 S.E.2d 794, 798 (1972), we have required the prospective adoptive parent to prove not only that the adoption is in the child's best interests, b......
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Barbara J., In re
...1975), aff'd, 545 F.2d 1137 (8th Cir.1976) ]; In re Adoption of Children by D., 61 N.J. 89, 293 A.2d 171 (1972); Malpass v. Morgan, 213 Va. 393, 192 S.E.2d 794 (1972); Ketcham & Babcock, "Statutory Standards for the Involuntary Termination of Parental Rights," 29 Rutgers L.Rev. 530, 539 (19......
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Juvenile Appeal, In re
...v. District Court of Polk County, Iowa, supra; In re Adoption of Children by D., 61 N.J. 89, 293 A.2d 171 (1972); Malpass v. Morgan, 213 Va. 393, 192 S.E.2d 794 (1972); Ketcham & Babcock, "Statutory Standards for the Involuntary Termination of Parental Rights," 29 Rutgers L.Rev. 530, 539 (1......