Matthews v. Whittle
| Citation | 149 S.W.2d 601 |
| Decision Date | 13 February 1941 |
| Docket Number | No. 4044.,4044. |
| Parties | MATTHEWS et ux. v. WHITTLE. |
| Court | Texas Court of Appeals |
Appeal from District Court, Cameron County; James S. Graham, Judge.
Suit by T. M. Matthews and wife against Alice Whittle for custody of a minor male child, about six years of age, who was natural child of the plaintiffs and an adopted child of the defendant, wherein defendant filed a cross-action. From a judgment for defendant, the plaintiffs appeal.
Affirmed.
Polk Hornaday, of Harlingen, for appellants.
Brown & Criss, of Harlingen (Paul Brown, of Harlingen, of counsel), for appellee.
This is an appeal from the 103rd District Court of Cameron County.
The parties will here be designated as in the trial court.
The appellants here, T. M. Matthews and his wife, as plaintiffs below, brought this suit against the appellee, Alice Whittle, defendant below, for the custody of a minor male child, about six years of age, same being the natural child of the plaintiffs and an adopted child of the defendant. The trial was before the court without a jury on defendant's plea in abatement and in bar, and the judgment was for the defendant and against the plaintiffs. From that judgment the plaintiffs have perfected this appeal.
The plaintiffs allege that the child was born July 14, 1934; that on January 21, 1936, and March 14, 1938, the court awarded the care and custody of the child to J. C. Whittle (whom the facts show to have been the husband of the defendant and now deceased). They also allege that within the past two years conditions have changed in the home of the plaintiffs and that of the defendant, setting out such claimed changes. They do not allege that the defendant is morally unfit, or that she has been guilty of ill treatment, neglect or abuse of the child. They allege they have been scornfully denied the right to visit the child, and pray for his custody, or, in the alternative, for the right of visitation.
The defendant answered with a pleading, designated a plea in abatement and in bar, that on January 21, 1936, the child involved in the suit was declared by a judgment of the District Court of Cameron County to be a dependent and neglected child and his care and custody committed to J. C. Whittle; that on March 14, 1938, in the same suit, under the same number, and in the same court, the plaintiffs sought to set aside the former order and judgment; and by the further order and judgment of the court the care and custody of the child was committed to the defendant; that in each of such proceedings the plaintiffs were present, and in the latter proceeding were represented by counsel, and the facts submitted to a jury, and on the jury's findings judgment was rendered committing the care and custody of the child to defendant; that on May 23, 1938, said court permitted this defendant to adopt said child; defendant prayed that this suit be abated.
The defendant followed her plea in abatement and in bar with an answer on the merits and cross-action, but as the case was tried and disposed of on the plea in abatement and in bar, it is unnecessary here to further refer to the answer.
The defendant assumed the burden in the trial on her plea and introduced all the testimony offered on that trial, which consisted for the most part of the records in the former proceedings; to-wit, the juvenile proceeding in which the care and custody of the child were awarded to the Whittles; the suit brought by the plaintiffs for the custody of the child and the result thereof by which he was again committed to the defendant here; and the adoption of the child by the defendant.
It was admitted, as a part of the record, that there was no notice or citation served on the parents of the child (plaintiffs here), and that they filed no waiver or consent to the adoption of the child.
The record discloses that the trial was had on the defendant's plea in abatement and in bar to avoid a lengthy and unnecessary trial and record on the main case pleaded by the plaintiffs. The disposition of this appeal depends, therefore, upon the construction of certain provisions of our adoption statutes, which will hereinafter be referred to, and whether or not, under the statutes, consent by the parents was necessary.
The plaintiffs seek to have the judgment reversed because of the claimed wrongful admission in evidence of the judgments in the former proceedings, and especially the adoption judgment, because of its claimed invalidity, in that it was rendered and the plaintiff permitted to adopt the child Charles without the consent of his parents or anyone else, and because it violates the provisions of Article 1, Secs. 15 and 19, of the Constitution of Texas, Vernon's Ann. St., and denied them their day in court.
Notice or citation to the natural parents of a child in a proceeding to adopt the child is not necessary nor provided for by the statutes, because if they still retain the parental rights in the child it is essential that they consent to the adoption, which is sufficient notice of the proceeding. Fitts v. Carpenter, Tex.Civ.App., 124 S.W.2d 420; Pearce v. Harris, Tex.Civ.App., 134 S.W.2d 859.
Article 46a, Sec. 6, Vernon's Ann. Civ.St., provides: "Except as otherwise amended in this Section, no adoption shall be permitted except with the written consent of the living parents of a child." The section makes two exceptions: (1) When such a parent has voluntarily abandoned and deserted a child for two years, and left the child to the care, custody, control and management of other persons, and shall not have contributed to the support of such child for two years, the consent shall not be necessary, and the adoption shall be permitted on the consent of the Judge of the Juvenile Court, and if there be no such court, on the consent of the County Judge of the county of the child's residence; and (2) such consent shall not be necessary when the parental rights have been terminated by order of the Juvenile Court or other court of competent jurisdiction; provided the consent be given by the superintendent of the home or school, or of the individual to whom the care, custody, or guardianship of such child has...
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