Rochford v. Bailey

• Decision Date: 29 May 1929
• Citation: 17 S.W.2d 941,322 Mo. 1155
• Parties: Vida Brisby Rochford, Petitioner, v. Floyd F. Bailey and Mary E. Bailey, Respondents
• Court: Missouri Supreme Court

17 S.W.2d 941

322 Mo. 1155

Vida Brisby Rochford, Petitioner, v. Floyd F. Bailey and Mary E. Bailey, Respondents

Supreme Court of Missouri

May 29, 1929

Custody of child awarded to petitioner.

John S. Cannon for petitioner.

(1) The adoption petition is fatally defective. Secs. 1095 to 1103 R. S. 1919; Thompson v. Arnold, 230 S.W. 332; Torwegge v. O'Reilly, 292 Mo. 613, 239 S.W. 121; State ex rel. v. Muench, 217 Mo. 125; Hooper v United States, 13 F.2d 25. (2) There is a failure of lawful service. (a) No lawful service on the child. Secs 1098, 1173, 1174, 1175, R. S. 1919; State ex rel. Ozark Co. v. Tate, 109 Mo. 265; Coonley v. Coonley, 237 S.W. 198; Woodruff v. Lumber Co., 242 Mo. 381; Stanton v. Thompson, 234 Mo. 7; Flynn v. Tate, 228 S.W. 1072; Kunzi v. Hickman, 243 Mo. 113; Scott v. Royston, 223 Mo. 567; Higgins v. Beckwith, 102 Mo. 456; Shields v. Powers, 29 Mo. 315; Payne v. Masek, 114 Mo. 631; Railroad Co. v. Campbell, Nelson & Co., 62 Mo. 585; State v. Schilb, 285 S.W. 750. (b) Constructive service not in compliance with the Statute. Meyers v. McRay, 114 Mo. 377; Parker v. Burton, 172 Mo. 85; Hinkle v. Lovelace, 204 Mo. 208; Sec. 1098, R. S. 1919; Harvey v. Gregg, 177 S.W. 594. (3) The petitioner, the natural, legal and competent mother, is by law entitled to custody. Sec. 312, Laws 1921, p. 118; In re Bernice Scarritt, 75 Mo. 565, 582; Weir v. Marley, 99 Mo. 484; Edwards v. Edwards, 84 Mo.App. 552; In re Ingenbohs, 173 Mo.App. 261; State v. Ellison, 271 Mo. 416, 196 S.W. 1140; Madigan v. Madigan (Mo. App.), 260 S.W. 485; Armstrong v. Price, 292 S.W. 448.

W. T. Alford for respondents.

(1) This proceeding in habeas corpus should be dismissed since the writ of habeas corpus cannot supplant an appeal or writ of error. And under the adoption statute of 1917 any person interested in the proceeding has the right to appeal. Sec. 1098, R. S. 1919. (2) The petition for permission to adopt follows the statute and is not defective. Sec. 1099, R. S. 1919. (3) Lawful and necessary service of process was had upon the parties to the proceeding. State v. Schilb, 285 S.W. 748; Sewell v. Roberts, 115 Mass. 262; Secs. 1096, 1098, R. S. 1919; Sterns v. Allen, 183 Mass. 408; In re Ziegler, 143 N.Y.S. 562; Thompson v. Arnold, 230 S.W. 374; In re Eads, 137 Mass. 346; Omaha Water Co. v. Schannel, 147 F. 502; 148 C. J. 536; Secs. 1196, 1202, R. S. 1919. (4) The decree of judgment of adoption follows the statutes set forth and is correct and sufficient. Sec. 1100, R. S. 1919.

Francis C. Downey, Hugh B. Downey, G. C. Downey, J. Francis O'Sullivan and Rees Turpin, Amici Curiae.

(1) The State is "parens patriae," having complete custody and control of the infant and the right to decree its adoption without notice to or consent of either the child's natural parents or the infant. Sec. 1173, R. S. 1919; State ex rel. Cave v. Tincher (Mo.), 166 S.W. 1030; 1 R. C. L. 594, sec. 3; In re John Sharp, 96 P. 563, 18 L. R. A. (N. S.) 886; Glos v. Sankey, 148 Ill. 536, 23 L. R. A. 672; Payne v. Masek, 114 Mo. 631; Le Bourgeoise v. McNamara, 82 Mo. 189; Reveley v. Skinner, 33 Mo. 98; McClure v. Farthing, 51 Mo. 109; State v. Greene, 87 Mo. 583; State v. De Bar, 58 Mo. 385. (2) An adoption proceeding is not a proceeding adversary to the infant. Sec. 1173, R. S. 1919; Westmeyer v. Gallenkamp, 154 Mo. 28; Scott v. Royston, 223 Mo. 568; 1 R. C. L. 592-594; Hockaday v. Lynn, 200 Mo. 456, 8 L. R. A. (N. S.) 117; 2 C. J. 35; Holloway v. Jones, 246 S.W. 590; Secs. 1100, 1098, 1102, 1101, R. S. 1919.

OPINION

Gentry, J.

Habeas corpus. The petitioner is the mother of Gerald Ashford Rochford, a minor, now about three years of age: she seeks by this proceeding to have restored to her the custody of her said son, the right to which is now claimed and exercised by the respondents under and by virtue of an alleged decree of adoption rendered by the Juvenile Division of the Circuit Court of Jackson County. The material facts are few and simple.

The minor in question was born December 1, 1925, at Excelsior Springs, Missouri: he was born out of wedlock, but his father was present at his birth, and his father and mother were subsequently married. He was given his father's name, Gerald Ashford Rochford, as disclosed by the birth certificate filed by the attending physician with the State Bureau of Vital Statistics, on December 9, 1925. The birth certificate also disclosed that his mother's name was Vida Brisby; and it gave the addresses of both father and mother: Kansas City, Missouri.

On December 13, 1925, petitioner received a message calling her to Enid, Oklahoma, to care for her mother, who had become seriously ill. Thereupon she and the father sought out a nurse in Kansas City, a Mrs. Parker, and arranged for her to nurse and care for their child. For such care and attention it was agreed that the child's father would pay Mrs. Parker twenty-five dollars a month. Petitioner told Mrs. Parker that her name was Ford, and that the child's name was Gerald Ashford Ford: she did not give Mrs. Parker her address, nor tell her that she was leaving Kansas City. Petitioner remained out of the State, in attendance on her mother and other members of her father's family, until August 1, 1927. During that time she did not write the nurse, but did correspond regularly with the child's father. The latter assured her from time to time that the child was still with Mrs. Parker, that he was being well cared for and that he was thriving and lusty. On her return to Kansas City, however, she found that the child's father had been deceiving her; that Mrs. Parker on account of not having received the stipulated monthly payments had turned the child over to the Evans Home in Kansas City; and that respondents had thereafter secured his possession and custody through an alleged court proceeding for adoption. After futile efforts to get possession of her minor son, petitioner instituted the present proceeding in this court, on the 18th day of October, 1928.

On the 17th day of January, 1927, the following petition was filed in the Juvenile Division of the Circuit Court of Jackson County:

"In re adoption of Gerald A. Ford; Floyd F. Bailey, Mary E. Bailey, Petitioners.

"Now comes Floyd F. Bailey and Mary E. Bailey, his wife, and petition the court for permission to adopt as their child, Gerald A. Ford, male child born on Dec. 1, 1925, and residing in Jackson County, Missouri.

"Petitioners say that they reside together as husband and wife at Independence in the State of Missouri, that they are of good moral character; that they have a comfortable home; that they have a regular source of income and that they are able to properly care for, maintain, and educate said child, and will to the best of their ability care for, maintain and educate said child and give it proper moral and religious training.

"Petitioners say that the name and residence of the parents of said child are unknown to them and that said parents have absconded and absented themselves from their place of abode in this State so that the ordinary process of service cannot be had upon them, and that they desire to change the name of said child to Floyd Gerald Bailey.

"Wherefore, petitioners pray the court to enter a decree ordering that from the date thereof said child shall, to all legal intents and purposes, be the child of the petitioners, and that the name of said child be changed to Floyd Gerald Bailey."

On the same day, January 17, 1927, there was entered of record in said court the following order of publication:

"Floyd F. Bailey, Mary E. Bailey, Petitioners, v. Gerald A. Ford, a minor, and the unknown father and the unknown mother of Gerald A. Ford, a minor, Defendants. No. A-5044.

"State of Missouri, to the above named defendants:

"You are hereby notified that an action has been commenced against you in the Juvenile Division of the Circuit Court of Jackson County, Missouri, at Kansas City, for the purpose of changing the name of Gerald A. Ford to Floyd Gerald Bailey and for the further purpose of procuring a decree of adoption on behalf of petitioners, under provisions of Article 1, Chapter 11, Revised Statutes of Missouri, 1919, which said action is returnable to the first day of the next term of court, to-wit: on the 14th day of March, 1927, to be held in the Court House in Kansas City, Missouri, when and where you may appear and defend such action, otherwise petitioners' petition will be taken as true and confessed and judgment entered for petitioners.

"It is further ordered that publication hereof be made according to law in the Daily Record, a newspaper published regularly in said county."

On February 19, 1927, proof of publication was filed showing that the foregoing order had been published in the Daily Record once a week for five consecutive weeks, beginning January 22, 1927.

On April 9, 1927, and during the March Term, an answer was filed in the cause by Hal. H. Thruston, which recited among other things that he had theretofore been appointed guardian ad litem. And on the same day, April 9, 1927, a decree was entered as follows:

"In re adoption of Gerald A. Ford, Floyd F. Bailey and Mary E Bailey, Petitioners. No. A-5044.

"Now on this 9th day of April, 1927, the court having considered the petition filed in this court by Floyd F. Bailey and Mary E. Bailey as petitioners, for the adoption of Gerald A. Ford, a minor under the age of twelve years, now residing in Jackson County, Missouri, and Hal H. Thruston, heretofore appointed guardian ad litem for said child in these proceedings, having filed a favorable report herein and the evidence adduced, after such hearing and consideration, the court is satisfied that the persons petitioning to adopt said child are of good character...