Skaggs v. Gannon

• Citation: 170 S.W.2d 12,293 Ky. 795
• Parties: SKAGGS et al. v. GANNON et al.
• Decision Date: 26 January 1943
• Court: Court of Appeals of Kentucky

170 S.W.2d 12

293 Ky. 795

SKAGGS et al. v. GANNON et al.

Court of Appeals of Kentucky

January 26, 1943

As Modified on Denial of Rehearing March 26, 1943.

Appeal from Circuit Court, Jefferson County; Churchill Humphrey Judge.

Adoption proceedings by Frank M. Gannon and another against Leona Skaggs and others. The county court decreed the child of Leona Skaggs to the adopting parents Frank M. Gannon and another, and later overruled the plea of Leona Skaggs to annul the judgment. On her appeal to the Circuit Court the matter was ordered referred to a commissioner. The commissioner recommended that the judgment of adoption be upheld. From chancellor's judgment upholding the commissioner's recommendation, Leona Skaggs appeals.

Judgment reversed with directions to set aside judgment of adoption.

TILFORD J., dissenting.

J. J Kavanagh and Chas. E. Keller, both of Louisville, for appellants.

Woodward Dawson & Hobson, of Louisville, for appellees.

MORRIS Commissioner.

In adoption proceedings the Jefferson county court decreed the child of appellant mother to adopting parents, later overruling her plea to annual the judgment. On appeal to the circuit court the matter was referred to the commissioner, who made a comprehensive report giving findings of fact and conclusions of law, recommending that the judgment be upheld, the chancellor following his recommendation.

Appellant, mother of the illegitimate girl child, reared in a distant town in Kentucky, in a Christian family and moral atmosphere, had the benefits of high school education and a commercial course. When sixteen or seventeen years old she went to Louisville to reside with a married sister, and began to make her own way in various honorable occupations. During 1939, while employed in a reputable restaurant, she was introduced to Mr. Howorth of St. Louis, a man forty years of age, whose business occasionally brought him to Louisville, this meeting resulting in a friendship. About four months after this she accompanied him to his room in a hotel and there engaged in intercourse, repeated a short time later. She became pregnant, and so informed a married sister who came to Louisville and remained with her until the birth of the baby January 5, 1941, at St. Anthony's Hospital.

Howorth, apprised of her condition, readily admitted that it was his act which brought it about. He and appellant testify that for seven months prior to the birth he contributed an appreciable weekly sum while she was unable to work; he came to the hospital at the time the child was born and paid all bills.

The proof is that prior to the time of knowledge of her condition appellant had never accepted any money, and that after she was able to work she declined contributions, and that there were no intimacies following knowledge of pregnancy. The mother remained in the hospital for ten days, and during that period the father insisted on taking the child, agreeing to adopt it. A sister in Huntington, West Virginia, was willing to take and care for the child, but the mother would not agree to either plan. While in the hospital appellant learned that Our Lady's Home for Infants might take the child, and concluded that this would be a satisfactory arrangement. The Matron and Director of Charities visited the hospital, when as appellant says, they explained her besetting difficulties, and drew a rather bleak picture of a prospective future for the child, suggesting possibility of adoption, to which she would not agree. The meeting ended with the agreement that it would be kept at the Home for two months, and the child was placed in its care.

When this time was up appellant went to the Home and took the child, intending to and did carry it to the home of the married sister. When they reached the home they found it under quarantine. She and a sister, with Howorth, made effort to find a temporary home, but were unable to do so, and returned the child to the orphanage; the management declined to accept it, due to the fact that, perhaps, the mother and child had entered the quarantined house. They made further futile effort, and shortly thereafter returned, stating the situation, and asking that the child be left there. It was then agreed, according to the Director's testimony that the child be left with the understanding that the orphanage place it in an adoptive home. The mother insists that she repelled the idea, and would not agree. The mother again left but returned the next day; similar colloquy ensued with the result, that upon the insistence of the Director the mother signed a "Release of Custody and Consent to Adoption," which set out the fact that she was the mother of the child, giving its name and other data, and that she voluntarily agreed to surrender its custody, control, supervision, and further: "I agree, subject to the provisions of Kentucky Statutes, § 2072, to the adoption of said child by a person or persons approved by Our Lady's Home for Infants, Louisville, Kentucky, and hereby give express consent for the purpose of adoption proceedings. (This refers to persons having legal custody, and may mean father, surviving parent, mother or legal guardian.)"

The document appears to have been duly acknowledged; appellant insists that she did not swear to it, and the Director (a notary) was not sure whether oath was administered. He insists that she read it and was explained its purpose. Appellant insists that it was neither read nor explained, and that due to her condition of health and mental disturbance, that if explained or read, she did not understand its import.

It may be gathered from her proof and that of the Director, that she was assured that in case of proceedings to adopt, she was to be notified, and to such plan she says she would have objected; that her understanding was that the child was to remain until she became able, physically and financially to care for the child competently, and that it was expressly understood that she was not to interfere in any way, and as she understood "not to even visit the child," and that she made no interference to this agreement; that she was not in a position to care for the child and that it was in good hands. The commissioner says she carried out her agreement.

Appellees, childless, had filed with the Home application for adoption of a child. About March 17 they were informed that a child was available; they visited the Home, and agreed to take appellant's child; immediately made preparation for receiving it and on the 19th took her to their home. On November 13, 1941, they filed petition, seeking adoption of the child, naming the mother defendant, in which it was asserted that she had been absent from the State during the preceding four months, without knowledge on their part of her whereabouts (Civil Code of Practice, §§ 57, 58) and the court appointed warning order attorney who made his report on January 10, asserting that after a careful investigation no trace of appellant could be found, and that the father, was unknown.

An officer of the Welfare Department (KRS 405.170) also reported recommending adoption, but apparently accepting the statement of absence in affidavit, made no effort to locate the mother, though the statute requires someone to make "reasonable search," for a living parent during the sixty days' time allowed for investigation.

After the period mentioned, the court decreed the adoption. Within two weeks from judgment appellant filed in court a motion to be allowed examination of records, (KRS 405.210) accompanied by an affidavit, in part conforming to her motion filed a few days later, in which upon grounds stated, she prayed for a reopening of the case, and that the adoption decree be set aside. In this verified motion, which has all the attributes of a petition, in addition to facts already stated in part, she alleged that she was then physically and financially able to care for her daughter properly; that she never by written release or otherwise consented to adoption; that she had lived in Louisville, and was there during all times involved, and her address was known to the Home, and if any diligence had been used it could have been easily ascertained. She asserted her right under the law to notice, and opportunity to be heard personally. The appellee filed affidavit which set up facts with relation to care of the child, and their movements in the matter, concluding that the proceedings were in strict conformity to law.

The court refused to sustain her motion; within two weeks the mother appealed to the circuit court, where in April it was referred and reported as above stated, and appellant filed detailed exceptions to the report. The matter was submitted to the chancellor, who directed counsel to file briefs on the question as to the right of appellant to revoke consent at this period of the proceeding, and its effect if so filed; whether or not in the county court there was effort to revoke, and whether his court had jurisdiction to allow filing, and consider revocation if filed, in view of Civil Code of Practice, § 726, Ky. Stats. and Supp. 1940, §§ 331b-1 to 331b-12, KRS 405.140 et seq., or is confined to the status existing at the time of the motion to annul in the county court.

The statute, supra (KRS 405.220), extends the right of appeal from an order of adoption within 60 days from entry. The Civil Code of Practice section, following the provisions of KRS 23.030, provides that the appeal "shall be tried a new, as if no judgment had been rendered." The court's suggestion apparently confused appellant. There she was contending no consent. However, prior to resubmission, she in person and by writing tendered, asserted that her pleadings in the county court constituted a revocation, and...