State ex rel. M. L. H. v. Carroll

• Decision Date: 21 February 1961
• Docket Number: No. 30515,30515
• Citation: 343 S.W.2d 622
• Parties: STATE of Missour at the relation of M. L. H., individually and as Guardian of the Person and Estate of T. L. H., a Minor, Relator, v. Honorable Michael J. CARROLL, Respondent.
• Court: Missouri Court of Appeals

Page 622

343 S.W.2d 622

STATE of Missour at the relation of M. L. H., individually and as Guardian of the Person and Estate of T. L H., a Minor, Relator, v. Honorable Michael J. CARROLL, Respondent.

No. 30515.

St. Louis Court of Appeals, Missouri.

Feb. 21, 1961.

Motion for Rehearing or for Transfer to Supreme Court Denied

and Opinion Modified onCourt's Own Motion March 24, 1961.

Cook, Murphy, Lance & English, Milford T. English, Harold S. Cook, St. Louis, for relator.

Chaim H. Zimbalist, Clayton, for reopondent.

RUDDY, Judge.

This is an original proceeding wherein relator, individually and as guardian of the person of a female child, seeks to prohibit respondent, the Hon. Virgil A. Poelker, Judge of the Juvenile Division of the Circuit Court of St. Louis County, from proceeding to hear and determine a cause now pending in said division of said court. Hon. Virgil A. Poelker was the original respondent in this proceeding and he has been succeeded by the Hon. Michael J. Carroll as Judge of the Juvenile Court of St. Louis County.

The cause referred to had its beginning with the filing of a pleading in said Juvenile Division of the Circuit Court of St. Louis County denominated a 'Petition for Transfer of Custody.' Said petition is as follows:

'1. Come now your Petitioners, * * *, and state that they are residents of the City of East St. Louis, County of St. Clair, State of Illinois, and that T. L. H. is a minor child and is a resident of the County of St. Louis, Missouri.

'2. Your Petitioners further state that they are huaband and wife, and that they are the maternal grandparents of T. L. H.; that the parents of T. L. H. were both killed in an airplane crash on or about the ninth day of September, 1959.

'3. Your Petitioners further state that their daughter, * * * was the natural mother of T. L. H., and that said infant was born on the first day of October, 1958, in lawful wedlock to K. H. and B. H., her husband.

'4. Your Petitioners further state that on the 18th day of September, 1959, * * * the paternal grandmother of T. L. H., was duly appointed Guardian of the Person and the Estate of T. L. H., in the Probate Court of St. Louis County, and that said infant now lives with said Guardian at * * * in the City of Overland, County of St. Louis, State of Missouri.

'5. Your petitioners further state that they are of good character, that they are ready, willing, and able to properly care for, maintain, and educate said child, and that they are desirous of so doing; that they have a comfortable home, located at * * * in East St. Louis, Illinois, that your Petitioner, R. R., is presently employed and is earning a sufficient income to care for and properly maintain and educate said child; that your Petitioners are able and willing and will properly care for, maintain and educate said child, and will also give said child proper moral and religious training, and your Petitioners expressly state to this Honorable Court that the welfare of said child will be best promoted by the granting of the prayer herein contained.

'6. Your Petitioners further state that if this Honorable Court grant the prayer as herein contained, it is their intention that at the expiration of nine months hereafter, they will do all necessary steps to adopt said child.

'7. Your Petitioners further state that since both the natural father and the natural mother of T. L. H. are deceased, that ordinary process of law will be served upon * * *, the paternal grandmother and Guardian of the Person and Estate of T. L. H., now pending in the Probate Court of St. Louis County and upon * * *, Administrator of the Estate of B. H., deceased, now pending in the Probate Court of St. Louis County, Missouri.

'Wherefore, your Petitioners pray that this Honorable Court enter its Decree transferring custody of T. L. H., an infant, from M. L. H., to your Petitioners and granting legal custody of said infant, T. L. H., in R. R. and A. R.; and for such other and additional relief as to the Court shall seem meet and proper and just under the circumstances.'

A copy of said petition was served upon relator who thereafter filed a Motion to Dismiss said Petition. The ground alleged in said motion to dismiss was that the petition showed on its face that the Juvenile Court lacked jurisdiction over the subject matter of said petition. Subsequently, said motion to dismiss was heard by respondent and overruled.

In the proceeding before us relator continues to assert that the respondent does not have jurisdiction of the matter contained in the petition filed by R. and A. R., and in support of this assertion advances the contention that although Juvenile Courts have exclusive jurisdiction over adoption proceedings, the petition filed in the Juvenile Court and under review here was not a petition to adopt said minor, but constitutes only a petition for an order of transfer of custody to the petitioners.

Relator admits that it was necessary for petitioners to obtain an order for transfer of lawful custody of said minor to them so that subsequently they could show lawful and actual custody of the minor child for a period of nine months before the court could grant a decree of adoption of said minor to said petitioners. Section 453.080 RSMo 1949, 24 V.A.M.S.

Before determining whether the Petition for Transfer of Custody under scrutiny before us is one permitted under Chapter 453 RSMo 1949, 24 V.A.M.S. (Adoption Code) it will be helpful to examine the objectives of the adoption code and some of the rules governing its construction. The two principal objectives of the adoption code, past and present, have been and still are (1) to enable one person to make another his heir, regardless of blood relationship, and (2) to change the custody of minor children securing to them support, maintenance and humane treatment. State ex rel. Buerk v. Calhoun, 330 Mo. 1172, 52 S.W.2d 742, 83 A.L.R. 1393. The welfare of the child is the chief concern in a proceeding for its adoption. Its welfare is paramount over all other considerations. In re McKinzie's Adoption, Mo.App., 275 S.W.2d 365; In re Wines' Adoption, 241 Mo.App. 628, 239 S.W.2d 101; In re McAvoy's Adoption, 237 Mo.App. 1099, 173 S.W.2d 108.

Adoption can only be had through compliance with the terms of the adoption statute or a decree of equitable adoption. Adoption was unknown to the common law and exists solely as a creature of the statutory law and said law must be strictly construed. In re Mayernik, Mo., 292 S.W.2d 562; Lamb v. Feehan, Mo., 276 S.W. 71; In re Adoption of McKinzie, supra.

However, this does not mean that a literal compliance with the terms of the adoption statute is necessary. It is sufficient if there is a substantial compliance and the statute should not be so narrowly construed as to defeat the manifest intent of the law. Rochford v. Bailey, 322 Mo. 1155, 17 S.W.2d 941; In re McAvoy's Adoption, supra; Thompson v. Arnold, 208 Mo.App. 102, 230 S.W. 322.

Akin to the aforesaid is a statement contained in 2 C.J.S. Adoption of Children Sec. 37, p. 418, as follows:

'* * * although it has been said that the petition must be accurate in every respect, the technical rules of pleading should not be stringently applied to adoption proceedings, and it is deemed more important that the petition should contain facts relating to the child and its parents, which may give information to those interested, than that it should be formally correct as a pleading. Accordingly, it is generally held that a petition will confer jurisdiction if it substantially complies with the adoption statute, alleging all facts necessary to give the court jurisdiction.'

In Shepherd v. Murphy, 332 Mo. 1176, 61 S.W.2d 746, loc. cit. 749, the court said:

'* * * The adoption statute 'is humane and salutary.' It was enacted 'for the purpose of providing homes and proper nurture, education, and training for children who have lost their parents or children whose parents, because of misfortune or improvidence, are unable to properly rear and educate them, and should be so construed, if it can be done without doing violence to the terms of the statute, as to encourage the adoption of such children by persons who can properly rear and educate them.''

Turning our attention to the adoption statute, Sec. 453.010 RSMo 1949, 24 V.A.M.S., authorizes the filing of a petition to adopt a child and Sec. 453.020, as amended by Laws 1959, states what the petition shall contain. The sections of the adoption statute pertinent and significant to the contention raised by relator are Sec. 453.070 and Sec. 453.080. Section 453.070 provides, in part, as follows:

'No decree for the adoption of a minor child shall be entered nor shall transfer of custody of such a child to the petitioner or petitioners in such an adoption petition be ordered by the juvenile court having jurisdiction, until a full investigation has been made of the physical and mental conditions and antecedents of such child for the purpose of ascertaining whether the child is suitable for adoption and of the suitability of the petitioner or petitioners as parents for the child. * * *'

Section 453.080 provides as follows:

'If the court, after due hearing, is satisfied that the allegations of the petition are true, that the person sought to be adopted, if a minor, has been in the lawful and actual custody of the petitioner or petitioners for a period of at least nine months prior to the entry of the adoption decree, and that it is fit and proper that such adoption should be made, a decree shall be entered setting forth the facts and ordering that from the date of the decree the person sought to be adopted shall, to all legal intents and purposes, be the child of the petitioner or petitioners, and the court may decree that the name of the person sought to be adopted be changed, according to the prayer of the petition.'

Under these two sections of the adoption statute it is readily seen that the matter of...