Wilde v. Buchanan, 10488
| Decision Date | 29 May 1957 |
| Docket Number | No. 10488,10488 |
| Parties | Herbert Gus WILDE et ux., Appellants, v. Juanell BUCHANAN, Appellee. |
| Court | Texas Court of Appeals |
Grindstaff & Grindstaff, of Ballinger, Francis G. Culhane, of San Angelo, for appellant.
Jack Moore, of Ballinger, for appellee.
This is a statutory adoption proceeding in which the only question presented by the parties is whether the mother of the child sought to be adopted has the unconditional right to withdraw her previously given consent to the child's adoption at any time prior to the hearing on the petition for adoption, the mother's consent only being required under the facts of this case.
The child, Debra Kaye Buchanan, was born June 26, 1956, to appellee, Mrs. Juanell Buchanan.
On July 6, 1956, the mother gave her written consent to the child's adoption. The child was then delivered to the custody of appellants Mr. and Mrs. Herbert Gus Wilde who have since retained her custody.
On July 12, 1956, appellants filed in the court below their petition for the adoption of the child.
On July 21, 1956, the court entered an order therein appointing Mrs. Aurelia Webb to investigate and report to the court her findings on the matters specified regarding the adoption and set the cause for hearing on September 8, 1956.
Mrs. Webb's report was filed September 7, 1956. It was favorable in all respects to Mr. and Mrs. Wilde. As to appellee the the report, among other findings, stated
On September 8, 1956, appellee filed her answer to the adoption petition retracting her consent to the adoption.
There were no findings by the court as to good cause or lack of good cause for this retraction.
The court found that within a few weeks after custody of the child was delivered to appellants they took her to Dallas where she had lip and nose surgery costing $450 which was paid by them.
The court concluded that appellee had the right to withdraw her consent to the adoption at any time before the hearing on the petition for adoption and denied the petition for adoption.
Art. 46a, Vernon's Ann.Civ.St., provides, in part, that 'such consent (of the natural parent) shall be sufficient if given in writing after the birth of said child and duly acknowledged, giving the name, date and place of birth of said child, and shall agree to permanently surrender the care, custody, and parental authority of and over said child, and consent to its adoption upon judgment of any Court of competent jurisdiction * * *.' (Italics ours.)
The consent procured from appellee complied with the above statutory requirements except that it was not 'duly acknowledged.' It was merely sworn to and subscribed before a qualified person.
An acknowledgment and a jurat are not the same. In 1 C.J.S. Acknowledgments Sec. 1, pp. 777 and 778, it is stated:
'While it has a broader popular meaning, the term 'acknowledgment' in its technical legal sense means a formal declaration or admission before an authorized public officer by a person who has executed an instrument that such instrument is his act and deed; * * * An acknowledgment is to distinguish from a jurat in that a jurat is a simple statement that an instrument is subscribed and sworn to or affirmed before a proper officer without the further statement that it is the act or deed of the person making it.'
In Texas the form of an ordinary acknowledgment is prescribed by statute. Art. 6607, V.A.C.S.
Art. 46a, supra, providing that a parent's consent shall...
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