Worley v. Jinks

• Decision Date: 10 May 1978
• Citation: 361 So.2d 1082
• Parties: Faye WORLEY and Bobby Worley et al. v. John K. JINKS and Bernice Parker, Director, Department of Pensions & Security, DeKalb County, Fort Payne, Alabama. Civ. 1374.
• Court: Alabama Court of Civil Appeals

Page 1082

361 So.2d 1082

Faye WORLEY and Bobby Worley et al. v. John K. JINKS and Bernice Parker, Director, Department of Pensions & Security, DeKalb County, Fort Payne, Alabama.

Civ. 1374.

Court of Civil Appeals of Alabama.

May 10, 1978.

As Corrected On Denial of Rehearing June 21, 1978.

W. M. Beck, Sr., of Traylor & McGee and Beck & Beck, Fort Payne, for appellants.

W. N. Watson of Watson & Watson, Fort Payne, for appellee, John K. Jinks.

William J. Baxley, Atty. Gen., Mary Lee Stapp, Jamie L. Pettigrew, Asst. Attys. Gen., for DeKalb County Dept. of Pensions and Security.

BRADLEY, Judge.

This is an adoption case.

These proceedings commenced on April 8, 1977 when Bobby and Faye Worley filed a petition in the DeKalb County Probate Court seeking adoption of Mendy Michelle Jinks, an eighteen month old female child. It was alleged in the petition for adoption that the child had been abandoned by the father and that the latter's whereabouts was unknown. The mother of the child consented to the adoption and a temporary order was entered granting the Worleys custody. However, this order was conditioned upon the completion of an investigation by the DeKalb County Department of Pensions and Security (hereinafter referred to as DPS).

On August 11, 1977, based on statements made by John Kelvin Jinks, the purported father of the child, the District Court of DeKalb County, Juvenile Division, issued an Ex parte order requiring the sheriff to take the child into custody and place her in the temporary care of DPS.

On August 16, 1977 the Worleys filed a petition for writ of habeas corpus in the Circuit Court of DeKalb County seeking to regain custody of the child. Their petition was premised on the theory that the child was being illegally restrained by DPS. Subsequently, DPS and the Jinkses requested that the writ be quashed. On August 31, 1977 DPS filed a petition in the district court, juvenile division, requesting that the court take jurisdiction of the matter and determine whether the child was dependent and needed further shelter care.

Then, on September 1, 1977, John K. Jinks filed petitions in the district court and the probate court respectively, asking that the adoption proceedings previously filed by the Worleys in the probate court be transferred to the district court. He also asked the circuit court to quash the habeas corpus petition filed in that court by the Worleys. Moreover, he requested that the circuit court give him permanent custody of the child.

On the same day, September 1, 1977, the district court held a hearing at which all parties and the attorneys who represented them entered into an agreement whereby DPS was to retain custody of the child pending a final hearing by the district court.

On September 29, 1977 the circuit court quashed the Worleys' petition for habeas corpus and transferred the proceeding to the district court, juvenile division, for disposition. Subsequently the adoption proceedings were transferred from the probate court to the district court and the district court entered a pre-trial order stating that the issue to be determined at the final hearing would be whether John K. Jinks, the natural father, had abandoned his child, Mendy Michelle Jinks.

The final hearing was held on October 31, 1977 and judgment was entered on November 3, 1977 finding that John Jinks had not abandoned his child. This appeal is from that judgment.

The evidence taken at the final hearing reveals the following pertinent facts.

John K. Jinks and Quindal Maltese were married on February 11, 1975. The parties lived together about six months before they separated. On February 10, 1976, while the couple was still separated, Mendy Michelle Jinks was born. The father visited the mother and the child in the hospital but he did not pay any of the hospital or medical bills resulting from the birth of the child. Shortly after the birth of the child the parties were reconciled and lived together for a short period of time. However, Quindal eventually left the father, taking the child with her. During the couple's second separation Quindal lived with another man.

While the parties were separated the father obtained physical custody of the baby from a friend of Quindal's with whom the latter had left the baby so that she could hitchhike to Florida with her paramour. John Jinks kept the baby about two weeks, and then returned her to his wife upon the wife's request.

On August 30, 1976 John Jinks again obtained physical custody of his daughter, Mendy Michelle. At the time he took her into his custody the baby was in poor health, unable to retain food and had flea bites on her body. John Jinks' sister, Nola Ham, helped him care for the child, and Mendy remained in the Ham household for about four months. During this time, according to the testimony, the child was restored to good health. On January 1, 1977 John Jinks and Quindal Jinks once again decided to live together as husband and wife. Their third effort at maintaining a marital relationship lasted approximately two weeks. At the end of this period John allowed the baby to be taken by a friend of Quindal's to visit the latter's grandmother in Dallas, Texas. At this time the Jinkses were living in Holly Beach, Louisiana. Quindal left the Jinkses' home without revealing her destination several days after the baby had been taken to Dallas. Following these events, John Jinks did not see his daughter again until he found her in DeKalb County, Alabama.

The evidence reveals that shortly after Quindal left John Jinks, she arrived in Dallas and started residing in a house with Charles Gregory and another man. Thereafter she again acquired physical custody of Mendy Michelle. However, in April of 1977 Quindal gave the child to Joe Gregory, a brother of Charles Gregory, for adoption. The Worleys subsequently obtained the child through the efforts of Ethel Manifold. Mrs. Manifold apparently had received the child from Joe Gregory. At any rate, Mrs. Manifold brought the child to Chattanooga, Tennessee where the Worleys took her. Adoption proceedings were commenced by the Worleys on April 8, 1977.

The testimony shows that from about the middle of January 1977 until August 11, 1977, John Jinks attempted to find his daughter. Upon learning that Joe Gregory had obtained his daughter and was thought to be living in Birmingham, Alabama, Jinks immediately went to Birmingham to try to locate his daughter. He finally found her in DeKalb County and sought the assistance of the district court, juvenile division, in recovering custody of his child. And, as stated earlier, he was ultimately successful in his efforts.

The appellants (Bobby and Faye Worley) state that the district court committed reversible error by: (1) transferring the adoption proceedings from the probate court to the district court; (2) entering the August 11 order taking the child from the Worleys and placing it in the care of DPS; (3) finding that the father, John Jinks, was entitled to custody of his daughter, Mendy Michelle; (4) admitting into evidence a certified copy of a decree of the Eleventh District Court of Louisiana, Sabine Parish, awarding temporary custody of Mendy Michelle Jinks to her father, John K. Jinks; and (5) admitting into evidence a report made to DPS by its Louisiana counterpart on the background of John K. Jinks and his sister and brother-in-law, Mr. and Mrs. Wayne Ham.

With regard to the transfer of the adoption proceedings from the probate court to the district court, the Worleys contend that the adoption by the people of constitutional amendment 364, which gave the probate court of each county ". . . general jurisdiction . . . of adoptions," effectively precluded the district court from acquiring jurisdiction of the adoption matter in the case at bar and from rendering a decision thereon. Ala.Const. of 1901, amend. 364.

Title 12, chapter 12, section 35, Code of Alabama 1975 provides in applicable part:

"(a) Adoption proceedings, primarily cognizable before the probate court, may be transferred to the district court on motion of a party to the proceeding in probate court."

Since amendment 364 was adopted after the enactment of section 35, the Worleys argue that the amendment abolished whatever authority the district court had to hear and decide adoption matters.

As we perceive the Worleys' argument, they are saying that the grant to the probate court of general jurisdiction in adoption proceedings has the effect of giving that court "exclusive jurisdiction" over adoptions. However, the language of amendment 364 does not contain the word "exclusive"; instead, amendment 364 merely provides that the probate court shall have general jurisdiction in adoption matters.

In the case of State v. Sullivan, 95 Fla. 191, 116 So. 255, 259 (1928), the Supreme Court of Florida said:

"Two or more courts may have concurrent jurisdiction of the same subject-matter, and the rule is well settled that when the Constitution or the statute in specific terms vests jurisdiction in any tribunal without the qualifying term 'exclusive,' or words of equivalent import, the Legislature may in its discretion vest the like jurisdiction in another court or tribunal."

Our constitutional amendment 364 does not have the qualifying word "exclusive" in it; consequently, we are of the opinion that that amendment did not give the probate court "exclusive" jurisdiction in adoption cases. Accordingly, the legislature had the authority to give the district courts the power to accept and decide adoption cases which have been transferred to it from the probate court. Title 12, chapter 12, section 35, Code of Alabama 1975.

In the case at bar the natural father, John Jinks, asked that the case be transferred to the district court. As a party to the dispute he was authorized by section 35 to make such a request. And upon receipt of Jinks' request the adoption proceedings were transferred from the probate to the...