Wright v. Fitzgibbons

• Decision Date: 09 April 1945
• Docket Number: 35826.
• Citation: 198 Miss. 471,21 So.2d 709
• Court: Mississippi Supreme Court
• Parties: WRIGHT v. FITZGIBBONS.

21 So.2d 709

198 Miss. 471

WRIGHT v. FITZGIBBONS.

No. 35826.

Supreme Court of Mississippi

April 9, 1945

Suggestion of Error Overruled May 14, 1945.

In Banc.

John T. Smith, W. D. Jones, and Henry M. Hezel all of Cleveland, for appellant.

Creekmore & Creekmore, of Jackson, for appellee.

SMITH Chief Justice.

Mrs Fitzgibbons filed a petition in compliance with Section 1269, Code 1942, for the adoption of a child of which Mrs. Wright was the mother. Mrs. Wright appeared, filed an answer objecting to the adoption and a cross-petition praying that the custody of the child be awarded to her by a writ of habeas corpus. The appellee's petition alleged that the appellant had consented to this adoption and also that she had abandoned the child. After hearing the evidence, both for and against the adoption of the child, the court rendered a decree reciting that the child, which was then about five and a half years old, had been 'abandoned by the defendant when about three weeks of age', that it was for the best interest of the child to be adopted by the petitioner granted the appellee's petition for the adoption of the child and dismissed the preliminary writ of habeas corpus that had previously been granted to the appellant. The appellant having appeared and objected to the adoption of her child, her consent thereto theretofore given for its adoption, as will hereinafter appear, became ineffective and in order for the decree of the court below to be sustained it must appear that it was warranted in finding from the evidence that the child had been abandoned by the appellant. Section 1269, Code 1942.

It appears from the evidence without conflict that in July 1938, the appellant, then seventeen years of age and unmarried, became an expectant mother and entered a Salvation Army Home for Unmarried Mothers for the purpose of giving birth to the expected child. At the suggestion of a sister of the appellant the appellee agreed to take and care for the child. This she communicated to the appellant, who thereupon wrote her a letter saying, among other things, 'Odie, you said you wanted the baby, well you can have it, but I will take it to Jax to you and you will have to go there and get it'. After then requesting the appellee to send her clothing, 'a bottle and a thermos bottle and nipple' for the expected baby, she said, 'Odie, please don't tell anybody about me.' On July 27th, after the birth of the child, a girl, she again wrote the appellee, saying, among other things, 'I finally made up my mind you can have my baby, I hate to do it but I know it is best for me and it too'. After stating that she had no job and nothing to look forward to, she said, 'Odie, you have not told anyone have you?' The Salvation Army Home was at Tampa, Florida, and pursuant to a request from the appellant in a letter written August 2, 1938, the appellee went to Tampa and brought the appellant and her baby to the appellee's home in Daytona, Florida, at which place the appellant's grandfather also lived. On August 23rd the appellee, who was then the wife of Oscar S. Eastman, and the appellant entered into a written agreement, which the Reporter will set out in full, ^[1] by which the appellant agreed that the appellee and her then husband should 'have the full and absolute care, custody and control and education of the said child', and that the appellant 'consents and agrees to any adoption proceedings hereafter to be instituted by the said Eastmans and agrees to in no way hinder, or assert or attempt to assert any control or authority over the said child from and after this day'.

From this point on the evidence is in conflict. But from the evidence introduced by the appellee, which the court below had the right to, and evidently did, believe, it appears that the appellant concealed the fact that the child was hers, enjoined on the appellee to so do, and exercised no sort of control over the child, contributed nothing to, and exhibited little, if any, interest in, its welfare until just prior to the institution of this adoption proceeding, when she notified the appellee that she wanted the child back.

'Abandonment imports any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child'. 1 Am.Jur., Adoption of Children, Sec. 42; Amis on Divorce and Separation, Section 216. If this evidence does not bring this case within that rule, it would be hard to conceive what evidence would do so. Consequently, the court below committed no error in holding that she had abandoned the child. The appellant is now happily married and...