Yarber, Matter of

• Decision Date: 05 January 1977
• Docket Number: No. 49056,49056
• Citation: 341 So.2d 108
• Parties: In the Matter of Shellye Deneen YARBER and David Anthony Yarber, minors, Alton YARBER v. Robert W. DEARMAN et ux.
• Court: Mississippi Supreme Court

Page 108

341 So.2d 108

In the Matter of Shellye Deneen YARBER and David Anthony Yarber, minors Alton YARBER v. Robert W. DEARMAN et ux.

No. 49056.

Supreme Court of Mississippi.

Jan. 5, 1977.

Stanford Young, Waynesboro, for appellant.

Peter K. Smith, Quitman, for appellees.

Before PATTERSON, SMITH and LEE, JJ.

LEE, Justice:

The Chancery Court of Clarke County entered a decree granting adoption of Shellye Deneen Yarber and David Anthony Yarber, children of the former marriage of Frances L. Dearman and Alton Yarber, to Robert W. Dearman, their stepfather, and Yarber appeals to this Court. We reverse.

Appellees, Robert W. Dearman and Frances L. Dearman, filed their petition for adoption without stating a ground therefor, and subsequently amended the petition, averring that appellant failed to pay support as ordered by the court and failed to make attempts to see the children under the reasonable visitation privileges of the divorce decree granted to Mrs. Dearman. A demurrer was sustained to the amended petition, and a second amended petition was filed, which followed the language of the statute, charging (1) abandonment of the children by appellant, and (2) that appellant is mentally, morally and otherwise unfit to rear or train the children, for the reason that on October 11, 1974, appellant drove to the Dearman home with the intent of killing Robert W. Dearman, and shot Dearman four times.

The evidence shows that appellant did not perform the provisions of the divorce decree in contributing financial support to his children, although he sporadically paid small amounts of support, and from March 10, 1972, through December 4, 1973, sent twenty-three (23) support checks to Mrs Dearman in addition to sums paid through the Welfare Department. He visited the children about once every six months, called them on the telephone at infrequent inter vals, and sent them Christmas presents.

On October 11, 1974, while the petition for adoption was pending, appellant called his former wife and requested permission to visit with the children. She told him that he could pick up the children about 10:30 p.m. after a ballgame. She testified that he used abusive language toward her. About 10:30 p.m. appellant drove to the Dearmans' home, Mr. Dearman came out to appellant's vehicle, an argument ensued, and appellant shot Dearman four times with a .25 caliber pistol. Although Dearman was hospitalized for ten days, he made a complete recovery.

Mississippi Code Annotated § 93-17-7 (1972) provides:

'No infant shall be adopted to any person if either parent, after having been summoned to sign the petition for adoption, shall appear and object thereto before the making of a decree for adoption, unless it shall be made to appear to the court from evidence touching such matters that the parent so objecting had abandoned or deserted such infant or is mentally, or morally, or otherwise unfit to rear and train it, in either of which cases the adoption may be decreed notwithstanding the objection of such parent, first considering the welfare of the child, or children, sought to be adopted. Provided, however, the parents shall not be summoned in the adoption proceedings nor have the right to object thereto if, within one year prior to the adoption proceedings, the parental rights of the parent or parents have been terminated by the procedure set forth in sections 93-15-1 to 93-15-11, Mississippi Code of 1972, and such termination shall be res judicata on the question of parental abandonment or unfitness in the adoption proceedings.' (Emphasis supplied).

This Court has held that 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. In Re Hall, 202 So.2d 641 (Miss.1967); Wright v. Fitzgibbons, 198 Miss. 471, 21 So.2d 709 (1945).

In Ford v. Litton, 221 So.2d 871 (Miss.1968), the lower court held the father was not unfit, but that he had abandoned the child, and this Court said:

'In an adoption proceeding, on the threshold, the court is met with the presumption that the child's parents will love him most and care for him best, and that, ordinarily, it would be for the best interests of the child that he remain in the custody of his parents. In all contests between a parent and other persons, this presumption is conclusive unless it be clearly shown that by reason of immoral conduct or vicious habits the parent is an unsuitable person to have the custody, or has forfeited the right to custody by reason of having abandoned the child, or other circumstances which clearly indicate that the best interests of the child will be served in the custody of another. Bunkley & Morse,...