31 So. 2d 819 | La. | 1947
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *339 On March 7th 1945, Mr. and Mrs. Robert Carter Green petitioned the Ninth Judicial District Court for the Parish of Rapides to adopt Patricia Paul, the seven year old daughter of Charles S. Paul, issue of his marriage with Annie Mae Lauderdale, deceased. Mrs. Green is the half-sister of the child's father.
The petitioners alleged that they have had custody of the child for the last 14 months by and with the consent of the surviving parent, Charles S. Paul; that they love the child as their own; that they are well able to take care of her and that they desire to adopt her. They further alleged that the child's father has given his consent to the proposed adoption in writing and they attached to the petition a notarial declaration by Paul, wherein he waived citation and accepted service of the petition, *341 concurred in its prayer and expressly consented to the adoption of his child.
After consideration of the petition, the consent of the father and the report of the State Department of Public Welfare, the trial judge entered an interlocutory decree of adoption on May 28, 1945 and awarded the petitioners temporary custody of the child. On February 28, 1946, Paul appeared and moved for the revocation of the interlocutory decree of adoption on various grounds. The motion was resisted by petitioners and, after a hearing at which much evidence was submitted, the judge dismissed the motion and maintained the interlocutory decree of adoption. Paul has appealed from the adverse decision.
In this court, counsel for Paul insists that the evidence taken below fully substantiates his charge that Mr. and Mrs. Green are not morally or physically fit to become the adoptive parents of his child. On the other hand, opposing counsel maintains that the evidence is overwhelming that the petitioners are not only fully capable of caring for the child but that it is to her best interest that the adoption be finally granted. In view of the fact that the motion filed by Paul operates as a withdrawal of his consent to the adoption of his child, we must initially decide if his opposition does not effectively destroy the adoption proceeding as a matter of law, even though *342
it be assumed that the withdrawal is founded on whim or caprice. Stated in another way, the primary question is whether a final decree of adoption can be granted under Act No.
Our recent decision on April 21, 1947 in State ex rel. Simpson v. Salter,
Thus, it is obvious that, while State ex rel. Simpson v. Salter adjudicates a conflict of jurisdiction, the predicate for the result is that an adoption proceeding cannot survive in the absence of the parents' *343
consent which must continue until the rendition of the final decree. A re-examination of the jurisprudence on adoption and the provisions of Act No.
While adoption is a practice of great antiquity, having been known to the Egyptians, Babylonians, Assyrians, Greeks and ancient Germans and having been recognized in the civil law before the time of Justinian, there is no adoption at common law and, in the United States, it exists only by statute (2 C.J.S., Adoption of Children, § 2 p. 370). It has been firmly settled by this court that adoption is a creature of statute; that, this being so, it is only what the law makes it and that, to establish the relation, the statutory requirements must be strictly carried out, otherwise, the adoption is an absolute nullity. See Succession of Pizzati,
Adoption is defined to be the establishment of the relationship of parent and child between persons not so related by nature and the act of adoption creates a status rather than a contractual relation (2 C.J.S., Adoption of Children, § 1, pp. 367 and 368). Since the act or judgment of adoption has the effect of transferring the legal relation from the natural parents to the adoptive parents, it is generally made requisite in adoption statutes that the consent of the natural parents be had in order that the adoption be valid. And it has been held that statutes which do not provide for the consent of the natural parent are unconstitutional. 2 C.J.S., Adoption of Children § 5, p. 373. In Louisiana, the jurisprudence is settled that consent of the natural parents is necessary (see authorities supra) as it has either been specifically required or contemplated by our statutes. Acts Nos.
Therefore, since consent is essential, it would seem to follow that it must be of a continuing nature and that the withdrawal of consent prior to rendition of a final decree is just as effective a bar to the adoption as though the consent had never been given. This view is well recognized in the jurisprudence of other states. Corpus Juris Secundum, in dealing with the effect of withdrawal of consent by the *346 natural parent, declares: "Consent may be withdrawn at any time before adoption, even though given in writing, and accompanied by transfer of the custody of the child, and even though the natural parent had abandoned the child; and an adoption based upon a consent that has been withdrawn is void." See 2 C.J.S., Adoption of Children, § 21, p. 386. *347
Many cases are cited in support of the above quoted text. In fact, while there are a few pronouncements to the contrary, the preponderance of the jurisprudence is that the continuing consent of the natural parent is vital to the validity of the adoption decree. See Application of Graham, Mo.App., 1946,
Counsel for petitioners expresses the belief that a natural parent does not have the right to withdraw his consent merely because he has changed his mind (as here) and asserts that, in the absence of attendant circumstances indicating just and valid cause, the judge has the right to grant a decree of final adoption. In support of this contention, he has cited two cases, viz., Wyness v. Crowley, 1935,
The two cases relied on by counsel, as well as the others above cited, are founded either upon an interpretation of the provisions of the particular state statute involved or upon an equitable estoppel or upon the combined circumstances of equitable estoppel and consideration of the welfare of the child.
The application of the doctrine of equitable estoppel in an adoption proceeding does not appeal to us. This court has repeatedly held that "adoption is a creature of the law, is what the law makes it, and that, to establish the relation, the statutory requirements must be strictly carried out; * * *". Owles v. Jackson, supra [
Counsel for petitioners further says that, since the concern of the State in the welfare of the child is paramount and since it appears that it will be to the best interest of the child that the adoption be maintained, we should not disturb the finding of the trial judge as "good cause" has not been shown for the revocation of the interlocutory decree. The case of State ex rel. Guinn v. Watson,
State ex rel. Guinn v. Watson was a habeas corpus proceeding for the custody of a child. The rule is firmly established that, where custody alone is the main issue, the welfare of the child is the paramount consideration of the court. However, that type of case is not to be confused with an adoption proceeding. In adoption, temporary custody is merely an incident to the demand. Manifestly, a decree of adoption cannot be predicated solely upon the best interests of the child — for, if such were the case, many parents could be deprived of their issue where the adoptive parents proved that they were able to offer to the child greater opportunities for education, environment and culture.
Counsel for Paul has asked that we not only reverse the judgment below but that we order that the custody of the child be given to his client. We cannot grant this request because, in our view, the withdrawal by the natural father of the consent previously given compels a dismissal of the adoption proceeding. Hence, the incidental order awarding temporary custody falls and the parties are placed in the same position as though the adoption proceeding was never filed. It appears in this case that the father voluntarily surrendered the custody of the child to Mr. and Mrs. Green. The matter of his right to regain the custody of his child cannot be decided in this proceeding. *350
The judgment appealed from is reversed and it is ordered that the adoption proceeding be dismissed at the costs of petitioners.
HAWTHORNE, J., concurs in the decree.
Act No.
By Act No.
The latest act on the subject of adoption, Act No.
Thus, it will be seen that our many statutes on adoption specifically provide for and envision the continuing consent of the natural parents. These laws, of course, must be given a strict construction as they are in derogation of the natural right of the parent to his child. They are not to be confused with statutes dealing with neglected or delinquent children and the paramount right of the state to deprive the natural parent of the custody of his child where it appears that the welfare of the child will be best served thereby.
Dissenting Opinion
I agree with the observation in the majority opinion that "* * * adoption is a creature of statute; that, this being so, it is only what the law makes it and that, to establish the relation, the statutory requirements must be strictly carried out, otherwise, the adoption is an absolute nullity." But, contrary to the holding of the majority herein, I maintain that under the Louisiana adoption statute if natural parents have formally and freely consented to the adoption of their child, and the proposed adoptive parents have acted thereon by bringing adoption proceedings, the former cannot arbitrarily withdraw that consent (merely because of a change of mind) so as to prevent the entering of a final adoption decree, particularly where, in reliance upon such consent, the proposed adoptive parents have taken the child into their custody and care for a substantial period of time and bonds of affection have been forged between them and the child. I do not subscribe to the conclusion, in other words, that the consent of the natural parents must be of a continuing nature and that the withdrawal of it prior to the rendition *351 of a final decree is just as effective a bar to the adoption as though the consent had never been given.
The view that I entertain springs from our present statute, Act No.
In the subsequent statutes provision was also made for the formal surrendering of the child by the natural parents to the adoptive parents, by a notarial act under Act No.
Under none of our statutes have persons been required or compelled to consent (against their will) for the adoption of their child; but under all of them, in my opinion, when and if they voluntarily gave their formal consent (by a notarial act or the legal act of surrender referred to in the respective statutes) they, by that act, effectively relinquished their parental *352
rights to the child and could not thereafter be heard except as ordinary citizens speaking in the interest of the child's welfare. If this were not true they would be necessary parties to the subsequently conducted judicial proceedings; but they are not, for under the present statute, as well as those superceded by it, the serving of a petition and citation on them is not required. Thus in Section 3 of Act No.
Moreover, if the continuing consent of the natural parents be necessary, as is held in the majority opinion, it seems to me that they, as parties in interest, should at least be ruled into court to show cause why the final adoption decree should not be entered; but the statute does not contain that requirement.
The period that must elapse between the interlocutory and final decrees, provided for in both the 1938 and 1942 statutes, obviously was not intended to afford time to the natural parents for reconsidering their free and voluntary act of surrendering *353 the child for adoption. It constitutes nothing more than a probationary period respecting the adoptive parents and the child, during which the State Welfare Department, acting in behalf of the State and in the interest of the child's welfare, investigates and considers the fitness — moral, economic and otherwise — of the adoptive parents and also the reaction of the particular child to them.
If for good cause, meaning of course the unfitness of the adoptive parents for the child or the unsuitability of the proposed adoption arrangement (but for no other reason), the court may revoke during that period its previously entered interlocutory decree. This authority is provided in Section 5 of our present statute, reading as follows: "At any time before the entry of such final decree of adoption the Court for good cause may revoke its interlocutory decree awarding the temporary custody either on its own motion, or on the motion of the State Department of Public Welfare, or its duly authorized agent, or on the motion of any person or persons interested in said child, but no such revocation shall be entered unless ten days' notice in writing shall have been given to petitioner and the State Department of Public Welfare or its duly authorized agent, or unless petitioners and the State Department of Public Welfare or its agents, have an opportunity to be heard."
It is to be noticed that the similar section of the 1938 statute used the words *354 "* * * or on the motion of the parent or parents * * *". The changing of this clause to read (as in the present statute) "* * * or on the motion of any person or persons interested in said child * * *" was done, I think, for the express purpose of avoiding the result that has been reached by the majority in this case. Under the 1938 statute there might have been justification for the majority's holding in as much as the parent or parents were specifically authorized to file the motion. But in view of the change, it seems clear that now the natural parents who have given their consent are in no better position to defeat the adoption than any other person interested in the child's welfare; they can prevent it only by showing good cause, in which category the mere changing of the mind does not belong.
The majority opinion calls attention to another change in the former law, it being that Section 7 of Act No.
The history of the development of our present adoption law, beginning with the earliest statute, is convincing that the Legislature has never intended to require anything more or less of the natural parents in relinquishing their rights to the child than the formal act of surrender, or to authorize them to withdraw their consent once it has been given voluntarily and pursuant to the legal requisites. The numerous changes made during the development period purposed only to increase the burden on the adoptive parents, by requiring them to prove that they are fit and suitable persons, in keeping with the general trend of society of looking to the best interest of the child proposed to be adopted. Nothing can be found in any of the statutes granting authority for the natural parents to revoke an interlocutory decree; rather, the later ones specifically provide for the court's revoking it for good cause. And to hold that such parents have that authority, as the majority opinion does, is to read into the statute such a provision, to judicially legislate.
The reason why the Legislature never intended that the natural parents, after consenting freely and formally, could defeat the adoption by merely changing their minds is revealed by the very facts of this *356 case. Following the death of the mother of the child in question and prior to the commencement of the adoption proceedings, Mr. and Mrs. Green had the child's custody, pursuant to the father's consent, for a number of months. On March 7, 1945, they filed a petition for the adoption, annexing thereto the written consent (a notarial act of surrender) of the natural father. On May 28, 1945, after considering the report of the State Department of Public Welfare and the formal surrender by the natural father, the court entered the interlocutory decree. It was not until February 28, 1946, or almost a year after the adoption consent was given and the petition filed, that the natural father proceeded by motion to have the interlocutory decree revoked. Upon a hearing of this motion, at which evidence (including reports of the State Welfare Department) was introduced, the court found no good cause for revoking the interlocutory decree. The natural father then appealed to this court.
Pending the appeal here and the proceedings in the trial court more than two years have elapsed, and during that period much love and devotion undoubtedly have been kindled between the adoptive parents on the one hand and the child on the other, to say nothing of the time, energy and money that those parents have expended. It is inconceivable that the Legislature, in the enactment of the adoption law, could have contemplated a breaking of those bonds of affection as well as the *357 wasting of the adoptive parents' efforts, by reason of the unstable whims and fancies of the natural parent — by the mere changing of his mind.
I respectfully dissent.