*1 DeBruler, J., and Hunter, JJ., concur; C. and Givan .Arter- J., burn, dissents “I dissent statement: reason hearsay testimony feel erroneously I. admitted objections opposing direct examination party.” over Note.—Reported 2d N. E. in 251 Adoption Kelly
In re v. et ux. rehearing [No. 668S99. Filed October 1969. No filed.] *2 Welchons, Marion, Ewbank, Albert Jack W. Indianapolis, appellant. Osborn, Kiley Kiley, Marker, & Marker, Albert C. Marion, appellees.
Givan, J . This adoption of is matter of the minor two mother, children whose natural Sydney Kelly, K. is now Ray Kelly, married to one adopt Charles seeks who to her natural The children. natural father the of children is the appellant, appeared Nathan Reynard, the H. trial who objected granting adoption. the was the deci- It sion the Trial the Court had natural father deserted pay sup- the and abandoned minor children and failed had to port year prior for them one for a immediately filing the therefore, the consent was adoption. unnecessary to the
The Court further found that was in the best interest granted. of the children that the children, appellant, is the natural father of who assigns overruling error this of his Court motion contending Court’s decision trial Trial a new contrary evidence and is is sustained sufficient appellant’s contention that the evidence shows that law. It is meaning children within the fact, not, he did abandon the grant the Court would authorize which statute his consent. without appellant the evidence shows An examination pilot now stationed fighter Force States Air United formerly appellee, Sydney He married in Vietnam. was appellant, Charles divorcing the married Kelly, who, after K. the divorce appellee. an time of Ray Kelly, At who also children, custody obtained the natural mother children. appellant pay ordered for the was after two months This June of he did until Kelly. Ray marriage of the mother Charles remarriage mother, arose Following difficulties difficulty was concerning with the visitation children. This appellant’s part mili- aggravated least in reason prevented tary regularly sched- visitation on duties which had, testified that uled basis. attorneys attempting employed different time, period of seven never arrange had children but visitation suitable accomplish this. able to been duty 1966, the
During the entire *3 Thailand, during he time not could Vietnam in any children under circumstances. his with visited following period time June of of until During the appellant a had benefit of modification present the without regular support refuse make upon himself taken it order hearing extent that time of the in payments at the $5,000.00 he was in excess of cause trial in this arrears. in appellant made three of
In the summer $25.00 approxi- income monthly when his payments time at a mately $1330.00. April 1967, immediately upon appellant’s of March or he Vietnam, a Cashier’s check sent from $1500.00
return partial presentation his wife attorney former for his support. However, this refused payment check was back of appellant. and returned by his former wife had filed his Ray Kelly Charles also in There is evidence day January, 24th in change better there had been record Kelly. Mr. Mr. their had married mother children after an children and Kelly himself to his love testified in them. interest remarried, he had and that
The testified that he duty. returning his continue tour overseas appellant had record There was evidence in great attempting difficulty his children in to visit with appear very cooperation except former would little parents, appeared friendly terms wife’s who to remain on maintaining with him in a small and aided him somewhat degree of contact with children.
There is in the suffered evidence record that the time, a nervous breakdown this he himself ruled on occasion out visitation because upset instability he emotional was fearful would and that display pres- emotion much too their ence. question decision before whether or not the Court supported by
of the Trial Court was the evidence and is question keeping The statute with the statute. reads as follows: parent parents living, he, “If such child have or she
they writing adoption. minority shall consent to such any parent of sent: shall in or of itself a bar to con- be such Provided, parent minor, however, if That either a be parent accompanied by consent approval must be the .written agency investigating if there aforesaid none, department public if be and state welfare. parent parents may dispensed Such consent *4 adjudged if for child such to have is been abandoned or deserted (6) immediately preceding months or more the date six filing petition. by appears of the of the If it indorsement by (2) or on the the oath affirmation of two parent parents persons or or both disinterested that such diligent are nonresidents or that their in- residence after quiry unknown, parent parents is then or such shall be notified of pendency by publication of the action as provided by parent parents law in civil If cases. or legally deprived parental been of their over such child for economic, reasons other than written parent parents necessary consent of such or shall be pendency such and no notice of of the such adoption proceedings parent parents or shall such be necessary: Provided, however, pendency notice of That adoption proceedings of shall, case, given such in such be agency county department to such or public welfare of may every which such child abe ward. In case where such child shall have been born out of wedlock consent of the sufficient, mother of except such be child shall deemed paternity that where the of such child been has established by lav/ adequately supporting child, and the father is such any or where for reason discretion of heard, it such notice is deemed advisable that he be he shall have necessary oppor- as court seems and the tunity objection any, oppose adoption, file his if such objection shall be considered and determined (14) years age over, court. If such child be fourteen or adoption. necessary his consent shall deemed before In parent parents required all cases where consent of the or is signed duly presence such consent shall be in of a au- agent department public thorized of the state welfare or of investigating agency such and so attested such agent; by notary public: Provided, however,That or such signed necessary attestation shall not be consents taking before the of this effect act [§§ 3-125]. 3-115— department hereby Such state clerk of authorized to furnish to prescribed forms use courts aforesaid parents persons giving Copies or other when consent. signed such consent when same have been be filed shall investigating agency with the aforesaid clerk pending. of the court in which the may hearing opportunity Such court cause notice objection given file to be to the known kindred person persons any other deemed child and entitled granting petition. such all oases notice before any pay or children has failed to where the father child (1) immedi- support money of one for a filing adoption proceedings for prior ately adoption to. child, may in children, the court its require filing the father of a consent discretion not *5 6, 1943, p. 438; 146, 1941, instances. of ch. § in such [Acts 3-120. p. ch. Ann. Sec. Burns’ Ind. Stat. § 89.]” interpreted Court The as above statute has been follows: Admittedly, adoption of in the absence there can be no consent, deser- or the ultimate fact of abandonment unless are
tion is found to The with which we concerned exist. issue necessary sup- evidentiary to the involves criterion or facts port or desertion. the ultimate fact of abandonment determining In criterion of the words the elements deserted’; adoption statute, in our ‘abandoned or used as language purpose we look of the statute. first to the (Here statute.) the Court cited the adoption the “Significantly the use of statute omits our ‘wilful’; characterizing word tion. as abandonment or deser- the ‘wilfully contrast, the Ohio the term statute uses and, construing statute, probate, abandon’ of that that the ‘ “wil- state stated reason that with . . . word meaning fully” which used in the a definite as statute has requires neglect parents the must be intentional. of being neglect duty of could Without the word used the therefore, neglect and, be 84 be caused carelessness Adoption (1948), re Gates unintentional. . . .’ In looking App. Therefore, 269, 270, Ohio 85 N.E.2d 598. language statute, that the conclude careless of our we negligent perform parenthood and is failure to the duties significant of abandonment or element of the offense regardless desertion, neglect be considered purpose’ by parent any actual ‘intention’ or ‘settled the relinquish proprietary parent claim of the to his the (1956), 249, 259, Ind. 133 Emmons v. Dinelli child.” N.E.2d payments made some token fact had
prior petition adoption filing the had sub for
sequent filing petition of the arrearage $5,000.00 tendered some does $1500.00 opinion, meaning not, comply our with though statute, language even the statute does . has to pay any . failed money for a year...” one (1)
Prior cases in Indiana deal with which we have examined payment where the situation has whatso- father made no year immediately prior filing ever within the adoption. Therefore, ques- in the case bar presented payment tion is to whether not a token some prior filing immediately $75.00 comply is sufficient terms of the requiring statute thus of the natural consent father. language
In the use above can *6 legislature payments support meant that nominal would be interpre
sufficient? We not. If be the think such tois tation, then a natural could forever block father adoption by making payment his yearly of a children dollar, give of a then refuse to his hold consent. We legislative interpreted intent be this must statute to ability mean that where natural has the father to substantially comply but fails with any support order of previously by a to entered or fails make substantial Court support children, contributions to his natural his con of necessary granting adoption. sent is not of an problem Supreme This same was encountered Court they a of Louisiana when were faced with similar factual and a statute. situation similar That Court stated: requiring parents “The of adop- basis consent to right parent tion is the natural to child. If a his parent parental responsibilities fulfill to his does not his child, consent. We dispensing a there is reasonable basis for with his Legislature attempting think the here to parent a failure of the to which would be define conduct responsibility child, whereby of of fulfill the his his rights. parental parent forfeit his would construing here under the statute consideration which “In proceedings dispenses under: cer with consent
639 pronounce conditions, tain we mindful the above are give a ments, propose do to the statute but we inopera interpretation make it ineffective and strict tive. plete abe com To hold that there must under the statute for one pay refusal or failure to sum whatever year dispensed to has to be with would before consent would be obligation parent disregard completely a which provide ing a hold support and maintenance for child. Such his disregard parent, complete permit unworthy an would obligation child, prevent an making might of the ehild to the best interest be nominal insufficient payment of a once each token sum support. provide con Such strict for maintenance consequences make lead absurd to and struction would statute meaningless ineffective.” In re Ackenhausen (1963), La. So.2d 380. difficulty condoning making are not this decision we attempting which the met visitation to establish However, matters of his children. in all this with nature, be. the the total must welfare paramount parent consideration, and no natural regardless experiencing may difficulties he justified spouse unilaterally, former without bene support pre order, pay fit refuse amount of viously he When chooses avenue ordered Court. regardless of redress, his love affection for chil removing dren, places position necessity himself in a adoption. Adoption their can his consent then be probate jurisdic granted, if demonstrated it be to Court of tion that *7 the welfare the children will best be served.
In the the heard case at bar Trial Court the evidence and parties had the before This him. Court will not overturn a of the Trial Court the decision under above circum weigh not the will I. Co. v. stances. We evidence. J. Case (1964), 519; 245 Ind. 197 N. E. 2d Woods Sandefur 260, 191 N. (1963), v. Deckelbaum 244 Ind. E. 2d 101. appellant provide support that failure We hold the upon which the Trial Court its was fact base decision could necessary. the further consent of was We upon hold there the evidence record justified Trial finding the best Court it was granted. interests of the children that the judgment The Trial affirmed. Court is DeBruIer, J., concur; JJ., Hunter, C. Jack- Arterburn and opinion. son, J., dissents with
Dissenting Opinion. agree J . I am unable Jackson, with the determination majority dissent reached case at bar and thereto. majority opinion,
As stated in the case comes us by way appeal Circuit decision of Grant granting appellant’s Court minor children appellee The without father. written consent of action January 1967, by instituted below on Charles Ray Kelly, present second, and husband divorced wife appellant, filing petition adopt two minor Kelly. wife, Sydney and his divorced K. now granted adoption, ordered and bearing 22, 1968, decree date of March be entered pro 26,1967. nunc of December tunc as herein, omitting heading and filed formal parts, reads as follows: Ray Kelly petitions “Comes now Charles the Court Adoption Raynard (sic), an Order for the of Infants presents shows to Court follows: Raynard (sic) 1. That Stuart Glen is a white child male 22,1956.
born at San Antonio Texas on October Toby Kay Raynard (sic) female That white Myrtle Base, Beach child born at Air Force South Caroline 22,1959. (sic), on June 3. That children Stuart Glen both will be known as shall Kay Kelly Toby assume the names Kelly.
641 possess any personal That do real or 4. said children any any property property except accounts in kind or character interest savings possess that each of said children Marion, Indiana, National Bank in the First approximate apiece said sums of and which $14.00 $15.00 along jointly said are held accounts said infants mother, Sydney Kelly. their natural petitioner That the full name of the herein is Charles Ray Kelly years age; and that he 38 that he resides Drive, Marion, Indiana, 1720 that said Timberview and petitioner mother duly Kelly, Sydney married to the natural Marion, children, being Indiana said married in April 3, 1965, oh they lived have since said date together continuously cohabited and wife. as husband 6. That H. name the natural father is Nathan Reynard and that the said H. has aban- Nathan doned and deserted immediately preceding said children more than months petition. (Emphasis filing this supplied.) petitioner 7. The are further shows these possession now natural wife, in the petitioner and his mother, pending and will remain their home this Court’s decision. petitioner 8. That the sincerely said desires of these children as his own and that the best interests adop- by permitting children would be served this tion; your petitioner gainfully employed at the Radio Corporation of America in Marion and means has sufficient income with which to said children. WHEREFORE, your petitioner prays granting of prayed proper just and for all other relief premises. in the RAY KELLY CHARLES
/&/ Ray Kelly Charles SYDNEY KELLY /s/ Sydney Kelly Subscribed and day sworn to before me this 24th of Janu- ary, 1967. W. GORDON CORYEA
/s/ Coryea W. Gordon Notary Public (SEAL) My expires: commission 4,1968.”
March thereafter, on June appears
It the record herein that affidavit 15, 1967, trial court was filed in an there (appellant), and notice non-residence of the natural father 7,1967. August him was ordered issued to returnable omitting heading, formal affidavit, pertinent part, Such parts jurat, reads as follows: *9 being duly “Georgetta Ball M. first and John Dalton say: depose upon oath and
sworn their Indiana; County, they are That adult residents of Grant. Rey- acquainted they personally that nard, Nathan are H. Kay Toby Reynard and the father of Stuart Glen being sought Reynard, children, minor is whose Kelly, Ray proceedings by above Charles these noted Mr. herein; petitioner they knowl- know of their own the edge Reynard, natural father the said H. Nathan children, Captain Air Force a said in United States is Base, present Eglin Air Force and that his Florida and residence is filing therefore, pen- that, and notice of the given petition dency should by provided law. Reynard publication H. said Nathan June, day of 5th Dated this 1967.” appearance Thereafter, his herein entered 5, 1967, September filed verified answer and on counsel cross-complaint adoption filed and omitting Kelly.. cross-complaint, Ray answer Charles Such part pertinent as follows: heading parts, and formal reads AND CROSS-PETITION ANSWER “VERIFIED
I father, respondent Nathan and natural now the Comes petition herein, re- he Reynard, and answer to the for Ms spectfully says that: paragraphs in rhetorical stated 1. He admits the facts 2. allegations paragraphs of rhetorical He denies the 2. 5, 6,7, herein. and 8 of father, respondent Nathan and natural WHEREFORE petition, judg- deny enter Reynard, the Court to asks proper against petitioner for all other relief.. ment II respondent cross-petition, For further answer says and natural father that: Reynard, who 1. He the natural father of Stuart Glen is Antonio, 1956 and born at San Texas on October was Toby Reynard, Myrtle Kay Beach Air who was born Base, Carolina, 22,1959. Force South on June granted wife, Sydney Kelly, 2. His former custody vorce. children when di- of said minor she obtained her Captain 3. He a Air Force and is the United States Beach, presently at Fort Florida. stationed Walton pilot professional 4. in the As Air Force United States regular (sic) liberty keep a armed forces he He has had consider- visitation schedule with able children. difficulty trying he minor children when visit his mother, apparently, peti- is able to tioner, named their because in-laws, Kelly, Charles well the former as visitation, interferring. Overman, keep time His during get furloughs from occur he can must times service, limited, is not. but love for his children spent Further, the entire of 1966 as combat pilot Air Force in Viet Nam and not able to visit with year. his children the entire nor children. He has never abandoned deserted his *10 so, now, Nor he And that he intend to do ever. does petition file on several occasions obtain has tried to custody of his he trouble in in children so could less dispute visiting And for of a with them. reasons lawyers falling not support payments the were behind in his signed permitted petition he had to file which custody. obtain get any support able to misunder- As soon as straightened try get standing again custody out, he will of his aforesaid children. Ryan Ryan, firm of N. of the 7. He has asked Patrick Welchons, represent him in this matter. & cross-petitioner respondent, and Nathan WHEREFORE deny petition of Reynard, herein the Court asks custody Kelly, cross-petitioner to have and to allow Charles prayed children, adoption denied of his own and for all other that the premises. just proper relief in the and REYNARD NATHAN
/s/ Nathan day Subscribed and Sep- sworn to before me 5th tember, 1967. PATRICK N. RYAN /s/ Ryan Patrick N. (SEAL) My expires: commission 9,1971.”
March finding judgment allegedly court on which pertinent based, part in reads as follows: having “Cause been taken under advisement and briefs having considered, been filed and court now that na- finds tural Father has Rey- deserted and abandoned Stuart Glen nard, Toby Kay Reynard, born October and born (Emphasis supplied). June Natural Mother files adoption. Finding Rey- consent further that Stuart Glen Toby Kay Reynard, nard respectively, should be and hereby adopted legal are heirs at law of and as Charles Ray Kelly, changed Kelly under the names Stuart Glen Toby Kay Kelly, respectively. against peti- Costs Judgment findings.” (Emphasis supplied). tioner. pertinent part adoption, The decree follows, reads as to-wit: petitioner, Ray Kelly, person now the “Comes Charles by heretofore attorneys, Kiley, Osborn, Kiley Harker, his & petition
who filed for the Reynard, (H.I.); in Infants reads as follows: respondent, Reynard, and son per- comes now the Nathan H. attorneys, Ryan Welchons, & who heretofore cross-petition, filed verified answer which answer (H.I.). reads as follows: being petitioner’s petition cause at issue on This and re- answer, spondent’s Court, having and the heard evidence being duly premises, thereon and advised in the now finds Kelly, Sydney Kay parent the mother and natural Reynard, writing Infants consented by petitioner prayed joining him. respondent’s “The Court finds that failure to show health, parental education, religion care and concern *11 Reynard; display
and and affection of the love Infants inquire welfare; their about to communicate interest support monetary provide them; and to and visit with desertion said them, constitutes abandonment and respondent; by the existed for that such condition petition prior more than six months date support pay any respondent filed; and that the failed to money prior one for a of at least said children Court, filed; and the to the date the respondent, therefore, the natural further that the consent finds adoption. may dispensed father, in this be petitioner herein is And the Court that the also finds ability rear children and furnish suit- sufficient said children; that it and able is to the for and education for said children that best interests said prayed. granted be as IS, THEREFORE, AND IT ORDERED ADJUDGED by DECREED Glen the Court that the infant Stuart Reynard, day child, on the 22nd of Oc- white male born Toby Kay Reynard, tober, 1956, Antonio, Texas, at and San day child, June, 22nd white female born on the Myrtle (sic), Base, Beach Air Force South Caroline they hereby adopted should and are the children and and and be Ray Kelly, petitioner, heirs at law of the from and after Charles Reynard date takes this Stuart Glen Kelly by shall name of be known Stuart Glen Kay Reynard Toby that and after this date takes Toby Kay Kelly known the name of shall be they receive, otherwise, and that descent Ray Kelly all in the estate Charles interests they if natural heirs. would entitled by the Court that IT IS ORDERED FURTHER petitioner pay proceeding. of this costs day March, Dated 22nd 1968. MANUEL P. GUERRERO
/&/ Manual P. Guerrero Judge the Grant Circuit Court Appellant’s omitting Trial, title, for New formal Motion signature, pertinent part parts reads as follows: “Respondent for a Nathan moves the Court new followinggrounds: trial on each of the 1. The decision of the Court not sustained sufficient evidence. contrary decision the Court is law. *12 MEMORANDUM Reynard, father of “Captain (now the natural Major) legitimate children, their did not consent to these and did not abandon or desert showed this. Without clearly them. The evidence cogent, consent, clear, the father’s desertion, adop- probative evidence of abandonment requirements of Burns’ the statute. tion could not meet the strictly statutory. If Adoption in Indiana is section 3-120. require- statutory proposed adoption a ments, not meet does finding and support abandonment the Court’s desertion; not sustained the Court is hence the decision of contrary to law. and sufficient evidence Reynard Major was a clearly The evidence shows serving Force, coun- jet pilot Air his in the States United during time the abandonment try the entire in Vietnam allegedly even showed occurred. The evidence desertion Major’s Kelly prevented communica- petitioner that tions children’s Kelly (the reaching children, and that Mrs. Major jailed if mother) have the threatened to legal Kelly physical and had them. he tried to visit Mrs. effectively prevented him from custody visiting the children and infrequent The evidence leaves. them willing pay ready Major Reynard stood showed honoured; one but at support were if visitation support, point $1,500.00 for children’s he tendered through paid Kelly it. He also Mrs. refused office 1966. Clerk’s law, reviewing and the the Court the evidence After Reynard grant Major a new trial herein.” should trial Grant was filed in The motion new above January 23, The same was 1968. overruled Circuit Court respect March record court on part pertinent reading as follows: thereto REMEMBERED, that after- “AND BE IT FURTHER March, to-wit, day of the Janu- wards, 22nd on the following proceedings Term, were had in said ary, figures following, to-wit: being cause, in the words parties hereto Court now enters counsel. now Comes adoption, per decree all written now decree written pro (sic) of December (HI), nun tunc as follows: entered as 26,1967. following, figures being in the words Decree Said
to-wit:....” appellant former record before us discloses 1955, while were stu- both December married wife were graduation University. Upon appellant com- was dents at Ohio assigned to Air Force and the United States missioned months. Texas, six McAllen, where stationed for was Texas, during Laredo, at stationed Thereafter he was Reynard hospital at was born time his son Stuart Glen daughter, Base, Antonio, His Kelly Air Force San Texas. at Toby Kay Reynard, born while was stationed Myrtle Base, Thereafter Air Force Carolina. Beach South assigned Germany. Bitburg, Mrs. Germany. accompanied him to and the *13 appears Reynard preferred It more Mrs. no agreement appellant By mutual consented to and children. year undergo during the vasectomy prior a and did the 18, 1963, to November result which denies him further body. during November, 1963, heirs of his Sometime the parties separated Reynard 18, 1963, Mrs. and on November parents the home of her and the children returned to in Marion, Indiana. Marion,
Appellant Indiana, saw his in next wife on De- Spencer the As he at Hotel. soon as cember arrived 23, 1963, December he in on his father-in-law, Marion called Overman, asked to see his Mr. and children. Mr. Overman riding see him after day, came and all down around Mr. daughter he would discuss matter with his Overman appellant let him later and call and would know what Reynard evening came That Mrs. decision was. to the hotel long appellant discussion, during had a she and and parents’ her home appellant invited to come to about was morning children, see ten o’clock Christmas children, upsetting the and out without come he would if parents spend did one hours. His and her two wife could not seeing want him to show emotion children time Appellant first in felt month and a half. he showing avoid could emotion not with the children and parents in deference to the wife he of his her wishes did see the children on that occasion.
The next January, 1964, time his wife was saw in Appellant psychiatric hospital Dayton, was in a ward in at His Ohio. confinement therein resulted from nervous fatigue upset breakdown due to emotional over marital Appellant situation. next Mrs. saw and his children parents’ Feburary, 1964, at Marion, her home in evening. time, six until nine in At that on his wife’s placed complaint, picked up there jail over night morning. and released next He saw children again early 1964, shortly March, before he was returned assignment duty Eglin Field, to active Re- Florida. sought peatedly 1964, he to see and to have them was denied for visit but both. wife, record discloses that and his former
Sydney Reynard Kelly, September 22, were divorced Appellant present personally trial, was not but represented by counsel, original Kiley, Mr. first in an Act, waiver under Soldiers and Relief Sailors Civil who proceedings appear- were when contested withdrew represented appellant proced- ance. Mr. Tobin in the divorce ings property support. settlement appellant’s
The evidence in record pay- discloses that ments for for his wife and children started out at *14 month, a then $285.00, $375.00 went down to $200.00, then to Support then paid to the $175.00 in final in decree. full every April 1965, delinquent. got month to of when The arrearage support 1965, to accumulate May, of started in year appellant after little over a last his saw children. appellant support payments discloses has record also made totaling office the clerk of the trial court $425.00 $1,500.00 at- has sent the sum to one of his further torneys attempted arrearage in the use an settlement support. money However, in in the the clerk’s office has by Reynard Kelly Mrs. and her not been drawn and she at- torneys accept $1,500.00, money the and that refused to appellant. appears returned It further that March, 1964, 25, 1967, appellant to October had gifts birthday children, good sent Christmas many children, of which been withheld had from said who gifts were that unaware fact had been sent. It also appears appellant attorneys has had a that total of seven attempts representing him in to obtain visitation attempts unavailing. children and all were It beyond appears also shadow of a doubt that the former appellant, custody wife of who had of the children decree, permit terms of the divorce refused to her former husband, children, father see them unless he appealed consented here Further, from. she payment support refused to discuss money saying this time are “[a]t we not interested money what- soever, adoption.” we had filed for The record also discloses was advised his counsel in that counsel Kelly’s attorney was told Mrs. would be put jail appeared attached and he if County in Grant attempted legal to see steps children or to take right visit obtain them. record also discloses that except appellant, for the spent in Viet Nam, has been a resident Beach, of Fort Walton Florida, past years. three one half opinion majority citing
Even authority interpretation (§ of the statute 3-120 Burns’, supra) adopts language portion cited in Emmons v. Dinelli 259, 133 (1956), 235 Ind. N. E. 2d as56 follows: “Admittedly, there can be no in the absence consent, unless the ultimate abandonment or facts of (Emphasis desertion is to exist. supplied) The issue found *15 650 with which we are concerned the criterion or involves evi7 dentiary such necessary facts to the ultimate fact of determining abandonment or desertion. In the elements or criterion of the deserted,’ words ‘abandoned or as used adoption in our statute, language we look to the first
purpose of (Here the statute.) statute. the Court cited the Significantly adoption our statute the use of the omits ‘wilful,’ word characterizing the or deser- abandonment contrast, tion. In ‘wilfully the Ohio statute uses the term abandon’ and, in construing probate statute, the court that of that state stated with reason that ‘. . . The word “wil- fully” requires Without meaning as used in the statute has definite which neglect parents that of the intentional. must be being neglect the duty word used the of could and, be neglect therefore, caused carelessness be Adoption unintentional re (1948), Gates App. 269, 270, Ohio Therefore, 85 N. E. 2d look- ing language statute, our we conclude that the negligent careless and perform par- to the duties failure significant enthood donment or ais element the aban- offense of desertion, neglect which is to be considered regardless any purpose’ actual ‘intention’ or ‘settled parent relinquish the proprietary parent to the claim the to (Emphasis his child.” supplied) I how, ask where and in of the that view fact admittedly employed lawyers had a total of seven to assist in obtaining him children, visitation with his can it alleged, concluded, be let alone guilty negligent perform failure “careless the to duties of parenthood significant ,” . . . and “a of the offense element neglect desertion, of abandonment which is or to considered regardless purpose’ by actual ‘intention’ or ‘settled parent relinquish the proprietary parent the the claim of reasoning child.” majority opinion of the on this all score the is more in untenable view uncontradicted Superior evidence in record Court, Grant proceedings divorce held, were refused permit appellant’s file, proceed hearing counsel to petition require on a (Sydney Kelly) former wife permit appellant to his children. visit counts, when majority error, two opinion on “ pre- question herefore, bar case states [t] of some payment $75.00 whether or not sented as to filing of immediately prior to re- comply the terms thus is sufficient again point out father.” I quiring the natural consent of upon relied cause and filed theory predicated was, is, appellees more imme- six months or abandonment desertion for *16 filing the the of and preceding date of the diately the or children theory the ehild the father of not on period (1) support of any money for a one pay to failed adoption proceed- filing prior year immediately to the required the in is the ings. consent father course the of Of at bar. case by
Second, I in case while deem outside the issues it majority opinion allegations petition, the virtue the the of of alleging appellant by seeks fire blast at to barreled double proving abandonment six months abandonment for and attempted showing pay support failure for an to preceding petition. position the immediately filing the That First, posture and the former untenable for several reasons. they the didn’t want wife made several statements to effect present husband, support children, they (she the for her assume) adoption. I appellant consent Sec- wanted to through (the ond, wife), counsel, former to ac- she refused cept $1,500.00 by appellant’s payment the counsel to tendered arrearage alleged support payments, apply an well as paid certain into the clerk of the Court. sums Circuit Grant Third, appellee or our case the law does not sustain opinion majority reference will seen this score as period, be- Fourth, later the entire thereto on herein. fore, during filing adoption, after for through appellant exerting possible effort, counsel, every time, tc obtain visitation with his children. At the same according undisputed testimony record, the Grant
Superior refusing petitions let Court was counsel file appellant appellees and the and their threaten- counsel were ing appellant County. appeared with arrest if he even in Grant There is no denial that former had him arrested wife jail and'thrown in last time children saw his at any her Nor is there would home. doubt she reason sight shows, arrested on had him since the record without contradiction, she attachment bad an him issued December, 1966, Nam, before Viet returned from January, Finally, another issued on the statute does strange upon permit placed not construction majority opinion. permits adoption The statute without writ- ten parents ways: consent either two A. On proof that child has been abandoned deserted six (6) immediately preceding more months or the date filing petition, adjudged; it is B. all so cases In where the father of child or has pay failed to any support money (1) year immediately for a of one prior filing proceedings, etc. case payments through some bar made clerk and counsel payment the former tendered a substantial wife appel- her Therefore, counsel which tender was refused. lant whereby within the area discretion of the *17 dispense it filing the could the father’s with written con- petition allege Furthermore, sent. for the did not provide support to (1) year, failure for more than one it alleged proved abandonment. That must be fails. or That it proof was not made and the must fail. approve appellant’s
I withholding sup- not do action in port payments, the here but under circumstances shown represents record, the say I that must an understandable attempt an to reaction im- human unsuccessful least position prove bargaining respect his seeing to his chil- point petitioner I the also that dren. out failed to introduce the copy evidence decree or into of divorce a certified thereof. It to me the the payments evidence as to seems the amount there evidence whatever record is no hearsay. is the As I read showing any payment, nor is there as the due dates of to custody continuing exclusive the wife had that former adoption is petition for Furthermore, of these children. failure predicated months, not to on for six abandonment support question consequently year, for a outside issues this case. appellant spent the
The record herein discloses assigned one in duty Exhibit filed 1966 on in Viet Nam. departing Nam sending were orders him to Viet cause change January 27, 1966. Exhibit two of orders for is a set States, back he arrived in to United station back 16, January United on States 1967, January 24,
was Court in Grant Circuit on filed Department County immediately to was referred investigation. dis- Public far the record Welfare for So attempt appel- service closes there was no made to obtain on 15, 1967, his non- lant until when an affidavit of June residence filed. charges by appellant
The record the court discloses to permit filing behalf, petitions, refused his on These children. him with his obtain visitation charges attempted denied, explained be evaded are by appellee anyone either else. No denial is made only permitted record that see during September three times December, the oc- of trial herein date in thrown wife had him casion of second visit former wife, jail is there denial such visit. Nor thereafter, to send or have the time threatened all jail County if see the sent he came to Grant attachment children. There denial that she no caused an December, against appellant county issue out of said completed Nam, 1966, before he had tour Viet against again January, 1967, one before issued him had Adoption was filed. the Petition for *18 654
The employment appellant record by further discloses lawyers, told, of several attempts get seven all to visit in In spite appellee record, children. of all this and his counsel argue in their in support Adoption brief Petition for CHILDREN, “REYNARD’S FAILURE TO SUPPORT HIS AND HIS LACK OF WITH THEM AND VISITATION CONCERN FOR THEIR WELFARE CONSTITUTES argument for ABANDONMENT OF THEM.” In oral counsel appellee complained only the children that visited three times. third visit had with separation adoption day since the in 1963 was case was tried December, 1967, visit was made possible indulgence court, over trial order objections of appellant’s wife counsel. former and her speciousness argument ap- made on visitation pellees’ equalled only counsel is the son who that of parents and sought ground clemency murdered then on the orphan. he was an Appellant’s Brief exhaustive review Answer an contains applicable law case at bar reason is, pertinent adopted part, part of and made included dissent, in this as follows: provision adoption. “The law made no common Hum phries 274, 276; Davis, Perry v. 100 In re Ind. Ind. 83 App. 456, 464-5, law, N. 148 E. 163. Derived from Roman statutory adoption entirely Smith, is Indiana. Johnson v. 705; N. Weed,
203 Ind. App. E. Freeland v. 75 Ind. 273, 128 N. E. 656. adoption derogation are in Since statutes the common law, they strictly Adop construed. In re Force’s must be tion, 156, 131 Chaney’s App. 157, 158; In 126 Ind. N. E. 2d re Adoption, re App. 603, 754, 758-9; 128 Ind. 150 N. E. 2d In Bryant's Adoption, App. 480, 486-7, 189 N. 134 Ind. 2dE. Force, the Court said: practice antiquity ‘While its main England being law, nurtured under the Roman roots provision under at common law or there no *19 adoption solely by sta- In the United exists statute. States uniformly country in this that statutes and it is held tute authorizing adoption derogation law of the common are in adoption children, are provision no which made for the deprived proceedings parents in since of receive a strict construction.’ such natural rights forever, must all their such such statutes as Chaney stated the rule as follows: statutory. 'Adoption proceedings purely Indiana in are Ac- Smith, 1932, Johnson v. 203 Ind. N. E. 705. 176 derogation adoption cordingly governing our are statutes strictly of all common law and must be construed procedural requirements strictly in all es- followed particulars.’ sential Bryant, the Court added: ‘However, relationship parent and child since the between impor- bundle of of such fundamental human tance, generally held statutes has been derogation strictly being be of the common should law worthy parent preservation in favor of construed and the relationship.’ of such pertinent part provides: the statute he, living, or parents parent ‘If child or she such writing they adoption, . . . Such shall consent in may parent parents dispensed if such or consent child is six of adjudged or to have been abandoned deserted immediately preceding or (6) more the date months filing petition.’ Statutes, Burns’ Indiana section 3-120. Captain Reynard proposed adop- not consented has this contrary, actively opposed On the tion. tioner, however, it. Peti- has Captain contends that abandoned meaning of within the his children deserted above statute. January 24 filed petition 1967. its immediately preceding lining . period the six-month
Hence
Rey,
Captain
During
entire
July
began 24
fighting
overseas,
nard was
States Air
United
fighting
country,
Certainly,
Force in Viet Nam.
for his
he did not
abandon
Rather he de-
desert his children.
them,
fended
and all other
Men
America.
would
military
they ipso
never enter
service if
facto abandoned
and deserted their children.
statutory period.
The Court
must look
Burns’ sec-
3-120;
Bryant’s Adoption,
App. 480,
tion
In re
134 Ind.
Certainly
under Burns’ section 3-120:
practical
‘There
to be a
unanimity
seems
in the case
as to the definition of the word “abandonment”
used
when
adoption statute,
is,
in an
and that
ex
abandonment
part
parent
ists when there is such conduct on the
of a
all
purpose
forego
which
parental
evidences
settled
prescribed
time
claims
child
statute.
Dinelli, supra;
Adoption
Children,
Emmons
C.J.S.,
v.
page
foregoing
supported
section
388.
definition is
long
list
in an
authorities cited
exhaustive case
662-702,
page
note in A. R.
L.
2d
The overwhelm
ing weight
authority
adjudicated
supports
in the
cases
a
idea
language expressive
general
definition which
of a
contains
complete
relinquishment
that it
ais
and absolute
which
App. 156,
constitutes abandonment.’ 126 Ind.
131 N. E.
157, 158-9.
2d
The Court added:
‘In addition to the decided
an un
cases
establish
which
confuted rule that
to constitute abandonment conduct on
part
parent
must be
shown
evidences
purpose
a
all
“abandon”
forego
to
parental
settled
relinquish
all
duties and
parental
child,
claims
Webster defines the word
meaning
"relinquish
give
up
with the
again resuming
claiming
intent of never
one’s
in;
give up absolutely;
.”
desert
. . . Webster’s New
Dictionary,
Ed.,
International
page
App.
2d
2.’ 126 Ind.
156,
to allegations present fought case. There natural father also During of abandonment and desertion. statutory period, the six-month child lived with its mother. Father and mother had been divorced some time earlier. Noting the ‘decree of nature’ that a divorced" wife take *21 custody children, small Court said: ‘In order finding sustain the trial court’s of abandon- and ment desertion the facts we in this would case perforce required hold a matter of law that acquiescence father in the mere mother’s custody relinquishment a of their child would constitute infant prior rights child parental to their and claims his to the we Therefore do. following cannot of mother. This we death its Void “decree merely acquiescence was that such purpose” of nature” and an of a was not evincement “settled obligations, forego parental or “intention” and neither ure to and duties negligent fail- it a careless and does constitute perform parental responsibilities, and and duties implied cannot relinquish- an
therefore
ment
be construed to be
480, 490,
App.
claim
his
to his child.’ 134 Ind.
the children tory period; also lived with their mother statu- they parental of home and were “not bereft Captain App. 480, 489, care.” 134 189 N. 2d 593. Ind. E. legal custody Reynard properly acquiesced in the mother’s of the children. support Appellate that a mere lack of Court also held rights.
payments destroy could not The Court father’s said: legislative appears ‘It self-evident supply intent and do not here an intendment. To we such rights parental every put
hold otherwise would father deprived custody been his at the has extinguish mercy of the children’s custodian to refusing support.; will, simply 134 Ind. almost at his App. 480, 492, 189 E. 2d N. point Captain Reynard $1,500 for one tendered At support, Kelly it. children’s but Mrs. refused Thus Bryant. paralles Clearly there here situation here. no evidence of abandonment desertion petitioner, step- children’s evidence showed gifts father, Captain from them to receive and cards did not allow Although Reynard Reynard. Captain service- was threatened to country, fighting Kelly Mrs. man jailed to visit the fur- if tried children on his him have ruined lough. Air jailing would career in the Such peti- dare it. Force, he did not risk Meanwhile home, little children trained these tioner, comfortable in his stepfather over- ‘Daddy’. has Seldom so call him rights. dis- Aided exceeded his reached himself Kelly to re- war, Mrs. schemed time, Mr. and tance, hearts minds Captain move children. him Now, offering apologies, they instead of accuse desertion. abandonment above, noted parallel facts in Bry- this case In re . Av Adoption. Captain Yet one Reynard’s fact posi- makes aisC’s tion stronger: even his combat service abroad
659 period. Appellate no critical Court found abandonment abandonment certainly Bryant; or no desertion in there was or desertion here. Petitioner, foreign brief, largely upon cases. in his relies unnecessary; Such reference the Indiana statute cases is guidance. ample purely adoption
furnish Since the is law statutory, decisions uniform, foreign adoption and the are not statutes brief, page have little 6 of relevance here. On petitioner quotes extensively Petition, Ill. from Miller's 15 App. 333, Appellate ‘The 2d but our Court so-called decries “Illinois Rule” which to lead the trend towards state seems Bryant’s 480, paternalism.’ 487, Adoption, App. re In Ind. 134 page 5, petitioner E. 2d on 189 N. 593. On relies 588, pruis Adoption, nisi decision: Nuttal’s 24 Misc. 2d 28 N. Y. S. 271. 2d Dinelli, 249, 133 Emmons v. 235 Petitioner does cite Ind. 56, presents wholly N. E. 2d There abandoned the it different but situation. simply died, mother the father had had strangers. child course, Of the best interests require father. relationship the maintenance of their their However, do not we reach ‘child’s best interest’ case, this rule in since never becomes an issue in an adversary adoption proceeding de unless abandonment or cogent by clear, sertion ‘first is established and indubitable Bryant’s Adoption, App. evidence.’ 4, re 480, In 134 493- Ind. 593; Adoption, 189 N. E. 2d In re Force’s App. 126 Ind. 157, 156, 131 N. E. proven 2d 160. Petitioner has not aban donment or desertion here. page petitioner’s brief, 12 of On report he refers County Department from the course, of Public Welfare. Of adversary proceeding, report in an is inadmissible. Usrey, 155, 491; Attkisson v. re 224 Ind. 65 N. 2d E. Chaney’s Adoption, App. 603, Ind. 128 N. 2d 150 E. 754, 757. early suggests may One apply case that we principles law, adoption of Roman whence our ultimately law derives. Krauss, Markover v. 298-9, 132 300-1, Ind. 31 N. E. But our law in ‘adrogatio’ Indiana follows the Republic of the ancient rather ‘adoptio’ than the of the juris-consults. course, later Of either always re- quired the father’s consent.” weighing herein, the evidence merely Without but reviewing determining purpose judgment it for whether 660 pro- trial sufficient evidence sustained (1961), value, Dent v. Dent Ind.
bative 336; Kraus, (1956), E. Kraus Executor N. 2d v. 235 Ind. 608; 325, 132 N. I and do E. 2d must come to conclusion judgment appealed evidence not sustain does contrary therefore to law. Again point petitioners’ theory I must out com- plaint months, abandonment six based one prior to immediately not on failure *23 petition adoption. para- filing the the date the See for petition page finding graph of this The six of two the dissent. (page dissent) clearly four the court of this indicates the theory no cause the was tried on of abandonment other. judgment findings.” The . be “. To be was to . on valid finding one be. There is the scintilla of evidence had to not pay support finding or one to word “failed one money a least for for prior filed,” the date as asserted judgment (emphasis 22, supplied). rendered March findings clearly apparent is, therefore, It the trial and were theory, being desertion, on one abandonment determination, for court issue before court and that this support, theory, pay failure affirms different now on a finding issue the trial. The is further state that deficient it fails to in that abandonment was preceding filing date immediately of the six months adoption. petition for of the opinion presented
I am trial further issues petition and answer by the limited court attempted question of abandonment. consideration of injection question failure appellees’ pre- judgment by in the counsel in year, thrown a trial paring judgment, nullity absence of in the alleging ground. on a flag- proceedings The entire case constitute such this human discretion, denial of basic and constitu- rant abuse of require tional the reversal of as judgment grounds public policy as on the well legal pointed for the defects in this dissent. out judgment re- herein cause should reversed and the grant appel- to the trial instructions manded court with lant’s Motion for a New Trial.
Note.—Reported E. 413. N. 2d in 251 Custer,
Stoner v. Executor Herbert Estate H.
Stoner, et al. Rehearing 18, [No. Filed December March 1069S242. 1968. denied Supreme Rehearing granted 1969. Transfer Court October denied December 1969.]