*1 Adоption of Force the Matter Stiens, etc. January 18,673. 10, 1956.] Filed
[No. *2 Jasonville, Livengood, Poe, Rex V. E. and Charles Richmond, appellants. Lewisburg, (for- Duning, Theodore P. Tennessee O’Maley, L. merly Richmond), of Rich- and Robert mond, appellees. Marjorie appellees, Ralph Stiens J. The
Bowen, Stiens, opinion in this the latter referred hereinafter Margie testimony court below Stiens, petition in the court below for filed their Force, alleging Carolyn in such *3 Marie of one by petition such child was abandoned and deserted that child, Mary Force, more than six of said the mother filing petition. immediately preceding the months the petition for an of court prayer The of said asked order and that the of such child as thеir ward for changed Carolyn child be Marie the name of such to petition the either notice was issued on No Stiens. However, question. in the mother parent the child herein, voluntarily child, appellant appeared and of such in asked that the and such answer and filed answer appellees and she not be denied that had petition of The сonsent to the of such child. did not and child, Force, after the cause such William father of udg- prior j and advisement to the taken under had been adoption. ment, his written consent filed appellees’ petition issues on on the formed The cause for answer was submitted to court appellant’s and ordered petitioners trial and the court found fоr the adopted as Carolyn the said Force be Marie Stiens, Margie petitioners, Ralph child of the Stiens changed Carolyn and that the name of such child be adop- Stiens, Marie and certificate of and a due order appellant tion entered lower court. The was trial, grounds of which filed a motion for a new finding judgment, motion were that and dеcision by sufficient evi- of the court below was not sustained contrary dence and was This motion was over- law. appeal followed. ruled and this assignments
By the of error and the issues formed upon appeal in are called to determine whether this we sup- probative not there is evidence of value or port the decision that the mothеr of such lower court’s child, Force, Mary abandoned or deserted her immediately preceding six months more the date of or filing adoption, and, therefore, petition of the dispensing justified the court in with whether was necessary parental consent reason of such abandon- ment. undisputed and the facts in
From the evidence shown light us, most favor- thе record before considered judgment appellees, appears it able to upon situation based a factual lower court was was substance follows: sought Force, adopted
Carolyn the child to be Marie daughter Mary Force, appellant, had who Indiana, County, in Greene Force lived with William children, boy daugh- and the him an older two bore appellant moved the out question. Force ter William *4 quarters other from she moved of his home and to which shortly prior Jasonville, Indiana, to of the birth Caro- lyn Force. three months after the birth Marie Some Force, July, 1952, and in Carolyn Marie for the seeking Mary took such
purpose employment, Force Richmond, Ind, in to live and child her went with bеing Margie Stiens, home, appellee, appellees’ Force, time there- the father. a sister of Some William employment at a Mary after Force able to obtain Underwear Com- ten-cent store then at the Atlas and per pany approximately week. made where she $30.00 together appellees Mary Force lived at the home of There Carolyn Force about three weeks. with Marie appellees not con- that did is evidence the record gave proper care and child the appellant sider that such it, and in the home with she was there attention while baby appellees Mary care of the that Force let the take needs, Mary Forсe had stated she would and its and that away period from them. From the not take the child March, appellant July, 1952, 1953, mother until Richmond, Indiana, and the mother continued to live in varying from once visited this child on occasions with during time three times a week a week to two or pay proper appellees failed to testified she baby care child attention to her and left the of such Margie Stiens, Appellee, also testified to others. Mary support did not contribute to the of such Force clothing except purchase of a minor item. for the October, 1952, child, Carolyn, Mary her Force took Ohio, Cincinnati, for a visit returned to Mary days and after appellees’ home a few later Force petitioners’ brought home she con- the child back to their home and to her child. The such visits tinued factory appellant’s at the was reduced to three work days per and she returned to week Jasonville acquired she work at the Form- Spring 1953 where employed April, 1953, Company is now there. In Fit Saturday Easter, appellant after mother and on аppellees asked home of for her child went
161 clothing and her child’s and stated that she wanted take Jasonville, the child to Indiana. On such occa- Margie appellee, Stiens, sion the admitted that she forcibly Mary taking restrained from Force her appellees’ Margie from home and appellee, that Stiens, slapped the permitted mother who not Shortly thereafter, take day the child. on the of 16th April, 1953, appellees petition adop- filed this tion. adoption practice antiquity is a
While of main with its being England law, roots nurtured under the in Roman provision adoption
there is no at common law or under statute. United States solely by uniformly exists it held statute in authorizing country this are statutes derogation provi common made no law children, sion for the of and since in such proceedings parents deprived natural are all their of rights forever, as such such statutes a must receive strict (1921), construction. Glansman Ledbetter 190 v. 230; 505, S., Adoption Ind. 130 E. 2 N. C. J. Chil of dren, 374, pp. §6, 375. practical
There unanimity seems to be a in the cases as to the definition of the wоrd “abandonment” when adoption statute, is,
used an and that abandonment exists when there is such conduct parent on the a which evidences a set forego purpose parental relinquish tled all duties and parental prescribed all claims to the child for the time S., Adoption by statute; Children, p. J. 2 388. §21, C. foregoing supported by long The definition is list of in an authorities cited exhaustive case note in A. L. R. 35 overwhelming page weight 2d at 665. The 662-702 adjudicated authority supports cases a definition 162 general idea language expressive
which contains relinquishment which complete' and absolute that it is a 666; Re Rice 2d 35 A. L. R. abandonment. constitutes Cody (1915), 56; Re 531, 192 N. (1923), W. 179 Wis. Kelly (1914), 532, 534; 25 Cal. 150, Re P. 169 146 Cal. (1932), Pitzenberg Schnack 651, 156; App. 145 P. v. 713; Bistany (1924), 466, 245 N. Re W. Iowa 70; (1939), 19, v. Mavric E. Mаstrovich Y. 145 N. N. *6 577, 97; v. N. W. Johnson Strickland 66 S. D. 287 Harvey 281, 533; (1953), App. E. 2d Re 88 Ga. 76 S. 276; (1932), 1, Atl. Re (1953), Pa. 99 2d McCann 375 334; (1944), Super. 196, Atl. Moore 104 Pa. Platt v. 682; App., Jackson Russell Tex. Civ. 183 S. W. 2d v. 637, App. Ill. E. (1951), 342 97 N. 2d 584.
In addition to the decided which establish an cases rule unconfuted to constitute abandonment con parent on duct the the must be shown forego purpose a evidences settled all to parental relinquish parental duties and áll claims child, to the Webster defines word “abandon” as give meaning up relinquish “to or intent with the again resuming claiming rights in; never or one’s to give absolutely; up to . .” desert . Webster’s New Dictionary, ed., p. 2d 2. International are not unmindful of the existence a We criminal abandonment, in this statute state which defines and following provision: contains any aof child shall in “Abandоnment consist following any having custody acts one (a) forsaking child; wilfully or control of child; failing (b) keep care for and custody control and of a child so that the child exposed physical or moral shall be risk without protection; (c) failing proper and sufficient to care keep custody control and and of a child so for supported be liable to be the child shall expense public, or at the of the maintained legally chage caring able with private persons not or societies custody care, control.” its or their 10-813, Replacement (Supp.). How- Burns’ 1942 Sec. providing pun- ever, criminal in nature such statute is prohibited by statute. There the acts ishment for of abandonment cоntained within no such definition foregoing state, adoption in and the crim- statute this adoption makes no reference to the statute. inal statute proceeding provides statute Since unrecognized law, wholly at common must therefore legislative construed, strictly in the absence of enact- be providing definition of abandonment under ment statute, such and since the aforementioned contains criminal statute no reference whatsoever adoption proceedings, we must look to the common law meaning for a of the term “abandon- definition Furthermore, ment” used statute. good any attempt to hold the
all sense and reason fore- going applicable adoption proceed- statute criminal *7 ings subject make a child to without would only parental child had volun- consent where such been temporarily placed tarily and with relatives who relatives, receiving good such and would care from was contrary interpreting directly to all the decisions be question. and the settled on this statute law uniformly adjudicated seem The rules in the cases to the essential elements to consti with reference clear under the an abandonment statute. tute difficulty very in a small has arisen minor Some legal application ity the cases of of particular to the facts of the of abandonment definition determining matter of whether there is an In the case. abandonment suсh issue must not be confused with custody matter of children. of the determination of the us, from the the case before it must be determined probative record there is evidence of value whether it, the mother this child had abandoned of until there is evidence from which the lower court could reasonably have concluded such child had been right abandоned, deprive had the natural court no right parent of her child in the of her to her absence making consent, or the of child a such ward of court. there Before is evidence adduced from which it could reasonably have concluded that such child had been abandoned, proper it not for the lower court comparison apрlication make homes or an of the interests child” “best rule. Once that abandon- only remaining then the ment shown issue is whether proposed adoptive parents proper per- are fit and permitted adopt custody sons to be and have the the child.
Difficulty jurisdic has arisen cases in a few other tions where the court has confused the issues in cases
involving custody of children in which the applies “best interests of the child” rule and cases petition deprive seeks where natural right parent of her to her child A forever. confusion judicial issues in decisions such could lead to the up arbitrary splitting of families on the whims of a judge trial and the removal of a child from the mother simply poverty bore it because of who her or even a contrary judge to that of mode of life the trial before petition whom the was heard. Such a result would lead consequences family relationship, to serious unquestionably society tie holds our together, which justice rights rules of to our established and natural long have been declared as our common *8 uniformly and law, have and the our courts rule which legislative consistently enactment laid down strictly con derogation must be of such common law strued. by cases, perhaps, slight in a few
A confusion exists vagaries impatience judicial with the of some reason during a a toward parents an era of trend wel govern state, of a fare and the establishment grеater degree much paternalism to a mental relationships. for family decisions which Such over judicial very minority by tunately are in small would a power give public and more more construction responsibilities give which to the state and authorities family a belong and the unit private individuals long existing rules of the established statutes under rights recognize natural will common law just governments long are always as there exist as among men. bring situation into a this case focus
The facts of by had been deserted the mother of a child who where the child her to another took with father seeking employment, and city with child of the father moved the home of sister into period of she child a short time while was employment seeking employment, and secured liv later home, making ing from away visits of one to from the child, bringing it an article to see the three times week taking trip clothing, on the child several later Cincinnati, had days then after the mother returned employment reason of her neces former home to her the home where the came sities she back attemрted being to take the child with maintained forcibly slapped per restrained her and was adoptive parents. become the All now seek to who sons occurred between time mother matters of these *9 first adoptive parents went into the home of July, 1952, filing and the date of the of' the petition, 16, 1953, April which occurred on which was very a forcibly short time after the mother was re taking During strained from her child from this home. period question all of this the child- in in the first years by two of its life and was visited its mother regularly. urged appellees by
The in their brief that reason of subsequent baby a lack of care or concern for the on the during living of the mother the time she was with appellees’ subsequent visits, it in and in home her they bаby the fact that saw fit to do more for the than mother, that such facts would constitute evidence reasonably that could infer abandonment. We do not so adjudicated construe the law cases to the facts necessary which are abandonment, an show that or this conduct mother, was sufficient to show that Mary Force, purpose forego evidenced a settled all parental relinquish parental duties all claims to the appellees urge child. The also the fact mother on several different occasions wrote out a con- n sent to up delivering which she tore without appellees tending it to the was evidence to show aban- judgment tearing donment. up our of such cоn- only sents could lead to the reasonable inference that did the mother not desire nor intend to abandon this child. The mother continuously was more or less from presence week week of this child and the record devoid of evidence from which inferences could be drawn that she forsook such child and relin- quished parental claims all to it. аre not here question
We concerned with a as to complete or not abandonment whether once could be parent prior at filing revoked time of a us not before petition as that matter is original abandonment reason the fact that there is no in this record. shown from the evidence given judgment and deci- herein the For the reаsons by sufficient court was not sustained sion of the lower contrary to law. and was evidence Judgment for the lower instructions reversed with appellant’s motion trial and sustain new court to proceedings inconsistent herewith. not for further Opinion
Concurring j. majority agree I concurs: with Kendall, altogether a dif- opinion in the result reached but for *10 ferent reason. by the trial court con-
The order mаde following provisions: tained the Wayne . . and the court further finds that the “. County Department of Public has hereto- Welfare report proposed adopt- filed herein its as to the fore child, duly
ion of said and the court has examined that, report, the same and finds said said de- partment recommends the of said child by petitioners. . . .” report Department The as referred to the Welfare evidence, and, in the was not introduced into Order therefore, is not a of the such con- record. Under ditions, portion I cannot overlook that the Order duly says, “. . . the court has examined same which department recommends the of said . . . said petitioners. by . . .”. I do not believe that this party opposing that the оverlook the fact court can opportunity cross-examine adoption did not have the Department submitting the the member of Welfare court was examined the court report to the which upon items therein concerned Wel- their Department based recommendations. Under fare 168 circumstances, proper
these I not believe it do by an instrument which trial court to bolster the decision foreign cause. to the evidence of the may report De It be that a made the Welfare well might partment duties include in the course of their prop not be statements and other evidence which would cause, trial thus erly as evidence in the admitted resulting People (1932), Lewis in an unfair trial. v. 350; Usrey (1946), 171, Attkisson v. Y. 183 N. E. N. 155, E. 2d 489. Ind. 65 N. judgment opinion reason, my this it is For should be reversed. Opinion
Concurring
agree
I
this case
be
J. concurs:
C.
should
Royse,
reversed, and think it could be done for either
reasoning
majority opinion
or the
reasons stated
concurring opinion by Kendall,
J.
Reported in