Opinion
31714.
DECIDED OCTOBER 3, 1947.
Adoption; from Chatham Superior Court — Judge David S. Atkinson. June 11, 1947.
Anderson, Connerat, Dunn Hunter, J. P. Houlihan, for plaintiffs.
Shelby Myrick, Williams, Cocke Williams, for defendant.
Under the adoption laws of this State the written consent of the living parent or parents is required before a court may grant a prayer for the adoption of a child, where there is no question of abandonment involved; and, in carrying into effect the letter and spirit of the law, the court may inquire into the question of whether the consent was given freely, deliberately and voluntarily in considering whether it is to the best interest of the child — the paramount purpose of the law — that the adoption be decreed; and, in such a proceeding, a contract to adopt is of no force or effect, save whatever bearing it may have upon the question of consent; and where on the final hearing the court finds that the consent was not freely given and in the interest of the child revokes the temporary order awarding custody and denies the prayer for adoption his discretion in the matter will not be disturbed, unless as a matter of law it can be shown that the court has abused its discretion.
DECIDED OCTOBER 3, 1947.
Ross Guerard Allen and Mary Ellen Allen filed in the Superior Court of Chatham County a petition for the adoption of Michael Joseph Morgan, born May 18, 1946, the son of David E. Morgan and Ernestine Alice Morgan. The petition alleged that the written consent of both of the parents of the child had been obtained in compliance with Code, § 74-403, and that the parents had waived all notice and service in connection with the adoption proceedings. A copy of each instrument is attached to the petition as exhibits "A" and "B;" Exhibit "A" sets forth the following: "State of North Carolina, County of Buncombe. Know all men by these presents, that we, David E. Morgan and wife, Ernestine Alice Morgan, of said county and State, father and mother of Michael Joseph Morgan, who was born on the 18th day of May, 1946, and is now lawfully in our care, and for whose support we are now providing, do hereby consent to, and do give our said son to Ross G. Allen and Mary Ellen Allen, husband and wife, for the purpose of adopting him as their own child. And we, the said David E. Morgan and wife, Ernestine Alice Morgan, hereby agree that the said Ross G. Allen and Mary Ellen Allen shall have immediate custody of said child, and we hereby authorize Dr. Lesessne Smith, Children's Clinic, Saluda, N.C., to immediately turn over to the said Ross G. Allen and Mary Ellen Allen the custody and care of said child. We do hereby agree to sign and execute any and all papers, petitions or notices necessary for the said Ross G. Allen Mary Ellen Allen to complete the legal adoption of the said child in any State whatsoever. And we, the said Ross G. Allen Mary Ellen Allen do each of us hereby consent to receive said child for the purpose of adopting him as our own child and to confer upon him all the rights, privileges and responsibilities which would pertain to him had he been born to us. We further agree that upon receiving said child from Dr. Lesessne Smith, Children's Clinic, Saluda, N.C., to pay any charges or expenses now due for the custody of said child, at the said Clinic and thereafter charge ourselves with all custody and maintenance of said child as though the said child were our own. Witness our hands and seals this the 26th day of June, 1946. Mrs. Ernestine Alice Morgan, David E. Morgan, Mary Ellen Allen, Ross G. Allen." This instrument was acknowledged before a notary public by both the Allens and the Morgans. Exhibit "B" reads as follows: "State of North Carolina, County of Buncombe. Know all men by these presents, that we, David E. Morgan, and wife, Ernestine Alice Morgan, of said State and County, father and mother of Michael Joseph Morgan, who was born on the 18th day of May, 1946, having by agreement executed June 26, 1946, consented to release custody and control of said child to Ross Guerard Allen and Mary Ellen Allen, in consideration of their agreement to adopt said child as their own and the conferring upon him of all the rights and privileges that would have been had by him had he been born their own child, now then, in consideration of the premises, we hereby expressly waive any and all notice and service of any kind that may be required at any time in connection with adoption proceedings or otherwise as provided by the laws of the State wherein adoption proceedings are filed. In witness whereof, we have hereunto set our hands and seals this 8the day of July, 1946. David E. Morgan, Ernestine Alice Morgan." This instrument was likewise acknowledged before a notary public. A conformed copy of the petition was forwarded to the State Department of Public Welfare together with a request for investigation, report, etc. On October 4, 1946, the court signed an interlocutory order and awarded the temporary custody of the child to the petitioners. On February 24, 1947, the parents of the child filed an answer in the case in which they prayed that the temporary custody order be set aside and that the petition for adoption be denied. The answer set forth several reasons why it was contended that the prayers of the petition for adoption should be denied: (1) It was alleged that respondents were sweethearts for several years and that the child was conceived before marriage, and that the consent to the adoption was not freely and voluntarily given but was the result of undue and improper pressure exerted by members of the family of David E. Morgan; (2) that the contract attached to the petition was not binding because the names of the petitioners were not disclosed at the time respondents signed it; (3) that the negotiations and the procuring of respondents' consent was in violation of certain statutes of North Carolina; (4) that Mrs. Morgan was a minor at the time she signed the consent agreement; (5) that whatever consent was given was withdrawn; (6) a final order permitting the adoption was opposed by the Welfare Departments of both Georgia and North Carolina. After a full hearing the court passed the following order: "In this case the petitioning parties who seek to adopt the above named child, have been shown to be well qualified in every respect to adopt and raise the child. If this were the only question, the court would unhesitatingly grant the petition for adoption. The natural parents have also been shown to be people of good standing with splendid prospects and qualified to bring up their child. The question presented is whether or not the acts of the natural parents in surrendering the child to the adopting parties were such to preclude them from now claiming the infant child. There was a written gift of the child by the natural mother and natural father to the petitioners. This was induced largely if not entirely by aggressive action of some of the relatives (though not by blood) of the natural father who was shown to be 22 years of age at the time he signed the agreement. The natural mother was then 18 years of age. This agreement was not handled through the Public Welfare Department of either North Carolina or Georgia, and the court is not at all sure that it was legal and binding as a contract. This contract has now been repudiated by the natural parents. The evidence does not show an abandonment of the child. The law of Georgia provides that except as otherwise specified no adoption shall be permitted except with the written consent of the living parents of the child. Code, § 74-403. The court is of the opinion that both of the natural parents (one being a minor and the other a young man just out of the Army and not yet stable in business) were suffering from intense mental stress, which while not induced by the petitioning parties, was of sufficient force to prevent them from freely exercising their own judgment, over the disposition of their child which was their most precious possession. The court is of the opinion that free and voluntary consent was not given to the adoption by either of the natural parents, and holds as a matter of law that the natural mother, being a minor, could not give the consent required by Georgia law as a condition precedent to the adoption, without proper judicial proceedings undertaken for that purpose in a court of competent jurisdiction. The court sees no reason why the child should not be raised by its natural parents and believes it is far better that this should be done for peace of mind of the fine young people who are parties to these proceedings and also for the best interests and well-being of the child itself. The court thereupon orders and decrees: 1st. That the interlocutory order of adoption granted October 4, 1946, be vacated and set aside. 2nd. That the petition for adoption of the child be denied. 3rd. That the child be returned by the petitioners to the natural parents at a time and place to be determined by the parties or hereafter ordered by the court. Signed and dated this June 10th, 1947." The evidence showed that the Allens were of splendid character and qualified and fit in every particular to become the adoptive parents and that they did not participate in any coercion which might have been brought to bear on the Morgans to elicit their consent to the adoption. The evidence does not show that the attorney, Mr. Wall, who represented the Allens, knew of any coercion or undue influence exercised in connection with the giving of the consent to the adoption by the Morgans. Mrs. Ernestine Alice Morgan testified as follows: "My mother is Mrs. Edith Dwyer; she lives in Milwaukee, Wisconsin, but she is here today. I first went to Asheville seven years ago this coming September to live with my mother's mother, Mrs. J. E. Campbell; I had four years of high school and four months of nurse's training there. I met Mr. Morgan the first summer I went to Asheville; we went together as children; he is 23; we went together as young people; we dated all along as sweethearts. I graduated from high school in May, 1945; I went in training in September, 1945, and stayed there until December, 1945; after I got out I had some experience as an undergraduate nurse. I was 19 years old in February, 1947; we were married February 24th, 1946, and our child was born May 18th, 1946; at Green Bay Wisconsin, where my people lived. My husband's stepmother came to my home before I went away to have the baby born, and when I came back she suggested I go to a waiting home and have the child put out for adoption; when I came back she would not consider our marriage; she did not make any threats to me; I don't know what she said to my husband; she still suggested I go to a waiting home where I would be required to work for my board and child; she said her social standing in Asheville meant a great deal to her, and she could not hold up her head with the knowledge everyone in Asheville would have that our child was born prematurely; her treatment finally influenced me in giving up the child. I was in Wisconsin when the child was born in May and I returned to Asheville June 22nd; my husband was to meet me in Asheville, but he did not; I stayed on the train and went to Hendersonville and contacted him from there and he came over immediately; we were to have an apartment and we did not get it; that upset our plans and we had no place where I could take care of the child; we took the child to Dr. Sessen Smith, of Saluda, North Carolina, we did not intend to abandon the child, but to leave it there and board it until we could get situated; my husband took the child in his arms; I did not sign any papers; I did not go in; then we returned to Asheville to the place where we boarded; approximately three days later Mr. Wall called my husband and he said he would like to talk about our child; he spoke to my husband the first time and then he spoke to me. I was willing to have our child adopted because of the pressure being put on us day and night; mostly from his stepmother; I don't believe I could possibly explain it; it was just agony; I did not know what she would do; I was fearful of what she would do. I did not want to consent to the adoption of the child; it was not done freely and voluntarily on my part, but on account of the terrible strain on me it seemed the only thing to do; at the time I was talking to Mr. Wall or in signing the paper I did not know he was going to get the child. That is my signature, Ernestine Alice Morgan, to this paper; the names of the Allens were not on that paper when I signed. I did not make any effort to find out what became of the child until November, and it was January before we found out, through Mr. R. R. Williams, of Williams, Cocke Williams, attorneys, who handled the matter until it got into your hands. I was a minor at the time I gave my consent, and I now withdraw my consent; my husband and I are getting along perfectly; we had known each other for a long time before and our marriage was not brought about by my condition; we were going to be married anyway. I now have a five-room apartment in Asheville; Mr. Earl F. Morgan owns the apartment in which we are now living; my husband is working for them. My husband did not press me to consent to the adoption, but he was acting under the same pressure I had from his family; I knew that because we discussed it. I had always been in good health. I certainly feel the loss of my child. We came here in my father-in-law's car; he knew that we were coming; he knew about this trip and loaned us his car; I am on good terms with him; I see him occasionally, not very often, when I go to the store I see him; I don't know exactly what his attitude is about our getting the baby back. Neither I nor my husband went before any official in North Carolina at the time we signed this paper, nor before any health officer of the county; we did not notify the Welfare Board or anybody connected with it in North Carolina; all we did was sign this paper; we were not familiar with any of the laws in North Carolina. When he came to our house the first time he did not bring any paper to sign; whether he just told us to think about it I don't remember; I suppose he did; I was so upset. I heard Mr. Wall testify this morning, and I think he made a fair statement of what happened; I don't know of anything untrue he said; whether he was trying to impress upon me the seriousness of the step I was taking, he may have thought so; I did not know what I was doing neither the first day nor two weeks later; we had been so upset; I can appear to be composed when I am not; I did not break down then. It was five weeks from the time of the birth of the child until I came east. I saw Mr. Wall twice; that's my recollection. My mother came east in November, and that was when I took the first step about getting the child back; up to that time I was not happy; with my husband and my relationship I am happy. I am positive now that I want my child. It is true that I am upset now. Of course, my mother was upset about it; she wanted to do everything she could to help us; then we instituted the proceeding; my mother did not know about it when she came east; I intended telling her, but I put it off; I knew that I had to face it sooner or later. I did not display my emotions; my mother is only giving us financial help; the child is not going to live with her in Wisconsin if we get him back; the child's place is with us, his natural parents. Before that I did not make inquiry about the health of the child because I did not find out where the child was; I never asked Mr. Wall how the child is getting along. I am not working now. I was supposed to come back to Asheville after the child was born, and as soon as I could travel I came back; my husband expected me to come back; he called me over the phone several nights before I left Green Bay, to find out when I would be in, so he could meet me; he did not leave the whole burden on my shoulders; there was no doubt in my mind but that I would be happy with him; but his stepmother came and talked to me before I ever went away. I have suffered just about all I can stand; it is worse now, because I am a little more rational now than I was before; I did not know what I was doing then. The Welfare Board of North Carolina did not question me about this adoption; they did not know about it because I did not go to any official but when proceedings were started in Georgia the Welfare Board of North Carolina got in touch with me. I was born in Colorado in 1928. My husband and I are living happily together now; whether in the usual course of events we will have more children, I am not sure; I do not know; that is the reason that I want to have my baby; I did not think someone might take the place of this child that I have allowed to go to other people; I have a great deal of sympathy for the Allens, but that does not give me my child. I did not know all the time that Mr. Morgan would stand by my husband, his son, if he decided to keep the child; the same pressure was put on him; my husband did not put any pressure on me. When I came back with the child I went on to Hendersonville only because my husband was not there, and I did not know what was going on in Asheville; this pressure was going on ever since they found out I was to have a child; I saw no one after I went west except my husband, but I knew what he went through. I heard Mr. Wall say I said I did not wish to know who were adopting the child; I don't remember whether I said that; that don't recall the details of what was said or anything like that; I remember I did ask Mr. Wall if they would make good parents; I know that."
The testimony of David E. Morgan was merely a reaffirmance of his wife's testimony and it is unnecessary to repeat it here in detail.
Mrs. Edith Dwyer, grandmother of the child, testified that while she had been of assistance to the Morgans in locating the child and in finding legal aid her assistance was financial only and that she had not insisted upon the child's being returned.
Before the final hearing Miss Mary E. Poindexter, Director, Chatham County Department of Public Welfare, reported to the court on the case which was, in brief, that in her opinion neither the Allens nor the child would have security in the relationship and that continued effort on the part of the Morgans to regain the custody of their child would eventually have serious effect on his welfare. Both the Georgia and the North Carolina Departments were of the opinion, on final recommendation, that the adoption should not be approved. The Allens excepted to the revocation of the temporary order and to the judgment denying the adoption.
Assuming but not deciding that the contract between the Allens and the Morgans was signed by the respective parties with knowledge of who the other parties were, or that under the circumstances the contract was binding without such knowledge, the big question in this case is what questions the court has before it in an adoption proceeding, and what are its functions and powers. The Allens contend that a binding contract of adoption was made and that it is irrevocable and that it cannot be avoided by a showing of duress to which they were not parties. This contention may have been valid before the passage of the revised adoption laws of 1941. The act provides: "Except as otherwise specified in the following sections, no adoption shall be permitted except with the written consent of the living parents of a child." Ga. L. 1941, p. 301; Code (Ann. Supp.), § 74-403. Under the old law and the rulings of the Supreme Court thereunder the contentions of the Allens might be well taken, but we think that the letter and spirit and purpose of the new law is to give to the court full and unrestricted power to examine into the nature and kind of consent by parents to an adoption, not only because it is absolutely prerequisite to the validity of an order granting a prayer for adoption, but because the wisdom of the grant, the welfare of the child and of the other parties, as well as the public policy of the State is involved. So it is our view that whether the consent to an adoption is contained in a contract to adopt, or in a separate instrument, it is the duty of the court trying the case, to examine into the reality and voluntariness and freedom of the consent, and if the court finds from competent evidence that the consent was not freely and voluntarily given because of circumstances which justified the conclusion, or that it was produced through coercion or under undue influence, it is its duty to deny the adoption; it matters not by whom the coercion or undue influence is exerted. The rules in adoption cases are quite different from those involving custody alone and from cases involving virtual adoption. Our law does not provide for the enforcement of a contract to adopt. It does not provide that the child shall be declared to be adopted by those who have a clear legal and equitable right to adopt it under a contract. It provides that the parents must consent to the adoption in spite of any contract they may have made which is binding on both parties in an action between them testing its validity. The action of the court in an adoption case is not controlled by the rules determining whether a contract of adoption should be enforced or not. Otherwise the requirement of consent of the parents is superfluous, because a contract agreeing for a child to be adopted would be determinative on the question of consent. If the parents sought to avoid the contract they would have to attack it for fraud, duress or undue influence on the part of the other party, etc. Furthermore, the contract of adoption is absolutely irrelevant and immaterial in an adoption case other than on the question of consent. The contract otherwise has no bearing on the determination of the case. If consent not embodied in a contract can be inquired into by the court and found not to exist if induced by the duress of anyone, it may do so where the consent is embodied in a contract, and this is because the contract is relevant so far as consent is concerned. The only questions before the court are (1) do the parents consent, (2) are the adopting parents worthy and able to care for the child, and (3) is the adoption for the best interests of the child. The court is not required to declare the adoption unless all three facts unequivocally appear. (Were there evidence or question of abandonment, which is not in this case, our law, of course, dispenses with the consent of the parent or parents.) If there is no parental consent the court is required to deny the adoption. If either or both of the other factors are absent he may deny the adoption, and, of course, should, no matter how valid or binding a contract may have been entered into. Persons are presumed to know the law and parties contracting to adopt children in Georgia are bound to know that adoption can only be actually accomplished by judicial action under existing law. The vital question here is the genuineness of the consent and whether it was freely and voluntarily given. Under the quoted facts of this case we are of the opinion that the court was authorized to find that the consent of the parents was not freely and voluntarily given and to deny the adoption. Under this view the principle that an ordinary contract may not be avoided by duress which is not the duress of the other party or his agent, or imposed with his knowledge and taken advantage of by him for the purpose of obtaining the agreement, does not apply to this contract made for the purpose of granting consent to an adoption to be petitioned for under the act of 1941. Numerous custody cases have been cited but they are not applicable to contracts of consent made with a view of adoption under the 1941 law. The act of 1941 is to be construed strictly against the applicant and in favor of the parent. Glendinning v. McComas, 188 Ga. 345 ( 3 S.E.2d 562). If the court was authorized to find that no consent was freely and voluntarily given the question whether a valid consent once given can be withdrawn before a final order is passed is eliminated. As indicated, we do not think that the court is bound in an adoption proceeding by contracts to adopt, otherwise the adoption law would have made provision for the recognition of such contracts. While the weight of authority is to the effect that consent for adoption, once given, may be withdrawn, and we do not specifically rule on the point, the effect of our ruling is to the same effect. On a final hearing of a case the court is required to inquire whether the adoption is for the best interests of the child. One consideration is whether the child will be secure and happy and unmolested in its new relationship, and the court could find as a fact that the parents' knowledge of the proceeding and their change of minds, made it to the best interests of the child that the adoption not be granted. This conclusion is the conclusion of the Welfare Department whose experience and study entitles its opinion to great weight. It would seem that the best way to obviate the serious consequences of a change of mind is to have the parents surrender the child to a child-placing agency, where the chances of discovery by the parents of the adoption proceedings are reduced to a minimum. The Allens contend that the evidence shows that the Morgans are proceeding solely at the instigation of Mrs. Dwyer. We think the evidence demands a finding from the positive evidence, uncontradicted by circumstances inconsistent therewith, that this contention is not well founded. The Allens also contend that the Morgans are estopped to press their claim to the child. We think it would be unsound and dangerous public policy to say that an estoppel could arise from such facts as appear here, which occurred just prior to and pending the hearing of a petition for adoption It would seem that parties seeking an adoption would be charged with whatever eventualities might result from the final decision. Neither contracts nor estoppels can be permitted to limit the court's complete power and authority to consider and adjudicate the questions the adoption law places upon it. The fact that the preliminary order was revoked is immaterial. The final order denying the adoption automatically revoked the interlocutory order. In fact it had served its purpose and was functus officio at the time of the final order.
We cannot say as a matter of law that the court did not have the power and authority to find, under the facts of this case, that it was to the best interests of the child itself that it should be with and returned to its natural parents. Such is the most vital and paramount question to be considered, and as unfortunate as the result will be to splendid and innocent people, the authorized discretion of the court in this case cannot be disturbed.
Judgment affirmed. Sutton, C. J., and Parker, J., concur.