Opinion
January 4, 1952.
Appeal from the Circuit Court for Lee County, Lynn Gerald, J.
E.M. Magaha, Fort Myers, for appellant.
F.E. Starnes and Henderson, Franklin, Starnes Holt, all of Fort Myers, for appellees.
Phillip Edward Smith, a white male child, was born out of wedlock in a Tampa, Florida, hospital on March 15, 1947. Some three months thereafter the mother sent from Lakeland, Florida, a letter to J.B. Barwick and wife, Peggy H. Barwick, Fort Myers, Florida, which letter was received by the Barwicks about 3:30 P.M. on June 7, 1947. The letter is viz.:
"Cabin #6
"Hello Peggy Jimmy:
"Just thought I'd drop you a line to see if you still wanted to adopt my baby. I'm the girl that was at Felton's the Sun. you were over there. If you still want him I'll let you have him as soon as you can come get him since I have no place to keep him I'm going to have to go to work as soon as possible. I'm staying at Syvalana Cabins on the Tampa road from Lakeland. Just come to Lakeland and go like your going to Tampa it's on the left side of the road about a mile out of Lakeland. Well must close. Will be looking for you soon.
/s/ Mary Smith"
Pursuant to the receipt of the above letter written by the mother, the Barwicks went to Tourist Cabin #6 at Lakeland, Florida, when the mother, on June 13, 1947, delivered to the Barwicks the above mentioned child, with the agreement and understanding that the Barwicks should have the future care and custody thereof. It appears by the record that the mother visited the child once or twice at the Barwick home near Fort Myers. On the 31st day of December 1948, the mother married William N. Pugh and went to live in his home in northeast Maryland. The child was never committed to a licensed child agency in Florida as provided for by Chapter 72, F.S.A.
Some few days after the mother's marriage (on December 31, 1948) to William N. Pugh, she and her husband called at the home of the Barwicks near Fort Myers where the child had been kept since the 13th day of June, 1947, and requested the return of the custody of the child and at the same time offered to the Barwicks such a sum of money as was reasonably adequate to compensate them for the care, support and maintenance of the child for the period of time from June 13, 1947, continuously until the early portion of January, 1949. The Barwicks immediately refused or declined to accept compensation from the natural mother for the support and maintenance of the infant. Likewise, and at the same time, they refused to surrender to the natural mother the custody of her infant son.
J.B. Barwick and wife Peggy H. Barwick, on January 14, 1949, filed in the Circuit Court of Lee County, Florida, their petition praying for the entry of an order of adoption of the infant, Phillip Edward Smith, and that a decree be entered changing the child's name to Phillip Edward Barwick. The mother, joined by her husband, filed an answer to the petition and set out that at the time she surrendered the custody of her child to the petitioners she was approximately nineteen years of age, immature and incapable of entering into such a far-reaching contract or agreement as asserted by the petitioners; she was at the time in a distressed financial condition; and she was without friends or relatives to turn to, either for counsel and advice or financial assistance. She protested the entry of the order of adoption and asserted that because of her marriage she was in a financial position to care for her child, provide it a good home, and educate it in the schools of the Country.
The Welfare Board, as provided for by Chapter 72, F.S.A., filed in the Court below its recommendations. The point was made that the petitioners were suitable adoptive persons for the minor child, but its natural mother was in a better position to have custody of the child awarded to her rather than the petitioners in adoption. On the issues made by the pleadings, evidence was taken before the Chancellor, comprising approximately 100 pages. The trial Court, by an appropriate order, granted the prayer of the petition and the respondents appealed.
It appears by the record that after the petitioners had adduced some dozen witnesses, or more, who testified in support of the material allegations of the petition and when counsel rested their case, then counsel for defendants-appellants moved the Court to dismiss the petition or make and enter an order awarding the custody of the child to its mother on grounds viz.: (1) the written instrument signed by the mother showing her consent and approval of the adoption and awarding the custody of the child failed to substantially comply with the provisions of Section 72.14, F.S.A.; (2) the decree appealed from was and is contrary to the report and recommendations of the State Welfare Board concerning the custody of the child. It was their view that the adoptive parents were, for various reasons, unsuitable to have the custody of the child; (3) the child, as shown by the evidence, was never abandoned or deserted by its mother. The Trial Court denied the motion supra and on appeal here it is contended this ruling constitutes reversible error.
The writer, after a studious consideration of all the evidence certified to this Court, fails to find any evidence going to the points: (1) that the mother was not a suitable person to have the custody of her son; (2) that the atmosphere surrounding her home situated in the State of Maryland was an improper place for the child to grow and develop; (3) that her husband was adverse, or unwilling, to support and maintain both the mother and her child. On the other hand, there is ample evidence going to the point that the respondents are fine young people and maintain a home in Maryland where each is highly respected.
It is to be observed that Chapter 72, F.S.A., provides that the consent of the natural parent must be had and obtained prior to the entry of an order of adoption. It is true, as pointed out by counsel for respondents-appellants, that formal consent of the natural mother was not had and obtained, as required by our applicable statutes. The above letter, coupled with the actual delivery of the custody of the child and its wearing apparel to the Barwicks on June 13, 1947, at Lakeland, with her permission or consent to the adoption, may in this particular instance be sufficient to meet the requirements of our adoption statutes. Infants are the wards of our Courts and by law we are charged with the responsibility of making only such orders as may reasonably be calculated to promote their interest and welfare. The writer is unable to close his eyes to the heartaches and sufferings of this mother in the years ahead. All her legal rights in the premises have been ably presented by her counsel in this cause.
Similar cases have been reviewed here on many previous occasions. See Fielding v. Highsmith, 152 Fla. 837, 13 So.2d 208; Sheffield v. Barry, 153 Fla. 144, 14 So.2d 417; In re Brock, 157 Fla. 291, 25 So.2d 659; Soucek v. Melvin, 159 Fla. 867, 32 So.2d 912; In re: Petition of Gaban, 158 Fla. 597, 30 So.2d 176, and similar authorities.
The decree appealed from is affirmed.
SEBRING, C.J., and ROBERTS, and MATHEWS, JJ., concur.