In re Matthews

Mr. Justice SwepstoN delivered the opinion of the Court. On the 23rd day of July, 1956, Clifton Clemie Miller and Mildred Pyles Miller filed their petition in the Chancery Court for the purpose of effecting the adoption of Allen Eugene Matthews. On motion of the Department of Welfare, the Chancellor dismissed the petition and hence this appeal. The petition averred that they are husband and wife and residents of Knox County, Tennessee; that the minor child, 3 years of age, is an abandoned child within the meaning of the statute; that petitioners are 46 and 39 years of age respectively; that the child had been placed — 164 — in their home for hoarding by the State Welfare Department, which had been awarded its custody by the Juvenile Court of Knox County, because the father had abandoned the child and the mother had been deprived of the custody by reason of her misconduct; that petitioners had become attached to said child and when the State Welfare Department learned they were filing a petition to adopt it, it immedately took the child from their home and secreted it; that petitioners are financially responsible citizens, have two grown children of' their own and they now desire to take the subject child, treat him as their own and give him every advantage, including the right to inherit from them as a natural son. Both parents and the State Welfare Department were made parties by proper process and a temporary injunction was sought and obtained to prevent the removal of the child from the jurisdiction of said court pending the proceedings. Five days after the filing of the petition, the petitioners filed a written consent of the grandparents of the child, but as will appear later, this was unnecessary. On August 1, 1956, the Department of Welfare filed a motion to dismiss said petition upon the following grounds: 1. The petition shows on its face that the petitioners do not have physical or legal custody of the child they are petitioning to adopt. 2. The petition shows on its face that there has not been a full compliance with the law in regard to consent to the adoption. — 165 — 3. The petition shows on its face that the legal custody of the child was awarded to the State Welfare Department by order of the Jnvenile Conrt of Knox County, Tennessee. 4. The petition shows on its face that the child was placed with petitioners by the Department of Public Welfare for boarding only. 5. The petition shows on its face that the child has been removed from the home of the petitioners and they do not know where the child is. On April 30, 1957, the final decree dismissing said petition was filed, the Chancellor stating that there was no equity on the face of the petition by reason of the fact that said child is not in the home of petitioners and they do not have the physical or legal custody of said child; that said child was awarded to the State Welfare Department by order of the Juvenile Court of Knox County and said child is now in the possession and control of the State Welfare Department. The sole assignment of error is that the Chancellor erred in holding that there was no equity on the face of the petition since the same showed that the child was not in the legal custody of petitioners but was in the possession and control of the Welfare Department; that he should have held that the petitioners had the right to file a petition to adopt this child irrespective of the physical custody and that the motion should have been overruled and the cause allowed to proceed in accordance with the adoption statutes. We are of opinion that court and counsel have been somewhat confused by their failure to observe an im — 166 — portant change made in T.C.A. sec. 36-108 by tbe Acts of 1955, Ob. 320, now appearing in tbe 1957 Supplement to tbe Code. Tbe first paragraph of said section formerly provided that, except as provided in tbis chapter of tbe Code, if tbe parents were living and bad not released tbe child and bad not consented to tbe adoption as herein provided, tbe parents or surviving parent or guardian of said child must be a party of record to tbe proceedings and must give written consent to tbe adoption which must be filed with tbe petition. Whereas tbe section now reads: “Except as provided in tbis chapter and if they are living and have not released all rights to tbe child and have not consented to adoption as provided in tbis chapter tbe parents or surviving parent or guardian of tbe person of tbe child must be a party or parties of record to tbe proceedings or must give written consent to tbe adoption, which written consent must be filed with tbe petition. * * *” It seems apparent, therefore, that if tbe parent or parents or tbe guardian, as tbe case may be, is made a party of record to. tbe proceedings, then written consent to tbe adoption is not necessary and same need not be filed with tbe petition, and tbe matter is then before tbe court to be beard on its merits. In tbe instant case, it is alleged in the petition and must be taken as true for tbe purpose of tbe motion which was filed by tbe Welfare Department, that tbe parents of tbis child have lost all right to tbe custody and that the Juvenile Court of Knox County under — 167 — T.C.A. sec. 37-219 [37-260] has found that this child was abandoned and, therefore, was a dependent or neglected child and said court has committed its care to the State Department of Public Welfare. Then, under T.C.A. sec. 37-220 [37-260], unless otherwise ordered, said child becomes a ward and subject to the guardianship of the person or institution to whom or to which the child is committed and said guardian may he made a party to the adoption proceedings and may appear in same and give consent to the adoption. It seems apparent, therefore, that it was unnecessary for the petitioners to make the parents parties to this proceeding, because they have lost all rights to the child by reason of the action of the Juvenile Court in awarding it to the Welfare Department. The said Welfare Department is the only necessary respondent to the petition. That is sufficient for the Chancellor to have proceeded with the hearing at which time the Department could have raised any proper objection to the granting of the petition, which would have raised the proper issue for the decision by the court. The only other material question is that counsel for the Welfare Department insists that these petitioners had no right to file this petition because they did not have physical possession or custody of said child. This insistence and argument in support thereof is predicated on T.C.A. sec. 36-106, subsec. (c), which says that the petition must state among other things, “when the petitioners acquired custody of the child, and from what person or agency;” also from T.C.A. sec. 36-119, subsec. (e) and 36-125, subsec. (d), which refer to what the interlocutory order and the final order of adoption respec — 168 — tively must contain, the language being the same in both, to-wit: ‘ ‘ The date when the petitioners acquired custody of the child and from what person or agency, and that proper consent has been given;”. This argument is, however, without substance. A casual inspection of the encyclopedic works fails to disclose any suggestion that it has ever been the law that a person desiring to adopt a child must as a prerequisite have physical custody of same. We doubt that it ever will be the law because such a law would deprive the court of doing what was deemed best for the welfare of the child. The section referred to by counsel for the Department simply recognize the fact that in the majority of instances perhaps the petitioners for adoption have had at least some custodial experience with the child they seek to adopt but there is nowhere to be found in our adoption statute any requirement that petitioners have custody of the child prior to the filing of the petition for adoption. The statute, however, recognizes the importance of this experience between the child and the future adoptive parents and, therefore, by T.C.A. sec. 36-119 et seq. provides for the interlocutory decree and for a trial period of adoption before a final decree is entered. T.C.A. sec. 36-124 recognizes, however, that this probationary period may not be necessary, e.g. in the case of a grandchild, a nephew or niece of one of the petitioners or the stepchild of the petitioner. It is easily conceivable that a person would be fairly familiar with a grandchild, a nephew or niece without ever having actually had custody of same. In the final analysis, this is a matter that addresses itself to the discretion of the trial judge. — 169 — We are of opinion that tire act as a whole discloses an intention to provide for two kinds of proceedings: (1) a friendly proceeding in which the consent of the parents or guardian has been obtained) and (2) an adversary proceeding where such consent is absent. T.C.A. sec. 36-112 provides that the filing of this consent makes the parent or guardian a party to the friendly proceedings whereas T.C.A. secs. 36-108 and 36-110 contemplate adversary proceedings. We are of opinion that the Chancellor erred in sustaining the motion to dismiss. Reverse and remand for further proceedings at the costs of the Welfare Department.