Mulligan v. Wingard , 72 Ga. App. 539 ( 1945 )

Under the adoption act of 1941 a person other than the adopting parent is not authorized to procure an adjudication that an order of the adoption of a child is invalid, unless the primary purpose of the relief sought by such person is the interest and welfare of the child. A petition seeking such relief can not be substituted for an original effort to have a child placed, where the adopting parent has died. In such a case the setting aside of a previous adoption is entirely unnecessary.

DECIDED MAY 10, 1945. REHEARING DENIED JUNE 14, 1945. Persons contending that they were the heirs at law of William Taylor Mulligan, deceased, instituted an action in Richmond superior court seeking to set aside an order passed by said court declaring Hazel Marie Casterlin to be the adopted child of the deceased William Taylor Mulligan. The child and the administrator of the estate were made parties defendant. The petition set forth a copy of the petition for adoption and orders entered thereon, filed by William Taylor Mulligan, as follows: "The petition of William Taylor Mulligan, ____ years of age, a resident of Richmond County, Georgia, shows: 1. That petitioner is married to Agnes Lorraine Mulligan and is the stepfather of Hazel Marie Casterlin, a minor 14 years of age. 2. That the mother of said child is Agnes Lorraine Mulligan, and she has consented to said adoption in writing, and acknowledges service of this petition, a copy thereof being hereto attached and marked ``Exhibit A.' 3. That your petitioner has had the custody of said minor for over seven (7) years before filing this petition. 4. That the father of said child is Lester Casterlin, whose address is unknown, and who abandoned said child more than seven (7) years ago. 5. That the petitioner, William Taylor Mulligan, is financially able and morally fit to have the care of a child and desires to adopt the said Hazel Marie Casterlin, who is now a resident of Richmond County, Georgia. 6. That said child has no property either real or personal. 7. It is desired that the child's name be changed to Hazel Marie Mulligan. 8. That attached hereto and marked ``Exhibit B' is a written consent of the said Hazel Marie Casterlin to said adoption. Wherefore the said William Taylor Mulligan prays for such summons and orders as the law in such cases contemplates, and that such child be ordered adopted by and capable of inheriting from the said William Taylor Mulligan. Exhibit A: I, Agnes Lorraine Mulligan, the mother of Hazel Marie Casterlin, have read the foregoing petition of William Taylor Mulligan for adoption of Hazel Marie Casterlin, and I do hereby consent to said adoption, and further consent that the name of my said child be changed to Hazel Marie Mulligan. Exhibit B: I, Hazel Marie Casterlin, have read the foregoing petition of William Taylor Mulligan for adoption, and I do hereby consent to said adoption, and I do further consent to my name being changed to Hazel Marie Mulligan. This 3d day of January, 1942." On this petition the judge of the court passed the following orders: "The above and foregoing petition read and considered. It appearing that service has been perfected on the proper parties and that the allegations of petition are true, it is ordered that temporary custody of Hazel Marie Casterlin be granted to William Taylor Mulligan. It is ordered that this matter be brought to the court's attention for further order after six (6) months from this date. This 30th day of January, 1942." On November 27, 1942, the judge entered the following final order on the petition: "Whereas, on the 30th day of January, 1942, the temporary custody of Hazel Marie Casterlin was awarded by this court to William Taylor Mulligan upon his petition to adopt said child; and whereas, it appears that the said William Taylor Mulligan has had custody of said child since the granting of said order on January 30, 1942; and whereas, it appears that a permanent order is proper at this time; and whereas, it appears that proper service has been perfected, and that the best interest of the said child so requires, it is ordered and adjudged that Hazel Marie Casterlin be adopted by William Taylor Mulligan and be capable of inheriting from him. It is further ordered that said child's name be changed to Hazel Marie Mulligan. Ordered further that a copy of this decree be filed with the State Registrar of Vital Statistics." The petition to set aside the adoption order set forth that it was null and void for the following reasons: (1) that two conformed copies of the petition for adoption were not filed with the original; (2) that a date was not set by the court not less than 75 days from the date of the filing of the petition on which an interlocutory hearing should be held; (3) that neither the parents of the child nor the State of Georgia was served with a copy of the petition or a copy of the setting of a date for the interlocutory hearing, and that there was no waiver of service; (4) that the welfare department did not investigate the matter and report to the court thereon; (5) that the father of the minor had not abandoned her, and that the alleged adopting parent knew that he had not, and knew his address at the time the petition for adoption was filed; (6) that the minor did not consent to the adoption in the presence of the court; (7) that the final order was not passed at a time not less than six months from the time of the interlocutory hearing which could only be had 75 days from the presentation of the petition. By amendment petitioners alleged: "1. That Lester Casterlin, father of said Marie Casterlin, came to see his daughter in December, 1939, and while she was living with her mother at the home of her stepfather, William Taylor Mulligan, and that said mother and stepfather, Mulligan, refused to allow the said Lester Casterlin to see his daughter, but on the contrary drove him away, threatening to shoot him with a pistol, all of which will appear from the affidavit of one Savage hereto attached as part hereof. 2. Petitioners further allege that during the year 1941. said child received a letter from her father giving his address, which the said William Taylor Mulligan and the said Agnes Lorraine both saw and thereby knew of his address. 3. Petitioners further aver that if the State Welfare Department of the State had been notified of said adoption proceedings, investigation would have disclosed said acts of said William Taylor Mulligan and his wife preventing any interview between said Lester Casterlin and his daughter, Marie Casterlin, and would have reported such condition to the court, and would probably have declined to allow the said adoption. 4. Petitioners aver that the said Lester Casterlin has never abandoned his said daughter, and if notified of said adoption proceedings as required by statute, he would have never consented to her adoption by the said William Taylor Mulligan at the instance of his wife." The minor, by her guardian, filed substantially the following answer: "4. That the natural father of said Hazel deserted her and her mother when she was an infant less than four years of age. That the said Hazel's mother procured a divorce from her father and service thereon was perfected by publication, the said father having abandoned and deserted said Hazel and her mother, and having failed and refused to support them. That thereafter, when defendant was a child less than seven years of age, her mother entered into a marriage with William Taylor Mulligan. That after said marriage the said Mulligan took defendant into his home and thereafter treated her as his own, and expressed his desire to adopt her to make her his daughter and legal heir. That this defendant consented thereto, and her mother likewise consented, and the said Mulligan employed his attorney to institute said proceedings to procure said judgment of adoption, all of which was done. That thereafter the said Mulligan continued to treat this defendant as his daughter and she continued to reside in his home. That after the death of defendant's mother, the wife of the said William Taylor Mulligan, said Mulligan continued to treat defendant as his daughter, and she continued to reside in his home, and he, the said Mulligan, often stated to defendant that she the said defendant, having been adopted by him, and his wife, who was her mother, having predeceased him, she would be and was his sole heir at law and would inherit his estate as such heir at law. That this defendant and her mother lived up to and fully discharged their part of the contract of adoption, and that said adoption was valid and binding on the said Mulligan and on plaintiffs in this case who claim through him." Clarence Savage filed an affidavit the substance of which is as follows: That late in November or early in December he, Savage, was in the place of business of William Taylor Mulligan, whom he had known for more than thirty-five years, when Lester Casterlin, husband formerly of Agnes Lorraine Casterlin Mulligan, whom he had known for many years, came to the place of business, and the said William Taylor Mulligan took after Lester Casterlin with a pistol, and the said Lorraine pursued him with a blackjack, threatening danger to his life if he ever returned, and dependent says that he never saw the said Lester Casterlin around Mulligan's place after that date. He says further that during the year 1941 the said Hazel Marie Casterlin received a letter from her father, the said Lester Casterlin, and William Taylor Mulligan and Agnes Lorraine Mulligan told dependent about the letter that the child had received, in which he told the child about the death of her grandmother. It was agreed between counsel that the plaintiffs' petition and amendment and the defendant's answer be considered as testimony. The court tried the issues without a jury and denied the prayers of the petition that the adoption proceedings be set aside and declared null and void, to which the plaintiffs except. In transferring this case to this court the Supreme Court held that the present proceeding was one instituted under the authority of the act of 1941 (Ga. L. 1941, p. 300), Ga. Code Ann., § 74-416. The only question for this court is whether the above act provides the remedy sought in this case. Section 13 of the act provides as follows: "If at any time after the adoption the adopting parents fail faithfully to perform their obligations to the child or if within seven years after his final adoption a child develops feeble-mindedness, epilepsy, insanity or venereal diseases as a result of conditions existing prior to his adoption and of which the adopting parents had no knowledge or information, or for other good cause shown unto the court, a petition setting forth such facts may be filed by any person or public or private agency, showing good cause therefore, in the court which entered the final decree of adoption, and if such conditions are provided [proved?] to the satisfaction of the court, the adoption may be declared null and void. The court shall thereupon make proper disposition of the child by commitment to an appropriate State institution as provided by the laws of the State of Georgia, or provide for the disposition of the child as may be to his best interest and to that of the State." It seems clear that the legislature intended to provide that if at any time after an adoption the adopting parents failed faithfully to perform their obligations to the child, or any good cause existed why the custody of the child should be taken from the adopting parents and its status altered, a petition setting forth such facts might be filed by any person, or public agency, or private agency, and upon proof the adoption might be set aside. The act provides a ground upon which the adopting parents can move to set aside the adoption, and that is, that they may do so if within seven years after the final adoption a child develops feeble-mindedness, epilepsy, insanity, or venereal diseases as a result of conditions existing prior to the adoption and of which the adopting parents had no knowledge or information. The words following the last named provision "or for other good cause shown to the court, a petition setting forth such facts may be filed by any person or public or private agency," etc., are held to apply only to cases where the adopting parents fail faithfully to perform their duties to the child, or where circumstances require that the adoption be set aside in the interest of the child. The reason for this conclusion is that even if a child developed feeble-mindedness, epilepsy, insanity, or venereal diseases as a result of conditions existing prior to the adoption and of which the adopting parents had no knowledge or information, it would be of no concern to any persons other than the adopting parents whether the adoption should be set aside or not, if the adopting parents were performing their obligations to the child and wished to abide by the adoption. The adoptive parents might not want the adoption set aside, and if they did not, and it was to the best interest of the child that they keep it, no third person or agency has any business meddling in the case. So, under this act, the adoption may be set aside by the adopting parents and at their request for the specific causes set forth in the act for the benefit of the parents and in their interest, or it may be set aside on application of any person or public or private agency in the interest of the child alone based on some reason why the adopting parent should not have custody. In this case the application was not made by the adopting parent. He is dead. On the other hand the application is not based on any reason having any relationship to the welfare of the child by reason of the treatment by the adopting father, or any other fact pertaining to the relationship of the adopting parent and the child. At the most the present application is but an original application for the placing of the child to which the setting aside of the adoption is not a prerequisite, and no necessity for placing the child is shown. The principal purpose of the present action is to set aside the order of adoption. Unless a petition shows on its face that the primary relief sought is either the welfare of the child for good reason shown, or that the principal relief sought is the relief of the adopting parents for causes stated in the act, the court has no authority to set aside the adoption in a proceeding instituted under the said act of 1941. Under the pleadings and facts of the case the court did not have authority under the act to grant the relief sought and for that reason it did not err in denying it.

Judgment affirmed. Sutton, P. J., and Parker, J., concur.