In Re Adoption of Hoose ( 1956 )

91 S.E.2d 555 (1956) 243 N.C. 589

In re Adoption of Monica HOOSE.

No. 18.

Supreme Court of North Carolina.

February 29, 1956.

LeRoy & Goodwin, Elizabeth City, for intervenors.

J. W. Jennette, Elizabeth City, for petitioners.

DENNY, Justice.

It is necessary to consider two questions in order to dispose of this appeal: (1) Is the instrument denominated "Revocation and Withdrawal of Consent, and Motion to Dismiss Adoption Proceedings," sufficient to constitute a withdrawal of the consent of Major and Mrs. Hoose to the adoption of Monica Hoose by Lt. and Mrs. Holefelder? (2) Did Major and Mrs. Hoose abandon their adopted child, Monica Hoose, within the meaning of our adoption statutes?

The appellants assign as error the finding of the Clerk and the affirmance thereof by the court below to the effect that a revocation of consent had not been properly filed by Clinton M. and Dorothy Hoose. The pertinent part of the instrument referred to above, verified and filed in the office of the Clerk of the Superior Court of Pasquotank County on the 28th day of November, 1955, reads as follows: "That since the separation the undersigned have learned the extent to which they are attached to said child and are now definitely of the opinion that it will be impossible for them to permit the adoption of said child by someone else. That as the adoptive mother and father of said child the undersigned stand in the relation of parents, are highly desirous that said child be immediately returned to them and that this proceeding for adoption be dismissed and discontinued. Wherefore, the undersigned pray the court that the consent heretofore filed be revoked and stricken out; that an order be entered immediately returning the said child to the undersigned as the rightful parents thereof; that this action be dismissed," etc.

While it is rather unusual that the appellants did not state plainly and unequivocally that they were withdrawing their consent to the adoption of Monica Hoose by the Holefelders, nevertheless, we think the instrument is sufficient to constitute the withdrawal of such consent. Consent is essential to an order of adoption, G.S. § 48-7, unless it has been established that the child has been abandoned. G.S. § 48-5; Truelove v. Parker, 191 N.C. 430, 132 S.E. 295; In re Adoption of Doe, 231 N.C. 1, 56 S.E.2d 8. Consequently, in the absence of the consent of the adoptive parents, we hold that the court below is without jurisdiction to order the adoption of Monica Hoose unless Major and Mrs. Hoose, her adoptive parents, have abandoned such child within the meaning of our statutes.

G.S. § 48-5 reads in pertinent part as follows:

"(a) In all cases where a court of competent jurisdiction has declared a child to be an abandoned child, the parent, parents, or guardian of the person, declared guilty of such abandonment shall not be necessary parties to any proceeding under this chapter nor shall their consent be required.

"(b) In the event that a court of competent jurisdiction has not heretofore declared the child to be an abandoned child, then on written notice of not less than ten days to the parent, parents, or guardian of the person, the court in the adoption proceeding is hereby authorized to determine whether an abandonment has taken place.

"(c) If the parent, parents, or guardian of the person deny that an abandonment has taken place, this issue of fact shall be determined as provided in G.S. 1-273, and if abandonment is determined, then the consent of the parent, parents, or guardian of the person shall not be required. Upon final determination of this issue of fact the proceeding shall be transferred back to the special proceedings docket for further action by the clerk."

Likewise, G.S. § 48-2 defines the meaning of the word "abandoned" as follows: "(3) For the purpose of this chapter, an abandoned child shall be any child under the age of eighteen years who has been willfully abandoned at least six consecutive months immediately preceding institution of an action or proceeding to declare the child to be an abandoned child."

The facts disclosed on this record conclusively refute any basis for a claim that Monica Hoose was abandoned for at least six months immediately preceding the institution of this proceeding, if indeed she has been abandoned at all.

Under our statute G.S. § 48-7, except as provided in G.S. § 48-5 and G.S. § 48-6, before a child can be adopted, the written consent of the parents, or surviving parent or guardian of the person of the child must be obtained. Ordinarily, however, consent may be withdrawn or revoked within six months from the date it is given. G.S. § 48-11.

Since the abandonment contemplated by our statute must be wilful in order to eliminate consent, In re Adoption of Doe, supra; Ward v. Howard, 217 N.C. 201, 7 S.E.2d 625, and the court below having found as a fact that "Clinton M. and Dorothy V. Hoose have not wilfully abandoned such child," the motion to dismiss the adoption proceedings should have been allowed. Furthermore, the court's conclusion of law to the effect that the conduct of the intervenors by entering into the contract for the adoption of their minor child by the Holefelders constitutes constructive abandonment, will not support an adoption that must be bottomed upon wilful abandonment in the absence of consent.

Wilfulness is as much an element of abandonment within the meaning of G.S. § 48-2, as it is of the crime of abandonment. G.S. § 14-322 and G.S. § 14-326. In re Adoption of Doe, supra; State v. Falkner, 182 N.C. 793, 108 S.E. 756, 17 A.L.R. 986.

The word "wilful" as used in criminal statutes was defined in State v. Whitener, 93 N.C. 590, by Ashe, J., as follows: "`The word wilful, used in a statute creating a criminal offence, means something more than an intention to do a thing. It implies the doing the act purposely and deliberately, indicating a purpose to do it, without authority—careless whether he has the right or not—in violation of law, and it is this which makes the criminal intent, without which one cannot be brought within the meaning of a criminal statute.'" This definition has been quoted with approval many times by this Court. See State v. Dickens, 215 N.C. 303, 1 S.E.2d 837, 838 and cited cases.

Therefore, this proceeding will be remanded for disposition in accord with this opinion. The custody of the minor child, Monica Hoose, having been awarded to the Superintendent of Public Welfare of Pasquotank County, the interested parties, including the intervenors, may take such action with respect to the custody of the child as they may deem appropriate and in accordance with applicable law.

Error and remanded.

BARNHILL, C. J., dissents on question of abandonment only.

HIGGINS, J., concurs in result.