Browning v. Humphrey , 241 N.C. 285 ( 1954 )

84 S.E.2d 917 (1954) 241 N.C. 285

Dorothy BROWNING
v.
Virginia Britt HUMPHREY.

No. 600.

Supreme Court of North Carolina.

December 15, 1954.

J. H. Ferguson, Wilmington, for Petitioner, Appellant.

No Counsel for Appellee.

PARKER, Justice.

The sole exception is to the signing of the judgment, the ruling of the court, and to the "finding of facts." "This is a broadside exception which merely challenges the sufficiency of the facts found to support the judgment entered." Warshaw v. Warshaw, 236 N.C. 754, 73 S.E.2d 900, 901.

This exception fails to point out the particular finding of fact to which exception is taken. This is not sufficient to raise the question that there is no evidence to support the findings, or any one or more of them. Vestal v. Moseley Vending Machine Co., 219 N.C. 468, 14 S.E.2d 427.

R., p. 16, states: "Thereafter the petitioner and the respondent gave oral testimony and offered witnesses * * *." This evidence is not in the Record. Therefore, it is presumed that there was sufficient evidence to support the findings. Vestal v. Moseley Vending Machine Co., supra, and cases therein cited.

It is well settled law in this State, and it seems to be universally so held, that the mother of an illegitimate child is its natural guardian, and, as such, has the legal right to its custody, care and control, if a suitable person, even though others may offer more material advantages in life for the child. Wall v. Hardee, 240 N.C. 465, 82 S.E.2d 370; In re Cranford, 231 N.C. 91, 56 S.E.2d 35; In re Shelton, 203 N.C. 75, 164 S.E. 332; Ashby v. Page, 106 N.C. 328, 11 S.E. 283; Annotation 51 A.L.R. 1507; 7 Am.Jur., Bastards, Sec. 61.

We said in In re Foster's Adoption, 209 N.C. 489, 183 S.E. 744, 747: "The right of the mother to the custody and care of such child, which the law recognizes, and which in proper cases the courts will enforce, may, however, be forfeited or relinquished by her. The right is not universal or absolute. Brickell v. Hines, 179 N.C. 254, 102 S.E. 309. It must yield to the best interest of the child, as determined by the mother, or by the courts. Atkinson v. Downing, 175 N.C. 244, 95 S.E. 487."

In the instant case petitioner in the hospital where the child was born signed a consent for its adoption, though she withdrew it about a month later; and a few months after the child's birth, petitioner wrote respondent and the Norfolk Welfare Department that she was giving the child permanently to the respondent. It would seem that by such acts petitioner relinquished her right to its custody in the future. Respondent has furnished the sole support and maintenance for the child. Undoubtedly she loves the child as if he were her own flesh and blood. What was said in In re Foster's Adoption, supra, would seem to be controlling: "The circumstances as disclosed by the record under which she surrendered her child and agreed to its adoption by a stranger excite sympathy for her, but cannot be invoked to restore to her rights which she voluntarily relinquished."

In Wyness v. Crowley 292 Mass. 461, 198 N.E. 758, the third headnote succinctly and accurately states the question decided. It reads: "Where mother informed physician that she would be physically and financially unable to care for infant and requested him to find foster parents therefor, and mother gave written consent to adoption of infant, and delivered infant to foster parents, mother could not withdraw consent to adoption before entry of final decree especially where infant had been in care of foster parents for one and onehalf years and foster parents were willing and able to rear child (G.L. (Ter.Ed.) c. 210, §§ 2, 4, 5, 5A, 6)."

The seventh headnote in Appeal of Weinbach, 316 Pa. 333, 175 A. 500, is as follows: "In proceeding for adoption of illegitimate child, opposed by child's mother, evidence including evidence that mother signed paper authorizing a bureau to place child for adoption sustained finding that mother had abandoned child, and warranted orphans' court decree that child's welfare would be promoted by adoption (1 P.S. § 2(c)."

The judge below did not find that petitioner was a suitable person to have the custody of the child.

The judgment is affirmed.

Affirmed.