In the Matter of the Adoption of ESTHER JEAN CLARK, a Minor. VERNON W. EVANS and LILLIAN M. EVANS, Appellants,
CHARLES R. CLARK, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. Affirmed.
Mr. F. L. Zimmerman, for Appellants.
Mr. Henry H. Miller and Mr. Robert De Wolf, for Appellee.
[38 Ariz. 482] ROSS, J.
This is an appeal by Vernon W. Evans and his wife Lillian M. Evans from an order denying their petition for the adoption of Esther Jean Clark, a minor child of the age of three years. The petition was resisted by Charles R. Clark, the father of the [38 Ariz. 483] child. The Evans reside in Phoenix, Maricopa county, Arizona, and at the time of filing petition, and for about eleven months continuously preceding, had the care and custody of Esther Jean. The father resided in California during all the times herein mentioned.
From the petition, the father's answer, and the transcript of the testimony, we gather this fact situation: When Esther Jean was about two and one-half years of age her mother died. Besides Esther Jean there were in the family, after her mother's death, her father and four children of a previous marriage. Mrs. Evans was visiting her sister, Mrs. Hattie B. Truax, who was a next door neighbor of the Clark's in Montrose, when Esther Jean's mother died, and with her sister bathed and dressed the child for the funeral service. This was in the month of March, 1929. Mrs. Evans again visited her sister in the months of July and August, 1929, and while there called on the Clarks, who had removed to Pasedena, and persuaded the father to allow her to have Esther Jean while visiting there and to bring her to Phoenix, with the promise that she would be returned in the spring of 1930. She was not returned at that time because of the prevalence of spinal meningitis in California.
Mrs. Evans and her sister, Mrs. Truax, both testified that the child was turned over to the former by the father with an agreement or understanding that if Mr. Evans later wanted to adopt her, they (the Evans) might do so. The father denied that he had ever agreed or consented to any such arrangement. There were introduced letters from both Mr. and Mrs. Evans, addressed to the father, clearly conveying the impression that they regarded their custody and care of Esther Jean as temporary. Under date of November 22, 1929, Mrs. Evans wrote a letter to the father in which she said:
[38 Ariz. 484] "What I do for Esther is done because I love her and it sure hurt my feelings when you mentioned us charging for keeping her, and will love to keep her all winter and even after you take her she will always be welcome to come and visit us."
And again on November 30th:
"Wish you would let me know if she is going to stay all winter with me so I will know how to plan for her, there are things I want to make for her if she is going to stay the winter. Don't like to be kept upset, do not think that I am weaning her mind away from you for I talk of you every day to her. She says she loves her daddy but don't want to go to Pasadena."
And on November 30th she also wrote to Esther Jean's maternal grandfather as follows:
"Mr. Crosby, there was no arrangements made about Esther. I just brought her with me for the winter because I love her and want her to get a good strong start in life. Whatever I do for Esther I do for her mother's sake. I know what wonderful care she gave her before her death. My sister lived next door to them in Montrose, and has always had Esther with her so much, that is how I became attached to her, and I took care of her when her mother died, and she loves me so. Poor little dear, how I hate the thoughts of her having a stepmother for she is so loving and loves to have you love her and make over her. Mr. Evans and Esther are the greatest of friends. Mr. Clark said he was going to be married this spring and make a home for her and wanted her with him in his old age so he would not let me adopt her."
There is no question about the ability of the petitioners to care for the child. They are morally ...