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In re Adoption of Holman

Supreme Court of Arizona

March 27, 1956

In the Matter of the Adoption of Katherine Anne HOLMAN, a Minor Child.

[80 Ariz. 202] Alan Philip Bayham, Arthur B. Parsons, Jr., Phoenix, for appellant.

Anderson & Smith, Safford, for appellees.

PHELPS, Justice.

This is an appeal from an interlocutory order and decree of adoption of the abovenamed minor child adopted by Kenneth R. and Fay Foote.

The child is the daughter of one Anna Katherine Holman (now Thompson) and James H. Holman, Jr. The child will be hereinafter referred to as the baby and the mother and father will be referred to as the mother and father respectively and the adopting parties as the Footes, or if referred to singly, as Mr. or Mrs. Foote.

Page 373

The baby was born at Phoenix on December 25, 1953, at which time the mother was a little over 16 years of age. The father had deserted the mother during pregnancy and divorce proceedings were instituted against him in September, 1953. The records disclose that the divorce was granted on Marcy 6, 1954. Previously the father had been required to pay the mother $60 per month. He paid only a part of the amount required up to November and has since then paid nothing either for the support of the mother or the baby. On September 1, 1954, the mother married one Richard J. Thompson with whom she was living at the time of the hearing on the petition for adoption on April 11, 1955.

The mother had no means of support after November, 1953, until she married Thompson except a small amount she earned while working for a few weeks in a TV shop operated by her brother. Because her stepfather objected, she was not permitted to live with her mother. There is a conflict in the evidence as to where the baby was kept during the first couple of months of her life but we think it is immaterial. Suffice it to say that a few weeks prior to April 23, 1954, when she was surrendered to the Footes for adoption by the written consent of the mother and grandmother, she was in the care and custody of one Eileen Whitmore under an agreement with its mother to pay her therefor the sum of $10 per week. The mother paid all she was able to pay for this service but the Footes paid Mrs. Whitmore a balance of $50 at time they took the baby into their custody. The written consent signed [80 Ariz. 203] by the mother contained a clause providing that the Footes may take the baby to California where they were employed at a naval ordnance test station, and apply for adoption there, or in any other jurisdiction they saw fit.

The Footes immediately left for California and after investigating through legal channels, found they would have to institute adoption proceedings in Arizona. This they did on June 14, 1954, by filing a petition for adoption in the superior court of Greenlee County where they were both born and where they intended to live after he completed his service with the United States Government.

On August 16, 1954, the mother filed an application in the above cause of action for the appointment of a guardian ad litem for her but did not disclose in such petition whether the appointment was sought for the purpose of aiding in the adoption of the baby or to oppose it. The matter was not pursued further but on October 5, 1954, the mother filed an instrument under oath in the adoption proceedings designated as 'Withdrawal of Purported Consent and Specific Objection' in which she averred that the undue influence of her mother had caused her to consent to the adoption of the baby by the Footes and purported to withdraw said consent and asked for the custody of the baby and dismissal of the petition for adoption; that on the same day her husband, Richard J. Thompson, filed another instrument under oath as next friend of the mother which is in substance the same as that filed by the mother.

On August 17 James H. Holman, Jr., the natural father of said baby, filed a motion to have the case transferred to Maricopa County and on September 1 following, filed a response to the petition for adoption and a motion to dismiss the petition for lack of consent by him. This matter was pursued no further by him and he did not appear at the hearing either in person or by counsel.

The cause came on for hearing on April 11, 1955. Both the Footes and the mother were present and represented by counsel. Evidence was introduced on behalf of both parties to the litigation and the matter was taken under advisement by the court. Thereafter on May 31, the court being fully advised in the premises, made amended findings of fact and conclusions of law insofar as here material, as follows: found as a fact that the mother was urged by her mother to let the baby be adopted but that the persuasion of the mother did not amount to undue infuence or coercion and that the signing of the consent was a voluntary, deliberate and considered act of the mother. If further found that both the natural mother and her husband and the Footes were fit and proper persons to have the care,

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custody and control of the baby; that there was no agreement or understanding between the mother and the Footes before the consent was signed that the mother could get the child back any time she desired [80 Ariz. 204] within a year from the date of the written consent. It did not expressly find as a fact that in its judgment it would be for the best interest of the baby to permit its adoption by the Footes. We will, however, undertake to show that this finding was implied from the judgment rendered.

As conclusions of law the court found in part that there was no undue influence or coercion exercised over the mother by her mother; that there was no valid or legal contract made between the mother and the Footes upon which the withdrawal of the mother's consent could be based, and that the written consent executed by the mother was valid and legal and that once given and acted upon by the Foots, could not be withdrawn or revoked without legal cause and thereupon entered its interlocutory order of adoption thereon, authorizing the Footes to adopt said baby which order should become final upon the expiration of one year therefrom conditioned upon a proper and satisfactory showing at that time by the Footes.

The mother has presented three assignments of error based upon the court's refusal to dismiss the adoption petition, which, when boiled down to its ...

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