In re the Appeal in Pima County Juvenile Action No. B-7087
In re the Appeal in Pima County Juvenile Action No. B-7087
Opinion of the Court
Appellant brings this appeal from the denial of her petition to adopt two-year old Tommy McCullom. Two points are raised in this appeal: (1) whether the trial court erred in applying Arkansas law to the consent and subsequent revocation of consent by the natural mother, Janice McCullom, and (2) whether the best interests of the minor child would be served by its adoption by appellant.
In late June 1975, W. L. and Janice McCullom were traveling with Tommy to Ft. Smith, Arkansas, where they met John and Darlene McBride who were managing a motel in Ft. Smith. Mr. McCullom convinced his wife to leave the child with the McBrides and to travel on without him. They suggested to the McBrides that the McBrides keep the child and adopt him as their own. A Ft. Smith attorney was contacted and the two couples were seen by the attorney on July 5. The deposition of Wayne Harris, the attorney, shows that he explained the procedure for adoption under Arkansas law and that the parties agreed to his statement of the law and asked that he
The McCulloms left Ft. Smith later that same day. A short time later, the McBrides left Arkansas with Tommy, went to Iowa and later came to Tucson. In December 1975, the McBrides received a letter from Mr. James Dunn of the same law firm as Mr. Harris, saying that Mrs. McCullom wanted her child back and threatening the McBrides with criminal prosecution for kidnapping the child.
After determining its jurisdiction to hear the matter, the court ruled that the consent was not executed under duress but that Arkansas law and its rules did govern its revocation and therefore the revocation was timely. It denied the petition. The child was ordered returned to the natural mother who traveled to Tucson from Mississippi to recover the child.
The conflict of laws question is of paramount importance since the laws of Arizona and the laws of Arkansas differ. The applicable law of Arkansas provided for an interlocutory decree which gave the prospective adoptive parents temporary custody of the child. Arkansas statutes § 56-104 et seq. The statutes also provided for a final decree similar to the final decree issued in Arizona. Under Arkansas law a consent can be revoked prior to the entry of an interlocutory decree. A. v. B., 217 Ark. 844, 233 S.W.2d 629 (1950). The trial court found:
“Under Arkansas law, the consent of Respondent (natural mother) was withdrawn within the time frame allowed under the Statute and circumstances.”
Adoption being a status, its creation and existence is governed by the law of the forum creating such status. 1 Conflicts of Law, Restatement 2nd, § 78. Here, there is no doubt the parties intended that
“ ‘. . . [T]he question whether the natural parent may revoke consent previously given depends upon all the circumstances of the particular case, which may include such a variety of matters as the terms of the particular statute; the circumstances under which the consent was given; the length of time elapsing, and the conduct of the parties between the giving of the consent and the attempted withdrawal’ whether the withdrawal was made before or after institution of adoption proceedings; the nature of the natural parents’ conduct with respect to the child both before and after consenting to its adoption; the “vested rights” of the proposed adoptive parents with respect to the child; and, in some cases, the relative abilities of the adoptive parents and the natural parents to rear the child in a manner best suited to its normal development, and other circumstances indicative of what the best interests of the child require. Annotation 156 A.L.R. [1011]’.” (Emphasis added)
We conclude that the court below did not abuse its discretion in allowing withdrawal of consent in spite of the fact that the natural mother was on probation for attempted murder. The record contained a favorable report on the natural mother from a welfare agency in Mississippi. The record further discloses that when she gave the child to Mrs. McBride she did so under the influence of her husband and out of fear. Mr. McCullom is presently in prison and is being divorced by the natural mother. Two months after she gave the child to the McBrides, the natural mother sought its return and she asked Mrs. McBride to return the child prior to the institution of the adoption proceedings here. Furthermore, the McBride divorce has somewhat dissipated its appearance of familial stability.
We believe that reasonable men could differ as to the propriety of the action taken by the juvenile judge, ergo, there was no abuse of discretion.
Affirmed.
. Mrs. McCullom had contacted him on September 3, 1975 for the purpose of securing the custody of her child.
Reference
- Full Case Name
- In the Matter of the APPEAL IN PIMA COUNTY JUVENILE ACTION NO. B-7087
- Cited By
- 6 cases
- Status
- Published