In re Adoption of J.D.S.
| Docket Number: | 2005-CP-02021-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 04-10-2007 Opinion Author: KING, C.J. Holding: Reversed and Rendered |
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| Additional Case Information: |
Topic: Adoption - Subject matter jurisdiction - Necessary party - Section 93-17-5(1)(i) - Status as adoptive parent - Section 93-17-3(4) - M.R.C.P. 15(b) - Standing Judge(s) Concurring: LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - ADOPTION |
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| Trial Court: |
Date of Trial Judgment: 09-19-2005 Appealed from: WEBSTER COUNTY CHANCERY COURT Judge: Kenneth M. Burns Disposition: THE CHANCELLOR DENIED APPELLANTS’ MOTION TO VACATE THE ADOPTION OF J.D.S Case Number: 2005A-03 |
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| Party Name: | Attorney Name: | |||
| Appellant: | IN THE MATTER OF THE ADOPTION OF J.D.S.: G.G.S. and J.A.S. |
WILLIAM PAUL STARKS, II |
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| Appellee: | B.P.P. | PRO SE |
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| Topic: | Adoption - Subject matter jurisdiction - Necessary party - Section 93-17-5(1)(i) - Status as adoptive parent - Section 93-17-3(4) - M.R.C.P. 15(b) - Standing |
| Summary of the Facts: | G.G.S., the maternal grandmother of J.D.S., petitioned for, and was granted, an interlocutory decree of adoption of J.D.S. Before the entry of the final decree, G.G.S married J.A.S. At the final hearing on the adoption, the chancellor questioned J.A.S. regarding his intentions toward the child if G.G.S. did adopt J.D.S. The chancellor granted the final decree of adoption to G.G.S. J.A.S. was never added as a party to the adoption, nor was he included in the final decree. After G.G.S. suffered two heart attacks and a nervous breakdown, she contacted B.P.P., a distant relative by marriage, and asked if B.P.P. would care for J.D.S. while G.G.S. focused on her recovery. B.P.P. said that she would only agree to care for J.D.S. if G.G.S. would allow her to adopt him. G.G.S. agreed to let B.P.P. adopt J.D.S. An attorney who represented B.P.P. drew up an agreed petition for adoption which G.G.S. read and signed. Between the time B.P.P. took custody of J.D.S. and the filing date, B.P.P. had re-married, but her new husband did not join the adoption petition. The chancellor entered a final decree of adoption, in which B.P.P. adopted J.D.S. G.G.S. and J.A.S. continued to see J.D.S. occasionally until B.P.P. refused to allow G.G.S. and J.A.S. to take J.D.S. on vacation to Disney World. Until that time, J.A.S. did not know about the adoption. When J.A.S. learned of the adoption, he promptly began trying to have the adoption decree set aside. G.G.S. and J.A.S. filed a petition to vacate B.P.P.’s adoption of J.D.S. The chancellor denied the petition to vacate the adoption. G.G.S. and J.A.S. appeal. |
| Summary of Opinion Analysis: | Issue 1: Subject matter jurisdiction G.G.S. and J.A.S. argue that J.A.S. was a necessary party to the adoption and that because he did not receive notice of the adoption, the chancellor did not have subject matter jurisdiction to hear the case. The record clearly proves that the child resided with J.A.S. and that J.A.S., acting as a step-parent, shared physical custody of the child with his wife, G.G.S. J.A.S. testified that he and J.D.S. were constantly together and that he was responsible for the day-today care of J.D.S. up until the time that G.G.S. took him to live with B.P.P. The record also shows that J.D.S. was still living in the home with G.G.S. and J.A.S. at the time that G.G.S. signed the adoption petition consenting to the adoption and that J.D.S. was not removed from their physical custody until after the adoption process had begun. As a physical custodian of J.D.S. at the time G.G.S. signed the adoption petition, J.A.S. was a necessary party to the adoption and was required, under section 93-17-5(1)(i), to be included as a party either by consent or by process. B.P.P.’s failure to join J.A.S. as a party through service of process renders the adoption void. Issue 2: Status as adoptive parent Under section 93-17-3(4), the following persons have standing to adopt: an unmarried adult or a married person whose spouse joins the petition. Where the spouse of a married person fails to join a petition for adoption, the married person seeking the adoption loses standing to adopt. When G.G.S. married J.A.S., she automatically lost standing to pursue the adoption of J.D.S. unless and until J.A.S. joined the petition. However, J.A.S. appears to have been a de facto party to the adoption and his consent to the adoption was an issue tried by the chancellor during G.G.S.’s final hearing on her petition to adopt J.D.S. as provided by M.R.C.P. 15(b). While the adoption decree did not add J.A.S. as a party to the adoption, the decree does note that J.A.S. and G.G.S. are married and that J.D.S. would be taking J.A.S.’s last name. Issue 3: Standing B.P.P.’s adoption of J.D.S. is void ab initio because she lacked standing under section 93-17-3 to pursue the adoption at the time that the petition was filed. B.P.P.’s new husband did not join the petition. It is unclear from the record whether he attended or participated in the hearing on B.P.P.’s petition, but he is not mentioned in the final adoption decree, nor does the decree state that J.D.S. would assume the last name of B.P.P.’s husband. In fact, the final adoption decree ordered that J.D.S. would take B.P.P.’s maiden name as his last name. Because B.P.P.’s husband did not join the petition, B.P.P. did not have standing to adopt J.D.S. |
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