LUTHERAN SOCIAL SERVICE, INC., Relator, v. James R. MEYERS, Judge et al., Respondents, 460 S.W.2d 887

SMITH, Justice. This is an original proceeding in mandamus. The question for decision is whether a district court has the power to order a duly licensed child-placement agency to deliver citation to the persons with whom they have placed a child for adoption, under Rule 106, Texas Rules of Civil Procedure. A brief statement of the unusual circumstances surrounding this case is necessary; out of regard for the individuals involved we shall not use their true names.

In February, 1970, a minor girl gave birth in this state to a child out of wedlock; two days later the mother executed a consent form in which she expressed her belief that it was in the child’s best interests that it be released to Lutheran Social Service, Inc., for the purpose of adoption. This was a regular consent, in accordance with the statute,

Article 46a,

Section 6(d), Vernon’s Annotated Civil Statutes, and is not challenged in this proceeding. Shortly thereafter the Agency placed the child in the home of prospective adoptive parents, where the child (hereinafter referred to as “Jane Doe”) still resides. If events had run their usual course, Jane Doe would have resided in the home of her prospective adoptive parents for six months, and then the adoptive parents would have filed an adoption petition which would in all probability have been granted. Events, however, took a tragic turn.

In April, 1970, Jane Doe’s natural mother, along with the mother’s parents, were all killed in a common disaster. Jane Doe’s grandparents were apparently persons of means, and are said to have left an estate. Jane Doe, even though illegitimate and even if she is adopted by other parties is the presumptive heir of this estate. In June, 1970, the lawsuit giving rise to this original proceeding was filed by John Doe and his wife. John Doe is Jane Doe’s great-uncle; that is, he is the brother of the father of Jane Doe’s natural mother.

John Doe is the executor named in his brother’s will and, in another proceeding, has filed a will construction petition; but this proceeding was for the adoption of Jane Doe. The petition for the adoption of Jane Doe was filed on June 29, 1970, in the 98th District Court of Travis County. In response to certain motions and requests in the petition, the District Judge signed an order, on June 29, 1970.

The order states that the Court is of the opinion that the Does’ motion for a temporary restraining order and hearing thereon should be granted, and orders that the relator and “that person or persons having the possession, custody or control over Jane Doe be duly cited to appear” on a stated date, “to show cause why temporary restraining order and injunction should not issue temporarily restraining and enjoining Lutheran Social Services, Inc., and/or any other person from adopting, causing to be adopted or instituting or prosecuting any proceeding for adoption of the same Jane Doe until further hearing and order of this Court.” The order also directed that “service of citation upon said person or persons having the possession, custody or control of Jane Doe is allowed and ordered by serving Lutheran Social Services, Inc., by serving Mr.

Rolf Norman, its Executive Director, in Austin, Texas, with instructions and a further order by this Court that Mr. Norman forward immediately to said person or persons having the possession, custody or control of Jane Doe the copy of citation and petition served upon him under Rule 106, Texas Rules of Civil Procedure.” The Sheriff’s return shows that .the citation was served on June 29, 1970, as directed. On June 30, 1970, Relator filed a motion to dissolve the order discussed above, and a motion for continuance of the hearing on the temporary injunction and restraining order.

The District Court held a hearing on Relator’s motion on July 1, 1970, at which time the parties stipulated to certain facts not relevant at this point. As a consequence of the hearing on July 1, 1970, the District Judge determined that Relator’s motion for a continuance should be granted, but that his motion to dissolve the order of June 29 should be denied. The Judge drafted another order, reiterating the terms of the order of June 29, outlined above, but refrained from signing the later order so that Relator might test its validity in this Court.

To accomplish that purpose Relator has filed in this Court a “Petition for Writ of Prohibition and/or Mandamus.” The Prayer of that Petition requests that this Court: “issue its Writ of Prohibition or its Writ of Mandamus directing the District Judge not to sign and enter any Order in Cause No. 181,580 in the District Court which will have the effect of requiring the Agency or any one employed by the Agency to forward any copy of the Citation issued out of such cause or the Petition therein filed by [Mr. and Mrs.

John Doe] to the person or persons with whom the Agency has placed such child for adoption or which will have the effect of notifying any such person or persons of the pendency of such proceeding in the District Court, that this Honorable Court will also issue its Writ of Mandamus or its Writ of Prohibition directing the District Judge to dissolve his Order of June 29, 1970, requiring the Executive Director of the Agency to forward immediately to the person or persons having the possession, custody or control of such child the copy of Citation and Petition served upon him under Rule 106, T.R.C.P. * * Relator’s burden is a heavy one.

If the District Judge’s order is one within his discretionary powers, the relator must show that it is a “clear abuse of discretion.” Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434 (1959); see also Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648 (1948). We hold that the relator has not satisfied that test. The agency argues, in essence, that after it acquired the consent from Jane Doe’s mother, the agency stood in loco parentis, and the District Judge was powerless to interfere with the placement process by ordering notification to the prospective adoptive parents.

The agency primarily relies upon Catholic Charities of the Diocese of Galveston, Inc., v. Harper, 161 Tex. 21, 337 S.W.2d 111 (1960), in which we held that: “where the parents have surrendered their child to the custody of an agency licensed by the State Department of Public Welfare to place children for adoption and have given their written consent that such agency may place the child for adoption, that consent is subject to revocation only by proof of fraud, misrepresentation, overreaching and the like.” 337 S.W.2d at 114-115. In the course of that opinion we stated, regarding the consent

section of the adoption statute,

Article 46a, sec. 6, Vernon’s Annotated Civil Statutes: “The effect of the statute obviously is that after the parental consent is given the child-placing agency stands in loco parentis to the child and is clothed with the authority to give or withhold the consent necessary to the entry of a judgment for adoption.” 337 S.W.2d at 112— 113. It is the latter statement on which relator places its greatest reliance; that statement cannot however, be interpreted outside the facts of that case.

In Catholic Charities the dispute was between a parent who had relinquished custody of her child and the agency which had gained custody. Our statement that the agency stood in loco parentis must be understood as an adjudication between the agency and the natural parent; nothing in that opinion limits the traditional role and duty of the court as guardian of the best interest of children who come under its control. Neither does the Adoption Act,

Article 46a, purport to limit that traditional function of the court. The statute in fact, repeatedly accords to courts supervisory and discretionary powers.

Article 46a,

Section 3, Vernon’s Annotated Civil Statutes, for example, empowers the court to waive the usual requirement that the child to be adopted live in the home of the adoptive parents for six months prior to the legal adoption “when the Court is satisfied that the home of the petitioner and the child are suited to each other.”

Article 46a,

Section 7, Vernon’s Annotated Civil Statutes, empowers the court to remove the child from the custody of its adoptive parents and award custody to the natural parents or other persons upon proof of abuse, neglect, or ill treatment of the child by the adoptive parents.

Article 46a,

Section 10(

c) Vernon’s Annotated Civil Statutes, makes the records of child-placing agencies confidential, but empowers the court to direct the Agency to open its records for “inspection and/or copy.” These statutory provisions are indicative of the wide discretion the Legislature has granted the courts to act, when in the court’s opinion the best interest of the child would be served thereby. In Davis v.

Collins, 147 Tex. 418, 216 S.W.2d 807 (1949), we affirmed the district court’s dismissal of an adoption petition filed by persons who had not received the consent of the person who occupies the same position as the agency in this case. We held that the statutory scheme required that, in order for the petition to be granted they must have received the consent and, since they had not, they were ineligible to adopt the child.

In response to the petitioners’ argument that the effect of our holding was to deprive the court of power to act in the child’s best interest, in the absence of consent by the child’s custodian, we stated: “[I]t has been held in other States (although the matter has not been decided in this State) that, if a guardian or custodian of a child refuses to give his consent to an adoption, and the court feels that an adoption would serve the best interest of the child, the court is justified in proceeding as if the consent had been given.

See 2 C.J.S., Adoption of Children, § 24, page 393. “The Legislature in the enactment of the statutes under consideration endeavored to protect the interests of neglected and abandoned children, and the statutes enacted would be weak and inefficient if the Legislature had not also thereby empowered the courts to exercise their authority and discretion in carrying out the legislative intent as expressed in the statutes. The rights and welfare of the children are the paramount things to be considered in adoption and child custody cases.” 216 S.W. 2d at 811.

The scope of the court’s discretionary power to serve the child’s best interests was carefully reviewed in the well-reasoned opinion of In re Mark T., 8 Mich. App. 122, 154 N.W.2d 27 (1967). In that case the natural father of an illegitimate child who, although never marrying the child’s mother, had established a viable family relationship with the child, was awarded custody even though the child’s mother had consented that the child be adopted and the child had been placed in the home of adoptive parents.

A probate judge had entered a termination order pursuant to the Michigan statute, in effect finding that the adoption petition of the adoptive parents had been filed, and investigated and consented to by the placement agency. The order effectively terminated the agency’s rights over the child.

The court held, regarding the scope of a court’s power to act in the child’s best interests: “[Cjhancery’s power concerning the welfare of legitimate and illegitimate children does not disappear upon the release of the child for adoption, or the consent of a placement agency to a petition for adoption, or even upon the entry by the probate court of a termination order.

We so hold * * * because, fundamentally, any other holding would create a vacuum of judicial power. “If Michigan’s adoption statute * * * confers on an agency the absolute and judicially unreviewable power to decide who shall enjoy custody of the child and whether, by whom, and when the child may be adopted, subject only to confirmation by the court, there would arise serious constitutional questions under both the due process and equal protection of the law clauses and judicial articles of the State and national Constitutions. To avoid such constitutional problems we hold that

chapter 10 of the probate code of 1939 does not deprive the circuit court of its historic and comprehensive power to decide custody disputes concerning children, legitimate and illegitimate.” 154 N.W.2d at 38. This case does not require the broad holding made by the Michigan court. It should be remembered that this is not an adjudication of the merits of the adoption petition filed by John Doe. The only question before this Court is whether the District Judge had the discretionary power to order the prospective adoptive parents to be served with citation under Rule 106. We hold that he did.

We further hold that his order was not a clear abuse of that discretionary power, as it must be if the extraordinary remedy of mandamus will lie. The relator emphasizes the disruptive effect the District Judge’s order will have upon the lives of the child and the prospective adoptive parents, during the delicate period of adjustment which we recognized to be of great importance in the Catholic Charities case, supra. The relatqr argues that the Judge’s order will necessarily inform the child and its prospective adoptive parents of the child’s family background.

All of this contravenes usual and accepted policies of child-placing agencies. We agree with the relator that none of this is desirable, but we must recognize that the usual adoption process will be disrupted in any event due to the peculiar and tragic circumstances surrounding this case. The District Judge had the facts before him when he issued the order complained of. The parties had stipulated, prior to the hearing of July 1, 1970, that John Doe was the independent executor of the estate left by Jane Doe’s grandparents.

The administration of that estate, of which Jane Doe is presumptively the only heir, will necessarily inform the prospective adoptive parents of Jane Doe’s background. Relator argues that not only will the Judge’s order inform the prospective adoptive parents of Jane Doe’s background, it will also inform Mr. and Mrs. John Doe of the child’s whereabouts and the identity of the prospective adoptive parents. We do not agree.

The citation which was delivered to Rolf Norman, Executive Director of the relator, for him to forward to the prospective adoptive parents, is addressed to “The Person or Persons having the possession, custody and control of Jane Doe.” Nothing in the citation or the order complained of requires the relator to inform John Doe of the identity of those persons. The citation, which has only the usual effect of any other citation, does not require those persons to attend the hearing on the temporary injunction. The citation merely gives them the opportunity to attend and participate if they wish.

If they decide to attend, they may do so either in person or by counsel. If they choose the latter, their identities and the child’s whereabouts need not be revealed to John Doe. They may even choose not to attend the hearing in view of the fact that the relator has vigorously represented their interests to this point, and will presumably continue to do so. For the reasons stated, Relator’s Prayer for a writ of mandamus is denied. Dissenting opinion by GREENHILL, J., in which HAMILTON, POPE and Mc-GEE, JJ., join. Dissenting opinion by McGEE, J., in which HAMILTON and POPE, JJ., join.