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MARCH 09, 1983




Hugh Davis Putnam, Jr., and Donna Stokes Putnam, his wife,

filed a petition for the adoption of W.M.H. in the Chancery Court of Washington County. Joined as respondents were Dr. William M. Martin and his wife, Clarice Martin, as well as Jerry and Debbie Hughes, M.'s natural parents. Dr. Martin is M.'s natural grandfather and Clarice Martin is M.'s step-grandmother, both of whom are also M.'s legal custodians by court decree. The trial court entered an interim decree of adoption and denied an appeal with supersedeas to Dr. Martin and his wife. Subsequently supersedeas was granted by this Court.

 On appeal the Martins assert the trial court erred:

 1. In failing to give appropriate weight to the presumption that the best interest of the child sought to be adopted would be served by remaining in the custody of the Martins, the natural grandparents;

 2. In incorrectly applying the statute which permits no adoption except in the best interest of the child sought to be adopted.

 The evidence established Jerry and Debbie Hughes, the natural parents of M., who is approximately two years of age, both suffer from severe mental disorders. During the summer of 1981 Paula Martin Tubertini, duaghter of Dr. Martin and sister of Debbie Hughes, was informed by the welfare department that M. was not being properly cared for by his parents. Paula volunteered to take the child into her home. Later because of the parents' mental disorders, and consequent inability to care for the child, Dr. Martin and his wife sought and were granted legal custody of M. on November 6, 1981, nunc pro tunc September 15, 1981. This decree adjudged the natural parents to be unsuitable to rear the child and permanent custody was placed with the Martins who were found to be proper persons for M.'s custody. It was adjudicated that M.'s best interest would be served by the Martins' custody.

 A synopsis of the testimony is that Paula placed M. in a day care nursery operated by Mrs. Putnam while she worked during the day. Paula was also employed part-time as a cashier and so M. stayed with Dr. Martin and his wife two or three nights a week. Subsequently Mrs. Putnam volunteered to keep M. at night also. Believing it to be unwise that the child be awakened at 10:30 or 11:00 in the evening and because of the natural parents' attempts to regain his custody it was decided that M. should stay with the Putnams on a full time basis which began July 25 and lasted until December 9, 1981. It need be also stated that Dr. Martin had some apprehension concerning M.'s best interest because of the natural father's violent tendencies and the mother's mental instability. In this circumstance the child was left in the

 Putnams' care because the natural parents were not acquainted with them and did not know their place of residence.

 After gaining M.'s legal custody, Dr. Martin deliberated upon the best course to pursue for M.'s future best interest. On several occasions he contacted Dr. Morrow and Mrs. Baggett at the Methodist Children's Home in Jackson concerning the possibility of placing the child for adoption. In these discussions he expressed his concern for M. and his desire that he have a permanent family and security. He was adamant in that he did not want M. moved from place to place with many broken relationships. Mrs. Baggett testified:

 [W]hen Dr. Martin came for the first time he did not have a predetermined concept when he came in. . . . He thought we knew something about child care and he wanted to know what we knew because Dr. Morrow had been Director of the Methodist Children's Home for about 30 years, and he asked us questions and he talked with us about trying to make the best plan that he could for M. and he presented it on the basis that he thought that the parents of the child would never be able to parent him and he was concerned that M. have a good home and security and he wanted him to have it and he wanted him to have it before he had a lot of broken experiences and before he had formed a lot of distrust.

 She testified further that Dr. Martin only desired that which was best for M. He expressed to her that if he thought he could properly care for the child he would do so. Ultimately Dr. Martin filled out an application for M.'s admission into the Methodist Children's Home because he then thought it would be best for M. to be reared outside the Greenville area.

 Debbie and Jerry Hughes were later arrested for strong armed robbery and incarcerated in Louisiana. No longer fearing for M.'s safety, Dr. Martin requested the Putnams to return the child to him but they declined to do so. They stated Dr. Martin had informed them he was considering placing M. in a home outside the area and they desired to adopt M. themselves. The idea of their adopting M. had been earlier discussed and the doctor indicated that it would be a good possibility. However, Dr. Martin testified he made no such promise but merely informed the Putnams they would be considered if the time for an adoption came to pass. He repeated his primary concern was that M. not be reared in the Greenville area because of Jerry and Debbie's temperaments and because of the stigma resulting from M.'s parents' mental deficiencies and their criminal record. He finally regained M.'s custody from the Putnams through a writ of

 habeas corpus. The child thereafter resided with the Martins until the decree of adoption in this cause. However, this change of ...

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