ALLEN ET UX v. ALLEN ET AL
Supreme Court of Oregon
September 24, 1958
December 3, 1958
330 P.2d 151
Argued July 30, affirmed September 24, petition for rehearing denied December 3, 1958
James P. Forsyth, Jr., and Janet W. Starkey, Portland, argued the cause and filed a brief for respondents.
Before ROSSMAN, J., Presiding, and LUSK, WARNER, SLOAN and O‘CONNELL, Justices.
SLOAN, J.
This is a delicate and difficult case. Plaintiffs-appellants are the adoptive parents of the defendant Debra Jeanne Allen. This is a suit by them attempting to abrogate the adoption proceeding which created that status. The defendant Waverly Baby Home, of Portland, is a licensed child-caring agency, certified as provided by
The disposition of the case requires a brief summary of the chronological facts. At the outset of this
Debra was born in Seattle on May 21, 1950. She was the natural child of a married couple. It is important to note that although this case involves only Debra, there was a brother born to the same parents who was equally involved in all the pleadings and process herein mentioned. We will, for the most part, refer to such proceedings, however, as though only Debra were mentioned therein. The child‘s father and mother were later divorced and the child abandoned. In July, 1951, she was received into the custody of Waverly Baby Home for care.
On July 27, 1951, a juvenile officer of the circuit court for Multnomah county, department of domestic relations, filed a petition in that court which charged that Debra did not have “parental care or guardianship.” This petition also requested that the parents should be cited to appear and show cause why such child should not be adjudged a “dependent ward of the Department of Domestic Relations.” The petition further recited that the child was in the actual custody of the Waverly Baby Home. Pursuant thereto, an “informal citation” was issued by the court on January 23, 1952. This citation “requested” the parents to appear before the court on January 31, 1952, in the matter of Debra, an “alleged dependent minor.” The “informal” character of this citation is in keeping with the demands of
It is to be noted that the mother of the child personally appeared at that hearing. The adjudication of the judgment mentioned was confined to the respective rights of the parent and child. The judgment was not concerned with nor did it identify or define the status of any person to whom the custody of the child should be awarded. It did deprive the parents of all rights to the children for all purposes for the period named in the order. Appeal was available from that order.
On October 20, 1953, the Waverly Baby Home, by its authorized officer, petitioned the same court for a commitment which would authorize consent to adoption.
On December 11, 1953, Waverly placed Debra in the home of plaintiffs for care. Subsequent to the order of November 24, 1953, and on February 8, 1954, plaintiffs petitioned the same court for the adoption of these children. Attached to the petition was a certified copy of the order of commitment and of the consent of the Waverly Baby Home to such adoption in the form required by what was then
During the time the child was committed to Waverly, and since then, she developed behavior problems culminating in a decree on December 15, 1956, determining the child to be mentally deficient and committing her to the Fairview Home at Salem. The demands upon the services of that facility so exceed its capacity that a long waiting list of such committed children exists. Consequently, the plaintiffs are still burdened with the care and problems presented by such a child in their own home. By this proceeding they seek to be relieved of this financial burden as
Plaintiffs allege two separate grounds by which they seek to accomplish this purpose and abrogate this adoption. One, that the adoption decree was void for the reason that the juvenile department did not have jurisdiction of the mother of the child at the time it entered the order authorizing consent to adoption in lieu of the parent. And, two, that the officials of Waverly Baby Home at all times had knowledge of the mental condition or deficiency of the child and fraudulently failed to notify these plaintiffs thereof. That such alleged fraudulent failure was likewise a fraud upon the court awarding the decree of adoption. They also seek monetary damages from Waverly for medical costs incurred in caring for the child. After very extensive hearing and briefs the trial court entered a decree denying the rights sought by plaintiffs. Plaintiffs appeal, assigning 13 assignments of error. All of them have been considered. In view of the disposition made of this case we need only consider the right of these plaintiffs to bring this suit and the jurisdiction possessed by the juvenile department over the essential parties at the time the order was entered granting Waverly the right to consent to adoption. They are determinative of all the issues presented.
We have given this case the thorough consideration and attention that a proceeding so vitally affecting the welfare of this and other children requires. We have extended our research well beyond that contained in
From the numerous cases considered we adopt the expression of the rule set forth in Coonradt v. Sailors, 186 Tenn 294, 209 SW2d 859, 2 ALR2d 880. It is there held:
“Where one voluntarily assumes the relationship of parent to a child by formal adoption, it cannot be lightly cast aside. The relationship involves duties of care, maintenance and education with rights of custody, control and service of the child. Society has an interest in this relationship, and we think the Legislature alone should supply the procedure to be followed, as well as define the cause, if any, whereby the relationship may be dissolved. In the absence of such a statute the courts will not assume jurisdiction to annul a decree of adoption at the instance of the adopting parent and cast the child adrift to again become a public charge.”
Without additional quotation citation is made to the following additional authorities which support the same view. Department of Social Welfare v. Carollo, 236 P 821, 107 Cal App2d 211; In Re Martin‘s Adoption, 56 NYS2d 95, 269 App Div 437; In Re Eaton, 305 NY 162, 111 NE2d 431; Stanford v. Stanford (Tex), 201 SW2d 63; Kenning v. Reichel, 148 Minn 433, 182 NW 517, 16 ALR 1016, and the leading case of Wolf‘s Appeal (1888), 10 Sadler (Pa) 139, 22 WN Cas 93, 6 SC 401, 13 A 760; Op of Atty Gen (Or) 1942-44, p 465. Attention is also directed to a very comprehensive and well-edited annotation at 2 ALR2d 887. We have found no case holding to the contrary except as authorized
It is recognized that a court of general equity jurisdiction may set aside a decree of adoption. At 2 ALR2d 890 are collected all the cases found which have considered this exercise of equity jurisdiction. It is to be carefully noted in the cases there cited that equity will assert this authority only to protect the best interest and welfare of the child. In this case there is no allegation that the best interests or welfare of the child Debra is at stake.
The plaintiffs assert that the doctrine of estoppel in pais must be applied to determine their right to prosecute this case. That doctrine is not here involved. The term estoppel is used in some of the cited cases, and in a few references the term estoppel in pais is used. However, the matter is best stated by the New York court in In Re Martin‘s Adoption, supra, wherein it is stated: “The general rule is that where a person invokes the jurisdiction of a court, he will not be heard to repudiate the judgment which that court entered upon his seeking and in his favor.” This is not a matter of estoppel in the strict sense, but rather a rule of law. 19 Am Jur 600, 704, Estoppel §§ 2, 72. We conclude the plaintiffs are without right to institute and maintain this proceeding.
Nevertheless, this court has examined with care the allegations and evidence of fraud leveled against the Waverly Baby Home and finds them to be without merit. Certainly there is no evidence of a weight and character sufficient to support a determination that the decree of adoption was a void by reason
Plaintiffs also contend that the adoption proceeding itself was void. To establish this they assert that the allegation of “search and inquiry” in the affidavit, upon which the court entered its order for publication of a citation to the mother in the proceedings by which Waverly was awarded a “permanent” commitment and authority to enter its consent to adoption, was insufficient for that purpose. The averments of the affidavit have been previously set forth. They ask us to hold that for this reason the juvenile department had no jurisdiction over the mother at the time the commitment order was modified and that Waverly‘s subsequent consent to the adoption was therefore without authority. That without a valid consent the adoption must fail. We believe that upon this ground also this appeal must fail.
Our first attention is, therefore, again directed to the proceedings and judgment by which the juvenile department first acquired and asserted jurisdiction over the child Debra and her mother. This court has, on previous occasion, considered the jurisdiction of the juvenile court with reference to such a judgment. We refer to Palm v. Smith et al., supra. At page 624 of that opinion the court sets out the pertinent sections
“When any child is found to be dependent or neglected, within the meaning of
ORS 419.102 , the court may make an order committing the child to the care of some suitable state institution, to the care of some reputable citizen of good moral character, to the care of some suitable association willing to receive it and embracing in its objects the purpose of caring or of obtaining homes for dependent or neglected children. The court may thereafter set aside, change or modify such order.”
“* * * the court derives its authority to make commitments of dependent children from § 93-609 [OCLA] [
ORS 419.522 ],” and “the court is further authorized in § 93-609 to ‘set aside, change, or modify’ such order. * * * We are reluctant to believe the legislature intended to deprive a juvenile court of the power to change any order of commitment when the welfare of the dependent child so demanded.” (Italics ours.)
That case concerned the continuing jurisdiction of the court to modify a permanent order. However, the rule is equally applicable to this case. When notice has been served upon the parent as directed by
We again refer to the original judgment entered in the dependency proceedings. As previously stated, this order included a finding of dependency. So long as dependency existed jurisdiction was retained. The order was res adjudicata as to all parties upon that one salient determination upon which jurisdiction depends until changed or modified as provided by order of law. In Re Ramelow, supra. Additional notice, order or proceeding could only duplicate that which was already accomplished. It would not detract from existing and effective jurisdiction.
We hope it is thus made clear that the court had the power or jurisdiction to modify or change the authority granted to Waverly to include the authority to enter its consent to adoption. Such exercise of jurisdiction did not infringe upon or alter the status existing between parent and child determined by the original adjudication finding dependency.
Thus the second attempted notice to the mother and the citation issued upon the affidavit were unnecessary to provide continuing jurisdiction of the essential parties, including the mother. When Waverly and the court, acting by its counselors, initiated a second petition and attempted to accomplish a substituted service of citation upon the mother prior to the entry of an order awarding Waverly the right to enter the adoption proceedings the parties, and the court, were undoubtedly motivated by that degree of caution which prompted the court in Stoker v. Gowans, supra, to indicate that the giving of notice prior to a change in the commitment order would have been a matter of
It must be noted that we have not considered the sufficiency of the affidavit, heretofore mentioned, to sustain the publication of citation to the mother on the occasion of the second hearing. Our disposition of this case renders this unnecessary. The extent, if any, to which the natural mother was by that process deprived of due process is not before us and cannot be determined. Let it be clear, however, that at the time the juvenile department entered the order authorizing Waverly to consent to an adoption proceeding it had jurisdiction of the subject matter and all the necessary parties. If there were any failure of due process it is available only to the mother and not to these plaintiffs. As succinctly stated by the editors of Am Jur at 14 Am Jur 364, Courts § 161: “Jurisdiction does not relate to the right of the parties between each other, but to the power of the court.” Due process requires “Notice that some particular judicial proceedings are already instituted or proposed to be instituted, and of the time and place where such hearings are to be had, and reasonable opportunity to be heard, * * *.” II Cooley‘s Constitutional Limitations 8th ed, p 851.
Affirmed.
ROSSMAN, J., specially concurring.
I concur in the opinion written by Mr. Justice SLOAN. I add the following as additional reasons.
The plaintiffs argue that the mother of the child (Debra) was an indispensable party to the proceeding which the Waverly Baby Home instituted October 20, 1953, pursuant to
Neither of the child‘s natural parents is a party to this suit. The only parties to the latter, which seeks to invalidate the adoption, are the adopting parents,
In adoption proceedings, the child‘s status is the subject matter of the proceeding. 1 Am Jur, Adoption of Children, p 652, § 53. Its relationship to its natural parents and to the individuals who desire to become its adopting parents will be changed completely by the adoptive order when entered.
This suit seeks to declare void the adoption order and thereupon exclude from the plaintiffs’ home and family this unfortunate little girl. If a decree of that kind is entered, the plaintiffs, who are now the adoptive parents, will become strangers to the child and owe her no duty. They will no longer be responsible for her and can no longer be required to support her. Upon the entry of an order of that kind, she could not inherit from either of her adoptive parents if a death occurred. If the plaintiffs have other children, her relationship to them presumably would be terminated, although they are not parties to this suit.
Now, let us consider the effect upon the natural parents if this prayed-for decree must be entered. The proceeding which was instituted July 27, 1951, and which separated Debra from her natural parents (1 Am Jur, Adoption of Children, p 650, § 51) is not attacked in this proceeding. As has also been stated,
If a decree must be entered for the plaintiffs, two possibilities will present themselves. First, it could be held that since the order which was entered in the proceeding instituted July 27, 1951, is not under attack, and since the natural parents are not parties to this proceeding, they would not be bound by the outcome of this suit and thereupon Debra would have lost, not only her adoptive parents, but also her natural parents. Thus, an eight-year-old girl would be cast adrift in the world without home or parents. Surely no court in a civilized land would reach a conclusion of that kind. The other alternative would be to hold that the natural parents, upon the entry of a decree favorable to the plaintiffs, would again owe to Debra all the obligations of parenthood. But they are not parties to this suit. If, notwithstanding the fact that they are not parties to this suit, the entry of a decree favorable to the plaintiffs will restore them to their former status; then, if they have a home, they will be required to accept the little girl into it. They will again become responsible, not only for her discipline, but also for her support and upbringing. In the event of death she could inherit from them. The very mention of those facts shows that the natural parents are necessary parties to this suit. In fact, no just decree can be entered in the absence of the natural parents.
Debra has a brother whom the plaintiffs have also adopted. The two were the subjects of both of the proceedings mentioned in Mr. Justice SLOAN‘s opinion. The brother meets with the plaintiffs’ entire satisfac-
This being an equity proceeding, it is tried de novo in this court. In the absence of the natural parents, we cannot proceed and must dismiss. According to 39 Am Jur, Parties, p 975, § 104:
“In some classes of cases, as in equity * * * the nonjoinder of necessary parties is at no time waived, but may be taken advantage of at any time, and indeed in some instances cannot be waived, as was held in the case of a petition for a mandamus in which, if granted, the rights of a person not a party would have been materially affected. When the defect or omission is one that is beyond the reach of an amendment, the objection may be taken at any time.”
As long ago as 1891, Mr. Justice Robert BEAN, in Beasley v. Shively, 20 Or 508, 26 P 846, declared:
“* * * A court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but where a complete determination of the controversy cannot be had without the presence of other parties, it may dismiss the complaint or cause them to be brought in, as the exigencies of the case may require. (Hill‘s Code, § 41; Russell v. Clark‘s Ex. 7 Cranch, 69; Young v. Cushing, 4 Biss. 456). The better practice in the circuit court is to order the necessary parties to be brought in, and that should always be done under
ordinary circumstances. But we have no such authority, and could only in a proper case, and where the equities justify, remand the cause to the court below for that purpose. While the record before us discloses the fact that there are other parties whose rights will be materially affected by a decree in this case, their name or names nowhere appear in this record, and we do not feel authorized to remand this case to the court below for the purpose of having them made parties.”
I concur in Mr. Justice SLOAN‘s opinion and offer the above as additional support.
LUSK, J., specially concurring.
In Furgeson v. Jones, 17 Or 204, 20 P 842, 11 Am St Rep 808, 3 LRA 620, this court held that a decree of adoption, entered without notice to the father of the adopted child and without the father‘s consent, was void and open to collateral attack. The mother had given her consent. In a contest over the right to inherit upon the death of one of the adoptive parents, his widow (who had joined with her husband in the petition for adoption) and who had acquired the interest in certain real property of the presumptive heir of the deceased parent, prevailed over the claim of the adopted child. The contention that the widow was estopped because she and her deceased husband had procured the decree to be entered was rejected because the consent of both parents was a jurisdictional requirement, and “such a decree cannot bind or estop any one and may be collaterally assailed, whenever and wherever it may be interposed in any action.” 17 Or at 220. This case has been cited by this court many times, and the rule it enunciates has never been questioned, and is, I take it, the law of this state today, though it has been criticized by textwriters (see 1 Am
We are not faced, however, with the question decided in Furgeson. The issue here is whether the plaintiffs, the adoptive parents, may collaterally attack the judgment of the juvenile court which terminated the parental rights of the mother of the chlid, Debra, on the ground that no notice of the proceeding or opportunity to be heard upon that question was given Debra‘s mother.
I think that the affidavit in support of the order of publication of citation directed to the mother was insufficient for failure to state facts showing that due diligence was used to find her.1
I am further of the opinion that the mother was entitled to notice of the proceedings. The statute contains no express provision upon that subject. An implication that notice is required may, perhaps, be drawn from
“* * * In case a parent so served fails to answer such citation and the child is adjudged dependent and a temporary commitment is made, such
commitment may be modified or made permanent without further notice to the parent so served and failing to answer.”
There is no such provision with reference to parents personally served within the state.
When a temporary commitment is made “guardianship of the person of the child remains with the court and a child under such an order may be recalled by the court for further action at any time.”
Thus the temporary order of commitment was not a final adjudication terminating the mother‘s parental rights. That could not be accomplished without “further action” (
A parent‘s right to the custody and control of his children is protected by the Fourteenth Amendment. “The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Pierce v. Society of Sisters of Holy Names, 268 US 510, 535, 69 L ed 1070, 45 S Ct 571, 39 ALR 468. See, also, Meyer v. Nebraska, 262 US 390, 67 L ed 1042, 43 S Ct 625, 29 ALR 1446.
To hold that a parent may be deprived by a court of so sacred a right without notice and an opportunity to be heard “is opposed to the principles which lie at the foundation of all judicial systems not essentially despotic in their character and methods of procedure.” Schiltz v. Roenitz, 86 Wis 31, 56 NW 194, 21 LRA 483, 39 Am St Rep 873. See, also, 1 Am Jur 645, Adoption of Children § 44; Jain v. Priest, 30 Ida 273, 164 P 364; Ex Parte Martin, 29 Ida 716, 161 P 573; 4 Or L Rev, supra, Note 2, at pp 248-254. Or, as stated in Magevney v. Karsch, supra, since the legislature has provided for proceedings in courts of record “it must be presumed that the Legislature intended that such proceedings would be in accordance with the usual practice
The fact that the court is granted continuing jurisdiction to “set aside, change or modify” its original order (
But the fact that the mother was entitled to notice of the proceedings and did not receive it, does not decide this case. She is not here complaining of the court‘s action, and, for all that appears, is entirely satisfied with the existing situation. The actual question is whether the plaintiffs will be heard to assert an abridgement of the mother‘s constitutional rights. Under general principles, I think that they will not. 11 Am Jur 748, Constitutional Law § 111. In the sense explained in Moore v. Superior Court, supra, the court retained the same jurisdiction over the parties and the subject matter that it had prior to the entry of the order of dependency and the making of a temporary
I agree that the evidence of fraud is insufficient. As to whether judicial cognizance should be taken of the particular charges of fraud made by the plaintiffs here, see, 1 Am Jur 672, Adoption of Children § 72.
I concur in the result.
WARNER, J., dissenting.
The primary reason for my dissent is because I feel that the course pursued by the attaches of the Waverly Baby Home in the Allen adoption and proceedings preliminary thereto were not consonant with the traditional standards of excellence usually associated with that worthy institution. Predicated on the record before us, I am persuaded that the negligence of the Waverly Baby Home is in fact a fraud perpetrated upon the plaintiffs.