144 P. 636 | Ariz. | 1914
The respondents’ return to the warrant issued in this case was deemed and treated by the parties and
Clearly, the entry made by the eourt commissioner op. June 20, 1911, only expresses that officer’s understanding of the contents of the petition, and is incompetent for any purpose upon the production of the petition. The petition was produced and speaks for itself as to its contents. The entries made by the court commissioner and by the clerk of the district court, prove no fact, except they tend to prove that papers were filed and orders were made on the dates appear
The petition is drawn under chapter 78, Laws of 1907, and seeks to bring before the court the children therein referred to, to be dealt with as neglected or dependent children as defined in section 1 of said act. The petition prays that the children be adopted by fit and proper persons. The question is whether the court upon such petition has power to decree the adoption of a neglected child without giving the parents or person standing in the place of the parents such as a guardian, a chance to be heard and consent to the order. To say that a child is a neglected child necessarily concedes that such child has been neglected by someone whose duty it is to care for the child, either as parent, custodian or guardian. Chapter 78, Laws of 1907, and amendments, confers upon the district court and its successor, the superior courts, exclusive original jurisdiction “in all proceedings which may be brought before them affecting the treatment and control of dependent, neglected, incorrigible and delinquent children under the age of sixteen years. ...” It was this jurisdiction that was invoked by the filing of .the petition in this cause. By section 5, chapter 78, Laws of 1907, the court is authorized after a hearing to “make such order for the commitment and custody .and care of the child as the child’s own good and best interests of the territory (state) may require; and may commit such child to the care of its parents, subject to the supervision of the probation officer, or to some suitable institution, or to the care of some association willing to receive it, or the care of some reputable citizen of good moral character, or to the care of some training school, or to the Territorial Industrial School. ...” By authority of section 6, chapter 78, supra, if the child is awarded to the care of any association or individual in accordance with that law, “unless other
The jurisdiction of the judge of the district court with regard to the neglected child over which it had acquired jurisdiction was extended by section 4 of chapter 57, Laws of 1909, so that in addition to the authority to make orders affecting the treatment and control of dependent, neglected, incorrigible and delinquent children, the further authority was conferred upon such court “to issue letters of adoption of any such child to any person of whose fitness to adopt the child the court shall be satisfied and when the court shall deem it to be for the best interest of the child so to be adopted. ’ ’ The authority to award .the care, custody and control of a neglected child is placed exclusively in the judge of the district court while acting as the judge of the juvenile court. The court’s jurisdiction is invoked by the filing of a petition by a citizen resident of the county alleging that the child is a neglected child. The jurisdiction extends to making orders for the care, custody and control of the child, and in the exercise of this jurisdiction the court may appoint some association or individual as the child’s guardian, subject to a change when the good of the child may require. The jurisdiction conferred upon the court by section 4 of chapter 57, Laws of 1909, to issue letters of adoption does not' intimate the procedure by which this jurisdiction shall be invoked. When the court has determined that the child is within the class defined as a neglected child, and thereby acquired jurisdiction over the person of the child and awarded the eustodj'’ of the child to some of the agencies mentioned in the statute, it is quite clear that the same procedure that invoked the jurisdiction for such purpose would not invoke .the jurisdiction to enter an order of adoption, because the party who is given the care, custody and control of the child ■under the first procedure is made the guardian of the child, and may be made a party to the proceedings for the legal
“Authority is hereby conferred upon said court to issue letters of adoption of any such child in accordance with the laws of Arizona relating to adoption.”
Section 6 of chapter 78, Law's of 1907, as amended by section 4, chapter 57, Laws of 1909, can stand no other interpretation than conferring upon the judge of the juvenile court authority to issue letters of adoption of any neglected child brought before him under chapter 78, Laws of 1907, in accordance with the laws relating to adoption.
At the time the order of adoption was made the laws relating to adoption required that:
“The person adopting a child and the child adopted and the other person, if within or residents of this territory, whose consent is necessary, must appear before the probate judge [in this ease the judge of the juvenile court] of the county where the person adopting resides; and the necessary consent must thereupon be signed and an agreement be executed by the person adopting, to the effect that the child shall be adopted and treated in all respects as his own lawful child should be treated. If the persons whose consent is necessary are not within or are not residents of this territory, then their written consent, duly proved or acknowledged, as deeds or conveyances are acknowledged, shall be filed in said probate court at the time of the application for adoption.” Paragraph 2041, Ariz. Rev. Stats. 1901.
The persons whose consent to the ádoption of a child is necessary are: The parents of the child, except when either or both have been deprived or his or her civil rights, or adjudged guilty of adultery or cruelty and for either cause divorced, or adjudged to be habitual drunkard, or who has been judicially deprived of the custody of the child on account of
The return and evidence in support thereof is sufficient to show that the respondents’ custody of the child as the custody by a guardian of his ward is legal and authorized by law, and therefore the judgment refusing to discharge the child must be affirmed.
FEANKLIN, C. J., and EOSS, J., concur.
NOTE.—On the validity of adoption without consent of natural parents, see note in 30 L. E. A. (N. S.) 146.