Harold J. Hughes, petitioner in the court below, is seeking by this proceeding to be declared the son and lawful heir of Mona LaWanda Nelson, deceased.
The petitioner is the illegitimate son of the deceased. He was bom July 16, 1924; was apparently abandoned in infancy by his parents and became an inmate of St. Anges Baby Home in Portland. On May 10, 1927, by decree of the Court of Domestic Belations for Multnomah County, he was declared to be the child of Mr. and Mrs. J. J. Hughes. He was reared in the home of his adoptive parents and never knew his natural mother. The question is whether the decree of adoption is void because of asserted procedural defects. If that be so, the relationship of mother and son between the petitioner and his natural mother has never been severed and he is her sole heir at law and entitled to take her estate.
The question arose in this way. Mrs. Nelson, nee Oatman, died intestate on February 6, 1957. She was survived by a brother, Ellis F. Oatman, and a sister,
The adoption proceedings were commenced by the filing of a petition by Mr. and Mrs. Hughes which contained the following averments:
“That Harold Joseph Oatman, infant, born July 16th, 1924, is and was a foundling, abandoned by both father and mother, said abandonment havingcontinued for more than one year last past; that said infant since said abandonment by both father and mother has been an inmate of and eared for by St. Agnes Foundling Asylum;
“That said petitioners desire to adopt the said infant in the manner provided by the laws of the State of Oregon;
“That the said petitioners are able to give said infant a suitable home, to care for, clothe and feed it, and to educate the said child;
“■Said petitioners desire to give said infant all the advantages that a child of their own blood might have;
“That said petitioners further desire that the name of said infant be changed from Harold Joseph Oatman to Harold Joseph Hughes.”
As required by statute (Oregon Laws 1921, ch 215), the petition was served on the Child "Welfare Commission of Oregon, which filed a written report with the court recommending that the petition be granted. Included in the report is the following:
“The child was a ward of the St. Agnes Baby Home and was placed by that institution. He has been abandoned for more than one year preceding the filing of the petition. However since the St. Agnes Baby Home never acquired title, the year’s abandonment next preceding the time of filing the petition is the basis upon which this proceeding is instituted
On the tenth day of May, 1927, ¡St. Agnes Baby Home filed with the court its “Consent to Adoption”, reading as follows:
“Harold Joseph Oatman, minor child, duly and regularly committed by the Court of Domestic Relations of Multnomah County, State of Oregon, to the St. Agnes Baby Home, petition having been filed by J. J. Hughes and M. E. Hughes for the adoption of Harold Joseph Oatman, said minorchild having been abandoned by both mother and father; the 'Child Welfare Commission of Oregon having consented to the adoption and recommended the same;
“It appearing to the said St. Agnes Baby Home that the petitioners for adoption are members of the Catholic Church in Montavilla, and that they are in good standing in the community; now,
“THEREFORE, said St. Agnes Baby Home hereby consents to and recommends that said petition for adopted [sic] be granted.”
As previously stated, the court entered a decree of adoption on May 10,1927. There are no findings other than recitals in the decree to the effect that the petitioners were of sufficient ability to bring up the minor child, Harold Joseph Oatman, properly, and that it was fit and proper that such adoption should take effect and that the Child Welfare Commission of Oregon had investigated the condition of the parties and recommended that the petition be granted. The record fails to disclose that notice of the proceeding was given to the minor child’s natural mother.
The question for decision is governed by two fundamental principles. One is that the right of adoption “being in derogation of common law, is a special power conferred by statute, and the rule is, that such statutes must be strictly construed.”
Furgeson v. Jones,
In addition, it is to be observed that the court of domestic relations for Multnomah county was in 1927 a court of special and limited jurisdiction, dealing solely with the problems of dependent, delinquent and neglected children. Oregon Laws 1920, Special Session, Chapter 2.
②
To such a court apply the same rules respecting the proof of jurisdiction when its judgment is attacked as in the case of a court of record exercising special statutory powers not according to the course of the common law.
Capos v. Clatsop County,
supra,
The statutes governing adoption in effect in 1927 are to be found in Oregon Laws 1920. The parties seem to have assumed that the proceedings with which we are here concerned were taken pursuant to sections of the statute which provided for the adoption of children who were, either by commitment or otherwise, in the care of a child caring agency. These provisions will now be considered.
Oregon Laws 1920, section 9809, provided for permanent and temporary commitments by competent
The following sections of Oregon Laws 1920 relating to child caring agencies are pertinent: Such agencies to which dependent or delinquent children were committed by a court of competent jurisdiction through a permanent order could consent to the adoption of such children, § 9828. They could receive needy or dependent children from their parents or legal guardians for special, temporary or continued care. The parents or guardians might sign releases or surrenders giving to such agencies guardianship and control of such children, but such releases did not surrender the right of such parents or guardians in respect to the adoption of such children, nor entitle the agency to give consent to the adoption of such children, unless the release or surrender expressly recited that it was given for the purpose of adoption and that any entire severance of family ties by adoption, or otherwise, should be accomplished only by the order of a court of competent jurisdiction, § 9829.
Section 9830 provided:
“In the adoption of a ward of a private agency, society or institution, to give formal consent to such adoption, it shall be required that such organization shall file with the clerk of the court in which the adoption proceedings are pending, two documents as follows: (1) A certified copy of an order of a court of competent jurisdiction formally and permanently assigning the child to its guardianship, or, for the information of the court, a copy of a written surrender from a parent or parents or a guardian; and written formal consent by the organization to the proposed adoption, which consent shall show that sufficient and satisfactory investigation of the adopting parties has been made, and which consent shall recommend that the petition for adoption be granted.” (Italics added.)
The requirements of this section were not complied with. Neither of the documents designated was filed with the clerk of the court, so far as the record discloses. That the defect is jurisdictional there can be no doubt, for the purpose to be accomplished by compliance with the statute was “to give formal consent to such adoption.” Consent to an adoption by parents or guardian or other person
in loco parentis
is jurisdictional, except where the statute does not require it.
Burrell et ux v. Simpson,
It is argued by Aetna that
“* * * since St. Agnes had become the guardian of the child the filing of a copy of its ‘written surrender’ would have been sufficient without the filing of a copy of the commitment order, and that since its ‘written surrender’ was only ‘for the information of the court/ any such requirement was not jurisdictional and, in any event, was amply satisfied by the filing of its ‘'Consent to Adoption/ which had the same legal effect as a written surrender.”
The argument begs the question by assuming that St. Agnes Baby Home was authorized as guardian to give a “written surrender” of the child. The written surrender described in 'Oregon Laws 1920, § 9829 and referred to in § 9830, is an instrument to be signed by a parent or a guardian who has authority to consent to the adoption of a child. The pivotal question is whether the Home had such authority or, more precisely, whether the record of the adoption proceedings contains statutory proof of that fact. Had the mother of the child given a written surrender to the Home reciting that it was given for purposes of adoption, as provided in Oregon Laws 1920, § 9829, and had a copy of such surrender been filed with the clerk of the court, that would have ¡been sufficient to make the Home’s consent effective and would have satisfied the statute, just as would a certified copy of an order of permanent commitment of the child by the court. Neither of these documents being found in the record, the requisite evidence of consent to the adoption by someone authorized to give such consent is lacking. Whatever may have been the purpose of the legislature in using the phrase “for the information of the court,” we think that the view is untenable that it was intended thereby to lessen the jurisdictional importance of the requirement that proof of the authority of the agency having custody of the child to consent to its adoption should be made in the manner set forth in the statute. Failure of the record to disclose a guardian lawfully authorized to give consent renders a decree
It is suggested that the adoption can be sustained under Oregon Laws 1907, Chapter 34, § 9, which appears as § 9827 of Oregon Laws 1920 and reads in part:
“In any case where the court shall award a child to the care of any association or individual in accordance with the provisions of this act, the child shall, unless otherwise ordered, become a ward, and be subject to the guardianship of the association or individual to whose care it is committed. Such association or individual shall have the authority to place such child in a family home, with or without indenture, and may be made party to any proceeding for the legal adoption of the child, and may by its or his attorney or agent appear in any court where such proceedings are pending and assent to such adoption, and such assent shall be sufficient to authorize the court to enter the proper order or decree of adoption. * * *”
This section was part of an act relating to dependent, neglected and delinquent children. Under its provisions when the court made an “award” of a child to the care of an association, the child became a ward of the association and subject to its guardianship and the association was authorized to assent to the adoption of such child. This statute did not make the distinction between permanent and temporary commitments when conferring the authority to consent to adoption found in sections 9828-9830 of Oregon Laws 1920. The latter sections are all parts of Oregon Laws 1919, Chapter 405, which, like the 1907 Act, is an act relating to dependent and delinquent children. Section 11 of the 1919 Act provided that all laws in conflict with its provisions were repealed. It is obvi
It is also urged that the judge was empowered to consent to the adoption in loco parentis and that he did so. It is said that if there was no permanent commitment there was a temporary commitment, in which case guardianship remained with the court, as provided in § 9809, with authority to consent to the adoption. No such express authority is pointed to except that vested in the judge by section 9831, which authorized the judge to “record his consent to the adoption in loco parentis” when “foundlings or other abandoned children, whose parentage is unknown and who have not been assigned by a permanent court order to any child-caring organization, are presented for adoption.”
Passing the objection that there is no allegation in the petition that the parents of the child were unknown and that, although the child was described in the petition as a foundling, ③ his name, Harold Joseph Oatman, is stated (which would seem to belie the notion that his parents were unknown), this contention cannot be sustained, because there is nothing to indicate that the judge did, in fact, undertake to exercise the authority to consent to the adoption. Aetna says that the evidence of his consent is that he signed the decree. On the contrary, he signed the decree, not as guardian, but as judge, exercising a judicial function. He did not give his consent, but he made an order.
We are asked to hold that this was a valid adop
“If either parent is insane or imprisoned in the state prison, under a sentence for a term not less than three years, or has willfully deserted and neglected to provide proper care and maintenance for the child for one year next preceding the time of filing the petition, the court shall proceed as if such parent were dead, and in its discretion may appoint some suitable person to act in the proceedings as next friend of the child, and give or withhold the consent aforesaid.” (Italics added.)
There is internal evidence that, notwithstanding the attempt of St. Agnes Baby Home to give its consent to the adoption, the proceeding was not intended to be governed by the statute relating to adoption of children committed to an institution, but rather by the section just quoted. This conclusion is indicated by the allegation of the petition that the child had been abandoned by his parents for more than one year last past and the statement in the report of the Child Welfare Commission that “since the 'St. Agnes Baby Home never acquired title, the year’s abandonment next preceding the time of filing the petition is the basis upon which this proceeding is instituted.” The court had judicial knowledge of the contents of the report.
Dugger et ux v. Lauless,
Although not in the exact language of the statute, it may be assumed that the averment that the parents of the child had “abandoned” him for a period of more than one year last past is the equivalent of a charge that they had “willfully deserted and neglected
“If a parent does not consent to the adoption of his child, the court shall order a copy of the petition and order thereon to be served on him personally, if found in the state, and if not, to be published once a week for three successive weeks in such newspaper printed in the county as the court directs, the last publication to be at least four weeks before the time appointed for the hearing. Like notice shall also be published when the child has no parent living, and no guardian or next of kin in this state. The court may order such further notice as it deems necessary or proper.” (Italics added.)
If a notice must be published “when the child has no parent living,” it apparently is required when desertion is charged and the court is to “proceed as if such parent were dead.” Even though this is not a correct interpretation of the statute, due process - required notice to the mother. As Mr. Justice Belt said in
Palm v. Smith et al,
“* * * It would seem not to require much argument that a mother — although her sins be as scarlet — should have the right to be heard in court on a matter affecting the welfare of her child.”
See
Allen et ux v. Allen et al,
“A parent has the right to the custody of his child as against all the world, unless he has forfeited his right or the welfare of the child demands that he should be deprived of it. To divest him of his rights without notice and an opportunity to be heard is not only contrary to every principle of natural justice but is prohibited by the 'Constitution. A court cannot be clothed with authority to decree that a parent has deserted his child and forfeited his parental rights without notice to him.”76 ALR at 1075 .
We think the foregoing is good law. Numerous other decisions to the same effect are collected in annotations in
It follows that the decree of adoption was void as to the natural mother of the petitioner and she could have attacked the decree collaterally, even though it may have been binding on the parties to the proceeding and their privies.
Beatty v. Davenport,
There are few cases in the books in which an adopted child has challenged the validity of his own adoption. This court permitted such an attack in
In re Estate of Myers,
supra. The question in that ease was whether a second adoption was void because the adoptive father in the first proceeding had not given his consent to the later adoption and had not been given notice of that proceeding. The object of the child’s attack on the second adoption was to inherit from her deceased adoptive father. Opposing her, the next of kin of the deceased claimed to be his sole heirs at law. The second decree was adjudged void on the authority of
Furgeson v. Jones,
supra, which held that where the consent of the parent to the adoption was required and he neither gave his consent nor was given notice of the proceedings jurisdiction of the subject matter never attached and the decree was void and subject to collateral attack by one claiming through the adoptive parent. See, also,
Dugger v. Lawless,
supra,
“It is thus apparent that if the parents areliving and do not belong to the excepted classes, that their consent must he obtained and is a prerequisite to jurisdiction; that without such consent jurisdiction does not attach, and the court is without authority to act and make a decree of adoption, and if it undertakes to do so_, its decree will be a nullity, not voidable but void, and may be collaterally assailed in any action.” (Italics added.) 17 Or at 219 .
The “excepted classes” are those enumerated in Oregon Laws 1920, § 9768. As there was jurisdiction of the subject matter here the Myers case is for that reason distinguishable. It is, however, authority for the right of an adopted child to challenge collaterally his own adoption.
We observe, parenthetically, that
Furgeson v. Jones,
insofar as it holds that kindred of the adoptive parent, notwithstanding they are in privity with one who invoked the jurisdiction of the court in. order to procure a decree of adoption, may attack such decree, is contrary to the weight of modern authority, 2 Am Jur 2d 919-921, Adoption §§ 72-74. In that respect
Furgeson v. Jones
seems to have been overruled by what was said in
Allen v. Allen,
supra,
Two decisions of District Courts of Appeals in California sustain the right of the adopted child to attack the
decree
— Estate
of Hampton,
55 Cal App 2d 543, 567,
In the Hampton ease the parties used * #the device of having the child declared abandoned, and given into the custody of an institution so that it could consent to the adoption. The mother was not notified of that proceeding. In the present ease the parties used the device of having a guardian appointed so that the guardian could give the required consent. But the father was not notified.” 86 Cal App 2d at 477.
The court concluded:
“* * * Under such circumstances there is no escape from the conclusion that the rule of the Hampton case permits the child to attack the validity of such an adoption proceeding.” Idem.
In the Hampton case, after holding that failure to give notice to the mother rendered the proceedings void, the court said :
“* * * the respondent [the adopted child], who was the central figure therein and the person whose interests were mainly affected thereby, has the right to attack the decree entered which purports to thus interfere with her right of inheriting from her natural mother.” 55 Cal App 2d at 563.
The court applied the rule that strangers to the record may attack a void judgment when, if the judgment were given full effect, some right in them would be affected by its enforcement. See 55 Cal App 2d at 568. ④
In each of these cases the attack on the decree of adoption came some 37 years after the decree was entered; and in each the decree was held to be void as to the adopted child and, therefore, no obstacle to
In
Dean v. Brown,
It appeared in the Slattery case that the adopted person was 42 years of age at the time he sought to vacate the decree, which had been entered 34 years previously. He had been aware of his adoption for 25 years. The father received no notice of the adoption proceedings, which were commenced by the mother, the parents of the child having been divorced at the time. In its opinion dismissing the suit, the court proceeded upon two grounds; first, that the decree could not be collaterally attacked by anyone and, second, that the adopted child could not question it. As to the latter point the court said:
“If it be held that the father was entitled to notice, then he alone could complain of want of notice, and, for 34 years after the adoption and to the time of his death, he made no such complaint. The father never questioned the validity of the adoption, and, by lapse of time, he was barred from seeking revocation thereof, had he so desired, and plaintiff is equally barred.”254 Mich at 678 .
The
Slattery
case was discussed in
Estate of Hampton,
supra, in connection with a claim of estoppel (see 55 Cal App 2d at 567) and distinctions in the facts of the two cases were pointed out. Assuming, without deciding, that delay can operate as an estoppel to attack a void judgment it could be so only if the delay were accompanied by knowledge of the facts. The record in this case discloses that the petitioner had no such knowledge until 1961, although he had been
The general rule as to collateral attack upon a judgment void upon its face is as stated in the Hampton c ase and is fully supported by the authorities there cited. (See footnote 4, supra.) See, also, 1 Freeman on Judgments (5th ed) 636-637, § 319, where it is said respecting strangers to a judgment:
“Being neither parties to the action, nor entitled to manage the cause nor appeal from the judgment, they are by law allowed to impeach it whenever it is attempted to be enforced against them so as to affect rights or interests acquired prior to its rendition.”
The petitioner, who was an infant aged three years at the time of the adoption proceedings, was not, and could not have been, a party thereto, but was, as the court said in the Hampton case, “the central figure therein and the person whose interests were mainly affected thereby.” We hold that he is entitled to attack the decree in this proceeding.
We come finally to Aetna’s contention in support of the order of the court below based upon ORS 109.381 (Oregon Laws 1959, ch 609, §§ 2-6, inclusive) which reads:
“(1) A decree of a court of this state granting an adoption, and the proceedings in such adoption matter, shall in all respects be entitled to the same presumptions and be as conclusive as if rendered by a court of record acting in all respects as a court of general jurisdiction and not by a court of special or inferior jurisdiction, and jurisdiction over the persons and the cause shall be presumed to exist.
“(2) Except for such right of appeal as may be provided by law, decrees of adoption shall bebinding and conclusive upon all parties to the proceeding. No party nor anyone claiming by, through or under a party to an adoption proceeding, may for any reason, either by collateral or direct proceedings, question the validity of a decree of adoption entered by a court of competent jurisdiction of this or any other state.
“(3) After the expiration of one year from the entry of a decree of adoption in this state the validity of the adoption shall be binding on all persons, and it shall be conclusively presumed that the child’s natural parents and all other persons who might claim to have any right to, or over the child, have abandoned him and consented to the entry of such decree of adoption, and that the child became the lawful child of the adoptive parents or parent at the time when the decree of adoption was rendered, all irrespective of jurisdictional or other defects in the adoption proceeding; after the expiration of such one-year period no one may question the validity of the adoption for any reason, either through collateral or direct proceedings, and all persons shall be bound thereby; provided, however, the provisions of this subsection shall not affect such right of appeal from a decree of adoption as may be provided by law.
“(4) The provisions of this section shall apply to all adoption proceedings instituted in this state after August 5,1959. This section shall also apply, after the expiration of one year from August 5, 1959, to all adoption proceedings instituted in this state before August 5,1959.”
This statute has two aspects' — in one it is a curative act, in the other a statute of limitations. As to the former, the general rule is that it is not competent for the legislature to validate a judgment void for want of jurisdiction and a statute purporting to have that effect would be unconstitutional, amounting to a denial of due process of law. If, however, the defect
Aetna argues, however, that subsection (1) of ORS 109.381 does no more than provide a presumption of validity of adoption decrees, and since a presumption in this state is a species of evidence,
Wyckoff v. Mutual Life Ins. Co.,
By subsections (3) and (4) of ORS 109.381, it is provided, in substance, that actions to question decrees of adoption shall be barred if commenced after the expiration of one year from their entry, but if the adoption proceedings were instituted prior to August 5, 1959, then such an action must be brought within one year from August 5, 1959. That was the effective date of the act and, evidently, the provision as to prior proceedings was adopted in order to avoid the constitutional objection against cutting off remedies simultaneously with the passing of the limitations statute. See
Vance v. Vance,
“Such a judgment may be attacked at any time by anyone, including the party in whose favor it is given, and may be impeached in any action, direct or collateral. It is not necessary to take any steps to vacate or avoid a void judgment; it may simply be ignored.”
The courts therefore hold that a statute of limitations is not applicable to a judgment void upon its face.
Elliott v. Clement,
19. In several of the states statutes imposing time limitations for attacking adoption proceedings similar to OE-S 109.381 have been enacted. A review of cases construing these statutes may be found in 83 ALR2d 945, an Annotation to
Walter v. August,
186 Cal App 2d 395, 8 Cal Rptr 778, 83 ALR2d 941. Of particular significance to the present question is
Dean v. Brown,
supra. In 1947 the Arkansas legislature amended its statute so as to provide that when (a) adopting parents had kept a child for two years under a court order and (b) no proceedings were filed within that time to challenge the order, then the adoption should be considered beyond attack. The amendment further allowed a period of six months from the effective date of the act to challenge adoption proceedings which occurred more than two years prior to such date. The facts in
Dean v. Brown
were as follows: Nettie Bond was adopted in 1911 when she was three years of age. An Arkansas statute provided that the adoption must
Dean v. Brown was a case in which an adopted child was seeking to uphold rather than invalidate the adoption proceeding, but the principle upon which it was decided, that a statute of limitations cannot be made to apply validly to a void judgment, at least where to do so would be to interfere with vested rights, is fully applicable to this case, since the petitioner’s right to his natural mother’s estate, both real and personal, had fully vested before the enactment of ORS 109.381.
In
Walter v. August,
supra, the adoption decree was based on abandonment of the child and the defect in the proceedings was failure to give notice to the
It is suggested by Aetna that the circuit court of Washington county lacked jurisdiction to set aside the adoption decree of Multnomah county. Inasmuch as the decree was a nullity so far as the petitioner is concerned, it was entitled to no respect, and, as the authorities already cited show, any court had jurisdiction to disregard it.
We conclude that the petitioner was never legally adopted and, as the sole heir at law of Mona LaWanda Nelson, deceased, is entitled to inherit her estate.
The decree is reversed and the cause remanded for further proceedings in conformity with this opinion. No costs or disbursements will be allowed.
Notes
ORS 18.160 The court may, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, decree, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect.
This court was abolished in 1929 and its jurisdiction was vested in the circuit court for Multnomah county to be exercised by the circuit judge sitting in the department of domestic relations. Oregon Laws 1929, ch 183.
A foundling is defined to be a newborn child, abandoned by parents, who are unknown. Munger v. Munger, 134 Ill App 512.
The court cited in support of this principle the following cases: Martin v. Fisher, 25 Ohio App 372,