215 P. 101 | Cal. Ct. App. | 1923
This is an appeal from an order of the juvenile department of the superior court of Los Angeles County denying the petition of appellant for an order declaring Lewis Pinkerton Crutcher, Jr., a ward of the juvenile court. Petitioner is the uncle of the minor and the respondents, James D. and Kate L. Campbell, are the parents of the child by adoption under a decree of the superior *482 court entered on the twenty-six day of June, 1914, upon which date the natural father and mother were both deceased. The mother died when Lewis Pinkerton Crutcher, Jr., was an infant, and the father's death occurred on the third day of June, 1914, up to which date the child had been cared for by the respondents. In enumerating those who are subject to the jurisdiction of the juvenile court, subdivision 2 of section 1 of the juvenile court law (Stats. 1915, p. 1225) includes "those who have no parent or guardian; or who have no parent or guardian willing to exercise or capable of exercising proper parental control; or who have no parent or guardian actually exercising such proper parental control and who is in need of such control." Therefore, this infant is one who may be regarded as a proper subject for juvenile court guardianship unless the existence of some other fact or condition prevents it.
The petitioner contends that the decree of adoption is void. If so, this proceeding falls within the jurisdiction of the juvenile court, as the child would then have no parent or guardian. But respondent invokes the doctrine of resadjudicata, based upon the entry of the decree of adoption and the following additional facts: On the 2d of July, 1914, Lewis Pinkerton Crutcher, Sr., the child's uncle and petitioner here, made a motion to vacate and annul the decree of adoption. This motion was later amended. Thereafter, on the fifth day of August, 1914, it was denied. A second motion to vacate the adoption was filed by Lewis Pinkerton Crutcher, Sr., which was also on August 20, 1920, denied. No appeal was ever taken from either of these orders.
On the first day of December, 1914, Lewis Pinkerton Crutcher, Sr., filed a petition in the juvenile court, which, after alleging, among other matters, the fact that James D. Campbell and Kate L. Campbell claimed the right to the care and custody of the infant under the adoption proceeding above mentioned and that the natural parents were deceased, prayed that the child be adjudged a ward of the juvenile court. This petition was, on January 6, 1915, denied and the proceeding dismissed, and no appeal was taken from said judgment and order.
[1] However, the question of res adjudicata is of little importance in determining this appeal, for we do not understand *483 respondent to seriously contend that it is applicable if the decree of adoption is held void upon its face, and appellant insists that it is utterly void in that he asserts that there is no provision in the law of this state for the adoption of a minor orphan child except one who has been maintained in an orphan asylum or charitable institution. This question is therefore squarely presented for our decision.
It is true that the proceeding to adopt a child was unknown to the common law. To give the court jurisdiction in such a matter compliance with all conditions required by the statute is necessary. This is decided in the Matter of Cozza,
Except by inference section
It is said that because the institution of adoption was not found in the common law, nothing can be supplied by inference. To apply this rule strictly would eliminate the entire provision in question. It is only by way of implication that the section allows a legitimate child to be adopted, even with the consent of its parents. The language does *485 not expressly state this may be done, and yet no one has questioned that the right is impliedly created by the statement that such adoption cannot occur without the parent's consent.
Appellant quotes the supreme court in Ex parte Chambers,
If we are allowed to infer that the negative provision that "a legitimate child cannot be adopted without the consent of the parents if living" means that a legitimate child may be adopted with the consent of such parents, although the section does not expressly so state, it is equally permissible to recognize and give effect to the intent, clearly implied, that if the parents are not living, except in those cases otherwise classified in section
The intent of the legislative mind which enacted this law may be substantially aided by noting the mode of expression employed in other provisions contained in it. Indeed, we need not look beyond this particular section of the code for a striking illustration of a similar provision, whose wording necessitates an interpretation through the same mode of reasoning which we are confident should be applied to the provision being construed in the instant case. We have here another example of enactment by inferential expression. In dealing with the subject of abandoned half-orphan children, section
It seems clear that the provision requiring the parent's consent as an essential condition to adoption contains an exception, excluding the necessity for such consent unless the parents are living. Ex parte Chambers, cited by petitioner, involved the construction of another part of the law concerning adoption. The court in that case held that the act of 1878, enacted to authorize managers of orphan asylums to give their consent to the adoption of certain children under their care, provides for the adoption of a distinct class of minors, to wit, abandoned and orphan children in orphan asylums. The infant in whose behalf a writ of habeas corpus was granted had been in the custody of the Protestant Orphan Asylum for more than one year, and it was held that the child was therefore within the class established by the act of 1878.
Nothing more is involved in the instant proceeding than a construction of the language of sections
The order is affirmed.
Finlayson, P. J., and Works, J., concurred. *488