221 P. 1107 | Idaho | 1923
— This proceeding involves two appeals, one from a decree of the district court setting aside, annulling and holding for naught an order of adoption made by the probate court of Lincoln county, whereby the infant son of respondent was adopted by appellants, said decree ordering and adjudging that respondent is entitled to the immediate and sole custody, possession and control of said child, and requiring appellants to immediately deliver and restore him to her, and the other from an order in a habeas corpus proceeding relating to the same subject.
Some time after the execution of the purported consent to the adoption of her child by appellants, to wit, in the latter part of June, 1922, respondent’s mother, learning of the child, came to Shoshone and met appellants and respondent. Appellants had by that time become attached to the child, and desired either to adopt it at once or have respondent take it away. The mother of respondent, upon being made acquainted with the situation, urged her daughter to consent to the adoption of the child, and to direct Senator Disney to deliver to appellants the formal consent she had left with him a little over two months before. While it appears from all the evidence that it was with much regret that respondent followed the advice of her
Appellants insist that the child was duly and regularly adopted in compliance with article 2, chapter 185, title 36, of the Compiled Statutes of this state. Under the provisions of C. S., see. 4685, the consent of respondent was necessary to the adoption of her child. C. S., see. 4687, provides that—
“The person adopting a child, and the child, adopted, and the other persons, if within or residents of the county, whose consent is necessary, must appear before the probate judge 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. But if the parent or guardian of the child, or either of them, is a nonresident of the county where the application is made, such nonresident parent or guardian may execute his consent in writing, and acknowledge the same before any officer authorized by the laws of this state to take acknowledgments of deeds, which consent being filed in the court where the application is made, is deemed a sufficient appearance on the part of such nonresident.”
The adoption record shows that at the time of signing and acknowledging the “consent to adoption,” on April 10, 1922, respondent was within Lincoln county. She had been living in Lincoln county continuously since October 17, 1921. It is conceded that respondent was within Lincoln county on July 1, 1922, when she instructed Senator Disney to deliver the consent to adoption which she had theretofore signed. The order of adoption was signed by the probate judge on August 30, 1922. Neither the order of adoption nor any other record of the adoption proceeding affirmatively shows that respondent was personally present. It is conceded that on that day, respondent did not appear before the probate judge, and the evidence shows that she was not within Lincoln county.
The right to adopt a child, as given hy our statute, was unknown to the common law, although it was recognized by the civil law. It has been held that the statute must, therefore, receive a strict construction. (Furgeson v. Jones, 17 Or. 204, 11 Am. St. 808, 20 Pac. 842, 3 L. R. A. 620.) Our statute was taken from California, and it has been held in that state that—
“He who claims that an act of adoption has been accomplished must show that every essential requirement of the statute has been strictly complied with.” (In re Sharon’s Estate, 179 Cal. 447, 177 Pac. 283.)
“The right to adopt a child and the right of a person to be adopted as the child of another are wholly statutory, and he who claims that an act of adoption has been accom
“The proceeding for adoption is a special one, and the requirements of the statute must be strictly construed, particularly with respect to the jurisdiction of the court.” (In re McGrew, 183 Cal. 177, 190 Pac. 804.)
C. S., see. 4682, is as follows:
“Any minor child may be adopted by any adult person, in the cases and subject to the rules prescribed in this chapter. ’ ’
It was said by this court in In re Martin, 29 Ida. 716, 161 Pac. 573, a case in which a child was adopted without the knowledge or consent of a parent, that—
“Parents should not be permanently deprived of the custody of their children and the right to act as their legal guardians, even when, under certain circumstances, the custody of the children must be temporarily surrendered, except in strict accordance with the statutes and under circumstances which fully warrant such drastic action.” (Italics ours.)
Under the rule announced in In re Martin, supra, there can be no question that where one relies upon an order of a probate judge as Ms authority for permanently depriving the natural parent-of the custody of a child, it must appear from the adoption proceedings that all the essential statutory provisions have been complied with. A consideration of the entire article relating to adoption, and more especially C. S., secs. 4685 and 4687, justifies the conclusion that it is the theory of the law that the consent of a parent is absolutely essential to a valid adoption in all cases except as set forth in C. S., see. 4685. (In re Crocheron, 16 Ida. 441, 101 Pac. 741, 33 L. R. A., N. S., 868; Jain v. Priest, 30 Ida. 273, 164 Pac. 364; In re Chambers, 80 Cal. 216, 22 Pac. 138; In re Cozza, 163 Cal. 514, Ann. Cas. 1914A, 214, 126 Pac. 161.)
In place of the service of process required in actions at law and suits in equity to clothe a court with jurisdiction to
This court held in Jain v. Priest, supra, that in order to make a valid order of adoption without the consent of the parents, it must appear in the record that the case comes within some of the exceptions mentioned in the statute. “This,” the court said, “we think, is a jurisdictional requirement, and must be complied with in order to make the order valid.” Upon the authority of the reasoning in Jain v. Priest, supra, and because of the mandatory nature of the first sentence of C. S., sec. 4687, as compared with the permissive and directory nature of the second sentence, we are of the opinion that, in order to sustain an order of adoption where a parent, not disqualified by C. S., see. 4685, does not appear personally before the probate judge and signify his consent to the adoption, it must affirmatively appear from the record of the adoption proceeding that such parent was not a resident of, and was not within, the county.
In the case of In re Johnson’s Estate, 98 Cal. 581, 33 Pac. 460, 21 L. R. A. 380, the supreme court of California construed a statute identical with the first sentence of C. S., sec. 4687, and C. S., sec. 4688. After holding that the adoption of a child was not a judicial proceeding, the court said:
“The proceeding is essentially one of contract between the parties whose consent is required. It is a contract of a very solemn nature, and for this reason the law has*460 wisely thrown around its creation certain safeguards, by requiring, not only that it shall be entered into in the presence of a judge, but also that it shall receive his sanction, which is not to be given until he has satisfied himself of these three things: First, that the person adopting is 10 years older than the child; second, that all the parties whose consent is required do consent, fully and freely, to the making of such contract; third, that the adoption contemplated hy the contract will be for the best interest of the child adopted.
“It is apparent that the only object of section 227 of the Civil Code in directing the judge to examine the parties who are required to appear before him is that he may satisfy himself in relation to the facts just mentioned, and the subject of the examination is to be confined to these three matters; ....
“It can make no difference whether the papers already properly signed were presented to the judge by the parties, or whether such papers were signed by them at the time. The substantial thing required by the statute is that the parties whose consent is required do consent in the presence of the judge, and that such consent is manifested by writings then delivered hy them for that purpose.”
A consideration of the adoption statutes leads irresistibly to the conclusion that the legislature intended that the persons adopting the child, the child and the parents, if within or residents of the county, appear before the probate judge, and then and there begin and complete the adoption; and that it did not contemplate the procedure followed in this case. To determine the matter at issue, however, it is necessary to decide whether the words of C. S., sec. 4687, “if within or residents of the county,” relate to the time of giving consent to the adoption, or the time of filing the application or making the order. We are of the opinion that they must be held, to relate to the time when the consent is given, rather than to the time of making the application or the order.
The consent to adoption sets forth that “Laura Vaughan, mother of the child Douglas Eugene Vaughan, named in the petition .... for the adoption by said petitioners, .... gives her consent to said adoption .... and joins in the petition . ” It should be remembered that respondent signed this instrument on April 10, 1922, and that the petition referred to, and in which she joined, was not then in existence, and was not in existence until August 30, 1922, more than four months later. It is conceded that respondent did not consent to the adoption of the child when the formal consent was signed, for she specifically instructed that it be not made use of until directed by her. The evidence shows that when she later on orally directed that the formal consent be used to effect the adoption, such step was taken because of the desire of her mother, and that it was not wholly free and voluntary. And while it cannot be said that respondent was acting under coercion or duress, her consent was not the character of consent that the law contemplates in a case of such far-reaching importance. Had respondent appeared personally before the probate judge at the time she signed the formal consent or at the time she decided to permit it to be used, the probate judge would possibly have concluded that she did not in fact consent to the adoption.
Four papers constitute the record in this adoption proceeding, to wit: Petition for adoption, consent to adoption, agreement of adoption and order of adoption. The petition recites “that the mother of said minor is Laura
It follows that the probate judge did not have power to make the order of adoption, that the order of adoption is void, and that it gave to appellants no legal right to the custody of the child as against a natural parent. The lack of statutory power to make the order of adoption appearing on the face of the record, the order may be attacked either directly or collaterally. (Jain v. Priest, 30 Ida. 273, 164 Pac. 364.)
The father of the child is not a party to these proceedings. However, it nowhere appears that he in any manner consented to the adoption. It is nowhere set forth that the father is dead or comes within any of the exceptions mentioned in C. S., sec. 4685 or 4691. The only reason appearing for a failure to secure the consent of the father, and his appearance before the probate judge for that purpose, is that he “is unknown,” which, as hereinbefore stated, is not sufficient.
It is not necessary to pass upon the other questions raised by appellants.
The order and decree of the district court are affirmed. Costs to respondent.