Wade v. BrownWade v. Brown
- Reporters:
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- Before:
- Berry
Petitioners, Charles A. Wade and Karen Lee Wade, husband and wife, request this court to assume jurisdiction and grant a writ of mandamus ordering respondent to issue notices and set for hearing this matter of adoption.
In the trial court petitioners filed petition for adoption of three minor natural children of Karen Lee Wade by two divorced husbands, and presented respondent a proposed order requesting a hearing for adoption without consent of the former husbands or a disposition of their parental rights. Petitioners alleged that divorced husbands wholly failed to support the minor children as provided in the decrees of divorce for more than one year preceding the filing of the petition for adoption and that their consent was not necessary under the provisions of
Respondent contends
“§ 60.6 Consent of parents — Exceptions
“A legitimate child cannot be adopted without the consent of its parents, if living, nor an illegitimate child without the consent of its mother, if living, except that consent is not necessary from a father or mother :
“1. Adjudged to be an habitual drunkard, or
“2. Who has been judicially deprived of the custody of the child by any court of competent jurisdiction, including a court which has jurisdiction of a divorce action involving said parent, on account of cruelty to or neglect of the child, or
“3. Where a parent has wilfully failed, refused or neglected to contribute to the support of his child, as provided in the decree of divorce, or according to his financial ability if no provision for support is provided in the decree, for a period of one (1) year next preceding the filing of a petition for adoption of such child; and where the above conditions exist it shall not be necessary to terminate parental rights under Section 1130 of this title prior to the аdoption of said child. * * *”
Ҥ 1134 . Action to adopt not to be combined with action to terminate parental rights
“An action to adopt a child may not be combined with an action to terminate parental rights, and where the rights of a parent have been terminated, neither an interlocutory nor a final decree of adoption may be rendered until the decree tеrminating parental rights has become final. Laws 1968, c. 282, § 134, eff. Jan. 13, 1969.”
As we understand the thrust of respondent’s construction and argument,
The opinion stated 405 U.S. at p. 649, 92 S.Ct. at p. 1211, 31 L.Ed.2d at p. 557:
“We must therefore examine the question that Illinois would have us avoid: Is a presumption that distinguishes and burdens all unwed fathers constitutionally repugnant? We conclude that, as a matter of due process of law, Stanley was entitled to a hearing on his fitness as a parent before his сhildren were taken from him and that, by denying him a hearing and extending it to all other parents whose custody of their children is challenged, the State denied Stanley the equal protection of thе laws guaranteed by the Fourteenth Amendment.”
At p. 651 of 405 U.S., at p. 1212 of 92 S. Ct., at p. 558 of 31 L.Ed.2d:
“The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.’ Kovacs v. Cooper, 336 U.S. 77, 95, 69 S.Ct. 448, 93 L.Ed. 513, 527, 10 A.L.R.2d 608 (1949) (Frankfurter, J., concurring).”
At p. 653 of 405 U.S., at p. 1215 of 92 S.Ct., at p. 562 of 31 L.Ed.2d:
“Procedure by presumption is always cheаper and easier than individualized determination. But when, as here, the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand.”
At p. 654 of 405 U.S., at p. 1216 of 92 S.Ct., at pp. 562 and 563 of 31 L.Ed.2d:
“The State of Illinois аssumes custody of the children of married parents, divorced parents, and unmarried mothers only after a hearing and proof of neglect. The children of unmarried fathers, however, arе declared dependent children without a hearing on parental fitness and without proof of neglect. Stanley’s claim in the state courts and here is that failure to afford him a hearing оn his parental qualifications while extending it to other parents denied him equal protection of the laws. We have concluded that all Illinois parents are constitutionally entitled to a hearing on their fitness before their children are removed from their custody. It follows that denying such a hearing to Stanley and those like him while granting it to other Illinois parents is inescapably contrary to the Equal Protection Clause.”
Respondent urges and we agree “the law does not favor repeals by implication, and it is the duty of the courts in construing legislation to make сonstructions favoring compatability of apparently conflicting statutes so long as reasonably possible to do so.” However, this general rule, in itself, does not contain sufficiently the principles necessary in the disposition of the matter before us. In re Guardianship of Campbell, Okl., 450 P.2d 203, at p. 205, we utilized other guidelines in statutory construction:
“A cardinal principle of statutоry construction is that where the language of a statute is plain and unambiguous and the meaning clear and unmistakable, there is no room for construction, and no justification exists for interpretative devices to fabricate a different meaning. State ex rel. Ogden v. Hunt, Okl., 286 P.2d 1088; Hines v. Winters, Okl., 320 P.2d 1114. A further requisite is that different legislative enactments dealing with the same subject must be construed together as a harmоnious whole so as to give effect to each. Letteer v. Conservancy Dist., etc., Okl., 385 P.2d 796.”
*529 Under these principles we shall examine the two statutes.
Section 60.6, supra, deals exclusively with an adoption and sets up a certain classification of parents who have either failed to support the child after a divorce or against whom a priоr adjudication has been made which in substance determined the parent was unfit. Under this section an adoption can take place without the affected parent’s consent.
Sеction 60.6, supra, says that under certain circumstances “it shall not be necessary to terminate parental rights under
Respondent then reasons that under the Stanley case the denial of a separate hearing or termination of pаrental rights under § 60.6 is a denial of due process. Respondent fails to demonstrate that the classification of parents under the sections is unreasonable or discriminatory. The reasоning and holding in Stanley, supra, centers on the denial of Stanley of notice and the opportunity to be heard.
In the present case the divorced fathers must be notified and given an opportunity to be heard at the adoption hearing as required by
We determine that the trial court erred in refusing to set the adoption hearing upon the basis that a separate hearing was necessary to terminate parental rights in an adoption proceeding under the provisions of § 60.6, supra.
Jurisdiction assumed, writ of mandamus granted.
WILLIAMS, V. C. J., and IRWIN, LAVENDER, BARNES, SIMMS and DOOLIN, JJ., concur.