Allen Et Ux v. Allen

330 P.2d 151, 214 Or. 664, 1958 Ore. LEXIS 260

Opinions

SLOAN, J.

This is a delicate and difficult case. Plaintiffs-appellants are the adoptive parents of the defendant Debra Jeanne Allen. This is a suit by them attempting to abrogate the adoption proceeding which created that status. The defendant Waverly Baby Home, of Portland, is a licensed child-caring agency, certified as provided by ORS 419.112.

The disposition of the case requires a brief summary of the chronological facts. At the outset of this case the trial court wisely entered an order impounding the clerk’s file, rendering it secret. Unfortunately, the record on appeal and this opinion impair the effect of this order. We will, however, ehminate facts not actually required for decision.

Debra was born in Seattle on May 21, 1950. She was the natural child of a married couple. It is important to note that although this case involves only Debra, there was a brother born to the same parents who was equally involved in all the pleadings and process herein mentioned. We will, for the most part, refer to such proceedings, however, as though only Debra were mentioned therein. The child’s father and mother were later divorced and the child abandoned. In July, 1951, she was received into the custody of Waverly Baby Home for care.

On July 27, 1951, a juvenile officer of the circuit court for Multnomah county, department of domestic relations, filed a petition in that court which charged that Debra did not have “parental care or guardianship.” This petition also requested that the parents should be cited to appear and show cause why such child should not be adjudged a “dependent ward of the Department of Domestic Relations.” The petition further recited that the child was in the actual custody of the Waverly Baby Home. Pursuant thereto, an “informal citation” was issued by the court on January 23, 1952. This citation “requested” the parents to appear before the court on January 31, 1952, in the matter of Debra, an “alleged dependent minor.” The “informal” character of this citation is in keeping with the demands of ORS 419.510. Citation was also issued directed to Waverly requiring it to produce the child at that time as provided by ORS 419.506. On that date, January 31, 1952, the mother of said child, the child, Debra, an authorized representative of the Waverly Baby Home, and a juvenile court counselor appeared before Honorable Virgil H. Langtry, a judge of that court. The father of the children did not appear at this hearing. However, he had been served with citation and had notice thereof. He subsequently executed a valid written consent to the adoption. In addition to this consent he was personally served with notice of the later proceedings hereinafter mentioned. We need make no further reference to him in this opinion. Pursuant to hearing and proceedings there had, the court entered an “order” which “ordered and adjudged” Debra to be a “dependent minor child” and further “ordered and adjudged that the said * * * [Debra] and * * * [her brother] be and are hereby declared dependent wards of this court, so to remain until they arrive at legal age, unless sooner released by due process of law; * * *.” To more specifically identify this adjudication with reference to other orders hereinafter mentioned, we shall hereafter refer to this order as the “judgment.” The record shows that a copy of this judgment was given to the mother.

It is to be noted that the mother of the child personally appeared at that hearing. The adjudication of the judgment mentioned was confined to the respective rights of the parent and child. The judgment was not concerned with nor did it identify or define the status of any person to whom the custody of the child should be awarded. It did deprive the parents of all rights to the children for all purposes for the period named in the order. Appeal was available from that order. OPS 419.542. Having declared Debra to be a dependent child, the court was empowered to commit her to “* * * the care of some suitable association willing to receive it and embracing in its objects the purpose of caring or of obtaining homes for dependent or neglected children.” OES 419.552. Palm v. Smith, -183 Or 617, 195 P2d 708. Accordingly, a document designated “Temporary Commitment” was also entered by the court addressed to the Waverly Baby Home, reciting that “pursuant to §93-610, OCLA”(1) (OES 419.526) “* * # the following named minor [Debra] is hereby temporarily committed to your care, custody and supervision until further order of this court * * In the briefs and arguments the judgment above mentioned was termed a “temporary commitment.” The judgment itself, as quoted, asserts jurisdiction over these children until they would arrive at legal age or be discharged by law. The only “temporary” act involved in the proceeding was the authorization or direction to Waverly. But even this order was only to be limited by the “further order of the court.” Nothing in this “temporary” proceeding limited or impeded the continuing jurisdiction of the court. We will refer to this later in this opinion.

On October 20, 1953, the Waverly Baby Home, by its authorized officer, petitioned the same court for a commitment which would authorize consent to adoption. OES 419.526, 419.538. An affidavit of a juvenile court counselor was also filed reciting that this counselor had made diligent effort to ascertain the whereabouts of the mother. This effort was described in the affidavit as consisting of the mailing of registered letters to what were, by the affidavit, asserted to be the last known addresses of said mother and that the letters were returned undelivered. In reliance upon the affidavit the court entered an order providing for the publication of citation directed to the mother. The citation was published but no appearance was made by the mother within the four weeks specified by the order and citation. After the time designated in the citation and upon hearing, an order permanently committing Debra to the "Waverly Baby Home was entered. The same order granted to that institution the right to be made a party to a proceeding for the legal adoption of the said child and to give its assent thereto. OES 419.538. It is to be noted that at the time of this hearing the record shows that the court made a finding that “The children have been wilfully abandoned by the mother for a period of more than one year and both children have been upon the public for support since that day, and even previous to the date of September 12, 1952, * *

On December 11, 1953, Waverly placed Debra in the home of plaintiffs for care. Subsequent to the order of November 24, 1953, and on February 8, 1954, plaintiffs petitioned the same court for the adoption of these children. Attached to the petition was a certified copy of the order of commitment and of the consent of the Waverly Baby Home to such adoption in the form required by what was then OES 109.320. On March 15, 1954, an order of adoption was entered.

During the time the child was committed to Waverly, and since then, she developed behavior problems culminating in a decree on December 15, 1956, determining the child to be mentally deficient and committing her to the Fairview Home at Salem. The demands upon the services of that facility so exceed its capacity that a long waiting list of such committed children exists. Consequently, the plaintiffs are still burdened with the care and problems presented by such a child in their own home. By this proceeding they seek to be relieved of this financial burden as well as to avoid the disturbing influence the child creates in the family life of plaintiffs and other children. Plaintiffs also seek, by this means, to be relieved of the cost imposed by the state upon the parents of a child committed to Fairview, at such time as she is admitted. The court is not unaware of or unsympathetic to the problem confronting plaintiffs.

Plaintiffs allege two separate grounds by which they seek to accomplish this purpose and abrogate this adoption. One, that the adoption decree was void for the reason that the juvenile department did not have jurisdiction of the mother of the child at the time it entered the order authorizing consent to adoption in lieu of the parent. And, two, that the officials of Waverly Baby Home at all times had knowledge of the mental condition or deficiency of the child and fraudulently failed to notify these plaintiffs thereof. That such alleged fraudulent failure was likewise a fraud upon the court awarding the decree of adoption. They also seek monetary damages from Waverly for medical costs incurred in caring for the child. After very extensive hearing and briefs the trial court entered a decree denying the rights sought by plaintiffs. Plaintiffs appeal, assigning 13 assignments of error. All of them have been considered. In view of the disposition made of this case we need only consider the right of these plaintiffs to bring this suit and the jurisdiction possessed by the juvenile department over the essential parties at the time the order was entered granting Waverly the right to consent to adoption. They are determinative of all the issues presented.

We have given this case the thorough consideration and attention that a proceeding so vitally affecting the welfare of this and other children requires. We have extended our research well beyond that contained in the briefs of the parties in an endeavor to find every writing that could shed some light on the right of adoptive parents to denounce their obligation to adopted children when unforeseen costs and deficiencies occur.

From the numerous cases considered we adopt the expression of the rule set forth in Coonradt v. Sailors, 186 Tenn 294, 209 SW2d 859, 2 ALR2d 880. It is there held:

“Where one voluntarily assumes the relationship of parent to a child by formal adoption, it cannot be lightly cast aside. The relationship involves duties of care, maintenance and education with rights of custody, control and service of the child. Society has an interest in this relationship, and we think the Legislature alone should supply the procedure to be followed, as well as define the cause, if any, whereby the relationship may be dissolved. In the absence of such a statute the courts will not assume jurisdiction to annul a decree of adoption at the instance of the adopting parent and cast the child adrift to again become a public charge.”

Without additional quotation citation is made to the following additional authorities which support the same view. Department of Social Welfare v. Carollo, 236 P 821, 107 Cal App2d 211; In Re Martin’s Adoption, 56 NYS2d 95, 269 App Div 437; In Re Eaton, 305 NY 162, 111 NE2d 431; Stanford v. Stanford (Tex), 201 SW2d 63; Kenning v. Reichel, 148 Minn 433, 182 NW 517, 16 ALR 1016, and the leading case of Wolf’s Appeal (1888), 10 Sadler (Pa) 139, 22 WN Cas 93, 6 SC 401, 13 A 760; Op of Atty Gen (Or) 1942-44, p 465. Attention is also directed to a very comprehensive and well-edited annotation at 2 ALR2d 887. We have found no case holding to the contrary except as authorized by statute. Some states, notably New York, provide statutory authority permitting adopting parents, in very limited circumstances, to set aside adoptions. It is there held, however, that such a right does not exist in the absence of statute. In Re Eaton, supra.

It is recognized that a court of general equity jurisdiction may set aside a decree of adoption. At 2 ALR2d 890 are collected all the cases found which have considered this exercise of equity jurisdiction. It is to be carefully noted in the eases there cited that equity will assert this authority only to protect the best interest and welfare of the child. In this case there is no allegation that the best interests or welfare of the child Debra is at stake.

The plaintiffs assert that the doctrine of estoppel in pais must be applied to determine their right to prosecute this case. That doctrine is not here involved. The term estoppel is used in some of the cited cases, and in a few references the term estoppel in pais is used. However, the matter is best stated by the New York court in In Re Martin’s Adoption, supra, wherein it is stated: “The general rule is that where a person invokes the jurisdiction of a court, he will not be heard to repudiate the judgment which that court entered upon his seeking and in his favor.” This is not a matter of estoppel in the strict sense, but rather a rule of law. 19 Am Jur 600, 704, Estoppel §§ 2, 72. We conclude the plaintiffs are without right to institute and maintain this proceeding.

Nevertheless, this court has examined with care the allegations and evidence of fraud leveled against the Waverly Baby Home and finds them to be without merit. Certainly there is no evidence of a weight and character sufficient to support a determination that the decree of adoption was a void by reason thereof. The record and briefs do support a belief that ill will has magnified inconclusive and inconsequential facts into assertions of gross fraud. We find no good purpose in reviewing this evidence. If there is any criticism to be made of the conduct of that organization it is one of carelessness. Neither can we condone the practice of that organization in urging that its attorney serve as the attorney for adopting parents. An attorney in such a situation should be free to examine the record and conduct of the agency without concern or favor.

Plaintiffs also contend that the adoption proceeding itself was void. To establish this they assert that the allegation of “search and inquiry” in the affidavit, upon which the court entered its order for publication of a citation to the mother in the proceedings by which Waverly was awarded a “permanent” commitment and authority to enter its consent to adoption, was insufficient for that purpose. The averments of the affidavit have been previously set forth. They ask us to hold that for this reason the juvenile department had no jurisdiction over the mother at the time the commitment order was modified and that Waverly’s subsequent consent to the adoption was therefore without authority. That without a valid consent the adoption must fail. We believe that upon this ground also this appeal must fail.

Our first attention is, therefore, again directed to the proceedings and judgment by which the juvenile department first acquired and asserted jurisdiction over the child Debra and her mother. This court has, on previous occasion, considered the jurisdiction of the juvenile court with reference to such a judgment. We refer to Palm v. Smith et al., supra. At page 624 of that opinion the court sets out the pertinent sections of the statute referring to the jurisdiction of the juvenile court to enter orders of eonnnitment. These sections are now found at OES 419.522 and 419.526. The pertinent portions of the first section mentioned provide as follows:

“When any child is found to be dependent or neglected, within the meaning of OES 419.102, the court may make an order committing the child to the care of some suitable state institution, to the care of some reputable citizen of good moral character, to the care of some suitable association willing to receive it and embracing in its objects the purpose of caring or of obtaining homes for dependent or neglected children. The court may thereafter set aside, change or modify such order.”

OES 419.526 defines the terms “temporary” and “permanent” commitment to such a person or institution. As held at page 626 of Palm v. Smith et al., supra: “* * * the court derives its authority to make commitments of dependent children from § 93-609 [OCLA] [OES 419.522],” and “the court is further authorized in § 93-609 to ‘set aside, change, or modify’ such order. * * * We are reluctant to believe the legislature intended to deprive a juvenile court of the power to change any order of commitment when the welfare of the dependent child so demanded.” (Italics ours.)

That case concerned the continuing jurisdiction of the court to modify a permanent order. However, the rule is equally applicable to this case. When notice has been served upon the parent as directed by OES 419.506, and particularly when the parent in response to such notice appears in person, as in this case, and the child is likewise before the court, jurisdiction of parent and child is acquired. This jurisdiction continues until dissolved by order of the court or process of law. Palm v. Smith, supra; Stoker v. Gowans, 45 , 147 P 911; In Re Hook, 95 Vt 476, 115 A 730, 19 ALR 610; People v. Leonard, 415 Ill 135, 112 NE2d 697; Thompson v. Harrell (Tex), 271 SW2d 724; In Re Ramelow, 3 Ill App2d 190, 121 NE2d 41.

We again refer to the original judgment entered in the dependency proceedings. As previously stated, this order included a finding of dependency. So long as dependency existed jurisdiction was retained. The order was res adjudícala as to all parties upon that one salient determination upon which jurisdiction depends until changed or modified as provided hy order of law. In Re Ramelow, supra. Additional notice, order or proceeding could only duplicate that which was already accomplished. It would not detract from existing and effective jurisdiction.

We hope it is thus made clear that the court had the power or jurisdiction to modify or change the authority granted to Waverly to include the authority to enter its consent to adoption. Such exercise of jurisdiction did not infringe upon or alter the status existing between parent and child determined by the original adjudication finding dependency.

Thus the second attempted notice to the mother and the citation issued upon the affidavit were unnecessary to provide continuing jurisdiction of the essential parties, including the mother. When Waverly and the court, acting by its counselors, initiated a second petition and attempted to accomplish a substituted service of citation upon the mother prior to the entry of an order awarding Waverly the right to enter the adoption proceedings the parties, and the court, were undoubtedly motivated by that degree of caution which prompted the court in Stoker v. Gowans, supra, to indicate that the giving of notice prior to a change in the commitment order would have been a matter of better practice, but that its failure to do so was an irregularity and did not deprive the court of jurisdiction. See also II Cooley’s Constitutional Limitation 8th ed, p 861, where it is stated: “It is a general rule that irregularities in the course of judicial proceedings do not render them void. An irregularity may be defined as the failure to observe that particular course of proceeding which, conformably with the practice of the court, ought to have been observed in the case.” By so stating we are not holding that an “irregularity” existed in the proceedings challenged by this appeal. We are merely stating that such is the most that can be contended for, and if irregularity should exist, it does not void the jurisdiction of the court.

It must be noted that we have not considered the sufficiency of the affidavit, heretofore mentioned, to sustain the publication of citation to the mother on the occasion of the second hearing. Our disposition of this case renders this unnecessary. The extent, if any, to which the natural mother was by that process deprived of due process is not before us and cannot be determined. Let it be clear, however, that at the time the juvenile department entered the order authorizing Waverly to consent to an adoption proceeding it had jurisdiction of the subject matter and all the necessary parties. If there were any failure of due process it is available only to the mother and not to these plaintiffs. As succintly stated by the editors of Am Jur at 14 Am Jur 364, Courts § 161: “Jurisdiction does not relate to the right of the parties between each other, but to the power of the court.” Due process requires “Notice that some particular judicial proceedings are already instituted or proposed to be instituted, and of the time and place where such hearings are to be had, and reasonable opportunity to be heard, * * II Cooley’s Constitutional Limitations 8th ed, p 851.

Plaintiffs rely upon Furgeson v. Jones, 17 Or 204, 20 P 842, and subsequent decisions of this court which conform to the rule of that case. These cases hold that in an adoption proceeding the court considering the adoption does not acquire jurisdiction unless some form of notice has been served, directly or substituted, upon the competent, living natural parents. The distinction between that line of cases and this should be clear. We are not here concerned with the jurisdiction obtained by the court in the adoption proceedings. We must and do rely upon the jurisdiction obtained and retained by the juvenile department at the time of the initial dependency proceedings. As heretofore discussed we are satisfied as to that. Having determined that such jurisdiction was acquired, it is decisive of the remaining issues.

Affirmed.

Footnotes

(1)

This recital is incorrect. The power to commit is derived from ORS 419.522. Palm v. Smith, supra. ORS 419.526 defines the type of commitment to he made.