CLT v. SJT

2005 WY 4, 104 P.3d 93

• Court: Wyoming Supreme Court
• Decided: January 19, 2005
• Docket: Nos. C-04-4, C-04-5
• Status: Published

Opinions

VOIGT, Justice.

[T1] These combined appeals are from an order denying a motion for temporary custody, an order denying a motion to contest an adoption, and an order of adoption. We reverse and remand because the necessary re-linquishments of custody, consents to adoption, and affidavit were not filed with the petition to adopt.

FACTS

[¶ 2] The appellant is the biological mother of J.W.T. After JJW.T.'s birth, the appellant and JWT. lived with the appellant's mother in Texas for about sixteen months. In July 2001, J.W.T. went to live with his maternal grandfather in West Virginia. Over the years, the appellant has executed several untitled documents evidencing some intent to transfer J.W.T.'s custody, or to create a guardianship, or to allow adoption:

1. November 30, 2000, to the maternal grandfather and his wife (the appellees), "temporary partial custody and full power of attorney," reserving right to void agreement.

2. July 27, 2001, to the appellees, "custody."

3. July 29, 2001, to the maternal grandmother, "full and legal permanent custody" and "permission to adopt...."

4. July 31, 2001, to the appellees, "permission to adopt," reserving visitation rights.

[¶ 3] On June 10, 2003, the appellees filed a petition to adopt J.W.T. The petition alleged that "the natural father of the minor child is unknown." The "unknown father" was then served by publication in a newspaper in Natrona County, Wyoming. In the meantime, however, the appellant had filed a response to the petition in which she denied that the name of the putative father was unknown. In subsequent proceedings, the district court determined that the consent accompanying the petition was valid and denied the appellant's motion to contest the adoption.

DISCUSSION

[¥4] Because adoption was unknown at common law, courts must strictly construe adoption statutes. In re Estate of Kirkpatrick, 2003 WY 125, ¶ 12, 77 P.3d 404, 407 (Wyo.2003). And because adoption is purely statutory, the proceedings must be conducted in substantial conformity with the provisions of the statute. In re Adoption of KJD, 2002 WY 26, ¶ 22, 41 P.3d 522, 527 (Wyo.2002); Matter of Adoption of AMD, 766 P.2d 550, 552 (Wyo.1988); In re Adoption of Strauser, 65 Wyo. 98, 196 P.2d 862, 866 (1948). In relevant part, Wyo. Stat. Ann. § 1-22-109 (LexisNexis 2008) provides, as follows:

(a) A written relinquishment of custody of the child to be adopted and written consent to adoption shall be filed with the petition to adopt and shall be signed by:

(ii) The mother and putative father of the child if the name of the putative father is known; or

(iv) The mother alone if she does not know the name of the putative father, in which case she shall sign and file an affidavit so stating and the court shall determine whether the putative father has registered under W.S. 1-22-117 and if so, shall require notice to be given to the putative father[.]

[T5] These statutory requirements simply were not followed, rendering the adoption invalid ab initio. If the name of the putative father truly was unknown, mother's affidavit to that effect had to accompany her written relinquishment and written consent to adoption. No such affidavit was filed. In fact, mother filed a response to the petition in which she specifically denied that the name of the putative father was unknown. At that point, the district court could not proceed with the adoption without the written relinquishment and written consent to adoption signed by the putative father, or at least without a determination whether the name of the putative father was, or was not, known.¹ A relinquishment and consent by the mother cannot bind the father. Peters v. Campbell, 80 Wyo. 492, 345 P.2d 284, 288 (1959).

[16] This is not a case where mother filed a false affidavit in which she claimed not to know the identity of the putative father and the putative father later sought to contest the adoption on that basis. Neither is this a case where mother filed a truthful affidavit and the putative father later sought to contest service by publication. In those situations, the correct statutory procedures arguably having been followed, the district court might have had jurisdiction to proceed with the adoption. But here, the appropriate documentation never having been filed, the district court did not obtain jurisdiction to hear the adoption. JK ex rel. DK v. MK, 5 P.3d 782, 788 (Wyo.2000). In her response to the petition, the appellant was not contesting service of process on the putative father; rather, she was bringing to the district court's attention the fact that the necessary consents and relinquishments had not been filed.

[¶ 7] The orders of the district court are reversed and this case is remanded for dismissal of the petition to adopt. -

1 . Subsequent affidavits from the putative father and his mother alleged that the father was known not only to the appellant mother, but also that the appellee grandfather knew the father's identity from the date of the child's birth.