In Re Adoption of Chinn , 238 Iowa 4 ( 1947 )

I have on other occasions voiced the more than ordinary apprehension I feel with respect to the decisions of the majority of this court in adoption cases. In In re Adoption of Alley,234 Iowa 931, 14 N.W.2d 742, I protested when the majority felt the divorced wife was allowed to give the father's children away in adoption without his consent, though the record showed the father was in a mental hospital and the trial court said the wife, as guardian of the children, used income received from the husband's property for the support of the children. In In re Adoption of Karns, 236 Iowa 932, 20 N.W.2d 474, I remonstrated when a divorced wife, who spurned the ex-husband's offer of support for the child, was allowed to give the child away in adoption without his consent. In each of these cases the adoption was allowed without the father's consent on the theory that the mother was in each instance "the parent having the care and providing for the wants of the child" within section 600.3, Code, 1946.

What is the record in this case? It clearly appears that this was one of those "convenient" divorces, where Rose Chinn succeeded in divorcing her husband, within six days after filing her petition, in order to marry the man she had been keeping company with before she filed for divorce. She paid all the costs but her husband accommodated her in the matter of waiving notice and time of filing. She admits that the provision in the decree with respect to custody of the child was "in conformity to an oral agreement" between herself and her husband. This part of the decree gave the child's father a right to have the child in his home one week out of twelve and a right to visit the child at all reasonable times. One can easily infer that she secured her easy, uncontested divorce by agreeing to this split custody. Less than six weeks after her divorce she married Grove and three weeks later the petition for adoption is filed.

The trial court in its findings of fact, which appellant admits by stipulation is correct, stated that the father had all the natural affection of a father for his child; that he had not abandoned the child. The trial court stated that if it were to grant the adoption petition "it would nullify the [visitation] provisions of said [divorce] decree * * *." It felt the case was ruled by Rubendall v. Bisterfelt, 227 Iowa 1388, 291 N.W. 401, and held Rose Grove was not the parent having the sole and absolute custody of the child to the exclusion of its father. I think the trial court was right.

Perhaps I have, in the prior dissents referred to, adequately stated my views. There is, however, one point that has not been stressed that I feel merits further mention. The statute dispensing with a parent's consent in adoption proceedings is an exception to the general provision requiring that "the consent of both parents shall be given to such adoption * * *." Section600.3, Code, 1946. As an exception to the general statutory requirement it should be strictly construed in favor of the nonconsenting parent. The following from In re Jackson, 55 Nev. 174, 179, 28 P.2d 125, 127, 91 A.L.R. 1381, expresses the general and uniform rule:

"Consent of the parents to the adoption of a legitimate child is a most important item of adoption procedure. Under our statute it is specially required to make the adoption legally effective, unless the case falls within one of the exceptions prescribed in the statute itself as sufficient ground for dispensing with parental consent. * * * If we were to construe this provision literally, then the consent of respondent to the adoption would be unnecessary and the adoption valid without it. But the nature of the proceedings forbids us to so construe it with reference to the facts of this case. The act of adoption takes a child away from its parent by destroying the legal and natural relation between them and creating in its stead an artificial relation deemed by law to be for the best interests of the child. * * * As the statute confers a special power of this kind which may be exerted in opposition to the wishes, or without the consent of the parents, it should be strictly construed in their favor. The courts are quite uniform in applying the rule of strict construction in favor of the parents' natural rights in adoption proceedings."

For other authorities, see annotation in 91 A.L.R. 1387; 24 A.L.R. 424; 1 Am. Jur. 643, section 43. The same rule of strict construction, where a nonconsenting parent was objecting to an adoption, was followed by this court in Seibert v. Seibert,170 Iowa 561, 153 N.W. 160. The majority in the Alley case thought some of the language in the Seibert case might be inconsistent with their conclusion but ended with the remark that the Seibert case was "eminently sound." I recommend a reading of that decision and some of the hypothetical cases discussed and held up as examples of where a literal construction would lead to unreasonable results.

I can suggest the following hypothetical case, which, under the majority opinion, would mean a mother's protest to an adoption would be of no avail: A husband decides he would like to marry the girl he has been keeping company with and he talks his wife into co-operating with him to the end that he get a divorce and the custody of their child, which, of course, he agrees to support. He agrees that the child's mother will have the right to visit the child at all reasonable times; agrees that she can take the child into her home for a week at a time; and that he will never take the child out of the state. He may or may not agree to pay the mother alimony. In any event, the agreement is carried into the divorce decree. The father marries his girl friend and they immediately join in an adoption petition for the child. Assume, too, the mother had a mother's natural affection for her child and could not be said to have abandoned it. The majority would, of course, hold the mother's consent unnecessary and that the adoption could be effected without her consent, for this is not a true hypothetical case. It is the very case, with the position of the mother and father reversed.

The majority has now made it abundantly clear that the statutory exception is to receive a literal construction in favor of the parent who seeks to give in adoption without the consent of the other parent. Any parent who has the child in his or her possession, and provides for the child, will be able to give the child away in adoption without the consent of the other parent. It makes no difference if the other parent offers to support the child. See Karns case, supra. It makes no difference if the parent having possession of the child has no order of court granting custody to that parent. See Karns case. It makes no difference if the parent out of custody is ill in a hospital. See Alley case, supra. It makes no difference if the child is supported, partly at least, from the income from the other parent's property. Alley case. It makes no difference if one parent agrees and consents to the primary liability to support the child in his or her custody. Majority opinion here. The length of time during which the parent out of custody actually does not support the child and his or her ability to render support are immaterial. The period was three years in the Karns case, during which time the father, offering to support the child, was in the Army. The period was a little over one year in the Alley case, during which time the father was in a mental hospital. Here the period between the divorce and the filing of the adoption petition was about eight weeks, during which time the father was in jail on a misdemeanor charge. It can be admitted that the parent out of custody has not done anything to warrant a finding that such parent has abandoned the child and that such parent has all the natural love and affection for the child as usually exists between a parent and child. That was admitted in this case, for there is no record of the testimony and both parties stipulate the trial court's findings with respect to the father's not abandoning his child and having a parent's natural affection for his child are correct. Surely the statute, properly construed, means the parent out of custody must be shirking some duty. I think the sensible construction, which expresses the evident legislative intent, is that the parent who has not the "care" and does not "provide for the wants of the child" must be guilty of some neglect of parental duty; some failure to "care" for the child or provide for the child's "wants"; some omission of a parental obligation to care and provide for the child, which the parent, having the ability to perform, willfully or carelessly leaves to the other parent. At the time of the decision in the Seibert case the statute provided if the parents were "divorced, separated or unmarried, the consent of the parent lawfully having the care and providing for the wants of the child" would be sufficient, and in the Seibert case, supra, 170 Iowa 561, 563, 567, 153 N.W. 160, 162, we stated:

"It would not be necessary, in order that the parties should be considered as separated, that there should be an abandonment, but we think there must be something in the nature of an abandonment, or a condition that is more or less permanent and for some length of time."

In the instant case the parties agree by their stipulation that there was no abandonment and the condition had existed about eight weeks.

The majority relies to a large extent on In re Adoption of Kelly, 47 Cal.App.2d 577, 118 P.2d 479, and Hardesty v. Hardesty, 150 Kan. 271, 273, 92 P.2d 49, 50. These cases involved totally different statutes. The latter case involved a suit to set aside a completed adoption on the ground of fraud. The statute gave the divorced parent to whom custody of the child was awarded the absolute right to consent to adoption and rendered the consent of the other parent desirable but not necessary. Since the consent of the parent having the custody award was obtained, the court held "the order of adoption could not be impeached for failure to serve notice" on the other parent.

In the Kelly case, supra, 47 Cal.App.2d 577, 579,118 P.2d 479, 480, the statute provided:

"After the custody of any child has by any judicial decree, been given to the mother, and the father for a period of one year shall willfully fail to pay for the care, support and education of such child when able to do so, then the mother alone may consent to such adoption, but only after the father has been personally served with a copy of a citation." Civil Code of California, section 224.

The record showed the father had, for a period of two years, failed to pay anything for the child's support. The opinion merely holds that there was evidence from which the trial court could find the nonpayment was willful and it did not abuse its discretion in granting the adoption over the father's objections.

I would affirm the ruling of the trial court.

WENNERSTRUM, C.J., joins in this dissent.