In Re Adoption of Alley

[1] The question presented is whether the consent of a divorced father of minor children is required by section 10501.3, Code, 1939, before they can be adopted, where the mother, having their care and providing for their wants, gives her consent.

On June 11, 1942, petitioner married the mother of the six minor children whose adoption is sought. Since that date the children, issue of the wife's prior marriage with defendant, have lived with their mother and petitioner. Prior to her marriage with petitioner, the mother had procured a divorce from defendant. The decree awarded her "the absolute care, custody and control" of the children. No right of visitation nor other rights over the children were reserved to defendant. The petition in the divorce suit charged defendant with such cruel and inhuman treatment as to endanger the life of his wife, and alleged, "defendant is not a fit and proper person to have the custody and control" of the children. At the time of the divorce the mother, in a separate proceeding, was appointed guardian of the person and property of the children and letters of guardianship issued to her. Since the divorce defendant has contributed nothing to the children's support.

On August 17, 1943, the stepfather filed this petition under chapter 473, Code, 1939. The father filed his answer alleging, among other matters, that the court was without jurisdiction because he had not consented to the adoption. A brief hearing was had at which the mother testified she consented to the adoption. Petitioner also testified. The petition, decree, and other files in the divorce suit were offered in evidence. No other evidence of any kind was offered. The trial court held it had no jurisdiction because defendant did not consent to the adoption and, on this ground, denied the petition.

The applicable part of Code section 10501.3 provides:

"The consent of both parents shall be given to such adoption unless * * * the parents are not married to each other * * * or unless one or both of the parents have been deprived of the custody of the child by judicial procedure because of unfitness to be its guardian. If not married to each other, the parent having the care and providing for the wants of the child may give consent."

Petitioner argues that defendant's consent is not necessary because these parents "are not married to each other," and also because defendant has been deprived of the custody of the children "by judicial procedure because of unfitness" to be their guardian; that, since the parents are not married to each other, it is necessary to have the consent only of the mother, who has the care and provides for the wants of the children. We find it unnecessary to decide whether defendant has been deprived of the custody of the children by judicial procedure because of unfitness to be their guardian, within the meaning of the statute.

It is clear that these parents, having been divorced, "are not married to each other." See 17 Am. Jur. 539, section 710; 27 C.J.S. 835, section 178, and, as having some bearing, In re Estate of Cornils, 167 Iowa 196, 149 N.W. 65, L.R.A. 1915E, 762; Spain v. Spain, 177 Iowa 249, 158 N.W. 529, L.R.A. 1917D, 319, Ann. Cas. 1918E, 1225. The case, therefore, plainly falls within the first-quoted statutory exception to the rule that "the consent of both parents shall be given to such adoption." It appears without dispute that the mother has the exclusive care of the children. She also provides for their wants to the exclusion of defendant, who has contributed nothing for them since the divorce. It follows from the last sentence of the above statutory provision that under the facts here only the consent of the mother is required. The trial court erred in holding otherwise.

As applied to this case, we find nothing of doubtful meaning in section 10501.3 It is only where a statute is ambiguous or of uncertain meaning that courts are at liberty to apply rules of construction. Where a statute is plain and the meaning clear, courts are not permitted to search for its meaning beyond its expressed terms. We are not permitted to write into the statute words which are not there. Eysink v. Board of Supervisors,229 Iowa 1240, 1244, 296 N.W. 376, 378, and citations.

[2] In some states statutes regarding adoption, being in derogation of the common law, are strictly construed. This rule, however, has no application in this state. Section 64, Code, 1939; Hopkins v. Antrobus, 120 Iowa 21, 24, 94 N.W. 251. There is language in Seibert v. Seibert, 170 Iowa 561, 567, 153 N.W. 160, which may seem somewhat inconsistent with our rule of statutory construction (now Code section 64) and our decision in Hopkins v. Antrobus. The decision in the Seibert case, however, is eminently sound and our conclusion here is entirely consistent with it and with the language of the Seibert opinion as a whole.

Our decision is also consistent with Rubendall v. Bisterfelt,227 Iowa 1388, 1390, 291 N.W. 401, 402. There the parents had been divorced and the custody of the child awarded to the mother pursuant to stipulation of the parties. However, the parents had stipulated that, if a divorce were granted, the father would contribute to the support of the child and have the right of visitation. Here there is neither such duty nor such right. The decree in the cited case provided for the father's right of visitation and required him to pay $10 per month for the child's support until he became sixteen years old. The Rubendall case, therefore, held:

"The decree gave effect to these provisions, thus specifically recognizing appellant's rights and his engagement to assist in providing for the wants of the child in the future. Under the circumstances it cannot be said the mother was the parent who provided for the wants of the child to the exclusion of appellant [father]. We do not think the quoted statutory provision may be fairly interpreted as applicable to the factual situation in the instant case."

The implication from the above is that under such facts as are shown here only the consent of the mother is necessary.

Courts generally hold, under statutes somewhat similar to ours, even where the rule of strict construction applies, that where the absolute care, custody, and control of a child is vested in the parent to whom a final divorce is granted, with no parental rights reserved in the spouse at fault and no duty of support placed upon him, only the consent of the former is necessary to an adoption. 2 C.J.S. 389, section 21e (2); 1 Am. Jur. 643, 644, section 43; In re Jackson, 55 Nev. 174, 28 P.2d 125, 91 A.L.R. 1381, 1386, and annotation 1387, 1389; annotation 24 A.L.R. 416, 425.

Hopkins v. Antrobus, 120 Iowa 21, 25, 94 N.W. 251, 252, involved consent for adoption under section 2601, Revision of 1860, much similar to the part of section 10501.3 now before us. The statute then provided:

"* * * if divorced or separated * * * the consent of the parent lawfully having the care, and providing for the wants of the child * * * shall be given to such adoption * * *."

In construing this provision, we said:

"Now, as the mother, then a divorced woman, is shown by the record to have been ``the parent lawfully having the care of the child,' the consent of no other person or officer was necessary to the adoption * * *."

The trial court concluded that defendant's consent is necessary because he had not abandoned the children. We quote the material part of its "Conclusions of Law":

"* * * in the absence of a full showing of absolute abandonment by a divorced parent, and abandonment seems to be used in its strict sense of actual abandonment, it seems to be the policy of the law as expressed by the cases that no adoption may be made without either the consent of the parent not then in possession or having custody of the children, or a judicial finding made in the adoption matter after notice, and an opportunity to be heard, that he has in fact deserted and abandoned said children, and by reason thereof has either lost or waived the right otherwise given him of consenting voluntarily to their adoption. * * * "It is the finding of the court under the law that defendant Lyle Alley has not been guilty of any conduct which amounts to a waiver or abandonment or forfeiture of custodial or other parental rights, and that his consent to this adoption not being given, and there being no statutory exceptions which the court finds apply to take away the necessity of his actual consent thereto, that the court is without jurisdiction to make a valid order of adoption.

"In this case the court does not care to make any finding on any theory of general equities in this matter, being convinced that it is a mere matter of statutory construction and can be determined entirely by the construction of the statute as applied to the facts herein."

Assuming, without deciding, that defendant had not abandoned his children in the legal sense, it is sufficient to say that the statutory exception applicable here to the rule requiring the consent of both parents does not provide that the parent whose consent is not necessary must have abandoned the children. The trial court's conclusion is contrary to the language of the Rubendall opinion, wherein we point out that some of our decisions have recognized exceptions to the requirement of consent to the adoption by both parents in addition to thosementioned in the statute, where there has been "conduct which amounts to an abandonment or to a waiver or forfeiture of custodial and other parental rights." See, also, Seibert v. Seibert, 170 Iowa 561, 567, 153 N.W. 160.

[3] Defendant suggests that the terms of the divorce decree regarding care of the children may be changed, as contemplated by section 10481, Code, 1939. It is sufficient response to this contention that we have uniformly held a divorce decree is final and conclusive until such a change is made and the possibility of future changes in the decree does not affect the parties' status under the decree. Walters v. Walters, 231 Iowa 1267, 1270,3 N.W.2d 595, 596, and citations; Newburn v. Newburn, 210 Iowa 639, 641, 231 N.W. 389, and citations.

[4] The dissenting opinion questions our rights to entertain this appeal. Defendant makes no such contention. We feel we should not, on our own motion and without opportunity to petitioner to be heard on the question, dismiss the appeal for lack of jurisdiction. Up to now we have consistently entertained appeals in adoption matters under the present statutes. In re Adoption of Kilby, 230 Iowa 557, 298 N.W. 829; Rubendall v. Bisterfelt, 227 Iowa 1388, 291 N.W. 401; Pitzenberger v. Schnack,215 Iowa 466, 245 N.W. 713. So far as our reports show, our right to do so has never before been questioned.

But, assuming that no appeal would lie from the decree below, if our construction of section 10501.3 is correct, clearly the lower court "acted illegally," so as to entitle petitioner to a review by certiorari under Rule 306 of our Rules of Civil Procedure. Petitioner is therefore entitled to a decision here under our Rule 352, which provides:

"Certiorari or Appeal. If any case is brought to the Supreme Court by appeal or certiorari, and the Court is of the opinion that the other of these remedies was the proper one, the case shall not be dismissed, but shall proceed as though the proper form of review had been sought."

Thus far the case presents nothing but a law question. There are no disputed facts. Both defendant and the trial court recognize this. The opening statement of defendant's brief is:

"There is not any record to speak of in this case. The record is very short and the facts are not in dispute and are easy to understand."

Defendant also says in argument:

"The question to be determined in this case can be determined solely upon the law."

The trial court states in its conclusions of law, "it is a mere matter of statutory construction." That certiorari lies to review such a ruling if no right of appeal exists, see State ex rel. Rankin v. Peisen, 233 Iowa 865, 868, 10 N.W.2d 645, 647, and citations; 2 C.J.S. 428, section 41.

The dissenting opinion also refers to a statement of the lower court that a guardian's report filed by the mother showed "receipts and disbursements on behalf of said minors, of about $571.00 from sale of farm products and rent." The agreed abstract filed in this court does not show that any such report was offered in evidence or that the matter of such receipts and disbursements was otherwise proven.

This cause is reversed and remanded with instructions to investigate (unless such investigation is "waived by the court upon good cause shown," as permitted by Code section 10501.2), hear and determine this cause. We are not called upon to decide what the ultimate determination of the case should be and express no opinion on that question. — Reversed and remanded.

SMITH, C.J., and BLISS, OLIVER, HALE, MILLER, and MANTZ, JJ., concur.

MULRONEY and WENNERSTRUM, JJ., dissent.