589 P.2d 957 (Idaho 1978), 12891, Matter of Andersen

Docket Nº:12891.
Citation:589 P.2d 957, 99 Idaho 805
Opinion Judge:BISTLINE, Justice. BAKES,
Party Name:In the Matter of Christopher Robert ANDERSEN, a minor child. Robert R. ANDERSEN and Susan Kim Kerns Andersen, husband and wife, Petitioners-Respondents, v. Gordon K. CRAPO and Sherrian Crapo, husband and wife, Defendants-Appellants.
Attorney:Reginald R. Reeves, of Denman, Reeves & Ohman, Idaho Falls, for appellants. Jerry K. Woolf, of Fanning & Woolf, Idaho Falls, for respondents.
Judge Panel:McFADDEN and DONALDSON, JJ., concur. SHEPARD, C. J., concurs.
Case Date:December 06, 1978
Court:Supreme Court of Idaho
 
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Page 957

589 P.2d 957 (Idaho 1978)

99 Idaho 805

In the Matter of Christopher Robert ANDERSEN, a minor child.

Robert R. ANDERSEN and Susan Kim Kerns Andersen, husband and wife, Petitioners-Respondents,

v.

Gordon K. CRAPO and Sherrian Crapo, husband and wife, Defendants-Appellants.

No. 12891.

Supreme Court of Idaho.

December 6, 1978

Rehearing Denied Feb. 16, 1979.

Page 958

[99 Idaho 806] Reginald R. Reeves, of Denman, Reeves & Ohman, Idaho Falls, for appellants.

Jerry K. Woolf, of Fanning & Woolf, Idaho Falls, for respondents.

BISTLINE, Justice.

The controversy and resultant district court judgment which we review today centers around an infant boy whose parents under adverse conditions decided to give the baby then 4 weeks old for adoption, and then changed their minds shortly afterwards and prior to the institution of any adoption proceedings. The infant's parents, in placing him with the proposed adoptive parents, each signed a consent to adoption which was not filed with the adoption court until over 6 weeks later, and only after an attorney for the parents had notified the adopting parents that the consents were revoked.

In the adoption proceeding, the parents were not made a party thereto by any service of process upon them. In the petition for adoption, the adopting parents did not make any allegations which would have placed in issue the validity of the revocation. On habeas corpus review, the district court held that the consents could be revoked and here were revoked under circumstances that allowed of such revocation. A more detailed statement of the background of events leading to the giving of the consents, and then to their revocation, is in order.

Before doing so, however, we emphasize again that the natural parents were not named as parties to the adoption proceeding, and were not served with process. It is only by reason of the consents which each parent had executed that the adoptive parents can contend that the parents were in the eyes of the law "parties" to the adoption proceedings. This follows, as it must, (if there is to be a semblance of constitutional due process to such an adoption proceeding) from the statutory provision that the consent of the parents being filed in the court "shall be deemed a sufficient appearance." I.C. § 16-1506. In Leonard v. Leonard, 88 Idaho 485, 401 P.2d 541 (1965), it was held that "consent or its [99 Idaho 807]

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procedural equivalent, notice, forms the basis of a proceeding for adoption . . . a jurisdictional fact and a condition precedent with which compliance is essential to full validity and effect of the decree." Id. at 495, 401 P.2d at 547. Notice is a fundamental element of due process, and parents are entitled to both notice And an opportunity to be heard. Id. at 495, 401 P.2d 541. Here, notwithstanding that the parents advised the adoptive parents that the consents were revoked, the parents were not given notice that the adoptive parents were proceeding to seek an adoption decree predicated upon those consents, and they were not afforded the opportunity to be heard in the adoption court on the issue of claimed revocation of those consents.

In Leonard, the Court quoted, Inter alia, the following passages from 1 Am.Jur. Adoption of Children § 44:

"The Object of notice is not merely to bind those who have not consented and without whose consent the adoption cannot be made. It is more than this it is to bind those who are entitled to be heard upon the question whether they have forfeited their rights in regard to consent, And to prevent them, if notified, from again raising this question. Although notice is not always specifically required, the judicial proceedings by which adoption is effected are prescribed as a duty of courts of record, wherefore it is presumed that the legislature intended that such proceedings should be in accordance with the usual practice of such courts, requiring notice as an element of due process."

Id. at 494, 401 P.2d at 547 (emphasis added). Our adoption statutes make no provision for serving of process on the parents of a child whose adoption is sought by others, and, if we are to uphold the validity of the procedures provided in those statutes which we should strive to do it is only by judicially recognizing that the legislature has constituted a valid and unrevoked consent as being all at the same time A parental relinquishment, a general appearance, and A waiver of notice as well. This the Court has heretofore done. Absent a general appearance, which a valid unrevoked consent is deemed to be, there must be notice by service of process, and an opportunity to be heard. While a valid unrevoked consent suffices to serve such requirements of due process, withdrawal of the consent, if such takes place, is equally a withdrawal of the consent's deemed legal effect as a general appearance and as a waiver of notice. While, as will appear hereinafter, there is throughout the states much case law, pro and con, and statutory provisions as well, governing revocation of consents insofar as they are parental relinquishments, there appears to be no case which holds that a waiver of notice cannot be withdrawn not only in adoption proceedings but in any judicial proceeding. Nor does it appear that a written general appearance cannot be withdrawn prior to the filing of the action in which it is to be used. A purported revocation of consent, whether or not effective as a parental relinquishment appears to cancel at least the consent's legal effect as a deemed general appearance and as a deemed waiver of notice, thus requiring that the parental relinquishment issue be placed before the adoption court. Such a procedure is the only sound one to follow in order to gain a judicial determination on the issue of validity of revocation and thereby obtain an adoption decree with Res judicata effect.

HISTORY: Sometime in 1976, petitioner-respondent Kim Andersen (Kim), at that time unwed, became pregnant by petitioner-respondent Robert R. Andersen. The two were married after the baby was born. During her pregnancy, Kim enlisted the aid of her aunt and of a social worker in locating prospective adopting parents. Appellants Gordon and Sherrian Crapo were interested in adopting the as yet unborn child, and Kim determined that the Crapos should be the adopting parents. However, when Kim went into labor she changed her mind and informed the Crapos that the baby would not be available for adoption.

Kim's baby was born on May 26, 1977. Approximately four weeks later, Kim once [99 Idaho 808]

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again decided to let the Crapos adopt the baby and called them on June 23, 1977, to inform them of this decision. The next morning both Kim and Robert met the Crapos at a restaurant, the Crapos taking the baby. The parties then went before a notary public at a local bank where the signatures of both the Andersens and the Crapos were placed on consent to adoption forms which Kim had obtained from an attorney during her pregnancy.

The Andersens then left for California. Shortly after arriving there, the Andersens made two phone calls to the Crapos requesting that the baby be returned. The Crapos refused. The Andersens made a third phone call in which they apologized for their demands, stating that they would not attempt to regain custody. At this point, the Crapos obtained an unlisted number, and the Andersens were unable to make further phone contact.

The Andersens then retained a California attorney who, after pledging that he could get the baby back for a fee of $6,000, sent a letter to the Crapos on August 9, 1977, stating as follows:

It is my understanding that they (the Andersens) turned over custody of the minor child to you. There was never any formal court action or legal proceeding by which you became the legal guardian, custodian, or parents of said child. Therefore, you only hold the child at the consent of my clients, the legal parents. They have informed me that they have made demand on you for the return of their child, and you have refused to turn over the child to them.

Your withholding of the child has no legal basis, as it is against the consent of the parents. The natural parents are lawfully entitled to the child immediately. I am putting you on notice of the parents' action in this matter, as they would like me to make arrangements with you for the return of the child.

Upon receipt of this letter, the Crapos immediately contacted their own counsel who, on August 15, 1977, sent Andersen's attorney a letter narrating the history of the events to that date and stating:

Prior to departure, both she (Kim) and Mr. Andersen signed formal consents to adoption, before a notary.

A petition for adoption has been filed.

The Crapos have been appointed temporary guardians of the child.

The Crapos fully intend to fight any effort to interfere with their custody and adoption of this child.

The record shows, however, that although the petition for adoption was filed on August 12, 1977, the order granting temporary custody, Ex parte, did not issue until August 16, the day After the letter was sent. The Crapos did not allege in their adoption proceeding that the revocation of consents was claimed by the Andersens, nor did they cause process to be served on Andersens.

The Andersens, unable to pay the California attorney's legal fee, sought other counsel there and were advised to retain Idaho counsel. This they did upon their return to Idaho in late September. According to the Andersens and their counsel, a diligent search on their part failed to unearth either the Crapos or the location of the adoption proceedings which, as mentioned above, had been underway since August 12, 1977. A final order of adoption issued on October 31, 1977. No appeal was taken from this order.

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