Abelsen, In re

• Citation: 190 Or. 319,224 P.2d 213
• Parties: In re ABELSEN. VOLZ et al. v. ABELSEN. *
• Decision Date: 14 November 1950
• Court: Supreme Court of Oregon

Page 213

224 P.2d 213

190 Or. 319

In re ABELSEN VOLZ et al. v. ABELSEN. ^*

Supreme Court of Oregon.

Argued and Submitted Oct. 10, 1950.

Decided Nov. 14, 1950.

Larry Landgraver, Portland (Leo Levenson, of Portland, on the brief), for appellants.

No appearance for respondent.

Before LUSK, C. J., and BRAND, ROSSMAN, HAY, LATOURETTE and WARNER, JJ.

LATOURETTE, Justice.

This is an appeal from the order of the circuit court of Multnomah county denying the petition of appellants for the adoption of their grandson, a lad of the age of seven years. The boy's mother, a daughter of petitioners, died January 3, 1949.

The mother and the child's father, the objector and respondent, were divorced in November, 1945. Under the terms of the divorce decree, the mother was awarded full care, custody and control of the child. On the date of the birth of the child, the father was in the armed services, and the mother took said child to her parents' home where the child has resided for his entire life. The father remarried in November, 1946, and from such marriage there have been born three children. The father is employed by the Journal Publishing Company and earns a salary of $300.00 per month.

After the death of the mother and on the 1st day of February, 1949, the petitioners filed a petition for the adoption of the child, which petition, upon hearing, was dismissed. The court, however, on its own motion, reopened the divorce proceedings and awarded the temporary care and custody of said child to the petitioners and ordered the father to pay into the registry of the court the sum of $20.00 per month for the support and maintenance of said child, the first payment to be made on the 10th day of March, 1949. At the hearing in the divorce proceedings concerning the custody of the child, it was stipulated by all parties that the court should conduct an investigation into the future planning of change of custody of said minor child; however, it does not appear from the record that any investigation was ever had. On the 11th day of April, 1950, the petitioners filed another petition for the adoption of said child, and, upon a hearing, such petition was denied, thus bringing about this appeal.

Section 63-402, O.C.L.A. reads in part: 'The parents of the child, or the survivor of them, shall, except as herein provided, consent in writing to such adoption.'

Section 63-403, O.C.L.A. reads as follows: 'If either parent is insane or imprisoned in the state prison, under a sentence for a term not less than three years, or has willfully deserted and neglected to provide proper care and maintenance for the child for one year next preceding the time of filing the petition, the court shall proceed as if such parent were dead, and in its discretion may appoint some suitable person to act in the proceedings as next friend of the child, and give or withhold the consent aforesaid.'

It is the position of petitioners that the consent of the father to the adoption is unnecessary since he has willfully...