Adoption of Alley

• Decision Date: 06 June 1944
• Docket Number: 46496.
• Citation: 14 N.W.2d 742,234 Iowa 931
• Parties: Adoption of ALLEY et al.
• Court: Iowa Supreme Court

14 N.W.2d 742

234 Iowa 931

Adoption of ALLEY et al.

No. 46496.

Supreme Court of Iowa

June 6, 1944

Cook & Cook, of Glenwood, for appellant.

Genung & Genung, of Glenwood, for appellee.

GARFIELD Justice.

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., Divorce, 835, § 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, 229 Iowa 1240, 1244, 296 N.W. 376, 378, and citations.

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, 291 N.W. 401. 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 16 years old. The Rubendall case therefore held (p. 1390 of 227 Iowa, p. 402 of 291 N.W.):

"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. Adoption of Children, p. 389, § 21, subsec. e(2); 1 Am.Jur. 644, section 43; In re Jackson, 55 Nev. 174, 28 P.2d 125, 91 A.L.R. 1381, 1386, and Anno. 1387, 1389; Anno. 24 A.L.R. 416, 425.

Hopkins v. Antrobus, 120 Iowa 21, 25, 94 N.W. 251, involved consent for adoption under section 2601, Revision 1860, much similar to the part of section 10501.3 now before us. The statute then provided, "*** the consent of the parent lawfully having the care and providing for the wants of the child, if the parents are divorced or separated, 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 those mentioned 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....