Adoption of Capparelli

• Decision Date: 10 December 1946
• Citation: 175 P.2d 153,180 Or. 41
• Parties: ADOPTION OF CAPPARELLI WILLIAMS ET UX. <I>v.</I> CAPPARELLI
• Court: Oregon Supreme Court

180 Or. 41

175 P.2d 153

ADOPTION OF CAPPARELLI WILLIAMS ET UX.v.

CAPPARELLI

Supreme Court of Oregon.

Argued October 23, 1946.

Affirmed December 10, 1946.

Adoption — Consent to adoption

1. Evidence of the feeling of shame and humiliation of an unmarried mother, whose physical condition was normal and who was fully aware of tenor and effect of consent to adoption, was insufficient to warrant a finding that her consent was induced by undue influence.

Adoption — Construction of adoption law

2. Adoption proceedings, which were unknown to the common law, are the exercise of a power conferred by statute, and the statute, being in derogation of the common law and of the parents' natural rights, must be strictly construed.

Adoption — Consent to adoption

3. Consent of the mother of an illegitimate child, is jurisdictional in adoption proceedings, except in those contingencies wherein statute does not require it.

Adoption — Revocation of consent

4. Generally, a natural parent who has consented to adoption of a child in compliance with a statute which makes such consent a prerequisite to adoption may effectively withdraw or revoke consent at any time before court has made a decree of adoption.

Adoption — Welfare of child

5. Courts should not interfere with natural relationship of parent and child upon sole ground that proposed adoptive parents are able to give child superior advantages over those within means or social status of natural parents.

Adoption — Revocation of consent

6. Consent of mother of an illegitimate child, given from hospital bed within a few days after birth of child, was not irrevocable, so that, where mother proceeded with due diligence to ascertain who proposed adoptive parents were and notified them of revocation of her consent before petition for adoption was filed, consent was effectively withdrawn and petition for adoption was properly dismissed.

                  See 1 Am. Jur. 673; adoption, withdrawal of consent, notes 138
                A.L.R. 1038, 156 A.L.R. 1011; 2 C.J.S., Adoption, § 21
                

Appeal from Circuit Court, Multnomah County.

FRED E. BRONN, Judge.

Leroy L. Lomax, of Portland (with John P. Ronchetto, of Portland, on brief), for appellants.

Clifford W. Powers, of Portland, for respondent.

Before BELT, Chief Justice, and KELLY, BAILEY, LUSK, BRAND and HAY, Justices.

AFFIRMED.

HAY, J.

Petitioners appeal from an order of the Circuit Court for Multnomah County denying their petition to adopt a child.

On March 10, 1945, at a hospital in the city of Portland, the child in question was born to Florence Capparelli, an unmarried woman, aged twenty-one years. On March 14, 1945, Miss Capparelli executed a written consent to the adoption of her child by petitioners, and, with her approval, the child was delivered into their custody. On July 2, 1945, petitioners filed a petition for leave to adopt the child, and, in support thereof, exhibited the mother's written consent. On July 23, 1945, Miss Capparelli filed a formal revocation and withdrawal of her consent, and a petition for leave to intervene, in which she alleged that she signed the consent to adoption while under undue influence and in a state of nervous and physical exhaustion. Leave to intervene was granted.

After a hearing, the court made findings that undue influence was exerted to induce Miss Capparelli's consent; that the consent was not her free and voluntary act; and that she had revoked and withdrawn it prior to entry of any decree in the proceedings. A decree was entered accordingly, denying the petition to adopt and restoring the child to its mother.

1. The evidence indicates that, when she signed the consent to adoption, Miss Capparelli was fully aware of the tenor and effect of the writing and that her physical condition was normal. She resided with her parents and was employed at one of the Portland shipbuilding yards, leaving for work early in the morning and returning home late at night. Her parents were unaware of her pregnancy. After the birth of her baby, her brother called upon her at the hospital and told her that her parents would not permit her to bring the baby home with her. Without doubt, her feelings of shame and humiliation had laid her under considerable emotional tension, but, in our opinion, the evidence was insufficient to warrant the court's finding that her consent was induced by undue influence. See 17 Am. Jur., Duress and Undue Influence, section 2; 1 Am. Jur., Adoption of Children, section 73.

In accordance with the practice of the hospital authorities in such cases, Miss Capparelli was not permitted to ascertain who were the prospective adoptive parents. It is proper to observe that the alleged undue influence was charged against Miss Capparelli's brother, and that there was no evidence or suggestion that petitioners themselves exerted or attempted to exert any influence whatever over her.

About three months after she had surrendered possession of the child, Miss Capparelli, after considerable inquiry, learned, through her attorney, the identity and whereabouts of petitioners, and thereupon notified them that she withdrew her consent to the adoption of the child. The petition to adopt was filed within a few days thereafter. It specifically alleged that the mother had consented in writing to the adoption, but made no mention of the fact that she had withdrawn her consent.

2. The maintenance of the natural rights of parents to the custody and care of their children is of vital interest to the state. Adoption is of civil law derivation, and was unknown to the common law. Adoption proceedings are the exercise of a power conferred by statute, and have no other sanction. The statute, being in derogation of the common law and of the parents' natural rights, must be strictly construed. Furgeson v. Jones, 17 Or. 204, 20 P. 842, 3 L.R.A. 620, 11 Am. St. Rep. 808; Non-She-Po v. Wa-Win-Ta, 37 Or. 213, 62 P. 15, 82 Am. St. Rep. 749; Long v. Dufur, 58 Or. 162, 113 P. 59; Matter of Cozza, 163 Cal. 514, 126 P. 161, Ann. Cas. 1914A, 214.

3. Our statute (sections 63-402 to 63-410, inclusive, O.C.L.A.) requires that the parents of the child shall consent in writing to the adoption. In default of such consent, they must have legal notice of the proceedings and an opportunity to be heard. Except under certain contingencies not involved herein, wherein the statute does not require it, consent of the parents (or, in the case of an illegitimate child, of the mother) is jurisdictional, and, if such consent is lacking, the court is without power to make a decree of adoption. Matter of Cozza, supra; Bilderback v. Clark, 106 Kan. 737, 189 P. 977, 9 A.L.R. 1622; In re Knott, 138 Tenn. 349, 197 S.W. 1097; In re Lease, 99 Wash. 413, 169 P. 816.

Counsel for Miss Capparelli insists that, to be effective, consent of the natural parent must be freely and voluntarily given, and that, in this case, concealment of the identity of the proposed foster parents vitiated the consent. We are unwilling to give an unqualified assent to counsel's contention in this regard. Complete severance of all relations between the natural parents and the child — especially when the child is illegitimate — is, without doubt, socially desirable and in the best interests of all concerned. Cf. In re Adoption of a Minor, 144 F. (2d) 644, 156 A.L.R. 1001. In view of the disposition which we shall make of the case, we shall assume, without deciding the point, that we are dealing with a consent freely and voluntarily given and sufficient under the terms of the statute.

4, 5. It is the general rule that a natural parent who has consented to the adoption of a child in compliance with a statute which makes such consent a prerequisite to adoption may effectively withdraw or revoke his consent at any time before the court has made a decree of adoption. French v. Catholic Community League, 69 Ohio App. 442, 44 N.E. (2d) 113; Fitts v. Carpenter (Tex. Civ. App.) 124 S.W. (2d) 420; In re White's Adoption, 300 Mich. 378, 1 N.W. (2d) 579, 138 A.L.R. 1034; In re Cohen, 279 N.Y.S. 427; In re Anonymous, 33 N.Y.S. (2d) 793; In re Burke's Adoption, 60 N.Y.S. (2d) 421; Nelms v. Birkland, 153 Wash. 242, 279, P. 748; Anno., 138 A.L.R. 1038; 2 C.J.S., Adoption of Children, section 21 a (4). A few holdings to the contrary appear to have been based upon the provisions of the particular statutes under...