Adoption of Lauless, In re

• Decision Date: 29 April 1959
• Citation: 338 P.2d 660,216 Or. 188
• Parties: Matter of the adoption of Darryl Keith LAULESS, a minor. Donald W. DUGGER and Marie L. Dugger, husband and wife, Appellants, v. Myrtle Anne LAULESS, Respondent.
• Court: Oregon Supreme Court

Page 660

338 P.2d 660

216 Or. 188

Matter of the adoption of Darryl Keith LAULESS, a minor.

Donald W. DUGGER and Marie L. Dugger, husband and wife, Appellants, v. Myrtle Anne LAULESS, Respondent.

Supreme Court of Oregon, In Banc.

Submitted on Briefs Dec. 4, 1958.

Decided April 29, 1959.

Jack, Goodwin & Santos, Oregon City, and Richard E. Rink, Salem, for appellants.

Roy H. Madsen, Oregon City, and Clarence L. Fitzwater, Portland, for respondent.

O'CONNELL, Justice.

This is an appeal from an order setting aside a decree of adoption which had made the petitioners, who are the appellants in this case, the adoptive parents of Darryl Keith Lauless.

Myrtle Lauless, the respondent, is the natural mother of the child. In October, 1953, soon after she obtained a divorce from her husband, she placed the child, then ten months of age, in the custody of the petitioners. A few months later she and the petitioners discussed the possibility of the latter adopting the child. In April, 1954 the natural father's written consent to adoption was obtained. At about the same time the petitioners' attorney mailed a similar writing to the respondent. She kept the instrument for some time and finally signed it on July 12, 1955 and mailed it to the petitioners.

On September 8, 1955, the petitioners filed a petition for adoption. A decree of adoption was entered on January 30, 1956. On February 17, 1956, the respondent moved to set aside the decree on the ground that she had not received personal notice of the hearing on the petition as required by ORS 109.380 and that the consent was given by her for the limited purpose of relinquishing her parental rights in the child in the event that she would be killed in the course of making a trip to Alaska. The motion was granted and the decree was set aside on April 26, 1956.

The respondent testified that priot to the entry of the decree she had notified the petitioners and their attorney that she did not want them to go ahead with the adoption proceedings. This is denied by the petitioners. It is undisputed, however, that the respondent informed the Public Welfare Commission of her objection to the adoption. The report of the commission filed with the trial court in December, 1955 contained the following statement:

'She states that she had known the petitioners for several years and originally placed Darryl with them on a foster home basis. This last summer she planned to go to Alaska to seek employment. At that time she asked Mr. and Mrs. Dugger if they would adopt the child. She was motivated by a wish to protect Darryl while she was out of the country and to prevent her husband and his relatives from removing Darryl from the home. Mrs. Lauless did go to Alaska, taking her four-year-old daughter, Janice, with her but only remained one week and returned to the United States.

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'Mrs. Lauless now feels that she would like to leave Darryl with the petitioners on a foster home basis, but is definitely opposed to relinquishing him for adoption. In her view, an adoption was originally considered because of her absence from the country, but now that she is back again, there is no need to proceed.'

The trial court was of the opinion that because the Public Welfare Commission's report disclosed that the respondent withdrew her consent, it was the duty of the court to issue a formal citation to the respondent to appear in the proceeding and present her objections, if any, to the adoption.

It was established in Williams v. Capparelli, 1946, 180 Or. 41, 175 P.2d 153, that in the absence of an estoppel the natural parent may withdraw his consent to adoption at any time before the entry of the decree. The case does not enlighten us as to the manner in which the withdrawal of consent must be made in order to be effective. In that case, the natural parent filed with the court a formal revocation and withdrawal of her consent. This clearly would be sufficient to give the court judicial cognizance of the revocation of consent. It would seem equally clear that if the proceeding has been instituted the natural parent could not effectively withdraw consent simply by an extrajudicial notification to the adoptive parents. Cf. In re McDonnell's Adoption, 1947, 77 Cal.App.2d 805, 176 P.2d 778.

In the instant case the communication of the intent to withdraw consent falls somewhere between the two extremes just described. The Public Welfare Commission's report presents to the court a clear expression of the respondent's intention to withdraw her consent. However, it is a report only of the caseworker's understanding of her conversation with the respondent, and in no sense can it be regarded as the filing of a formal revocation of consent by the respondent to bring it within the principle laid down in Williams v. Capparelli, supra. The question remains, however, as to whether the report of respondent's statement to the caseworker is to be given any legal effect in determining whether the decree of adoption was properly entered. As indicated above, the trial judge was of the opinion that the information in the report cast a duty upon him to give notice to the respondent and afford her an opportunity to contest the adoption.

The Public Welfare Commission need not file a report with the court if it chooses not to do so, ORS 109.310, but if it does the report becomes a part of the record of the adoption proceeding before the court. The report is 'for the consideration of the judge before whom the petition for adoption is pending.' ORS 109.310(4). The statute contemplates that the report should contain, among other things, 'information regarding the status of the child,' which, we assume, could include information as to whether the natural parent was willing to relinquish control over the child.

We do not know whether or not the trial judge had actual knowledge of the contents of the report but such knowledge is not essential because inasmuch as the report becomes a part of the record in the proceeding the court has judicial knowledge of its contents. Williams v. Wheeler, 1917, 131 Ark. 581, 199 S.W. 898; Dillard v. McKnight, 1949, 34 Cal.2d 209, 209 P.2d 387, 11 A.L.R.2d 835; Craiglow v. Williams, 1920, 45 Cal.App. 514, 188 P. 76; Baca v. Catron, 1917, 24 N.M. 242, 173 P. 862; In re Whitish, 1955, 47 Wash.2d 652, 289 P.2d 340; McCormick on Evidence, § 327; cf. State ex rel. Harner v. Karpe, 1922, 151 La. 585, 92 So. 124.

In the instant case, then, the trial court judicially knew that if the report was accurate the respondent was opposed to the adoption of her child. We emphasize the fact that the report indicated an unequivocal withdrawal of consent. Although the trial court was not required to accept as true everything that was stated in the report, it had a clear warning that the respondent may have withdrawn her consent to the adoption, and this was notice of a very material fact because consent was essential to the court's jurisdiction over the matter. Furgeson v. Jones, 1888, 17 Or. 204, 20 P. 842, 3 L.R.A. 620. We agree with the trial judge that under these circumstances the proceeding should not have continued until a citation had been issued to the respondent so that she would have an opportunity to express her objection to the adoption.

Such notice not having been given we must decide whether the lower court had the power to correct its own error by setting aside the adoption decree. Provision is made in ORS 109.380 for the reversal of an adoption decree under certain circumstances. This section provides as follows:

'A parent who before the hearing upon a petition for the adoption of his child, has not had personal notice thereof, may, at any time within one year after actual notice, apply to the circuit court to reverse the decree; which court, after due notice, may in its discretion reverse the decree if it appears that any of the material allegations in the petition were not true.' ORS 109.380.

Although the respondent's motion does not expressly refer to this section, it is quite apparent that she relied upon it in seeking relief.

The petitioners contend that the conditions of ORS 109.380 have not been complied with in this case because the respondent had actual knowledge of the pending adoption proceeding at least two months before the decree was signed, and further that all of the material allegations in the petition were true. We do not deem it necessary to determine whether ORS 109.380 was available to the respondent in this case because there is another source of the trial court's power to set aside the decree.

The decree of adoption was entered on January 30, 1956. The motion to reopen the proceeding and to set aside the decree was filed on February 15, 1956, which was during the same term of court in which the decree was entered. ORS 4.150.

In dealing with adoption matters the circuit court, although a court of general jurisdiction, has only such powers as are conferred upon it by statute or which can be regarded as inherent in a court of record. Furgeson v. Jones, 1888, 17 Or. 204, 20 P. 842; Zipper v. Zipper, 1951, 192 Or. 568, 235 P.2d 866.

A court of general jurisdiction has the inherent power to modify or set aside its own decree within the same term of court. Black, Judgments, 2d Ed., § 297; Freeman, Judgments, 5th Ed., §§ 140, 157, 208; Harris v. Harris, 1951, 192 Or. 361, 232 P.2d 818; Seufert v. Stadelman, 1946, 178 Or. 646, 167 P.2d 936. It has been held in many cases that a court of general jurisdiction in exercising special powers conferred upon it by statute to deal with matters such as divorce, child custody and adoption also has the inherent power to modify or set aside within the same term a decree made under such special powers. Shivers v. Shivers, 1950, 206 Ga. 552, 57 S.E.2d 660; Dover v. Dover, 1949, 205 Ga. 241, 53 S.Ed.2d 492; Pratt v. Pratt, 1951, 342 Ill.App. 513, 97 N.E.2d 132; State ex rel. Bradshaw v. Probate Court of Marion County...