Adoption of Smith, In re

• Decision Date: 13 December 1961
• Citation: 366 P.2d 875,229 Or. 277
• Parties: In the Matter of the ADOPTION OF Lorna Christine SMITH and Katherine Helen Smith, minor children. Lee A. SIMONS and Elizabeth J. Simons, Husband and Wife, Respondents, v. Gerald Leroy SMITH, Appellant.
• Court: Oregon Supreme Court

Page 875

366 P.2d 875

229 Or. 277

In the Matter of the ADOPTION OF Lorna Christine SMITH and

Katherine Helen Smith, minor children.

Lee A. SIMONS and Elizabeth J. Simons, Husband and Wife, Respondents, v. Gerald Leroy SMITH, Appellant.

Supreme Court of Oregon.

Argued and Submitted at Pendleton Oct. 30, 1961.

Decided Dec. 13, 1961.

Richard D. Nelson, Portland, for appellant.

George F. Rakestraw, Redmond, for respondents.

Before McALLISTER, C. J., and ROSSMAN, WARNER, SLOAN, O'CONNELL, GOODWIN and LUSK, JJ.

GOODWIN, Justice.

Gerald L. Smith, the father of two girls, appeals from a decree which granted, over his timely objection, a petition by his former wife and her present husband to adopt the Smith children.

As a general proposition, the law protects the natural rights of parents. Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 69 L.Ed. 1070, 39 A.L.R. 468 (1924) (dictum). In the ordinary case, adoption statutes require the consent of both natural parents. ORS 109.312. Only where the parent is under some disability or is at fault in a matter related to the parent-child relationship is his consent dispensed with. ¹ There is, however, one apparent exception to this statutory scheme, viz., ORS 109.314:

'* * * Consent where custody of child has been awarded in divorce proceedings. If the legal custody of the child has been awarded in divorce proceedings, the written consent of the person to whom custody of the child has been awarded may be held sufficient by the court; but, unless the parent not having custody consents to the adoption, a citation to show cause why the proposed adoption shall not be made shall be served in accordance with ORS 109.330 upon the parent not having the custody, and the objections of such parent shall be heard if appearance is made. This section does not apply where consent is given in loco parentis under ORS 109.316 or 109.318.'

The only question on this appeal is whether ORS 109.314 can be enforced literally to cut off the rights of a father who is free from the disabilities or faults which, under the statutes cited in note 1, supra, permit termination of a parent's rights.

The quoted statute expressly confers jurisdiction upon the trial court to enter the decree complained of. Thus, the principal contention of the nonconsenting parent, that the court was without jurisdiction, is plainly devoid of merit unless there is some reason why the statute should not be given literal effect. Implicit in this appeal, therefore, is an underlying assumption by the nonconsenting parent that fundamental considerations of due process of law require us to reexamine the statute as applied to the facts of this case.

The nonconsenting parent contends that since ORS 109.314 contains no basis for deciding when the court may ignore his protests, this court must either:

(a) Strike down the statute as repugnant to due process of law;

(b) Read into the statute the requirement that the trial court exercise judicial discretion and then reverse for manifest abuse thereof; or

(c) Construe the right to be heard to mean that the parent who appears and objects must prevail unless he falls under one or more of the sections which provide when and in what circumstances the rights of such a parent may be terminated.

It goes without saying that the first alternative should be avoided if possible.

The second alternative would require the trial court in each case to decide upon some recognizable legal ground that the nonconsenting parent had no further rights.

The reason for terminating parental rights ought to be related to the parent's conduct as a parent. In their most palatable form, discretionary statutes require the trial judge to consider 'the best interests of the child'. Courts which base their decisions on 'the best interests of the child' use that term as a term of art borrowed from divorce jurisprudence. Cf. cases collected in Annotation, 47 A.L.R.2d 824. This rationale is unacceptable for several reasons.

In divorce cases, the right of one parent to share child custody with the other becomes subordinate to the welfare of the child precisely because the divorce makes natural family life impossible. Since a child is not divisible, one parent must yield; and, since it is the parents who have destroyed the natural habitat of the child, it is proper that the adverse effects of the divorce upon the child be minimized as much as possible. Thus, the court chooses the environment which is the more suitable for the child, or, more accurately, the less unsuitable for the child. This choice, moreover, is limited to the parents unless both are manifestly unfit. Gustin v. Gustin, 59 Or. 226, 116 P. 1072 (1911).

The best-interests-of-the-child standard has no similar relation to the issues presented in a proceeding to dispense with consent for an adoption. In an adoption, a court is asked to terminate every right and interest of the natural parent. Adoption goes far beyond the child-centered question of custody during minority. Indeed, the denial of an adoption petition has no necessary bearing on the physical custody of the child. The child's environment can be protected in a number of ways, under the divorce laws and the juvenile code. The petition to adopt concerns a different kind of right, the subjective tie between a parent and child, the right of a parent to be identified with his child for emotional, religious or other reasons. A father may hope his son will bear his name; a mother may anticipate that her daughter will inherit her property. On the other hand, there is ordinarily no vital interest of the child which requires the termination of his parents' rights. The use of a convenient name, for example, need not require the formality of adoption. Where there is an exceptional case which does require the liquidation of parental rights, the statutes cited in note 1, supra, cover the situation.

The difference between divorce and adoption discussed above, while of vital importance, may not have been readily apparent when ORS 109.314 was enacted. Oregon General Laws 1919, ch. 45. The statute was no doubt intended to provide a procedure to speed adoptions where a divorced parent had disappeared and to prevent dog-in-the-manger tactics by disgruntled parents. Commendable as the motive behind such legislation may be, the effect thereof on the rights of parents could be grossly unjust. In 1919, however, two factors tended to militate against injustice. First, divorces then were more difficult to obtain and less fashionable than they now appear to be. While the grounds on which they were granted, Olson's Oregon Laws, § 507 (1920), were substantially the same as are now found in ORS 107.030, the prevailing party as a general rule was required to make a showing of truly reprehensible conduct on the part of the other spouse. Bowers v. Bowers, 98 Or. 548, 194 P. 697 (1921). At present, in the relatively few contested cases we have, inhumanity need not be shocking to provide grounds for a divorce. See Flanagan v. Flanagan, 188 Or. 126, 213 P.2d 801 (1950), and the statement of LUSK, J., in Guinn v. Guinn, 188 Or. 554, 561, 217 P.2d 248 (1950).

Further, even if Oregon divorce practice were the same today as it was 40 years ago, we are not an island unto ourselves. Certain other states have made it less than difficult to obtain a divorce. Under the first Williams decision, Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273 (1942), we must give full faith and credit to divorce decrees of other states unless the foreign court had no jurisdiction. ² Full faith and credit must be accorded a custody decree until such a decree is set aside. See discussion in Leflar, Conflict of Laws 346, § 180 (1959). A custody decree may not reflect any disability or fault as a parent on the part of the parent denied custody. See, e. g., In re Candell's Adoption, 54 Wash.2d 276, 340 P.2d 173 (1959), in which, though the court assumed that the parent not having custody evinced an intention to surrender his parental rights by suffering a default decree in another state, the decision to dispense with his consent applied a Washington statute similar to ours and simply held that the consent of a divorced parent was not necessary because the parent did not retain custody.

Still a further reason why different considerations apply in divorce-child-custody cases than in adoption proceedings today may be found in the almost invariable practice of the courts in 1919 to give custody to the parent who obtained the divorce. This practice normally favored the parent who appeared to be the less blameworthy in the divorce. Such a practice is no longer prevalent; indeed, until recently (Shrout v. Shrout, 224 Or. 521, 356 P.2d 935 (1960)), this court for several years followed the practice of awarding custody of a child of tender years to its mother even though the mother's misconduct caused the divorce. E. g., Wengert v. Wengert, 208 Or. 290, 301 P.2d 190 (1956); Goldson v. Goldson, 192 Or. 611, 236 P.2d 314 (1951); Ruch v Ruch, 183 Or. 240, 192 P.2d 272 (1948). On more rare occasions, we have held that a father against whom a decree of divorce has been granted should nonetheless be given custody. E. g., McFadden v. McFadden, 206 Or. 253, 292 P.2d 795 (1956). Thus it can be seen that the 'innocent' party in the marriage failure frequently sees the children go to the 'guilty' spouse. Accordingly, the failure to be awarded custody does not carry today the same imputation of unfitness that it may have carried in 1919. This is the type of situation which fathered the maxim, mutata legis ratione mutatur et lex. If a reason for ORS 109.314 ever was the imputation of unfitness which accompanied the award of custody to the other party, that reason has disappeared. Consequently, the statute ought to be read in the light of present conditions. At the very least there should be some correlation...