Adoption of Wilcox, In re

• Decision Date: 02 March 1960
• Citation: 220 Or. 509,349 P.2d 862
• Parties: In the Matter of the ADOPTION of Carol Louene WILCOX, Beverly Jean Wilcox and Steven Richard Wilcox, Minor Children. Gordon WILCOX, Appellant, v. Anita M. ALEXANDER and Luclen B. Alexander, Respondents.
• Court: Oregon Supreme Court

Page 862

349 P.2d 862

220 Or. 509

In the Matter of the ADOPTION of Carol Louene WILCOX,

Beverly Jean Wilcox and Steven Richard Wilcox,

Minor Children.

Gordon WILCOX, Appellant, v. Anita M. ALEXANDER and Luclen B. Alexander, Respondents.

Supreme Court of Oregon, Department 2.

Argued and Submitted Feb. 5, 1960.

Decided March 2, 1960.

Dennis L. Marvin, Bend, argued the cause for appellant. On the brief were McKay, Panner Marvin, Bend.

Robert L. Dressler, Portland, argued the cause for respondents. With him on the brief were E. J. Buhlinger and Buhlinger & Dressler, Portland.

Before McALLISTER, C. J., and LUSK, SLOAN and DUNCAN, JJ.

SLOAN, Justice.

This is an adoption proceeding. The trial court awarded a decree of adoption and the objector appeals. The parties involved, their relationship and identity follows.

The objector, Gordon Wilcox, and the petitioner, Anita M. Alexander, were married in August, 1938. On January 1, 1940, Carol Louene Wilcox was born to them; on August 3, 1941, Beverly Jean Wilcox was born and on December 15, 1944, Steven Richard became the third child of this marriage. In 1952 the then Mrs. Wilcox, now Mrs. Alexander, obtained a decree of divorce from Gordon Wilcox and custody of all three children. The decree, entered by the circuit court for Deschutes county, required Wilcox to contribute $100 per month for the support of the three children and granted to him privileges of visitation. In 1954 the petitioners, Anita Alexander and Lucien B. Alexander, were married. In September, 1957, the petitioners filed a petition in the domestic relations department of the circuit court of Multnomah county seeking the adoption of all three children. Wilcox filed objections. Thereafter the court determined that the original petition did not state jurisdictional facts and the court allowed petitioners time to amend. The amended petition will be later mentioned.

Two hearings were held before the Honorable Donald E. Long. One in February, 1958, and the second not until July 31, 1958. The two girls, Carol and Beverly, testified in open court at the first hearing. They emphatically stated that they wanted the adoption to be allowed. The boy testified in chambers at the second hearing in a manner later described. There is no indication that the attitude of the girls had changed in the interval between the two hearings. The court awarded petitioners a decree by which the two older children, Carol and Beverly, were adopted by petitioners. The adoption was refused for the boy, Steven. This appeal by the objector followed.

It will illuminate the issues and the evidence to set forth the pertinent statute before proceeding further. The jurisdiction of the court to consider the adoption was governed by ORS 109.324. Prior to the 1957 legislative assembly, some of the provisions now found in ORS 109.324 were contained in ORS 109.320. Chapter 710, Oregon Laws 1957, repealed ORS 109.320 and enacted chapter 710 in its place. Section 7 of chapter 710 became codified as ORS 109.324. Because the added provisions contained in the 1957 act are important in deciding this case we will set forth the statute as it appeared both before 1957 and after. Subsection (6) of ORS 109.320, the statute as it was before 1957, read:

'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 prceding the time of filing the petition for adoption, 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 to give or withhold the consent mentioned in subsection (1) of this section.'

ORS 109.324, which governs this case, reads:

'Consent where parent had deserted or neglected child. If either parent is believed to have wilfully deserted or neglected without just and sufficient cause to provide proper care and maintenance for the child for one year next preceding the filing of the petition for adoption and such parent does not consent in writing to the adoption, there shall be served upon such parent a citation in accordance with ORS 109.330 to show cause why the adoption of the child should not be decreed. Upon hearing being had, if the court finds that such parent has wilfully deserted or neglected without just and sufficient cause to provide proper care and maintenance for the child for one year next preceding the filing of the petition for adoption, the consent of such parent at the discretion of the court is not required and, if the court determines that such consent is not required, the court shall have authority to proceed regardless of the objection of such parent. In determining whether the parent has wilfully deserted or neglected without just and sufficient cause to provide proper care and maintenance for the child, the court may disregard incidental visitations, communications and contributions. This section does not apply where consent is given in loco parentis under ORS 109.316 or 109.318. [1957 c. 710 § 7 (ORS 109.312 to 109.329 enacted in lieu of ORS 109.320)]'

It is also well to note that the 1957 act also added ORS 109.305 which requires that:

'The rule that statutes in derogation of common law are to be strictly construed does not apply to the adoption laws of this state. [1957 c. 710 § 15]'

The first issue presented by the appeal challenges the jurisdiction of the trial court to award a decree of adoption in the absence of the consent of Wilcox as a parent. The question presented, however, is part and parcel of the determination of the case on the merits. The issue comes about in this way: The trial court refused to consider the original petition because it failed to state any of the jurisdictional facts required by ORS 109.324. The amended petition, therefore, alleged that the objector, Wilcox, as a natural parent of the children, 'has willfully deserted and has neglected without just and sufficient cause to provide care and maintenance for the said children for more than one year next preceding the filing of this Amended Petition and for more than one year next preceding the filing of the original petition herein for adoption by petitioners.' This allegation is, of course, substantially in the language of ORS 109.324. It was never seriously contended, however, that Wilcox had deserted the children. The only question was his failure to support.

Throughout the hearings Judge Long constantly reminded the parties that he could not allow a decree at all unless the jurisdictional fact of a failure by Wilcox to provide care and maintenance without just cause was established. In other words, this case was decided by the trial court on the theory that the jurisdiction of the court to determine the matter, without the consent of Wilcox as a natural parent, could only be gained by showing a neglect to support without just cause on the part of Wilcox for at least a year prior to the filing of the petition. The same facts which decided jurisdiction were substantially decisive in deciding if the adoption should be granted.

The 1957 statute gave the courts greater latitude in allowing an adoption over the objections of a nonconsenting parent. It is, of course, significant that to overcome nonconsent it was no longer necessary to prove both wilful desertion and neglect to support. This was the criteria required before the 1957 act. Omlie v. Hunt, 1957, 211 Or. 472, 316 P.2d 528. The 1957 act now allows the court to proceed when either wilful desertion or neglect to support without cause is established. The opinion in Omlie, 211 Or. at page 474, 316 P.2d at page 530, recognized the change in the statute but did not apply it. The former statute governed that case.

This explains the conclusion of the trial court, before mentioned, that he was only obliged to find a failure to support without just and sufficient cause, and not desertion, in order to sustain his jurisdiction to grant or withhold adoption.

The parties here are not certain that the word 'wilful' in the statute applies to both 'deserted' and 'neglected without just and sufficient cause to provide care * * *'.

We think it is immaterial. The requirement that the nonsupport must be without 'just and sufficient cause' denotes an equivalent, if not broader, stricture than 'wilful'. No court would allow an adoption for nonsupport only unless the failure to provide was by intentional, deliberate or wilful design. The language of ORS 109.324 requiring the nonsupport to be 'without just and sufficient cause' is identical to the language of ORS 167.605 which makes it a crime to fail to support a wife or child 'without just and sufficient case.' It is apparent, therefore, that the legislature intended that the nonsupport be of the same wilful or deliberate character as that defined in the criminal code. See State v. Francis, 1928, 126 Or. 253, 268, 269 P. 878.

In the instant case the failure of Wilcox to support was intentional. This was manifest...