Campbell v. Kindred

JurisdictionOregon
PartiesLila M. CAMPBELL, Appellant, v. Charles W. KINDRED, Respondent.
Citation554 P.2d 599,26 Or.App. 771
CourtOregon Court of Appeals
Decision Date13 September 1976

Jerry K. McCallister, Astoria, argued the cause for appellant. With him on the brief were MacDonald, Dean, McCallister & Snow, Astoria.

Ronald L. Miller, Astoria, argued the cause and filed the brief for respondent.

Before SCHWAB, C.J., LEE, J., and SLOAN, Senior Judge.

SLOAN, Senior Judge.

In 1971, appellant and respondent were divorced. Custody of their three minor children was eventually awarded to respondent-father. Later, that year, respondent filed a petition seeking to adopt his own three children. His purpose was to terminate the appellant-mother's rights to the children. A decree of adoption was entered in 1971.

In 1975, appellant filed this declaratory judgment proceeding seeking to set aside the adoption decree as being utterly void. The trial court sustained a demurrer to the complaint. A judgment of dismissal followed appellant's failure to further plead.

On this appeal appellant argues that an attempted adoption by a natural parent is contrary to public policy and is, therefore, a nullity. The trial court relied on the one-year statute of limitations, ORS 109.381(3), to sustain the demurrer. Subsection (3) of ORS 109.381 provides:

'after the expiration of one year from the entry of a decree of adoption in this state the validity of the adoption shall be binding on all persons, and it shall be conclusively presumed that the child's natural parents and all other persons who might claim to have any right to, or over the child, have abandoned him and consented to the entry of such decree of adoption, and that the child became the lawful child of the adoptive parents or parent at the time when the decree of adoption was rendered, all irrespective of jurisdictional or other defects in the adoption proceeding; after the expiration of such one-year period no one may question the validity of the adoption for any reason, either through collateral or direct proceedings, and all persons shall be bound thereby; provided, however, the provisions of this subsection shall not affect such right of appeal from a decree of adoption as may be provided by law.'

As stated, the obvious purpose of the purported adoption in the instant case was to terminate the parental rights of the natural mother.

We have found only two cases that relate to the validity of an adoption by a natural parent absent the situation when a natural parent joins with a stepparent seeking to adopt the children of the natural parent. ORS 109.310(1). The more recent of these cases, Gilbertson v. Gilbertson, 498 P.2d 1381 (Okla.1972), holds that the legislature never intended that the adoption statutes 'provide a proceeding for a parent to adopt his natural, legitimate child. Nor do we believe that the Legislature contemplated the use of adoption proceedings for the sole purpose of terminating parental rights; the Legislature provided a procedure for termination of parental rights under certain conditions in 10 O.S.1971, § 1130 * * *.' 498 P.2d at 1384. The Oklahoma court held the adoption to be a nullity. The Oklahoma statute cited is comparable to ORS 419.523 relating to the termination of parental rights in juvenile cases. In support of its decision the Oklahoma court cited Marshall v. Marshall, 196 Cal. 761, 239 P. 36 (1925). The California court also held that an adoption proceeding by a natural parent was an 'utter nullity.' 196 Cal. at 767, 239 P. 36. CJS black letters the statement that '(a) person may not adopt his legitimate child * * *.' 2 CJS 438 Adoption of Persons § 21. No other specific authority has been found.

We agree with the reasoning of the two cases cited. Having reached that conclusion, does the quoted statute (ORS 109.381(3)) as applied to the...

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4 cases
  • Green v. Sollenberger
    • United States
    • Maryland Court of Appeals
    • September 1, 1994
    ...Adoption of Graham, 63 Ohio Misc. 22, 409 N.E.2d 1067 (1980); Leake v. Grissom, 614 P.2d 1107, 1109 (Okl.1980); Campbell v. Kindred, 26 Or.App. 771, 554 P.2d 599, 600-01 (1976); Marshall v. Marshall, 196 Cal. 761, 239 P. 36, 38 (1925). But see contra McDonald v. Hester, 115 Ga.App. 740, 155......
  • Hurt v. Noble, 74962
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • June 11, 1991
    ...case. See Wade v. Geren, 743 P.2d 1070 (Okl.1987); Matter of Adoption of Lori Gay W., 589 P.2d 217 (Okl.1978); Campbell v. Kindred, 26 Or.App. 771, 554 P.2d 599 (1976). We also note that Appellees, who were not involved in the adoption proceeding, had no standing to challenge the validity o......
  • In re: Hatcher Adoption
    • United States
    • Tennessee Court of Appeals
    • December 17, 1999
    ...has been held to offend the right to due process. See In Re Adoption of Knipper, 507 N.E.2d 436 (Ohio App. 1986); Campbell v. Kindred, 554 P.2d 599 (Or. App. 1976); White v. Davis, 428 P.2d 909 (Colo. This cause came on to be heard upon the record on appeal from the Juvenile Court of Dickso......
  • Walker's Adoption and Change of Name by McMurrick, Matter of
    • United States
    • Oregon Court of Appeals
    • October 13, 1982
    ...considerations in an adoptive situation." Watkins v. Chirrick, 19 Or.App. 241, 245, 526 P.2d 1399 (1974); accord Campbell v. Kindred, 26 Or.App. 771, 774, 554 P.2d 599, rev. den. We understand the effect of the statute to be that an adoption decree is subject to being set aside within one y......

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