Ex parte Moulin, 34095

• Decision Date: 04 April 1950
• Docket Number: No. 34095,34095
• Citation: 203 Okla. 99,217 P.2d 1029
• Parties: Ex parte MOULIN.
• Court: Oklahoma Supreme Court

Page 1029

217 P.2d 1029

203 Okla. 99

Ex parte MOULIN.

No. 34095.

Supreme Court of Oklahoma.

April 4, 1950.

Rehearing Denied April 25, 1950.

Second Petition for Rehearing Denied May 16, 1950.

Syllabus by the Court.

1. A valid adoption divests the natural parents of the relation which they had theretofore sustained toward the child, which change of relation is not affected by the death of the adoptive parents.

2. Where the custody of orphan minor children is the issue contested between

the maternal uncle of the minors and their natural father who by reason of their adoption to other parents has been deprived of all legal rights as respects the children, and neither is shown to be unfit for such custody, this court will review the whole record and determine which custody is for the best interest of the orphan minor children under all of the facts and circumstances shown.

3. Where a natural father, who by reason of the legal adoption of his minor children to other parents has been deprived of all legal rights as respect the children, files in this court his petition for habeas corpus seeking to take possession of the children, who have become orphans, from their maternal uncle, tendering the issue of the welfare and best interest of the orphan minor children, the jurisdiction of this court is not excluded because the statute, 12 O.S.1941 § 1354, does not specifically name one occupying the relationship to the minors as does the petitioner herein as a person in whose favor the writ of habeas corpus may issue.

Paul W. Updegraff, of Norman, for petitioner.

Williams & Benedum, of Norman, and Rosenstein, Fist & Shidler, Leslie Webb, all of Tulsa, for respondent.

Mac Q. Williamson, Atty. Gen., Claude E. Love, Division of Child Welfare, Department of Public Welfare, State of Oklahoma, of Oklahoma City, Gus Rinehart, Gomer Smith, Gomer Smith, Jr., Tom S. Williams, E. M. Box, all of Oklahoma City, James B. Miller, of Shawnee, amici curiae.

GIBSON, Justice.

This is an original proceeding by Martin Herbert Moulin, Jr., for a writ of habeas corpus directed to Leonard R. Brooks for the custody of two minor children.

Subsequent to the filing of the petition this court granted the writ and referred the matter to the Honorable Ben T. Williams, Judge of the District Court of Cleveland County.

On October 24, 1949, Judge Williams, having concluded the hearing, made written report of his findings of fact and conclusions of law.

The findings of fact, which we approve, are as follows:

'1. The minor children herein involved, are the twin daughters of Petitioner and of the deceased sister of Respondent.

'2. Their Mother was divorced from Petitioner in April, 1945, and she was remarried in Sept 1945, to one Captain Griffin, who was later sent to Germany with the U. S. Army occupation forces.

'3. In order to assist his former wife, then Mrs. Griffin, get clearance to take their daughters to Germany so the wife might live with her husband, Petitioner signed a consent for Captain Griffin to adopt such children through the Arkansas Court.

'4. Thereafter both Mrs. Griffin and the Captain met their deaths in Germany in July, 1948, and the twin daughters of Petitioner were returned to Arkansas to the mother of Captain Griffin, who had her daughter to bring them to Tulsa, Oklahoma, and who in turn delivered them to respondent.

'5. Respondent filed an action in Cleveland County, Okla. in the County Court, to have himself appointed Guardian of such children, and a separate proceeding in the same Court to adopt such children, being joined in the latter suit by his wife, and being opposed in the latter by Petitioner herein. Both actions are still pending.

'6. Respondent and his wife are fit and proper persons, have a suitable home and the likelihood of continuing sufficient income to provide suitably for the children.

'7. Petitioner and his wife are fit and proper persons, having a suitable home and the likelihood of continuing sufficient income to provide suitably for the children.'

The pertinent conclusions of law which are in question are numbers 1 and 2, which are as follows:

'1. The benefit of Petitioner's consent for the adoption by Captain Griffin of Petitioner's children was by law limited to Captain Griffin, the beneficiary thereof.

'2. Upon the death of Captain Griffin and wife, the petitioner's rights theretofore relinquished to Captain Griffin, in the adoption proceedings, were by law reinvested in himself, he being the natural father.'

Respondent challenges the correctness of said conclusions and contends that as a result of the adoption petitioner was by law deprived of all right concerning the care and custody of the children; that such right was not restored upon the death of the adopting parents and therefore petitioner is without right to invoke the aid of habeas corpus to obtain their custody.

Petitioner contends that the conclusions of law are sound and that he, being reinvested with his former rights as parent, is entitled to invoke habeas corpus to obtain the custody of the children.

The first question is, whether, under the circumstances, the petitioner is a parent. The answer thereto involves a determination of the effect of the adoption and whether such effect was altered by the fact of the deaths of the adopting parents.

The validity of the Arkansas decree is not called in question, therefore the same is entitled to full faith and credit under the Federal Constitution, Art. 4, § 1. 1 Am.Jur. 627, sec. 10.

As stated in American Law Institute's Restatement of the Law of Conflict of Laws, sec. 143, 'The status of adoption, created by the law of a state having jurisdiction to create it, will be given the same effect in another state as is given by the latter state to the status of adoption when created by its own law.'

Since the matter of adoption was unknown at common law the questions arising thereunder are referable to the statutory authority therefor. These statutes vary in the different states but the general effect thereof, concerning the questions here involved, is stated in 1 Am.Jur. 650, sec. 51, as follows:

'It is a general principle that a statutory proceeding of adoption, when legally conducted, terminates absolutely all legal relations between the minor and his natural parents or former legal guardian. Hence, in the case of a second adoption of a child under a statute providing that an adopted child may be adopted directly from its foster parents by another person 'in the same manner as from parents, and as if such foster parents were the parents of such child,' it is not necessary to give notice to, or to obtain the consent of, the natural parents or the survivor of them. This has been held to be so even though at the time of the second adoption the first adopting parents were deceased. A contrary view as to this question prevails, however, in some jurisdictions, and there the death of the foster parent is held to reinstate the natural parent in all his rights.

'The statutes themselves frequently contain provisions on this subject and should be consulted.'

The basis of the majority rule is the termination by the adoption of the legal relations between the minor and his natural parents. As authority for the contrary view there is cited Magevney v. Karsch, 167 Tenn. 32, 65 S.W.2d 562, 92 A.L.R. 343, and Annotation in 12 Ann.Cas. 509, wherein is cited Baskette v. Streight, 106 Tenn. 549, 62 S.W. 142. It is upon the last mentioned case and Dwyer v. Dwyer, 366 Ill. 630, 10 N.E.2d 344, that petitioner chiefly relies for support of the conclusions of law. The factual situation in the Baskette case, supra, is reflected in the second editorial syllabus, as follows [106 Tenn. 549, 62 S.W. 143]: 'The mother is not estopped by joining in the adoption proceedings and surrendering her parental rights in a child to the adoptive father from asserting such rights against the adoptive father's widow, who was not a party to the proceedings.'

As ground therefor it is said in the opinion:

'* * * But it is perfectly plain that under the express provisions of the statute the relation of parent and child was only established with James P. Streight, and that Mrs. James P. Streight was a stranger to the adoption proceedings, and can now assert no legal rights to the custody of the child.

'It is said, however, that petitioner, having joined in the adoption proceedings, surrendered her parental rights, and is now estopped to assert them. This would undoubtedly be true in a contest with James P. Streight, the adoptive father; but, the latter having died, there is now no room whatever for the application of an estoppel. We can well see how a mother might be willing to waive or entirely surrender her parental rights in favor of one person, and be wholly unwilling to relinquish them to another. One person, on account of his character and financial ability, might be a very suitable custodian for a child, and these considerations would probably enter very largely in the equation influencing the mind of the parent. Moreover, adoption statutes, being in derogation of the common law, are strictly construed, and cannot by intendment be held to confer rights upon persons who are not parties to the record, and who have assumed no legal obligations as adoptive parents.'

The holding in the Dwyer case is sufficiently reflected in the first three paragraphs of the editorial syllabus, as follows:

'1. An adoption of a child under adoption act depriving natural parents of all legal rights as respects the child does not relieve natural parents from all obligation to support child (Smith-Hurd Ill.Stats. c. 4, §§ 3, 5, 8).

'2. The primary duty of adoptive parents under statute to support child is in derogation of the general law, and for that reason, as to adopted child, statute must be strictly construed.

'3. Courts of general jurisdiction have power to...