Fackerell v. District Court In and For Adams County, 17886

• Decision Date: 02 April 1956
• Docket Number: No. 17886,17886
• Citation: 295 P.2d 682,133 Colo. 370
• Parties: Arthur M. FACKERELL, Complainant, v. The DISTRICT COURT IN AND FOR The COUNTY OF ADAMS, State of Colorado and The Honorable Martin P. Miller, a Judge Thereof, Respondents.
• Court: Colorado Supreme Court

Page 682

295 P.2d 682

133 Colo. 370

Arthur M. FACKERELL, Complainant, v. The DISTRICT COURT IN AND FOR The COUNTY OF ADAMS, State of Colorado and The Honorable Martin P. Miller, a Judge Thereof, Respondents.

No. 17886.

Supreme Court of Colorado, En Banc.

April 2, 1956.

Bernard Sobol, Harry Sobol, Denver, for complainant.

Roy O. Goldin, Eugene H. Tepley, Denver, for respondents.

HOLLAND, Justice.

On October 23, 1952, petitioner Arthur M. Fackerell obtained a decree of adoption for a minor child, Donna Elaine Arnold, in the county court of Moffat county. The minor had been in the custody of Fackerell and his wife for about one year prior thereto. July 9, 1955, Zella Grant, also known as Zella Ailene Arnold, the natural mother of the minor child, petitioned the district court of Adams county for a writ in the nature of habeas corpus by which she sought the custody of her child. The writ issued, and after motions to quash were denied, petitioner filed a return alleging lawful custody of the child by virtue of the adoption decree, which he claimed was not subject to review by the district court of Adams county. A reply to this return was filed by the mother in which she alleged that the county court of Moffat county had no jurisdiction in the adoption proceedings, because it had been mislead into the signing of a decree of adoption by fraudulent acts of petitioner, and alleged that it was for the best interests of the child that she be given the custody thereof.

Petitioner, on December 20, 1955, made oral motion to dismiss the action for the reason the district court had no jurisdiction over the subject matter, and in denying this motion the trial judge expressed some doubt as to the question of jurisdiction.

During the trial on December 21, 1955, and during the course of cross-examination of Fackerell concerning his residence at the time of procuring the decree of adoption, he requested a stay of further proceedings until he could sue out a writ of prohibition. The stay was granted, and upon proper application to this court, rule to show cause issued to respondents on January 26, 1956.

In support of the petition for the writ, counsel for petitioner contend that adoption proceedings are provided for by a special statute and jurisdiction is conferred upon the juvenile court if there is such, otherwise, upon the county court and a review can only be had directly to the supreme court; the county court having continuing jurisdiction, it therefore is the proper place to reconsider its decree and no court of concurrent jurisdiction has any jurisdiction whatever in an attack upon the county court decree, and therefore the district court of Adams county had no jurisdiction to issue a writ in the nature of habeas corpus to review the final decree of adoption entered in the county court of Moffat county. Counsel for petitioner contend that since the county court obtained jurisdiction and that jurisdiction was exclusive, no other court of concurrent jurisdiction can interfere therewith.

We might say at the outset that on this particular point counsel has approached the question here on the wrong premise. The county court, whose decree is involved, does not have concurrent jurisdiction with the district court, which issued and entertained a partial hearing on the writ of habeas corpus, except in civil actions where the amount involved does not exceed the sum of $2,000.

It is the contention of respondent court and the judge thereof that the record of the county court of Moffat county on its face discloses that the court never had jurisdiction over plaintiff, nor over her minor child, and that fraud on the part of petitioner Fackerell permeates the entire county court procedure. It is further rightfully contended that this procedure in the nature of habeas corpus is not an appeal from the county court, because plaintiff, as mother of the child, was not a party thereto; that there was no relinquishment of the child as required by the adoption statutes; and finally, that she had no notice of the adoption proceedings, and that neither petitioner for the adoption, nor the child, were residents of Moffat county. The applicable statutes, C.R.S. '53, 4-1-1, 22-5-3, are as follows:

4-1-1. 'The general assembly hereby declares its conviction that the policies and procedures for adoption contained in this chapter are necessary and desirable, having as their purpose the threefold protection of:

'(1) The adoptive child, from unnecessary separation from his natural parents and from adoption by persons unfit to have such responsibility;

'(2) The natural parents from hurried and coerced decisions to give up the child; and * * *.'

22-5-3. '* * * no person shall receive a child for the purpose of adoption, unless the child has been relinquished according to the provisions of this article.'

An examination of the record of the adopting court reveals that there is no relinquishment of the child as required by statutes C.R.S. '53, 22-5-3 and 22-5-4, which are as follows:

22-5-3. 'Any parent desiring to relinquish his child shall not relinquish such child unless such relinquishment be in accordance with the provisions of this article and no person shall receive a child for the purpose of adoption, unless the child has been relinquished according to the provisions of this article. It shall not be necessary to comply with the provisions hereof if such relinquishment be to the stepparents, grandparent or grandparents, uncle or aunt of said child. Any juvenile or county court other than a county court in a county wherein a juvenile court is functioning shall have jurisdiction of all petitions for relinquishment. Any person who shall violate the provisions of this section shall be guilty of a misdemeanor, and upon conviction thereof, shall be fined a sum of money not exceeding five hundred dollars, or imprisonment for a period not exceeding six months, or both such fine and...