In re Adoption of Strauser

Citation196 P.2d 862,65 Wyo. 98
Decision Date17 August 1948
Docket Number2387
PartiesIn the Matter of the Adoption of Kay Verdeen Strauser and Betty Jane Strauser, by Russell T. Lucas and Mary A. Lucas, Petitioners and Respondents, v. Everett Buster Strauser, Applicant and Appellant
CourtUnited States State Supreme Court of Wyoming

APPEAL from District Court, Sheridan County; C. D. MURANE, Judge.

Proceeding in the matter of the adoption of Kay Verdeen Strauser and Betty Jane Strauser, wherein Russell T. Lucas and Mary A Lucas filed a petition for adoption, which was granted, and wherein Everett (Buster) Strauser thereafter filed an application to be heard in opposition to the petition, and wherein Russell T. Lucas and Mary A. Lucas filed a reply and a counterclaim for reasonable value of the support and maintenance of Kay Verdeen Strauser and Betty Jane Strauser. From an order confirming the adoption, Everett Buster Strauser appeals.

Order reversed and case remanded with directions to enter order refusing to approve adoption, and dismissing counterclaim without prejudice.

For the Appellant the cause was submitted upon the brief and also oral argument of John F. Raper of Sheridan, Wyoming.

POINTS OF COUNSEL FOR APPELLANT

Since the only ground alleged in the petition for adoption filed in this case is abandonment, it would seem that the provisions of Sec. 58-213 must govern in this case and that before the court could acquire jurisdiction, the Petition would have to show a compliance with this section and proof of that compliance would have to be established at the trial.

Abandonment imports any conduct on the part of the parent which evidences a settled purpose to forego all parental duties and relinquish all parental claims to the child. Sec. 42 Adoption of Children, Vol. 1. A. J. 643.

The right of a parent to the custody of its child cannot be held to be forever forfeited under circumstances of coercion caprice and discouragement--nor should the forfeiture of parents rights be decreed against a parent who has merely acquiesced in the support of the child by other relatives. It is well settled that such an intention must be shown before a finding of abandonment can be rightfully made. 194 P. 706.

The law is solicitous toward maintaining the integrity of the natural relation of parent and child, and in adversary proceedings in adoption, where the absolute severance of the relation is sought without the consent and against the protest of the parent, the inclination of the courts, as the law contemplates it should be is in favor of maintaining the natural relation. Vol. 1 A. J. 645.

Though the right of and proceedings for adoption are in derogation of the common law, a substantial compliance with the provisions of the statute relating thereto is sufficient. Nugent v. Powell, 4 Wyo. 173.

Where a father living apart from his wife left his minor child with his mother, who was caring for her while he went to another city to seek employment, and there remained for five or six months, such facts did not establish abandonment. State ex rel LeBrook v. Wheeler, 86 P. 394. The consent of the parents of a child to its adoption by others is deemed the basis of a statute authorizing such adoption, and is essential except as the statute provides that it may be dispensed with. Annotated Cases 1914A, Vol. 31, Page 221.

Abandonment imports any conduct on the part of the parent which evidences a settled purpose to forego all parental duties and relinquish all parental claims to the child. Winans v Luppie, 47 N. J. Eq. 302.

For the Respondents the cause was submitted upon the brief of H. Glenn Kinsley and James Munro, both of Sheridan, Wyoming and oral argument by Mr. Kinsley.

POINTS OF COUNSEL FOR RESPONDENTS

Consent in the statutory meaning is the consent of one who still retained parental rights. Nugent v. Powell, 4 Wyo. 173, 33 P. 23, 20 L. R. A. 199.

Abandonment is simply the evidentiary fact which proves the ultimate fact of relinquishment; in other words, the relinquishment of one's rights is the effect, and result of one's abandonment of those rights--this relinquishment "may be either by a deed or other instrument in writing, or it may be by parol, or by abandonmnet, or by turning the child out of the house." Nugent v. Powell, supra.

The right of a father with respect to his child is not an absolute paramount proprietary right or interest in or to the custody of the infant, but is in the nature of a trust reposed in him, which imposes upon him the reciprocal obligation to maintain, care for, and protect the infant; and the law secures him in this right so long and no longer than he shall discharge the correlative duties and obligations. Nugent v. Powell, supra.

The right of the parent with respect to his child is not an absolute one but may be forfeited through abandonment or misconduct. I A. J. 642; 18 L. R. A. (NS) 926, 24 A. L. R. 427, Ann. Cas. 1914A 222.

Where evidence upon which trial court based its decree is in conflict and there is substantial evidence to support decree, the decree will not be disturbed. Garman v. Garman, 59 Wyo. 1, 136 P.2d 517.

If the evidence is conflicting or there is evidence to sustain the finding, the Supreme Court will not interfere unless the finding is clearly erroneous or so clearly against the evidence or the great weight thereof as to be manifestly wrong. Brush v. Benedict, 165 P.2d 561; Binning v. Miller, 60 Wyo. 114, 146 P.2d 527; Hawks v. Creswell, 60 Wyo. 1, 144 P.2d 129; Cook v. McDonald, 60 Wyo. 215, 148 P.2d 594; Chittim v. Belle Fourche Bentonite Products Co., 60 Wyo. 235, 149 P.2d 142.

It would require a very clear case of the abuse of the judicial discretion vested in the trial court to authorize an appellate court to set aside an Order of Adoption, where the proceeding is shown to be taken and had according to the procedure specified by the Codes. In re Fahlman, 84 Cal.App. 248, 250, 257 P. 893, 894.

KIMBALL, Justice. RINER, CH. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

This is an appeal by Everett Strauser, father of two minor children, from an order of approval of their adoption by Russell T. and Mary A. Lucas, husband and wife who, when not mentioned by name, will be called petitioners. Strauser will usually be referred to as the father or appellant. The order was made over the objection of the father whose consent was necessary unless he had abandoned the children. The question to be decided on the appeal is the sufficiency of the evidence to support a finding of such abandonment.

The proceeding was initiated on a petition filed January 8, 1945, under section 58-202, C. S. 1945. The petition was set for hearing and the parents served by publication as provided by sections 58-206, 58-207, C. S. 1945. At the hearing, February 15, 1945, the parents failed to appear, and an order of adoption was entered, in which it was found that the "parents have wholly failed to support or provide for said minor children and have abandoned them and that is in the best interests of said children that they be adopted by the petitioners."

In April, 1947, the order of February 15, 1945, was opened on application of the father under section 3-3802, C. S. 1945, for the purpose of permitting him to file an answer and to be heard in opposition to the petition. The issue on the question of abandonment was framed by the petition, the father's answer and the petitioners' reply. There was attached to the reply a "counter-claim" for $ 2880, the alleged reasonable value of the support and maintenance of the children by petitioners from May 1, 1944 to May 1, 1947, and $ 150 alleged to have been spent by petitioners during that period for the children's medical care. The prayer of the reply was that the order of adoption of February 15, 1945, be confirmed, or, in the alternative, that petitioners have judgment on their counter-claim for $ 3030. The trial, April 29, 1947, resulted in a judgment confirming the order of adoption of February 15, 1945, on a finding that at the time of the entry of said order the children "had been and were then abandoned by their natural parents, Everett (Buster) Strauser and Alma Strauser, and that it was, and now is, in the best interest of said children that they be adopted" by petitioners.

The parents were married in March, 1938. The children are girls, one born in November, 1938, the other in August, 1941. They were in the care and custody of one or both of their parents until March, 1943. The family home, and the domicile of the father at all material times, has been Great Falls, Montana, some 300 miles from Sheridan, Wyoming where this case arose.

The parents became separated near the end of the year 1942 when the mother left the home. In March, 1943, the mother brought the children to Sheridan and left them there with Mrs. Garom, their paternal grandmother. It may be assumed that by this transaction the children were abandoned by their mother who soon thereafter obtained a divorce and disappeared.

In February, 1943, the father "made arrangements" with his mother to care for the children, which she did until September, 1943. At that time the father, who had married a second time and "made a home", took the children back to Great Falls, where they remained with him and his second wife until the home was again broken up, this time by the death of the wife in February, 1944, after she had given birth to twins. The twins were placed in the care of their maternal grandparents and were still there at the time of trial.

In March, 1944, the two girls involved in the adoption proceeding, then aged, respectively, five and one-fourth and two and one-half years, were brought by their father to Sheridan and again placed in the care of Mrs. Garom. The father testified: "I had no place to...

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31 cases
  • GP, Matter of
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    • Wyoming Supreme Court
    • March 22, 1984
    ...Number One v. Herschler, Wyo., 606 P.2d 310 (1980); Matter of Adoption of Voss, Wyo., 550 P.2d 481 (1976); and In re Adoption of Strauser, 65 Wyo. 98, 196 P.2d 862 (1948)." We also made clear that we indeed felt deeply about the family "It may be that in matters such as this, lawyers, judge......
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    ...a court without authorization to interfere with the fundamental right that is the parent-child relationship. In re Adoption of Strauser , 65 Wyo. 98, 196 P.2d 862, 867 (1948) ("The first duty of the judge is to see that the necessary consents are given. If they are not, the proceeding is at......
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    ...made. Matter of EB, 795 P.2d 1212 (Wyo.1990). The substantial compliance with the termination statute is required. In re Adoption of Strauser, 65 Wyo. 98, 196 P.2d 862 (1948); Nugent v. Powell, 4 Wyo. 173, 33 P. 23 Since the present adequacy of actual findings will be resolved after retrial......
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    ...Number One v. Herschler, Wyo., 606 P.2d 310 (1980); Matter of Adoption of Voss, Wyo., 550 P.2d 481 (1976); and In re Adoption of Strauser, 65 Wyo. 98, 196 P.2d 862 (1948)." See also Blair v. Supreme Court of the State of Wyoming, It is well established, therefore, that the putative father h......
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    ...to the foster parents. Wyoming. In re Adoption of L-MHB , 431 P.3d 560 (Wyo. 2018). This case overruled In re Adoption of Strauser , 196 P.2d 862 (Wyo. 1948); In re Adoption of AMD , 766 P.2d 550 (Wyo. 1988); JK ex rel. DK v. MK , 5 P.3d 782 (Wyo. 2000); and In re JWT , 104 P.3d 93 (Wyo. 20......

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