In re Nelms

• Decision Date: 02 August 1929
• Docket Number: 21920.
• Citation: 279 P. 748,153 Wash. 242
• Court: Washington Supreme Court
• Parties: In re NELMS. v. BIRKLAND et ux. LELMS et ux.

279 P. 748

153 Wash. 242

In re NELMS.

LELMS et ux. v. BIRKLAND et ux.

No. 21920.

Supreme Court of Washington

August 2, 1929

Department 2.

Appeal from Superior Court, Spokane County; Jeffers, Judge.

Proceeding by Roy Francis Nelms and wife to adopt Jack Albert Nelms opposed by Albert Birkland and wife. From the judgment defendants appeal. Reversed and remanded, with directions.

E. O Connor and Kimball & Blake, all of Spokane, for appellants.

Danson Lowe & Danson, of Spokane, for respondents.

MAIN J.

This is an appeal from a judgment in an adoption proceeding.

Jack Albert Nelms was born out of wedlock May 15, 1919, in the city of Spokane. On the same day the child's mother signed this writing:

'Spokane, Wash. May 15, 1919.

'This is to certify that I, Bertyne Oliver, the undersigned, being of sound mind and having my right senses on this fifteenth day of May, nineteen hundred and nineteen give to Mr. and Mrs. Roy F. Nelms my baby for adoption.

'[Signed] Bertyne Oliver.

'Witnesses: Mary Swartz

'Mrs. Lucie Willard.'

On the same day the child was given into the custody of Mr. and Mrs. Nelms, where he has continuously remained. August 29, 1919, Albert Birkland and Bertyne Birkland, the father and mother of the child, were married. They at that time resided in the state of South Dakota, and they have continuously resided there up to the present time. Mr. and Mrs. Nelms are residents of the city of Spokane. In December, 1925, Mrs. Birkland came to Spokane to visit the child, and had some conversation with Mr. and Mrs. Nelms. She again came in May, 1926. As to what took place upon these visits the testimony is in conflict. During the latter part of the year 1927, Mr. and Mrs. Birkland both came to Spokane, and at this time made known to the Nelms that they were going to take the custody and control of the child, if Mrs. Birkland had not upon the prior visits. Mr. and Mrs. Nelms, becoming alarmed, filed a petition for adoption, based upon the consent given by the mother in May, 1919, above set out. An order of adoption was entered January 11, 1928. January 27, 1928, Mr. and Mrs. Birkland filed a petition to vacate the order of adoption. This was resisted by Mr. and Mrs. Nelms. A hearing was had, and the court entered an order vacating the adoption because improperly obtained. Thereafter an amended petition of adoption was filed by Mr. and Mrs. Nelms, which was resisted by Mr. and Mrs. Birkland. The trial resulted in a holding by the superior court that Mr. and Mrs. Nelms were entitled to adopt the child, and from the order of adoption Mr. and Mrs. Birkland have appealed.

There can be no adoption of a child, in the absence of a statute. This is something that was not known to the common law. In Re Renton's Estate, 10 Wash. 533, 39 P. 145, 148, it was said:

'Without a statute or without compliance with a statute, there is no such thing in our law as the adoption of an heir. Adoption was not known to the common law, and is a matter purely statutory. Courts have passed upon this question frequently, and have adhered with must strictness to this rule. [Citing authorities.]'

Section 1696, Rem. Comp. Stat. Supp. 1927 provides:

'Any inhabitant of this state, not married, or any husband or wife jointly, may petition the superior court of the county of their residence for leave to adopt, and change the name if desired, of any person, but a written consent must be given to such adoption by the person, if of the age of fourteen years, and if under the age of twenty-one years by each of his or her living parents, or in case the child be illegitimate, by his or her living mother; Provided that the consent of the parent shall not be required in the following cases, to wit: * * *

'4. From a father, or mother, who has been found by a court of competent jurisdiction to have deserted or abandoned such child without provision for his or her identification. * * *'

It will be observed that this statute specifically requires that, in the case of a child born out of wedlock, written consent to an adoption must be given by the mother. The proviso that the consent of the parent shall not be required where the father or mother of the child has been found by a court of competent jurisdiction to have deserted or abandoned the child without provision for his or her...