Parsons v. Parsons

• Decision Date: 01 November 1898
• Parties: PARSONS v. PARSONS.
• Court: Wisconsin Supreme Court

101 Wis. 76

77 N.W. 147

PARSONS

v.PARSONS.

Supreme Court of Wisconsin.

Nov. 1, 1898.

Syllabus by the Judge.

1. In adoption proceedings under section 4022, Rev. St., notice to a parent alleged to have abandoned his child is not necessary to the jurisdiction of a judge to determine that question.

2. On the filing of a petition as required by law, in proceedings for the adoption of a child, the county judge acquires jurisdiction to determine all questions requisite to a valid judgment of adoption, and a determination wrong, or on insufficient evidence, or illegal evidence, or without any evidence, will not affect the jurisdiction to render such judgment.

3. The statute on the subject of the adoption of children should be liberally construed in favor of children. Parties who institute adoption proceedings and submit to them as valid for a considerable length of time are estopped by their conduct from changing their position to the prejudice of the child.

Appeal from circuit court, Fond du Lac county; N. S. Gilson, Judge.

Application of Cynthia A. Parsons to cancel the adoption of La Fayette R. Parsons. From a judgment of the circuit court affirming an order dismissing the petition, petitioner appeals. Affirmed.

Henry D. Parsons and Cynthia A. Parsons, husband and wife, on the 7th day of November, 1887, made application by verified petition, stating the requisite facts, to the county court of Fond du Lac county, for leave to adopt La Fayette Russell Bede, the minor lawful child of L. F. Bede and Sarah C. Bede. The mother of the child was alleged to be dead, and the father, on information and belief, to have abandoned the child, and it was alleged that the child had for some time been cared for by its grandmother and uncle. The uncle was alleged to be one of the next of kin, and as such he signed a written consent to the adoption. An order was entered on the petition in due form, establishing the status of the child as prayed for and reciting all the facts requisite thereto, and that the truth of the same appeared to the satisfaction of the county judge, by the verified petition. The child was immediately thereafter taken into the family of the petitioners and resided with them until the death of his adopted father in 1890, and thereafter with the adopted mother till he was of age. Thereafter, on September 9, 1897, the adopted mother, Cynthia A. Parsons, for the purpose of avoiding any right of the adopted son to claim an interest in the property of her deceased husband, petitioned the county court for an order vacating the order of adoption, setting forth among other things that her consent to the adoption was without any independent will on the subject, but solely to gratify her husband; that neither intended by the adoption to give the child any rights as heir of his adopted father; that both petitioners were mistaken as to the legal effect of the adoption proceedings; that she did not know when she signed the petition that the allegation therein contained that William S. Russell was one of the child's next of kin, was untrue, and that the boy then had, as the fact was, a brother living named Roy Bede who was 21 years of age, but that such fact was well known to said Russell who had the custody of the boy and consented to the adoption as next of kin. Such proceedings were had in the county court in relation to the petition that an order was entered dismissing the same, from which the petitioner appealed to the circuit court, where the order was affirmed. This appeal is from the order of affirmance.Edward S. Bragg, for appellant.

Gary & Forward, for respondent.

MARSHALL, J. (after stating the facts).

This case turns on whether the county court obtained jurisdiction to make the order of adoption. It is challenged solely upon the ground that the consent of the living parent, the father, was not given, and there was no adjudication, on notice to the absent parent, of the fact of abandonment, nor any consent given in place of that of the alleged abandoning parent by the next of kin, nor by a guardian or a suitable person appointed by the court. There is no claim but that the petition, in form, complies with the statute. It alleges every fact which the statute requires, was made by the proper persons, and was verified by them. True, it does not appear that notice was given to the father, and if that were requisite to the jurisdiction of the court to take any step in the proceedings, the order of adoption was void. On this subject we are furnished with a learned discussion of the statute and a citation of many authorities on both sides of the controversy, in some of which the subject is considered at great length, but if the statute itself furnishes a plain solution of the question, we have no need to go elsewhere to support it.

The statute to be considered is section 4022, Rev. St. 1878, which reads as follows: “No such adoption shall be made without the written consent of the living parents of such child unless the court shall find that one of the parents has abandoned the child or gone to parts unknown.” Thus it will be seen that upon the fact being established that the living parent has abandoned his child, he is deemed by the statute to have thereby relinquished all parental right to be consulted in respect to the child's welfare, and his consent to the adoption is therefore dispensed with. The term “abandon” obviously means no more than neglect or refusal to perform the natural and legal obligations of care and support which parents owe to their children. The fact of abandonment, judicially determined, was essential to the jurisdiction; not essential that it should be determined on proper evidence, necessarily, or in accordance with the truth, because mere error in that regard does not affect jurisdiction. If jurisdiction be obtained to determine a fact, its...