Petition of Parks, In re, 38640

• Decision Date: 06 April 1962
• Docket Number: No. 38640,38640
• Citation: 262 Minn. 319,114 N.W.2d 667
• Parties: Petition of Mary Ann PARKS to Adopt Dennis Lee Parks.
• Court: Minnesota Supreme Court

Page 667

114 N.W.2d 667

262 Minn. 319

Petition of Mary Ann PARKS to Adopt Dennis Lee Parks.

No. 38640.

Supreme Court of Minnesota.

April 6, 1962.

Rehearing Denied May 8, 1962.

Syllabus by the Court

1. The juvenile court had original jurisdiction in the adoption proceeding involved- ; the proper venue for an adoption proceeding is the county of the petitioner's residence. L.1959, c. 685, § 45 (Minn.St. 259.23, subd. 1.)

2. To obtain a writ of prohibition relator must show: (1) That the court, officer, or person is about to exercise judicial or quasi-judicial power; (2) that the exercise of such power is unauthorized by law; and (3) that it will result in injury for which there is no other adequate remedy.

3. Determination of the merits of a case by writ of prohibition is not the proper office of such writ.

Grannis & Grannis, South St. Paul, for relator.

E. Lee Armstrong, St. Paul, Harry H. Peterson, Minneapolis, for respondent.

NELSON, Justice.

This matter comes before us upon a writ of prohibition issued out of this court December 13, 1961.

The adoption proceeding involved was instituted by the stepmother of Dennis Lee Parks in Juvenile Court of Washington County to adopt said minor child, who is the legitimate son of John R. Parks and Jacque Lee Torgerson, formerly Jacque Lee Parks. The parents were married on March 10, 1951, in Sioux City, Iowa, and divorced in the District Court of Woodbury County, Iowa, on June 18, 1954. Pursuant to stipulation of the parties, the Iowa court granted the general custody of the child to the father and gave visitation rights to the mother as follows:

'That the care, custody and control of the minor child of the parties, Dennis Lee Parks, born January 21, 1953, be granted to Plaintiff subject to the right of Defendant to call for and take said child with her away from the premises of Plaintiff or any home where he may be placed by Plaintiff, during the normal waking hours of two Saturdays each month commencing with the month of June 1954 and continuing during minority. The specific Saturdays to be agreed upon which will be most convenient for both parties having consideration for the then health of said child. That if Defendant shall fail to exercise the privilege thus given in any calendar month, the day or days thus lost shall not be cumulated but if for any other reason Defendant shall be prevented or denied such rights during any calendar month such lost day or days shall be accumulated. That after said child has attained school age, Defendant shall have him in her custody for one month a year during summer vacations.'

John R. Parks married Mary Ann Parks in 1955 in the State of South Dakota, and both are now residents of Washington County, Minnesota. Mary Ann Parks petitioned to adopt Dennis Lee Parks on June 28, 1961, and John R. Parks, the father, joined in and consented to said petition. On November 15, 1961, the mother, Jacque Lee Torgerson, relator here, was served with notice of hearing on the petition. She appeared specially and moved to dismiss the petition on several grounds, among them that her consent to the adoption, which she had not given, was required by law. The motion was denied by the judge of Juvenile Court of Washington County, who did, however, continue the hearing to January 17, 1962, at relator's request to give her additional time to prepare for contesting the adoption.

The question with which this court is concerned is whether the juvenile court has jurisdiction to proceed with the hearing on the petition for adoption.

1. The legislature of this state by L.1959, c. 685, § 45, amended Minn.St.1957, § 259.23, subd. 1, effective July 1, 1959. That section now provides 'Except as provided in section 13, subdivision 2 (not applicable here), the juvenile court shall have original jurisdiction in all adoption proceedings. The proper venue for an adoption proceeding shall be the county of the petitioner's residence.'

The other provision important to these proceedings is Minn.St. 259.24, subd. 1, which, as amended by L.1959, c. 685, § 46, provides:

'Subdivision 1. No child shall be adopted without the consent of his parents and his guardian, if there be one, except in the following instances:

'(a) Consent shall not be required of the father of an illegitimate child.

'(b) Consent shall not be required of a parent who has abandoned the child, or of a parent who has lost custody of the child through a divorce decree, and upon whom notice has been served as required by section 259.26.

'(c) Consent shall not be required of a parent whose parental rights to the child have been terminated by a juvenile court or who has lost custody of a child through a final commitment of the juvenile court or through a decree in a prior adoption proceeding.

'(d) Consent shall not be required of a parent who has been adjudged insane or incompetent by a court of competent jurisdiction.

'(e) If there be no parent or guardian qualified to consent to the adoption, the consent may be given by the commissioner (of public welfare).

'(f) The director or agency having authority to place a child for adoption pursuant to section 259.25, subdivision 1, shall have the exclusive right to consent to the adoption of such child.' ¹

Since we reach the conclusion that the juvenile court has jurisdiction of this proceeding, we refrain at this time from expressing any opinion as to its merits. It seems clear to us that the court, which has been given original jurisdiction in all adoption proceedings, must first determine the meaning of the provisions of the divorce decree when considered with Minn.St. 259.24, subd. 1.

2. One of the three essentials for the issuance of a writ of prohibition is that 'the exercise of such (judicial or quasijudicial) power by such court, officer, or person must be unauthorized by law.' ² According to a principle established by numerous decisions of the supreme court of this state, lack of authorization must be found in the conduct of proceedings by which the tribunal either wholly Usurps jurisdiction or Exceeds its legitimate jurisdiction. ³

In applying this principle it is to be borne in mind that matters which pertain to the propriety of the tribunal's action otherwise than in the jurisdictional sense are not subject to review on prohibition. In other words, the writ may not be issued for non-jurisdictional defects such as (1) procedural defects and irregularities, ⁴ (2) errors on the merits such as lack of evidence, ⁵ or (3) the application of an erroneous principle of law. ⁶

We have held recently that to obtain a writ of prohibition relator must show: (1) That the court, officer, or person is about to exercise judicial or quasi-judicial power; (2) that the exercise of such power is unauthorized by law; and (3) that it will result in injury for which there is no other adequate remedy. State v. Hartman, 261 Minn. 314, 112 N.W.2d 340; Marine v. Whipple, 259 Minn. 18, 104 N.W.2d 657.

3. Relator contends that the juvenile court does not have jurisdiction to proceed with the adoption proceedings without her consent. Her further contention is that we would be violating the full faith and credit clause of U.S.Const. art. IV, § 1, if we were to find that Dennis Lee Parks is eligible for adoption. However, a writ of prohibition does not lie for the purpose of obtaining from an appellate court a determination on the merits. Relator is in effect asking this court to determine this controversy at this stage of the proceedings on its merits by deciding whether she also has 'custody' within the contemplation of Minn.St. 259.24, subd. 1. We have held time and time again that this court will not issue an absolute writ of prohibition if another remedy is reasonably available. We said in Heinsch v. Kirby, 222 Minn. 352, 355, 24 N.W.2d 493, 494, that:

'* * * Determination of the merits of a case by writ of prohibition is not the proper office of such writ. The office of the writ is not to correct errors or reverse illegal proceedings, but to prevent or restrain usurpation by inferior tribunals and to compel them to observe the limitation of their jurisdiction.'

There are in a sense two equitable actions pending at the present, one filed in Woodbury County, Iowa, to modify the original divorce decree to give relator sole custody over the child, and the petition for adoption, of which notice has been served upon the relator as required by § 259.26.

From the files of the adoption proceedings it would appear that all procedural requirements necessary to give the juvenile court jurisdiction have been complied with as follows: (1) The petition for the adoption has been filed; (2) the petition was set for hearing before the court on December 1, 1961; and (3) notice of the hearing of said petition was given on November 15,...