State ex rel. Van Cleave v. Frater, 29347.

• Decision Date: 19 July 1944
• Docket Number: 29347.
• Citation: 21 Wn.2d 231,150 P.2d 391
• Parties: STATE ex rel. VAN CLEAVE et ux. v. FRATER, Judge.
• Court: Washington Supreme Court

150 P.2d 391

21 Wn.2d 231

STATE ex rel. VAN CLEAVE et ux. v. FRATER, Judge.

No. 29347.

Supreme Court of Washington

July 19, 1944

Rehearing Denied Sept. 8, 1944.

Department 1.

Original action by the State of Washington, on the relation of R. D Van Cleave and Anna Van Cleave, his wife, for a writ of mandate directed to John A. Frater, Judge of the Superior Court of King County, State of Washington, requiring him to hear and act upon relators' petition for adoption of an infant. Respondent filed a demurrer to relators' petition for writ of mandate and a return to the alternative writ.

Demurrer overruled and writ of mandate issued.

Raymond C. Hazen, and John L. Corrigan, both of Seattle, for respondent.

BEALS Justice.

Thomas Silverthorn Levin (whose true surname is said to be Lewis) was born in Seattle, September 21, 1940. At the time of the birth of her son, the mother was confined in the Western Washington hospital for the insane, at Steilacoom, where, so far as we are advised, she has remained. Apparently the child was abandoned by his father, and two months after the infant's birth the King County Welfare Association placed him in the care of the parents of Anna Van Cleave, one of the relators herein, Mrs. Van Cleave assisting in caring for the child. After the death of Mrs. Van Cleave's mother, Mrs. Van Cleave assumed entire care of the infant, for which she was compensated by King county. In the course of time the situation of the infant was called to the attention of the juvenile department of the superior court for King county, and January 17, 1944, that court entered an order which, after reciting certain jurisdictional facts, stated the conclusion that the child 'should be placed in the permanent custody of the Washington Children's Home Society for adoption.' The order then concluded 'It is therefore ordered that Alfreda McMeekin Levin mother of Thomas Silverthorn Levin (whose true name is Thomas Silverthorn Lewis), be and she is hereby permanently deprived of any and all maternal rights and interests in and to the said child; and

'It is further ordered that Thomas Silverthorn Levin (whose true name is Thomas Silverthorn Lewis) be and he is hereby committed into the permanent custody of the Washington Children's Home Society for adoption.'

The method by which the juvenile department of the superior court acquired jurisdiction to deprive the mother of her child's custody, if it did so acquire jurisdiction, does not appear.

R. D and Anna Van Cleave, relators herein, who at all times have had the infant in their custody, January 31, 1944, filed in the superior court for King county their petition praying for a decree adjudging and declaring that they adopt the infant.

After certain proceedings Before the superior court, with which we are not concerned, the matter came on regularly to be heard Before respondent, a judge of the superior court for King county. From respondent's return filed herein, it appears that the court was advised of the order theretofore made by the juvenile department of the court, and that Washington Children's Home Society (a Washington corporation, hereinafter referred to as the society) had not filed in the proceeding then pending Before respondent its consent to the adoption of the infant by the petitioners (relators here), and that the society had refused to give its consent to such adoption.

Respondent judge then ruled that under the facts as above stated, it was necessary that the written consent of the society to the adoption of the infant by the petitioners be filed in the superior court Before petitioners would even be heard on their petition for adoption, and that respondent would not proceed to hear the petition or take any steps in connection therewith until the filing of the consent referred to. Respondent judge having refused to grant a hearing on the petition, the petitioners therein filed in this court, as relators, their application for a writ of mandate, directed to respondent judge, requiring him to hear and act upon relators' petition for the adoption of the infant. An alternative writ of mandate having been issued, respondent filed herein a return thereto, together with a demurrer to relators' petition for the writ of mandate. The matter having come on regularly for argument upon the alternative writ, the attorneys for the respective parties appeared, the matter was argued, both on respondent's demurrer and upon the facts, and the matter was submitted to this court for decision. Respondent's demurrer is not well taken, and is overruled.

The question presented is simply whether or not, pursuant to the order of the juvenile court above referred to, the society must file in the adoption proceeding initiated by relators Before the superior court its formal consent to the adoption of the infant in question by relators, Before the superior court may proceed to hear relators' petition for adoption, and determine whether relators shall or shall not adopt the infant.

From respondent's return, it appears that the court was of the opinion that no hearing could be had upon the petition, nor could the court take any steps in connection therewith until the society first filed its written consent to the adoption of the child by these relators.

It is true, as argued by respondent, that adoption proceedings are purely statutory, such procedure having been unknown to the common law.

The pertinent portions of the adoption statute, Rem.Supp.1943, §§ 1699-3, 1699-4, 1699-5(d), and 1699-8, read as follows:

'§ 1699-3. Any person not married, or any husband and wife jointly, or either spouse, when the object of adoption is the child of the other spouse, may petition the superior court of the county in which such petitioner is a resident, or of the county in which the person to be adopted resides, for leave to adopt, and to change the name, if desired, of any person.'

'§ 1699-4. Written consent to such adoption must be filed prior to a hearing on such petition, as follows:

'(a) By the person to be adopted, if such person be fourteen (14) years of age or older, but the filing of such consent shall not obviate the necessity of securing any other consent herein required;

'(b) It the person to be adopted be of legitimate birth or legitimized thereafter, and a minor, then by each of his living parents, except as hereinafter provided; '(c) If the person to be adopted be illegitimate and a minor, then by his mother, if living, except as hereinafter provided;

'(d) If a legal guardian has been appointed for the person of said child, then by such guardian.'

'§ 1699-5. No consent for the adoption of a minor shall be required as follows: * * *

'(d) From a parent who, more than one (1) year prior to the filing of a petition hereunder, has been adjudged to be insane and who has not thereafter been found sane by competent authority authorized by law so to do.'

'§ 1699-8. Said petition shall be accompanied by such written consent as may be required and available, or by a certified copy of whatever records are alleged to show no necessity of consent. If no consent is available, and such petition alleges facts which if true would obviate the

...