Vaughan v. Hubbard

• Court: Idaho Supreme Court
• Writing for the Court: WM. E. LEE, J.
• Citation: Vaughan v. Hubbard, 38 Idaho 451, 221 P. 1107 (Idaho 1923)
• Decision Date: 31 December 1923
• Parties: LAURA VAUGHAN, Respondent, v. EDGAR EUGENE HUBBARD and EVA HUBBARD, Husband and Wife, Appellants

221 P. 1107

38 Idaho 451

LAURA VAUGHAN, Respondent, v. EDGAR EUGENE HUBBARD and EVA HUBBARD, Husband and Wife, Appellants

Supreme Court of Idaho

December 31, 1923

ADOPTION-PROCEEDINGS-PROBATE COURT-JURISDICTION-STATUTES-CONSTRUCTION - ORDER OF ADOPTION-CONSENT OF PARENT-PERSONAL APPEARANCE - NONRESIDENT OF COUNTY - PARENTS UNKNOWN.

1. The consent of the parents is essential to a valid adoption in all cases except as provided in C. S., sec. 4685.

2. Where a parent is within or a resident of the county where the persons seeking to adopt a child reside, the personal appearance of such parent before the probate judge is necessary to give the probate judge the power to make a valid order of adoption.

3. To sustain an order of adoption, where a parent, not disqualified by C. S., sec. 4685, from consenting to an adoption, does not appear personally before the probate judge and signify his consent to the adoption, it must affirmatively appear, from the record of the adoption proceeding, that such parent was not a resident of and not within the county where the adopting persons reside.

4. Where a parent was within the county where the adopting persons resided, and executed his consent to the adoption before a notary, but was not within the county when the order of adoption was thereafter made, the words of C. S., sec 4687, "if within or residents of the county," relate to the time when the consent was given rather than to the time when the order was made.

5. An order of adoption is void where the record of the adoption proceeding fails to show on its face that the parent either appeared personally before the probate judge and consented to the adoption, or that the parent was a nonresident of the county and that his consent to the adoption was filed in the probate court.

6. The law does not authorize the adoption of a child on the sole ground that its parents are unknown.

7. Where the lack of statutory power to make an order of adoption appears on the face of the record of the adoption proceeding, the order may be attacked either directly or collaterally.

APPEAL from the District Court of the Fourth Judicial District, for Lincoln County. Hon. H. F. Ensign, Judge.

Proceedings to set aside order of adoption made by probate court of Lincoln county. Order and decree for plaintiff. Affirmed.

Order and decree affirmed. Costs to respondent.

Frank T. Disney, Harlan D. Heist, Ivan L. Hiler, J. B. Eldridge and Wm. M. Morgan, for Appellants.

The habeas corpus proceeding and the case of Vaughan v. Hubbard are collateral attacks upon an order of adoption made and entered in the probate court of Lincoln county in a proceeding wherein said court had original exclusive jurisdiction. Such order is not subject to collateral attack. (Const., art. 5, sec. 21; In re Allen, 31 Idaho 295 170 P. 921; Clarke v. Rossier, 10 Idaho 348, 78 P 358; O'Neill v. Potvin, 13 Idaho 721, 93 P. 20; Christianson v. King County, 239 U.S. 356, 39 S.Ct. 114, 60 L.Ed. 327.)

If, at the time of the adoption, the parent or guardian of the child is a nonresident of the county where the application is made he may execute his consent in writing and acknowledge the same before any officer authorized by law to take acknowledgments, which consent, being filed in the court where the application is made, is deemed a sufficient appearance; and it is immaterial that such parent or guardian resided in and was present in the county where the adoption takes place at a time prior to the hearing on the application. (C. S., sec. 4687.)

The evidence is insufficient to support the findings of fact and decree. (Spencer v. John, 33 Idaho 717, 197 P. 827; Harker v. Seawell, 35 Idaho 457, 206 P. 812; Nelson v. Intermountain Farmers' Equity, 36 Idaho 518, 211 P. 550.)

If we proceed upon the theory that the right to the custody and control of the infant in question may be tried and determined in a habeas corpus proceeding, the court should have been guided by the welfare and best interests of the child and should have found respondent to be morally unfit to have the custody and control of it. (Andrino v. Yates, 12 Idaho 618, 87 P. 787.)

By virtue of the plaintiff's consenting under oath to the adoption of the child, she herself waived all further notice of proceedings and all her other rights in this cause, as her consent under oath was notice to the court of her sincere wishes and sworn desires. (Flannigan v. Howard, 200 Ill. 396, 93 Am. St. 201, 65 N.E. 782, 59 L. R. A. 644.)

A person after having consented to the adopting of a child is estopped from denying same. (In re Williams, 102 Cal. 70, 41 Am. St. 163, 36 P. 407.)

A substantial compliance with the statute is all that is required. (1 C. J. 1390.)

James & Ryan and C. O. Stockslager, for Respondent.

If the parent is within or a resident of the county, he or she must appear before the probate judge of the county, where the person adopting resides and the necessary consent must there be signed. (C. S., sec. 4687; In re Sharon's Estate, 179 Cal. 447, 177 P. 283; In re Estate of Johnson, 98 Cal. 531, 33 P. 460, 461, 21 L. R. A. 380.)

The right of adoption was unknown at common law, is repugnant to its principles, and the statutory requirements for adoption must be strictly complied with. (Furgeson v. Jones, 17 Ore. 204, 11 Am. St. 808, 20 P. 842, 3 L. R. A. 620; In re Sharon's Estate, supra; Ex parte Clark, 87 Cal. 638, 25 P. 967; In re Stevens, 83 Cal. 322, 17 Am. St. 252, 23 P. 379; In re McGrew, 183 Cal. 177, 190 P. 804; Prince v. Prince, 188 Ala. 559, 66 So. 27; Cook v. Echols, 16 Ala. App. 606, 80 So. 680; In re Eva Martin, 29 Idaho 716, 161 P. 573; Tyler v. Reynolds, 53 Iowa 146, 4 N.W. 902; Shearer v. Weaver, 56 Iowa 578, 9 N.W. 907; Long v. Hewitt, 44 Iowa 622; Keegan v. Geraghty, 101 Ill. 26; Boland v. Taggart, 190 Cal. 493, 27 A. L. R. 1360, 213 P. 504.)

The statutory requirements in adoption proceedings are jurisdictional and unless they are complied with, the adoption is insufficient, the attempted contract is invalid and the order of adoption is void. (Ex parte Chambers, 80 Cal. 216, 22 P. 138; Matter of Cozza, 163 Cal. 514, 126 P. 161; Estate of McCombs, 174 Cal. 211, 162 P. 897; Jain v. Priest, 30 Idaho 273, 164 P. 364.)

The right of a parent to the custody of his child is not affected or prejudiced by an invalid order of adoption. (Jain v. Priest, supra.)

The custody of a child can be legally given to a person other than the parent on the ground that it will be better cared for by such other person only where the legal right of the parent to the custody of such child is not clear. (Jain v. Priest, supra; In re Crocheron, 16 Idaho 441, 101 P. 741, 33 L. R. A., N. S., 968; Andrino v. Yates, 12 Idaho 618, 87 P. 787.)

In a contest between one who has no legal right to the custody of a child and the parents, the competency of the parents to care for the child cannot be questioned. (Lovell v. House of Good Shepherd, 9 Wash. 419, 43 Am. St. 839, 37 P. 660; Jamison v. Gilbert, 38 Okla. 751, 135 P. 342, 47 L. R. A., N. S., 1113; Ex parte Clark, supra.)

WM. E. LEE, J. Budge, C. J., and McCarthy, Dunn and William A. Lee, JJ., concur.

OPINION

WM. E. LEE, J.

--This proceeding involves two appeals, one from a decree of the district court setting aside, annulling and holding for naught an order of adoption made by the probate court of Lincoln county, whereby the infant son of respondent was adopted by appellants, said decree ordering and adjudging that respondent is entitled to the immediate and sole custody, possession and control of said child, and requiring appellants to immediately deliver and restore him to her, and the other from an order in a habeas corpus proceeding relating to the same subject.

Respondent, who had lived in Malad, went to Shoshone on October 17, 1921, where she resided continuously until March 11, 1922, when she became the mother of a child named Douglas Eugene. On March 26, 1922, respondent and her child left the hospital at Shoshone and went to the home of appellants, where they remained until April 17, 1922, when respondent returned to her mother's home in Malad, leaving the child with appellants. Respondent considered the advisability of consenting to the adoption of her child by appellants, although it seems that respondent never at any time desired to permanently give up the child. Appellants wanted to adopt the child, and respondent, on April 10, 1922, executed her consent to the adoption. The consent to adoption afterward filed with the probate judge was contained on a blank form used in the probate court of Lincoln county for that purpose. Respondent acknowledged the execution of the instrument in Lincoln county before Senator Disney, a lawyer and notary public of Shoshone, and left it with him with the understanding that it would not be delivered to appellants except at her request. Senator Disney advised respondent not to consent to the adoption of her child, and while he appears as counsel for appellants in this case, there is nothing in the entire record that impugns his good faith or intimates that he was not honestly and fairly advising respondent of her rights.

Some time after the execution of the purported consent to the adoption of her child by appellants, to wit, in the latter part of June, 1922, respondent's mother, learning of the child, came to Shoshone and met appellants and respondent. Appellants had by that time become attached to the child, and desired either to adopt it at once or have respondent take it away. The mother of respondent, upon being made acquainted with the situation, urged her daughter to consent to the adoption of the child, and to direct Senator Disney to deliver to appellants the formal consent she had left with him a...