Wilcox v. Fisher

• Citation: 163 Kan. 74,180 P.2d 283
• Decision Date: 03 May 1947
• Docket Number: 36820.
• Parties: WILCOX v. FISHER et ux.
• Court: United States State Supreme Court of Kansas

180 P.2d 283

163 Kan. 74

WILCOX v. FISHER et ux.

No. 36820.

Supreme Court of Kansas

May 3, 1947

Appeal from District Court, Kiowa County; Karl Miller, Judge.

Habeas corpus proceeding by Evangelyne Wilcox against Earl Fisher and wife to recover possession and control of relator's minor children adopted by respondents. From rulings sustaining a motion to strike certain allegations of the petition, a demurrer thereto, and a motion to quash the writ relator appeals.

Syllabus by the Court

1. Valid adoption proceedings are not subject to collateral attack. (Following LeShure v. Zumalt, 151 Kan. 737 100 P.2d 643.)

2. When adoption proceedings are valid, the status of the adopted child is changed; the child becomes the child of its adoptive parents and they become the parents whose rights the law generally recognizes.

3. The juvenile court has exclusive original jurisdiction to determine whether natural or adoptive parents are giving children under the age of sixteen proper parental care or whether the children are 'dependent' or 'neglected' as such terms are defined by our applicable statute (G.S.1935, 38-402), and the question cannot properly be first considered in a habeas corpus proceeding filed by a third party.

George Barrett, of Pratt (V. M. McElroy, of Greensburg, on the brief), for appellant.

Steve W. Church, of Greensburg, for appellees.

BURCH Justice.

The appeal in this case presents the problem, whether a natural mother, by habeas corpus, can acquire possession and control of her minor children after they have been lawfully adopted by others. The district court ruled that the adoption proceedings were not subject to collateral attack and that the allegations of the petition presented a case wherein the juvenile court had exclusive original jurisdiction and sustained a motion to quash the writ upon the conclusion that the district court did not have jurisdiction of the controversy. The petitioner asserts in this court, in substance, that the controlling question is the welfare of the children and that the district court had jurisdiction. The appeal is from rulings upon the pleadings.

Examination of the petition discloses that the petitioner is the natural mother of two children, one of whom was born October 3, 1931 and the other May 12, 1934. In May of 1936 the petitioner was granted a decree of divorce and in such action the court awarded her the custody of the minors. Sometime thereafter the children were adopted by the petitioner's mother and father and they are named as respondents in the case. No assertion is made in the petition that the adoption proceedings were irregular or invalid in any manner. The only question presented relative to the adoption proceedings arises by reason of allegations reading as follows:

'* * * That on said day [the day the adoption decree was entered], in said court, [the said respondents] promised and agreed with your petitioner that the care, custody and control of said children would be relinquished to her at such time as she should be able to provide a home for them. That ever since that time the above-named children have been in the care, custody and control of their adoptive parents, and are not permitted to leave said home and reside with your petitioner, in conformity to said arrangement, although your petitioner is ready, willing and able to provide a home for them.'

Counsel for the respondents moved to strike out the allegations in the petition relative to the change of custody agreement and the court sustained the motion on the theory that the allegations were in the nature of a collateral attack upon the adoption proceedings in the probate court.

The petition further alleges that the children have never been permitted to visit with the petitioner outside of their present home; that she has requested that they be permitted to spend vacations with her and has made adequate and suitable arrangements and preparation for their comfort and pleasure; that they are not permitted to engage in school activities beyond strict scholastic requirements or permitted to attend social gatherings of any normal and proper kind for boys of their age; that they are not permitted to play and are allowed no playmates. The petition continues by alleging that the children are not permitted to read or enjoy books or magazines; that frequently the children have suffered severe and unwarranted beatings without cause or provocation; that they have never received any demonstration of love or affection from their adoptive parents but are treated in a cruel and inhuman manner; that the respondents have justified the treatment given the children under the cloak and name of religious training; that as a result of the treatment, the children are fearful, emotionally unstable and unable to perform the work required of them in school and that they will not develop into normal, well-adjusted citizens. The closing allegations of the petition are to the effect that the petitioner has provided at all times to the best of her ability, clothing and maintenance for the children; has visited with them whenever possible; and has bestowed upon them the normal affection of a mother; that the children have been taught by the respondents that their mother is an inconsiderate and sinful person, all of which is untrue; but notwithstanding such teachings, the children are anxious to make their home with their mother. The petition concludes with a prayer requesting that the writ be issued and that upon consideration of the cause the petitioner be granted care, custody and possession of the children.

An order granting the writ was issued commanding the respondents to appear and bring the children before the court. Four days after the writ was issued the respondents appeared by filing a motion to strike certain allegations from the petition. Upon consideration of the motion, it was agreed between counsel for the respective parties that the motion to strike should be enlarged to include a motion to quash the writ upon the grounds that the petition did not state facts sufficient to constitute a cause of action and that the court did not have jurisdiction of the subject of the action. Following hearing and argument upon the enlarged motion, the district court held that the petition showed upon its face that the minors were legally adopted by the respondents; that the petitioner had voluntarily relinquished and released all of her right to the care, custody or control of said minors and that by reason of the adoption the respondents had the full, complete and sole right to the care, custody and control of the children. The court further held that the sole question to be decided under the allegations of the petition was whether said minors were being or had been mistreated and abused to the extent that a proper court, with jurisdiction, should make some order relative to their custody; that such a question rested in the original jurisdiction of the juvenile court and that, therefore, the motion to quash the writ and the demurrer to the petition should be sustained. The specifications of error are, in substance, that the court erred in sustaining the motion to strike, in ruling that the petitioner did not have a legal right to maintain the action, in holding that the district court did not have jurisdiction, and in sustaining the motion to quash.

1. We will give consideration first to the question whether the adoption proceedings are subject to collateral attack. The petition does not disclose the exact date when the final decree of adoption was entered by the probate court. It is not contended, however, that any controversy existed between the parties at the time of the adoption proceedings or that the petitioner was not then present or that she did not consent to the order of the adoption. There is an intimation in the petition that the adoption proceedings occurred soon after June, 1936. The petitioner's petition for a writ of habeas corpus was not filed until approximately ten years later, on September 16, 1946. The allegations hereinbefore set forth relative to the agreement on the part of the respondents to return the children to their mother assert, in substance, an attempt on her part to set aside in this proceeding a final order of adjudication by the probate court. In other words, she is attempting in her petition to say that a final decree of adoption, which she permitted to be entered unconditionally, should have been made conditional or interlocutory in its nature. The petitioner cannot do so. She concedes that the adoption proceedings were regular but contends that the court before which they were pending was not fully informed as to all of the facts. The failure to inform the court fully was a fatal omission on the part of the petitioner. She is estopped, by reason of her having silently misled the court, from asserting any fact attributable to her own neglect and certainly she cannot collaterally attack a decree she, in effect, previously approved. The general rule is well settled that a valid decree of adoption is not subject to collateral attack. Paragraph two of the syllabus in the case of LeShure v. Zumalt, 151 Kan. 737, 100 P.2d 643, reads as follows: 'Jurisdiction of proceedings for the adoption of a child is vested in the probate court. Such proceedings are judicial in their nature, and are unassailable by collateral attack.'

See, also, Chamberlin v. Thorne, 145 Kan. 663, 66 P.2d 571.

Consequently, consideration of this case must proceed upon the conclusion that the respondents are the lawfully-decreed adoptive parents of the children.

2. The consequences of valid adoption proceedings are legally significant. In the case of In re Hosford, 107 Kan 115, 190 P. 765, 11 A.L.R. 142,...