Opinion
No. 28204.
February 20, 1951. Rehearing Denied March 23, 1951.
David V. Campbell, St. Louis, for petitioner.
Albert E. Hausman, St. Louis, for respondent.
This is a proceeding in habeas corpus which was instituted in this court by the natural father, Carl H. Adams, to recover the possession of his minor child, Karen Ann Adams, who is now in the custody of the respondent, Mrs. Anna Brown, the child's maternal aunt so far as blood relationship is concerned.
In other words, the petitioner's wife, and the child's natural mother, is the respondent's sister, Sarah by name, who was residing at the home of her own mother at the time of the child's birth on August 4, 1944. This because of the fact that the petitioner was then away from home as a member of the country's armed forces, and was stationed in the European theater of operations. The respondent, a widow, is also a member of her mother's household; and as regards Karen Ann, it is admitted that by force of circumstances which have given rise to this proceeding, she has lived in such home continuously from the time of her birth until the present moment.
In April, 1945, the petitioner was court-martialed on a charge of absence without leave, and upon conviction was sentenced to imprisonment for a term of five years, dating from some time in October, 1945, which he was ordered to serve in a military prison located at Fort Jay in the state of New York. On November 1, 1947, after having served slightly more than two years of his sentence, the petitioner was released from prison and discharged from the service, following which he returned to the City of St. Louis where he had been residing with his wife at the time of his induction.
Meanwhile his wife, Sarah, had brought an action for divorce; and on November 19, 1945, shortly after he had become an inmate of the military prison, she had been awarded a decree with the custody of Karen Ann.
So matters had stood until April 30, 1947, when the respondent, Anna Brown, filed a petition in the Juvenile Division of the Circuit Court of the City of St. Louis for the adoption of Karen Ann. Sarah, the child's mother, consented in writing to the adoption, and appeared in court with respondent and Karen Ann on May 15, 1947, when the court, after a hearing, approved the petition and entered a decree of adoption as prayed. It is significant, however, that the petitioner neither consented to the adoption, nor was he given notice of any character whatever of the pendency of the proceeding which respondent had brought. In fact, there is no pretense of notice to the petitioner, but instead it is the respondent's contention that under the particular circumstances, notice to him was not required.
On November 8, 1947, only a week after his return to St. Louis upon his release from the military prison, the petitioner remarried his divorced wife, Sarah, and since that time three additional children have been born of their marriage, all of whom are residing with their parents in a home which the petitioner has meanwhile established.
Upon the respondent's refusal to turn over Karen Ann, the petitioner has elected to pursue his remedy by habeas corpus to obtain possession of his child.
Briefly stated, it is the petitioner's theory that the adoption decree is null and void as to him for want of notice of the proceeding, and therefore subject to collateral attack in habeas corpus where the respondent bases her right to retain possession of the child upon the strength of such decree.
The respondent contends, on the other hand, that in view of the petitioner's situation at the time of the institution of the adoption proceeding, notice to him was not required; and further, that inasmuch as the adoption decree had been rendered more than one year before this attack upon it, it is no longer open to question either directly or collaterally for any irregularity in the proceeding.
More specifically, it is the respondent's position that notice to a parent is only required where such parent's consent to the adoption is required; and that in this instance the petitioner's consent was not required, since, at the time of the institution of the adoption proceeding, he was imprisoned under a sentence which, if served to its completion, would not have expired until more than two years after the action was brought. Sec. 9609, R.S.Mo. 1939, Mo.R.S.A. § 9609.
It is to be borne in mind that at the time the adoption proceeding was instituted, the applicable law was contained in the 1939 Revision, Secs. 9608-9616, R.S.Mo. 1939, Mo.R.S.A. §§ 9608-9616, save only as Section 9611 had been repealed and reenacted, Laws Mo. 1945, p. 624. The new adoption act which was passed by the Sixty-fourth General Assembly, Laws Mo. 1947, pp. 213-219, R.S. 1969, § 453.010 et seq., did not become effective until May 21, 1948, which was long after the proceeding for Karen Ann's adoption had been not only brought but terminated. The only exception is to be found in Section 9616d of the present law, R.S. 1949, § 453.160, which, by its terms, has to do with the validity of any decree of adoption which may have been rendered under any prior act.
It is true that inasmuch as the petitioner was imprisoned under a sentence which would not have expired until two years after the proceeding was brought, his consent to the adoption was not required. However the provision of the statute dispensing with consent did not dispense with the necessity for notice. He was none the less entitled to notice and an opportunity to be heard; and for the lack of notice the decree of adoption was not conclusive upon him, and constitutes no bar to the remedy by habeas corpus which he has elected to pursue. Child Savings Institute v. Knobel, 327 Mo. 609, 37 S.W.2d 920, 76 A.L.R. 1068; Dee v. Stahl, Mo.App., 219 S.W.2d 883. Being neither party nor privy to such decree, he is entitled to look behind it and examine the proceedings on which it was based; and where it appears that he had no notice, the decree amounts to nothing in so far as his own rights are concerned. Child Savings Institute v. Knobel, supra; State ex rel. Renner v. Alford, 343 Mo. 576, 122 S.W.2d 905.
This conclusion likewise disposes of the suggestion that inasmuch as this habeas corpus proceeding was not brought until more than one year after the entry of the decree of adoption, the validity of such decree is no longer open to question. What Section 9616d forbids is an attack upon an adoption decree more than one year after its entry by reason of any irregularity in the proceeding. Obviously the lack of notice to the petitioner was not a mere irregularity in the proceeding, but on the contrary rendered the proceeding void to the extent that the decree purported to adjudicate that all legal relationship should thenceforth be terminated between the petitioner and his child.
Respondent mentions the fact that at the time the adoption case was brought, Sarah, the child's natural mother, had the sole custody of Karen Ann by virtue of the decree of the divorce court. This is of course true, but the petitioner none the less retained his status as the natural father of the child so as to have been entitled to notice of the adoption proceeding. Nor is there any merit in the contention that Sarah, having meanwhile been remarried to the petitioner, should have been compelled to join with him in the application for the writ. Having given her consent to the adoption, she is bound by the decree, and could therefore have no basis for a claim on her part that the child is being unlawfully detained. Child Savings Institute v. Knobel, supra; Dee v. Stahl, supra.
While there is something said in the respondent's brief upon the subject, the pleadings raised no issue regarding the petitioner's fitness to have the possession of his child, and indeed it has been held that no such issue may properly arise in a proceeding in habeas corpus where the question of which of the parties is entitled to possession of the child depends upon the validity of an adoption decree. Rochford v. Bailey, 322 Mo. 1155, 17 S.W.2d 941; State ex rel. Renner v. Alford, supra. If the decree in this case was invalid, no lack of fitness on the petitioner's part could serve to validate it; nor does it affect his right in this proceeding that he has delayed the assertion of it until the present time.
It follows that Karen Ann should be released from the possession of the respondent and be delivered over into the possession of the petitioner, and it is so ordered.
ANDERSON, P. J., and McCULLEN, J., concur.