Opinion
No. 32447.
December 7, 1936.
1. ADOPTION.
Petition by grandparents joined by child's mother seeking to adopt child, which failed to allege that father of the child had given his consent to the adoption, as required by statute, held insufficient since requirement of statute is jurisdictional (Code 1930, sec. 358).
2. ADOPTION.
Petition by grandparents joined by child's mother seeking adoption of child, which alleged failure of the father of child to contribute to its support and maintenance, held defective since it failed to allege that consent of father had been given to adoption (Code 1930, sec. 358).
3. ADOPTION.
Although the father or mother may be unfit to have custody of their child, it cannot be adopted under statute by another without the consent of both of them (Code 1930, sec. 358).
APPEAL from the chancery court of Pike county. HON. R.W. CUTRER, Chancellor.
E.W. Stennett, of Jackson, for appellant.
The court erred in overruling the demurrer to the petition. The petition showed affirmatively that one of the parents of the child refused to consent to the adoption. Without the consent of both parents, the court did not have jurisdiction of the subject matter. The right of adoption was practiced by peoples of remote antiquity. It existed under the civil law, but was unknown to the common law and is repugnant to its principles. It exists in this country only by virtue of statutes. Section 358, Mississippi Code of 1930, is the statute governing the subject in this state.
The Supreme Court of this state has never passed on the question as to whether an adoption can be decreed on a bill which fails to show that both living parents have consented thereto; or, as in the case at bar, on a bill which shows on its face that the father of the child is opposed to the proposed adoption. The courts of other states, without exception so far as we can find, hold that consent must be shown, or sufficient facts alleged to bring the case within one of the clearly defined statutory exceptions.
1 C.J., page 1384, secs. 57 and 59.
Where the consent of both natural parents is necessary to the adoption, such consent should be alleged in the petition.
1 C.J., page 1385, secs. 62 and 71.
It is to be noted that the Mississippi statute definitely and specifically provides that the petition must state "that he has obtained the consent of the parents, if living;" and that no exceptions or substitutes are provided for therein.
Where, however, the statute prescribes what must be stated in the petition, the petition, thus required by the act, is jurisdictional in its character; and the facts, which are required by the statute to give the court jurisdiction, must appear upon the face of the petition itself.
1 R.C.L. 604; Willis v. Bell, 86 Ark. 473, 111 S.W. 808; Furgeson v. Jones, 17 Or. 204, 11 A.S.R. 808, 3 L.R.A. 620; In re Cozza, 163 Cal. 514, 126 P. 161; State ex rel. Thompson v. District Court, 242 P. 959; In re Lease, 169 P. 816; Truelove v. Parker, 132 S.E. 295; Chance v. Pigneguy, 279 S.W. 640; State ex rel. Platzer v. Beardsley, 183 N.W. 956; Dwinnell v. Fallon, 248 N.W. 657; Vaughn v. Hubbard, 221 P. 1107; In re Bistany, 201 N YS. 684; In re Johnston, 137 N.Y.S. 92; Keal v. Rhydderck, 148 N.E. 53; Luppie v. Winans, 37 N.J. Eq. 245.
The courts of all the states, so far as we can learn, require and give a strict construction to statutes of adoption, whether as to the requirement of consent of the parents or as to any other provision.
Tyler v. Reynolds, 53 Iowa, 146; In re Knott, 197 S.W. 1097.
These decisions from the courts of other states should be given considerable consideration in determining this question in this state. The sound reasoning, and the profound wisdom found in these opinions can well be used as a guide by this court in the determination of a question which so deeply affects the rights of this appellant.
The right of parents to their child is ancient, natural, sacred, and lies at the base of our social structure. The right of adoption is of more recent origin, unnatural, and statutory. The two rights do not conflict. The right of adoption, instead of destroying the natural right, does not exist until after the natural right is gone. Under the Mississippi statute, the only way to get the natural right out of the way, and thus give rise to the existence of the right of adoption, is for the petitioner to obtain the consent of the parents, both of them, to the proposed adoption. This is the only way; no exceptions or substitutes are provided in our statute.
Williams Hunt and Junior O'Mara, all of McComb, for appellees.
The position attempted to be taken by appellant in his brief is that a child under no circumstances can be taken from its parents especially in regard to adoption proceedings unless the consent of both parents has first been obtained, and that no matter what the situation might be that the child has been placed into at the hands of either parent, still if both parents do not consent to the adoption, the court has no jurisdiction.
It seems that the position taken by appellant in his brief is that the interest of the parent, that is, L.P. Roberts, Jr., is paramount in the case at bar, and in reality is the only interest that the court should look to in passing upon the question involved in this controversy.
We respectfully submit to this honorable court that this is not the test and that the interest of appellant the parent is not the paramount interest in this cause, but on the other hand the paramount interest in this controversy is simply what is for the best interests of the minor child Mary Jane Roberts.
Nickle v. Burnett, 84 So. 138, 122 Miss. 58; Stegall v. Stegall, 119 So. 802, 151 Miss. 875; Foster v. Alston, 6 How. 406; Hibbette v. Baines, 78 Miss. 721, 29 So. 80, 51 L.R.A. 839; Davis v. Willis, 124 So. 129, 169 La. 13.
We realize further that the cases which we have cited heretofore are not adoption proceedings involving the exact question involved in this cause, but we do respectfully submit to this honorable court that these cases are controlling in an indirect manner and that if appellant has abandoned the said Mary Jane Roberts and has wholly failed and refused to support her or furnish her with the necessities of life, then it is not necessary for the consent of appellant to be obtained before the said minor child can be adopted, and it is not necessary that the consent of appellant be first obtained before the lower court could taken jurisdiction of this cause.
We call the court's attention to the case of Nugent v. Powell, 20 L.R.A. 199. This is a case from the Supreme Court of Wyoming and the Supreme Court of Wyoming in this case discusses whether it is necessary to obtain consent of a parent in adopting a child where the child has been abandoned by the parent even though the statute does not make abandonment an exception to the consent of the parent.
Appellant might take the position that the adoption statute of the state of Wyoming has inserted in it abandonment as an exception to the obtaining of consent of parents in adoption proceedings. The court in the Nugent case, supra, made this statement and went even further and said that even though the statute did contain the exception, still this would make no difference and if the child was abandoned by the parent then the parent had relinquished all his rights, power and authority over the child.
Appellees respectfully request this honorable court to follow the Nugent case, supra, in its ruling in the case at bar. We honestly feel that the principles of law announced in this case are sound, logical and just and that it would be for the best interests and welfare of minors in this state and this state itself, for this honorable court to follow the Nugent case.
Argued orally by E.W. Stennett, for appellant, and by Junior O'Mara, for appellee.
Appellant is the father of Mary Jane Roberts, a child seven years old. Appellees, John T. Cochran and his wife, Mrs. Maude D. Cochran, are the grandparents of the child, being the father and mother of the child's mother, Louise Cochran Roberts. Appellant and the latter were husband and wife when the child was born; they were separated some years ago and later were divorced.
The grandparents filed a petition in the chancery court of Pike county seeking to adopt the child and make it an heir as if it were their own child. The original petition was amended, attached to it as an exhibit is a separation agreement between the father and mother of the child entered into on the 21st day of September, 1931, before they were divorced. It provides, among other things, that the mother shall have sole and exclusive custody, control, and care of the child during her minority or until the agreement is terminated by the consent of both parties; that when the child shall be prepared to enter some university or college, the father shall bear the expenses of her education, the university or college to be selected by the mother. The mother joined in the petition with the grandparents. The petition does not allege that appellant gave his consent to the adoption. Appellant appeared and demurred to the petition, one ground thereof being that it failed to allege that he had given his consent to the adoption. The court overruled the demurrer and granted this appeal to settle the principles of the cause.
Section 358, Code 1930, confers upon the chancery courts jurisdiction to alter names, legitimate offspring, and decree adoption. With reference to adoption it provides, in substance, that the person seeking adoption shall file his petition in the chancery court of the county in which he resides, or the person sought to be adopted resides, in which shall be stated: (1) The name and age of the person sought to be adopted; (2) the names of the parents, or guardian in case of an infant, and their residence if they be living; (3) the name proposed to be given to the person sought to be adopted; (4) that the petitioner has obtained the consent of the parents, if living, or the guardian, if any, and of the person sought to be adopted if over fourteen years of age, to the adoption; and (5) what gifts, grants, bequests, or benefits are proposed.
The question here is whether an adoption is authorized without the consent of both parents. It is alleged in the petition that, since the separation and divorce of the father and mother, the father has contributed nothing to the support and maintenance of the child, and, on the contrary, has refused to do so. It is argued on behalf of the grandparents and the mother that that fact made it unnecessary to get the consent of the father to the adoption.
Our adoption statute had its origin in the civil law, not in the common law. There was no such proceeding known to the common law. Consent of the parents, if living, lies at the foundation of our adoption statute. Jurisdiction of the subject matter cannot be acquired without it. The first step is the filing of a petition in the proper court. The petition is jurisdictional in character and must state the facts required to give jurisdiction. 2 C.J. Secundum, Adoption of Children, pp. 417-419, sec. 37; Willis v. Bell, 86 Ark. 473, 111 S.W. 808; Furgeson v. Jones, 17 Or. 204, 20 P. 842, 3 L.R.A. 620, 11 Am. St. Rep. 808; In re Cozza, 163 Cal. 514, 126 P. 161, Ann. Cas. 1914A, 214; In re Lease, 99 Wn. 413, 169 P. 816; Truelove v. Parker, 191 N.C. 430, 132 S.E. 295; Chance v. Pigneguy, 212 Ky. 430, 279 S.W. 640; Keal v. Rhydderck, 317 Ill. 231, 148 N.E. 53; Luppie v. Winans, 37 N.J. Eq. 245.
The decisions of our court with reference to the custody of children have no application in an adoption proceeding. Although the father or mother may be unfit to have the custody of their child under our statute it cannot be adopted by another without the consent of both of them.
Reversed and judgment here dismissing the petition.