In re Crutcher

This is an appeal from an order of the juvenile department of the superior court of Los Angeles County denying the petition of appellant for an order declaring Lewis Pinkerton Crutcher, Jr., a ward of the juvenile court. Petitioner is the uncle of the minor and the respondents, James D. and Kate L. Campbell, are the párente of the child by adoption under a decree of the superior

The petitioner contends that the decree of adoption is void. If so, this proceeding falls within the jurisdiction of the juvenile court, as the child would then have no parent or guardian. But respondent invokes the doctrine of res adjudicada, based upon the entry of the decree of adoption and the following additional facts: On the 2d of July, 1914, Lewis Pinkerton Crutcher, Sr., the child’s uncle and petitioner here, made a motion to vacate and annul the decree of adoption. This motion was later amended. Thereafter, on the fifth day of August, 1914, it was denied. A second motion to vacate the adoption was filed by Lewis Pinkerton Crutcher, Sr., which was also on August 20, 1920, denied. No appeal was ever taken from either of these orders.

On the first day of December, 1914, Lewis Pinkerton Crutcher, Sr., filed a petition in the juvenile court, which, after alleging, among other matters, the fact that James D. Campbell and Kate L. Campbell claimed the right to the care and custody of the infant under the adoption proceeding above mentioned and that the natural parents were deceased, prayed that the child be adjudged a ward of the juvenile court. This petition was, on January 6, 1915, denied and the proceeding dismissed, and no appeal was taken from said judgment and order.

[1] However, the question of res adjudícala is of little importance in determining this appeal, for we do not under

It is true that the proceeding to adopt a child was unknown to the common law. To give the court jurisdiction in such a matter compliance with all conditions required by the statute is necessary. This is decided in the Matter of Cozza, 163 Cal. 514 [Ann. Cas. 1914A, 214, 126 Pac. 161 ]. But section 221 of our Civil Code states that “Any minor child may be adopted by any adult person, in the cases and subject to the rules prescribed in this chapter. ’ ’ By section 224 of the Civil Code the consent of the parents is required as a condition essential to a valid adoption in certain cases, and expressly made unnecessary in others, by the following provisions: “A legitimate child cannot be adopted without the consent of its parents, if living; nor an illegitimate child without the consent of its mother, if living; except that consent is not necessary from a father or mother (1) deprived of civil rights or (2) adjudged guilty of (a) adultery or cruelty, and (b) for either cause divorce, or (3) adjudged to be habitually intemperate in the use of intoxicants, or who, (4) has been judicially deprived of the custody of the child on account of (a) cruelty or (b) neglect; (Abandoned Child) neither is the consent of anyone necessary in the case of an abandoned child; provided, however, that any such child, being a half orphan, and kept and maintained in any orphan asylum in this state for more than two years, may be adopted with the consent of the managers of such orphans’ home without the consent of the parent unless such parent has paid toward the expenses of maintenance of such half orphan at least a reasonable sum during the said time, if able to do so. (Deserted child.) Any child (1) deserted by both parents, or (2) left in the care and custody of another by its parent or parents (a) without any agreement or provision for its support, (b) for a period of one year, is deemed to be an abandoned child "within the meaning of this section, and where the parent is a

Except by inference section 2-24 of the Civil Code co-n- - cems itself with the regulation of the adoption of the child who, being legitimate, has one or both of its parents in esse, or being illegitimate has its mother living. In such cases consent is made necessary in some instances and dispensed with in others. As far as its express provisions are concerned, one parent must be living in -order that the section shall have any application. But by necessary implication section 224 of the Civil Code includes and provides for legitimate children whose parents are deceased. Can it be doubted that by the phraseology of the first clause, “a legitimate child cannot be adopted without the consent of the parent, if living,” it was the legislative intent to -provide that no parental consent is necessary in the adoption of a legitimate child whose parents are not living? It was probably regarded as superfluous to expressly and solemnly decree that when the parents are dead their consent to the adoption of their offspring may -be dispensed with. If we give due regard to the subject matter of this legislation it is apparent that by the provision last quoted the legislature has said in effect “a legitimate child cannot be adopted without the consent of the parents, except that where the parents are not living such consent is unnecessary.” Logie compels the conclusion that by adding the words “if living” to the inhibition contained in the preceding part of the sentence, it was not intended to exclude legitimate orphans from adoption, but rather to indicate that the bar to adoption without consent should have no application in cases where the parents are not living.

It is said that because the institution of adoption was not found in the common law, nothing can be supplied by inference. To apply this rule strictly would eliminate the entire provision in question. It is only by way of implication that the section allows a legitimate child to be adopted, even with the consent of its parents. The language does

Appellant quotes the supreme court in Ex parte Chambers, 80 Cal. 216 [ 22 Pac. 138 ], as saying “the power to adopt minor children is a creation of the statute unknowm to the common law, and the mode must be held to be the measure of the power.” The same court in In re Johnson, 98 Cal. 531 , 541 [ 21 L. R A. 380 , 33 Pac. 460 , 463], referring to this quotation from Ex parte Chambers, said: “The court simply meant by this expression that the statute having made the consent of certain parties necessary, there could be no valid adoption without such consent.” The opinion in the Johnson proceeding also holds that the law regulating adoption “is to receive a sensible construction, and its intent is to be ascertained not from the literal meaning of any particular word or single section, but from a construction of the entire scope, spirit and purpose of the statute.” And the rule which requires compliance with all conditions of an enactment, novel in so far as the common law is concerned, does not compel a court to cripple the free functioning of a legislative plan, however new, by applying a strained or technical interpretation. No more strict or different rule of construction can be required in such cases than is established for the construction of a provision of the code in derogation of the common law, namely, a liberal interpretation with a view to effect its objects and promote justice. (Sec. 4, Civ. Code.)

If we are allowed to infer that the negative provision that “a legitimate child cannot be adopted without the consent of the parents if living” means that a legitimate child may be adopted with the consent of such parents, although the section does not expressly so state, it is equally permissible to recognize and give effect to the intent, clearly implied, that if the parents are not living, except in those cases otherwise classified in section 224, the adoption may proceed without parental or other consent, except that of the judge of the superior court. It is pertinent to observe here that the adoption of infants by proper adults willing to confer a home, parental care, and the right of inheritance upon an orphan in need of these advantages is a beneficent

The intent of the legislative mind which enacted this law may be substantially aided by noting the mode of expression employed in other provisions contained in it. Indeed, we need not look beyond this particular section of the code for a striking illustration of a similar provision, whose wording necessitates an interpretation through, the same mode of reasoning which we are confident should be applied to the provision being construed in the instant case. We have here another example of enactment by inferential expression. In dealing with the subject of abandoned half-orphan children, section 224 above quoted contains this language: “provided, however, that any such child, being a half-orphan, and kept and maintained in any orphan asylum in this state for more than two years, may be adopted with the consent of the managers of such orphans' home without the consent of the parent unless such parent has paid toward the expenses of maintenance of such orphan at least a reasonable sum during the said time, if able to do so.” By the use of the closing qualification, “if able to do so,” it is inferentially provided that if the parent is unable to pay for any part of the support of “such half-orphan,” even if kept and maintained in an orphan asylum

It seems clear that the provision requiring the parent’s consent as an essential condition to adoption contains an exception, excluding the necessity for such consent unless the parents are living. Ex parte Chambers, cited by petitioner, involved the construction of another part of the law concerning adoption. The court in that case held that the act of 1878, enacted to authorize managers of orphan asylums to give their consent to the adoption of certain children under their care, provides for the adoption of a distinct class of minors, to wit, abandoned and orphan children in orphan asylums. The infant in whose behalf a writ of habeas corpus was granted had been in the custody of the Protestant Orphan Asylum for more than one year, and it was held that the child was therefore within the class established by the act of 1878.

Nothing more is involved in the instant proceeding than a construction of the language of sections 221 and 224 of the Civil Code, and we are convinced that through their provisions jurisdiction existed in the court which entered the decree of adoption of Lewis Pinkerton Crutcher, Jr., on June 26, 1914; hence, the juvenile court properly denied the petition for an order declaring him its ward.

The order is affirmed.

Finlayson, P. J., and Works, J., concurred.