In Re the Adoption of Doe

Winborne, J. The question of law raised by the appellants upon the facts of this ease relate to, and is determined by the legal effect the intermarriage of the mother of the child, born out of wedlock, and the reputed father, has upon the status of the child as a proper subject for adoption in an adoption proceeding, then pending, — based upon consent of the mother in a manner provided by the statute. Gr.S. 48-5. This exact question does not appear to have been considered and passed upon by this Court. Yet we find guidance in pertinent statutes of this State, and related decisions of this Court. The statute, pertaining to legitimation of children born out of wedlock, provides that “when the mother of any child born out of wedlock and the reputed father of such child intermarry or shall have intermarried at any time after the birth of the child, the child shall in all respects after' such intermarriage be deemed and held to be legitimate and entitled to all the rights in and to the estate, real and personal, of its father and mother that it would have had had it been born in lawful wedlock.” P.L. 1917, Chapter 219, Sec. 1, later C.S. 279 and now G.S. 49-12 as amended by Laws 1947, Chapter 663, Sec. 2. By this statute, upon the happening of the event of intermarriage of the mother of a child, born out of wedlock, and the reputed father of such child, the status of the child is transmuted from that of illegitimacy to that of legitimacy in all respects, except as to rights of inheritance. This Court has held that “legitimacy is a status,” and accompanies the child wherever it goes. Fowler v. Fowler, 131 N.C. 169, 42 S.E. 563. Status is “the legal position of the individual in or with regard to the rest of the community.” Black’s Law Dictionary, 3rd Ed. Indeed, in the case of Fowler v. Fowler, supra, decided in the year 1902, long before the enactment of the statute in 1917, now under consideration, this Court adverted to the effect of an Illinois statute of similar import. There the father, then a resident of North Carolina, instituted an action here to legitimate his child born out of wedlock in the State of Illinois. This Court, in dismissing the action ex mero motu, had this to say in an opinion by Clark, J.: “This proceeding is provided to legitimate illegitimates, but it appears from the averments in the complaint that the child is already legitimated. By the laws of this State the subsequent marriage of the parent does not legitimate their children born prior to the marriage. But legitimacy is a status, and by the. l&rvvs of Illinois the subsequent marriage of the parents legitimates their prior offspring. ‘If the mother of any bastard child and the reputed father shall, at any time after its birth intermarry, the said child shall in' all *8 respects be deemed and held legitimate.' Rev. Stat. (1895), page 203, Sec. 15. The parties were domiciled, according to the complaint, at the time of the child’s birth and up to the time of the marriage in Illinois, and it is well settled that the child, being still a minor, its legitimacy then accrued and accompanies it wherever it goes.” And in Vernier’s American Family Laws, Vol. IV, Sec. 246, the author states that, in general, “Statutes providing for the legitimation of the child by the intermarriage of its parents ordinarily have the effect of rendering the child legitimate for all purposes.” And the author adds this note: “If the child becomes fully legitimate, it follows that he should be treated as a child born in lawful wedlock in determining rights and duties of parent and child, such as custody, support and inheritance.” This would seem to be the reasonable and logical meaning of G.S. 49-12. In declaring in this statute that “the child shall in all respects after such intermarriage be deemed and held to be legitimate,” the General Assembly clearly intended that the child should be treated as a child born in lawful wedlock in determining the rights and duties of parent and child as to custody and support. However, as to the right of inheritance provided for, in G.S. 49-12, this Court has construed the statute in these cases: Bowman v. Howard, 182 N.C. 662, 110 S.E. 98; Stewart v. Stewart, 195 N.C. 476, 142 S.E. 577; In re Estate of Wallace, 197 N.C. 334, 148 S.E. 456; Reed v. Blair, 202 N.C. 745, 164 S.E. 118. There the Court was only considering the result of the change in the status of the child, brought about by the marriage of the mother to the reputed father, as to “rights in and to the estate, real and personal, of its father and mother.” And “the law discussed in any opinion is set. within the framework of that particular case,” said Barnhill, J., in Light Co. v. Moss, 220 N.C. 200, 17 S.E. 2d 10. See also S. v. Crandall, 225 N.C. 148, 33 S.E. 2d 861, and eases there cited. In this light, nothing said by the Court in those cases, Bowman v. Howard, supra, and the others supra, is in conflict with what is said otherwise hereinabove as to the effect such intermarriage has upon the status of the child. Therefore, while at the time of the institution of the present adoption proceeding on 1 January, 1949, the status of the child sought to be adopted was that of illegitimacy, the status of the child, after the intermarriage of her mother and her reputed father, at 5 o’clock a.m., on 4 January, 1949, was that of legitimacy. The transmutation in her status came about by operation of law. Thus when the order was made referring the case to the County Superintendent of Public Welfare of Nash County, “to investigate the conditions and antecedents of the child for the purpose of ascertaining whether she is a proper subject for adoption,” and when the Superintendent made written report of his findings for *9 examination by the court of adoption, all as required by G.S. 48-3, and when the court of adoption came to determine whether “the child is a proper subject for adoption,” as required in G.S. 48-5, the subject under investigation and consideration was a legitimate child — of natural parents, who as such had not consented to the adoption. And the court of adoption should have so treated and considered the child in determining whether she was a proper subject for adoption as required before tentative order of adoption be entered. G.S. 48-5. True it is, that prior to the intermarriage of the parents the mother had set in motion her consent to an adoption in a method provided by the statute. But she did so at a time when the child occupied the status of illegitimacy. At that time her consent to the adoption of her child, born out of wedlock, is all that the law seems to require. Ashby v. Page, 106 N.C. 328, 11 S.E. 283; In re Shelton, 203 N.C. 75, 164 S.E. 332; In re Foster, 209 N.C. 489, 183 S.E. 744; In re McGraw, 228 N.C. 46, 44 S.E. 2d 349. However, when the status of the child became legitimate, upon intermarriage of her parents, the consent of the mother previously given was no longer sufficient to render the child a proper subject for adoption. Rather it is more reasonable that such consent previously given was revoked by operation of law. But be that as it may, under the statutes, now G.S. 48-4 and G.S. 48-5, read together, the parents of the child must be parties to this adoption proceeding, or their consent to the adoption must be made to appear, unless, perchance, they had willfully abandoned the child within the meaning of the criminal statute pertaining to abandonment. G.S. 14-322 and G.S. 14-326. See Truelove v. Parker, 191 N.C. 430, 132 S.E. 295; Ward v. Howard, 217 N.C. 201, 7 S.E. 2d 625. And on this record there is no finding that either of the parents of the child had willfully abandoned her. A finding that a warrant was issued against the reputed father, as shown, three months before the birth of the child is insufficient. Hence, in the light of the rulings, applied to the facts of this case, as hereinabove set forth, we hold that the child sought to be adopted was not a proper subject for adoption at the time the court of adoption entered the tentative order of adoption on 28 February, 1949. Therefore, the court was without authority to make the order. Thus there is error in the denial of interveners’ motion to vacate the proceeding and for the custody of their child. The cause will be remanded for further proceedings in accordance with this opinion. Reversed.