Locke v. . Merrick

*801 ScheNck, J. Tbe decision of this case depends upon whether the proceedings involving the adoption of Mary Elizabeth (Peggy) Spauld-ing held in New Hanover County in May, 1923, were valid. If such proceedings were valid, the judgment of the Superior Court that the plaintiffs have no interest in the estate of Fannie T. Spaulding, deceased, was correct, and should be affirmed; if such proceedings were not valid, the judgment of the Superior Court was in error, and should be reversed. In determining the validity of the adoption proceedings in 1923, it should be noted that the parents of the child were not made parties thereto, and that their consent to the adoption does not appear therein. However, it is alleged in the petition “that the father and the mother of the said child have abandoned the said child, and the Eecorder of the County of New Hanover ordered said child in the custody of the Clerk of the Superior Court, who delivered the custody of the child to Mrs. Maggie Price, of the Salvation Army, and that the said child now has no legal or testamentary guardian”; and that Mrs. Maggie Price, with whom said child now resides, consents to such adoption; also it is found in the order of the clerk granting the letters of adoption “that Mary Elizabeth Spaulding is an abandoned child, . . . and that the parents of said child have abandoned the said child . . . and that Mrs. Maggie Price, with whom said child resides, consents thereto” (to the adoption). The plaintiffs contend that the failure to make the parents of the child a party to the proceedings or to obtain their consent to the ádoption, is fatal to their validity. Such is not the law, the law being that the obtaining of the consent of the parents to the adoption is necessary, except where the child has been abandoned by the parents, in which situation it is well settled that the obtaining of such consent to the adoption is not required. In 1 Amer. Jur., Adoption of Children, par. 42, p. 643, it is said: “Abandonment of a child by its parents is commonly specified by statute as a ground for dispensing with their consent to its adoption. In such case, adoption will be allowed not only without the consent of the parents, but even against their opposition.” Therefore, the finding of fact by the clerk in 1923 that the parents, whose names were unknown, had abandoned the child would seem sufficient evidence for the judge of the Superior Court to find as a fact in the case at bar that the parents of the child had abandoned the child, which fact would support the conclusion of law that the adoption proceedings were valid. While the evidence upon which the petitioners alleged and the clerk found that the parents had abandoned the child does not appear in the record, it is proper to observe that the law did not require that this evidence be preserved, or even reduced to writing, and since the evidence is not in the record it is presumed that it was sufficient to sustain the findings. Hence, since the findings were made in 1923, and since the parents of the child *802 were then, and still are twenty years thereafter, unknown, such findings by the clerk were sufficient evidence to support the finding by the judge, to whom the findings of fact by agreement were referred, that the parents had abandoned the child. The record of the adoption proceedings of 1923, which was introduced in evidence in the case at bar, likewise reveals that the petition therein alleged that “Mary Elizabeth Spaulding is ... at present in the custody and charge of Mrs. Maggie Price, a member of the Salvation Army,” and further that “to which adoption Mrs. Maggie Price, with whom the said child now resides, consents,” and the order granting the letters of adoption finds as a fact “that Mrs. Maggie Price with whom said child resides, consents thereto” (to the adoption), it would seem that these facts found in 1923 would constitute sufficient evidence to support the finding of the court in the case at bar that the consent to the adoption was given by Mrs. Maggie Price, the person having charge of the child and with whom such child resided. We are of the opinion that the law governing adoptions in this State in 1923 has been substantially complied with in this case. It is found in ch. 2, secs. 182, et seq., Consolidated Statutes of North Carolina of 1919. The petition which was introduced in evidence sets forth the name and age of the child, the name of the person having charge of the child, that the child has no estate and the adoption is sought for the life of the child; the person having charge of such child was made a party of record in the proceeding; and with the consent of the person who had charge of the child and with whom the child resided, the court allowed such adoption by an order granting letters of adoption; the record further discloses that the parents of the child were unknown and had willfully abandoned said child. The adoption proceeding in 1923 was instituted by Louis J. Spaulding and wife, Fannie T. Spaulding, against Mrs. Maggie Price. Neither Louis J. Spaulding and Fannie T. Spaulding, nor those claiming under them, can be heard to attack such proceedings, since they were parties thereto, and especially is this so since the only defect in the adoption proceedings which the plaintiffs in the case at bar assert is that the proceedings could not be binding upon the parents of the child, who made no complaint against the adoption proceedings. “The more approved rule, however, is that adoption proceedings are conclusive as to persons who were parties thereto, and as to their privies, notwithstanding a defect as to a party who would be entitled to disregard them as not binding upon him, but who does not complain of his non-joinder. As has been very pertinently pointed out, no rights of the parent and the child would be impaired by giving force and effect to the *803 contract of adoption and permitting the child to succeed to the state of the adoptive parent as the adopted child of the latter.” 1 Amer. Jur., Adoption of Children, par. 45, pp. 647-8. What was said by the United States Circuit Court of Appeals for the 7th Circuit upholding the legality of an adoption proceeding, under the Illinois statute, in the case of Garter Oil Company v. Norman, 131 F. 2d, at page 451, is applicable to the ease at bar. It is there written: “An adoption proceeding, it is true, is statutory, and jurisdiction of the subject matter and of the person is each a prerequisite to the validity of a decree of adoption. Hook v. Wright, 329 Ill., 299, 160 N. E., 579, and the record of the proceeding must show a substantial compliance with the statute to give the court jurisdiction in exercising the statutory powers conferred, yet, in the consideration of defendant’s contention, it is well to remember that since the right of adoption is not only beneficial to those immediately concerned but likewise to the public, construction of the statute should not be narrow or technical nor compliance therewith examined with a judicial microscope in order that every slight defect may be magnified — rather, the construction ought to be fair and reasonable, so as not to defeat the act or the beneficial results where all material provisions of the statute have been complied with., McConnell v. McConnell, 345 Ill., 70, 177 N. E., 692. Much more does this principle apply where the parties to the adoption proceedings are not objecting, the inquiry in such case being narrowed to the jurisdiction of the subject matter. Ashlock v. Ashlock, 360 Ill., 115, 195 N. E., 657.” In the case at bar the record discloses that the names of the parents of the child were unknown in 1923, and are still unknown, and for that reason their names could not be set out in the petition, and no summons or other process could be served upon them. As a matter of fact, not only was the identity of the parents of the child unknown at the time the proceedings were instituted, but it was not known whether the child was a white or colored child. It was, however, later disclosed that the child was colored. It cannot be held that the parents of the child must be made parties to the proceedings, or the consent of the parents must be obtained in order to give validity to the proceedings, when it appears from the record that the parents were and are still unknown, and that the child had been abandoned, and that the party to whom the custody of the child has been committed by the clerk, and with whom the child resided, had consented to the adoption. The judgment of the Superior Court is Affirmed.