In Re the Adoption of Morris Ex Rel. Morris

WiNBORNE, J. Any question as to the constitutionality of the statute, G. S., 48-10, need not be debated or decided here. The appeal turns upon decision on this question: Is the appellant, the mother of the child sought to be adopted, concluded under the facts of record on this appeal from asserting in this adoption proceeding her rights as the natural *491 parent of sucb cbild, by tbe finding of tbe judge of tbe Domestic Eela-tions Court of Buncombe County in a proceeding relating to tbe care and custody of ber cbild, regarding ber unfitness to bave tbe custody of tbe cbild? Tbe clerk of tbe Superior Court of Buncombe County, in deference to tbe provisions of G. S., 48-10, beld tbat it is conclusive on ber and tbe judge of tbe Superior Court affirmed tbe decision of tbe clerk. Tbe appellant assigns tbis as error. We are of opinion tbat tbe assignment is well taken. Tbe statute regarding necessary parties to proceeding for tbe adoption of minors, G. S., 48-4, provides tbat: “Tbe parents . . . must be . . . parties of record” to sucb proceeding, “provided . . . tbat wben sucb parent . . . bas consented to an adoption as specified in G. S., 48-5, be shall not be a necessary party of record” to tbe proceeding. Tbis statute bas been treated and applied in these cases: Truelove v. Parker, 191 N. C., 430, 132 S. E., 295; In re Shelton, 203 N. C., 75, 164 S. E., 332; Ward v. Howard, 217 N. C., 201, 7 S. E. (2d), 625; In re Holder, 218 N. C., 136, 10 S. E. (2d), 620; Moseley v. Deans, 222 N. C., 731, 24 S. E. (2d), 630. But in another section of tbe statute, G. S., 48-10, in deference to which tbe clerk acted, it is provided tbat “In all cases where a juvenile court bas declared tbe parent or parents or guardian unfit to bave tbe care and custody of sucb cbild, or bas declared tbe cbild to be an abandoned cbild, sucb parent, parents, or guardian shall not be necessary parties to any action or proceeding under tbis chapter nor shall their consent be required.” Tbe chapter referred to is tbat relating to tbe adoption of minors. In considering tbe application of tbis last section it is pertinent to look to tbe nature and effect of proceedings relating to tbe custody of minors, and tbe nature and effect of proceedings for tbe adoption of minors. As to tbe former: Domestic Eelations Courts where established are vested with all tbe power, authority and jurisdiction theretofore vested by law in tbe juvenile courts of North Carolina, and in addition thereto such Domestic Eelations Courts shall, among other things, bave exclusive original jurisdiction over “all cases involving tbe custody of juveniles, except where tbe case is tried in Superior Court as a part of any divorce proceeding.” G. S., 7-103. Tbe statute gives to juvenile courts exclusive original jurisdiction of any case of a cbild less than sixteen years of age residing in or being at tbe time within tbe respective districts “who is in sucb condition or surroundings or is in sucb improper or insufficient guardianship or control as to endanger tbe morals, health, or *492 general welfare of such child.” This jurisdiction when obtained in the case of any child shall continue for the purposes of the statute on “Child Welfare” during the minority of the child, unless a court order be issued to the contrary. G. S., 110-21. This section of the statute imposes upon the court the constant duty to give to each child subject to its jurisdiction such oversight and control in the premises as will conduce to the welfare of such child and to the best interest of the State. Moreover, it is provided by another section of the statute, G. S., 110-36, that any order or judgment made by the court in the case of any child shall be subject to such modification from time to time as the court may consider to be for the welfare of the child, except in certain case not pertinent here. On the other hand, a proceeding for adoption is before the clerk of the Superior Court, G. S., 48-1. An order granting letters of adoption shall state whether it is for the minority or for the life of the child, and shall have the effect forthwith to establish the relationship of parent and child between the petitioner and the child. G. S., 48-6. And when a child is duly adopted pursuant to the provisions of the statute the adoptive parents shall not thereafter be deprived of any rights in the child at the instance of the natural parent, or otherwise, except in the fashion and for the same causes as are applicable in proceeding to • deprive natural parents of their child. G. S., 48-14. Thus it is seen that the result of a proceeding relating to the custody of the child may be for the minority of the child and may be modified from time to time, whereas that for adoption for life terminates the relationship between the natural parents and the child, and is permanent and continues for the life of the child. They are entirely separate and distinct proceedings — the judgment in the one being subject to modification, and in the other, final. Bearing in mind these principles, what then did the Legislature intend by the wording in the statute, G. S., 48-10, that in all cases where the juvenile court has declared the parent unfit to have the care and custody of such child, such parent shall not be a necessary party to any proceeding for the adoption of the child, nor shall his or her consent to the adoption be required ? As we construe the language used, it was intended to apply in all cases where a juvenile court (in this case the Domestic Relations Court) has made final, absolute and unconditional determination of the unfitness of the parent to have the car.e and custody of the child. When so considered and applied the language used in the several orders of the judge of the Domestic Relations Court and the reservation by it of jurisdiction of the child and of the parties to the proceeding “for *493 further orders as tbe continued welfare of said child and changing conditions may require,” set forth in order of 31 May, 1943, approved by judge of Superior Court, do not constitute a final and conclusive adjudication of the unfitness of the parent. Indeed, the original order has been modified to the extent of finding that the home offered by the mother is “physically sufficient and proper” and of giving her partial custody of the child. No question becomes res judicata until it is settled by a final judgment. Hence, the judgment below will be vacated, and the cause remanded for further proceedings ■ as to justice appertains and the rights of the parties may require.. Error and remanded.