Bittleston v. Narragon

Mr. Justice GUTHRIE delivered the opinion of the court. Appellants herein appeal from an order dismissing the adoption petition of Robert V. Bittleston and Aileen Bittleston, his wife, who is the natural mother of William Robert Narragon, whom they seek to adopt. Robert E. Narragon, the father of the child, refused his consent to such adoption and appeared and objected thereto. The factual situation is not in dispute and insofar as material is as follows: The child, William Robert Narragon, was born on February 2, 196S. His father has been confined in the penitentiary since February 2, 1966, under a sentence for the term of 25 to 30 years. The Natrona County Department of Public Assistance and Social Services furnished and supplied aid and support to the then Mrs. Narragon from August 23, 1965, until January 1966, and the father has contributed nothing to the child’s support, being unable in his confinement to earn any money. Mrs. Narra-gon was married to Robert V. Bittleston on December 29, 1967, and the child has lived in his home and been supported by him since that date. Reliance was made in the petition for adoption upon § 1-710.2, W.S.1957, 1973 Cum.Supp., which so far as applicable is as follows: “An adoption may be decreed without the written consent of the parent or par [414] ents of the child sought to be adopted where said non-consenting mother or father: ⅜ » ⅜ * * * “(e) has caused the child to be maintained in a public- or private children’s institution or the Wyoming department of public welfare for a period of one year without contributing anything to the support of said child during said period.” The trial court, in its ruling denying the adoption, held the maintenance by the Wyoming Department of Public Welfare did not bring this case under the statute. Appellants contend: “ * * * that the word ‘by’ should be impliedly inserted after the word ‘or’, so that the section would read as follows: “ ‘has caused the child to be maintained in a public or private children’s institution or (by) the Wyoming department of public welfare for a period of one year without contributing anything to the support of said child during said period.’ ” They then set out that the welfare department has no facilities for the care and maintenance of such children and that 95 percent of the children who are recipients of aid from the department remain in custody of the parents. It is conceded that under this factual situation there is a strong temptation to agree with appellants but it might be suggested there is another available inference, and inasmuch as the first part of the paragraph contemplates maintenance in a public or private institution or a separation from parental control this statute could have been directed to a situation wherein a parent has relinquished such custody. Many other states have such statutory schemes, 2 Am.Jur.2d Adoption, § 30, p. 885. There is a well-recognized and almost universal rule that when a proceeding is against a nonconsenting parent in an adoption proceeding the statute. must be strictly construed and every reasonable in-tendment is made in favor of the noncon-senting parent’s claims, In re Adoption of Sharp, 197 Kan. 502, 419 P.2d 812, 814; Heard v. Bauman, Tex., 443 S.W.2d 715, 719; In re Slaughter, Mo.App., 290 S.W.2d 408, 412; Woodson v. Lee, 221 Ark. 517, 254 S.W.2d 326, 329; Glendinning v. McComas, 188 Ga. 345, 3 S.E.2d 562, 563; Smith v. Smith, 67 Idaho 349, 180 P.2d 853, 856; In re Jackson, 55 Nev. 174, 28 P.2d 125, 129, 91 A.L.R. 1381. This court has heretofore expressed its duty in construing statutes, Ward v. Yoder, Wyo., 355 P.2d 371, 376, rehearing denied, 357 P.2d 180: “In State ex rel. Murane v. Jack, 52 Wyo. 173, 70 P.2d 888, 71 P.2d 917, 112 A.L.R. 161, we gave effect to the rule that where the legislature has constitutional power to enact a given law and properly frames an Act it is the duty of the court to construe it for proper effec-tuation without adding to or eliding from the words recited.” This court in the later case of Lo Sasso v. Braun, Wyo., 386 P.2d 630, 631, 632, further has held that when the legislature had an intention which it failed to express it is improper to act for the legislature by adding such exceptions and that it should not “enlarge, stretch, expand or extend a statute to matters not falling within its express provisions.” As pointed out in Lo Sasso, if this construction seems harsh and unjust it should be a matter of legislative correction and not that of the court. It would seem particularly important, since this involves the matter of minor children, that the intention of the legislature be clearly expressed and the statute clarified. The judgment is affirmed.