Ward v. Howard

Seawell, J. Since early days, tbe attitude of tbe North Carolina Court toward tbe law of real estate, descent and inheritance, and distribution, has been classic. Tbe result has been an -exactness and a certainty with respect to this subject that gave to tbe decisions of tbe Court a very extended reputation. Out of this legal atmosphere came tbe Adoption Law of 1872, and particularly that portion of our law existing at tbe time- tbe adoption proceeding under consideration was bad — chapter 2, section 184, Consolidated Statutes of 1919 — which fixes tbe most important of tbe conditions upon which adoption can be made effective. Subsequent decisions of tbe Court have attributed an imperative character to this condition, prompted by tbe relation of tbe proceeding to tbe laws of real estate and inheritance, requiring tbe proceeding to partake of tbe same certainty as tbe laws to which they were ancillary, and to tbe basic principles of which they offered a substitution. Truelove v. Parker, 191 N. C., 430, 132 S. E., 295, construed tbe statute with which we are dealing and declined to rationalize it in any way to obviate tbe necessity of consent by a parent, 'if living, to validate tbe adoption. While as a social institution benefiting society much by tbe care and promise which it gives to neglected youth, these purposes are served by the custodial care and parental relations established in that regard; but inasmuch as the proceeding is in derogation of succession by heritable blood, the adoption proceeding, when it comes to the phase of descent and distribution of property, must be strictly construed. The decision in Truelove v. Parker, supra, was a well considered and deliberate decision by the Court on a matter concerning property rights, and the principle of stare decisis must apply. The construction given to the law therein is simple and easily understood, and both the legal fraternity and all others having to do with adoption had full notice of the necessity of compliance with the provisions of the act requiring consent of the living parent or proof of abandonment. There is no evidence here of abandonment of this child by her mother, and the sole question presented is whether or not she consented, or is presumed to have consented, to the adoption through the proceeding in the juvenile court, which took the custody of her child, or whether that proceeding rendered her consent unnecessary. Doubtless the law originally contemplated that consent be made in the proceeding itself, as it was unaffected by any other statute bearing upon any termination of the relation between parents and children, or of the [206] complicated juvenile court acts and welfare acts of the present day, which here and there refer to the subject. That such consent must be made to appear to the adopting court, as a jurisdictional matter, is, we think, self-evident. It cannot be contended from any evidence in the record, or derived from the juvenile court proceeding, that she had abandoned the child. The charge there was that the child was neglected. The mother was in the poorhouse. The sole contention is that because of the order of the juvenile court, in a proceeding of which she had notice and was present, the child was placed in a home for adoption' — adoption when, where, how, why, to whom, or under what conditions, the order gave to the mother no information. The purpose of the Juvenile Court Act was to protect both society and minor children, which form such a large part of it, from the effect of delinquency on the part of the child and neglect on the part of parents and custodians — not any more as to parents than as to others having the care and custody of children. It is in no respect an amendment to the Adoption Law, nor can it be considered as relieving against the stricter provisions of that law, where the Adoption Law itself speaks upon the subject. The procedure in the juvenile court, made a part of the record, discloses that on the pétition of Mary M. Greenlee, Mary Elizabeth Pres-nell was brought into the court, in company with her mother, on 17 December, 1923, charged with being “a neglected child.” Michie’s Code, section 5039. At that time the petition shows that the mother had been in the County Home approximately twelve months. The order of the court placed the child in the Children’s Home Society of North Carolina until further orders of the court, adding, “the condition of such custody is that the Children’s Home Society of North Carolina is given legal guardianship of the child with power to place it in a home for adoption.”' The consent of the mother is not evidenced in any other way, and it is assumed by respondent that this proceeding canceled her out of the picture. An examination of the Juvenile Court Act of 1919 — chapter 97, Public Laws of 1919, see especially sections 5039, 5047, Michie’s Code of 1935— discloses that the juvenile court had no power to place the child anywhere for adoption; and that part of the order is outside of the pale of the court’s jurisdiction, ineffective and void, and does not in any way affect the right of the mother as to the adoption proceeding suggested, or the necessity of her consent in that proceeding. As to what time — relative to the adoption proceeding — consent of the living parent may be obtained, whether before or after the institution of such proceeding, we need not here consider. The consent must at least [207] be in fair contemplation of tbe proposed adoption, and tbis includes its most essential feature — tbe identity of tbe adoptive parents. Except in tbe case of abandonment, it is not without reason tbat society looks first to the concern and foresight of tbe natural parents in tbe selection for tbe child adoptive parents into whose bands they surrender tbe duties and burdens of custody, training, and tuition; and when we come to tbe question of property rights affected, tbe proceeding concerns a public policy, which does not rest alone upon custodial right. Tbe Juvenile Court Act — Michie’s Code of 1935, sec. 5044 — requires tbat tbe parents, if living, be brought in by summons, in order to show cause why tbe child shall not be dealt with according to tbe provisions of tbe law, and if tbis summons is not obeyed, and there is no sufficient excuse, tbe parent may be proceeded against as for contempt. Chapter 97, section 8, Public Laws of 1919; Micbie’s Code, section 5046. Tbe mother must, therefore, be regarded as being in tbe juvenile court in invitum, and she is certainly not bound by any part of tbe decree of tbat court which is plainly without its jurisdiction. It remains to be considered whether tbe status of respondent is affected by later statutes amendatory of tbe Adoption Law in effect when tbis proceeding was bad — tbat is, tbe law construed in Truelove v. Parker, supra. By chapter 171, Public Laws of 1927 (ratified 8 March, 1927), sections 185 and 189 of tbe Consolidated Statutes were amended and a section added, intending to validate “all proceedings for tbe adoption of minors in courts of tbis State.” Tbe amendments to sections 185 and 189 should probably be considered as prospective, but any argument as to tbe effectiveness of these amendments, conceding them to be intended as retroactive, is met by tbe same difficulties which attend tbe direct attempt to validate “all proceedings” in tbe second section of tbe act (mis-numbered section 3). Whether such a sweeping cure-all is not too general to be given effect as to defects not pointed out in tbe statute, we hardly need inquire. Other principles control. Ordinarily, curative acts of the Legislature may be effectively applied where tbe Legislature might have dispensed originally with tbe portion of tbe required proceeding, tbe nonobservance of which has rendered tbe proceeding void. Taylor v. Tennessee & Florida Land Investment Co., 71 Fla., 651, 72 So., 206; Gallimore v. Thomasville, 191 N. C., 648, 132 S. E., 657; Kinston v. Trust Co., 169 N. C., 207, 209, 85 S. E., 399. But tbe Legislature is without power to cure a want of authority in tbe court to act at all, where tbe defect goes to tbe jurisdiction. Montgomery v. Town of Branford, 107 Conn., 697, 142 A., 574; People v. [208] Van Nuys Lighting' District of Los Angeles County, 173 Cal., 792, 162 P., 97. We think it unquestionable that the jurisdiction given to clerks of the Superior Court in the matter of adoption is, by the statute itself creating it, made to depend upon the consent of the parent, if living. Truelove v. Parker, supra. Indeed, regardless of the question of jurisdiction as settled by the wording of the statute itself, it may be doubted whether the State can, through any sort of law, exercise the Spartan privilege of taking a child from the home and custody of a parent and engrafting it into another family without notice to the parent, or proof of the existence of a condition — as of complete abandonment on the part of the parent — that would render such notice unnecessary. Constitution, Article I, section 17. In an adoption proceeding under this law, inheritance is a statutory consequence of the parental relation created between the parties and legally inseparable from it. In other words, inheritance is made a statutory incident to the more important relationship of parent and child established by the adoption. Want of original jurisdiction cannot be cured by subsequent attempts at validation. The 1929 amendments were repealed, with the original statutes which they amended, by chapter 243, Public Laws of 1935. Subsequent amendments to the Adoption Law contain no retroactive features and are, therefore, not pertinent to this inquiry. The institution of adoption is a very worthy response of the law to social needs, although legislation in that direction seems not to have been enacted in this State until after the Civil War. Instances of its beneficent effect may 'be found in the history of men and women who have been aided to become prominent in all lines of private and public service, and in the consolation it has given to hundreds of childless homes. But, while both the courts and the law are deeply concerned with the humanities, and with social adjustments which they require, the positive terms of the law may not be made to yield to either our sentiment or our desire. For the reasons assigned, we must hold the adoption proceeding insufficient to confer upon Mary Elizabeth Presnell (now Hilton), any right of inheritance or distribution in the estate under controversy. Truelove v. Parker, supra. The judgment of the court below is Reversed.