Opinion
Nos. 21266 and 21315
Decided March 6, 1929.
Adoption — Consent of one divorced parent, approved by court, sufficient — Consent of other parent not required — Section 8025, General Code — Constitutional law.
1. Where in a proceeding for the adoption of a child of divorced parents the consent of the parent to whom the sole custody of such child had been awarded is duly given and the court which granted such decree approves the same as provided by Section 8025, General Code, the consent of the other parent is not required.
2. Such provisions of the statute are not in contravention of either the state or federal constitution.
IN PROHIBITION.
ERROR to the Court of Appeals of Portage county.
The first-named action is an original action in this court, wherein the relatrix seeks a writ of prohibition. Issue was made by demurrer to the petition. The essential averments appearing in the petition may be concisely stated as follows: In December, 1926, in the court of common pleas of Portage county, William Clapp, Jr., was awarded a divorce from the relatrix, which court then awarded the custody, care, education and control of their child, Maxine Clapp, to said William Clapp, Jr. Subsequently the relatrix married Eugene Booth. Thereafter Mary R. Carlin, who is a sister of William Clapp, Jr., and her husband, J.C. Carlin, made joint application to the probate court of Portage county for the adoption of said Maxine Clapp. Written consent to said adoption was duly filed by said William Clapp, Jr., and upon application to the court of common pleas of Portage county, which court had theretofore granted said decree of divorce and awarded the custody of said child, that court made and entered an order stating that the consent of said court "be and is hereby given for such adoption." The relatrix was not made a party to the proceeding for adoption, nor to the proceeding wherein the consent thereto of the common pleas court was obtained, nor was she notified thereof.
The relatrix asserts that the probate court is "without jurisdiction to proceed with said adoption proceeding without giving her a chance to be heard, that the failure to make her a party or to make a party the next best friend is entirely unlawful, and that, if it should be found she may ultimately have error proceedings testing the right of said probate court to so proceed, said error proceedings will be entirely inadequate, because in the meantime, if said adoption goes forward, said child will be removed beyond the jurisdiction of the courts of Ohio, and the court will not only be acting without jurisdiction, but that a remedy to correct such error will for the reason aforesaid be wholly inadequate." The relatrix prayed for a writ of prohibition restraining said probate court from going further with said adoption proceedings and from granting any further orders or rendering judgment therein.
The action numbered 21315 in this court is a proceeding in error from the Court of Appeals of Portage county. Lavaughn Booth, who is the same person as Lavonne Booth, attempted to prosecute error in the Court of Appeals from the action of the court of common pleas of Portage county, wherein that court consented to the proposed adoption of Maxine Clapp by J.C. Carlin and Mary R. Carlin. The Court of Appeals found no error in the order and judgment of the court of common pleas. Thereafter, upon motion, the case was ordered certified to this court.
Mr. Jonathan Taylor, for relatrix and plaintiff in error.
Mr. C.H. Curtis, for defendants in error.
The controversy presented to the court in each of these cases arises from the proceeding pending in the probate court of Portage county involving the adoption of the child Maxine Clapp.
The action in prohibition is predicated upon the charge that the probate court is "entirely without jurisdiction to proceed with said adoption proceedings." There is and can be no valid claim that the probate court of Portage county has not jurisdiction of the subject-matter involved in this action. The jurisdiction undertaken to be exercised, the adoption of the child, is specifically conferred by Section 8024 et seq., General Code. The substance of the complaint of the relatrix is that said court is about to enter a decree consummating such adoption, without the consent of the relatrix, who is the mother of said child, and without making her a party to said proceeding, or affording her an opportunity to be heard.
The office of a writ of prohibition has been stated in numerous cases. It is a process by which a superior court prevents an inferior court or tribunal from usurping or exercising a jurisdiction with which it has not been vested by law. It is an extraordinary writ, and issues only when the party seeking it is without other adequate means of redress for the wrong about to be inflicted by the act of the inferior tribunal. 2 Spelling on Injunctions and Other Extraordinary Remedies (2d Ed.), Section 1716.
It appearing affirmatively that the probate court is exercising a jurisdiction with which it has been legally vested, a writ of prohibition is not authorized.
To consider the question presented by the error proceeding, it will be necessary to examine the procedure prescribed by statute for the legal adoption of minors. It is set forth in the provisions of Section 8024 et seq., General Code.
Section 8025, General Code, requires that in an adoption proceeding, such as this, written consent shall be given by each of the living parents, except as follows: "(d) By the parent awarded custody of child by divorce decree, provided the court which granted such decree approves of such consent, and because of such approval the jurisdiction of such court over such child shall thereupon cease."
It was pursuant to this provision that application was made to the court of common pleas for approval of the written consent to said adoption executed and filed by the father of said child, that court having theretofore awarded the custody of said child to the father in the divorce decree. That application did not remove said adoption proceedings to the common pleas court. It merely sought the approval of the proposed action in the proceeding then pending, and still pending, in the probate court. The approval of the consent of the parent to such adoption is only a part of the adoption proceeding authorized by statute and now in progress in the probate court, in which no finding has been made or final decree entered.
Counsel for Mrs. Booth asserts the unconstitutionality of the provisions of the Juvenile Court Law hereinbefore referred to, his contention being that such legislation is violative of the due process clause and various other provisions of the state and federal Constitutions. We find no basis for such contention. We have not been referred to any case in which the constitutionality of such provision has been denied and we have been able to find none. While the rights of the natural parents should always have full consideration, and be carefully guarded and protected, the rights and interests of the child are paramount, and, where there is a conflict between the rights of the parent and the interests of the child, the state may act by and through appropriate legislation. Many and various circumstances may arise where the state may exercise jurisdiction over the child, not only for its interests and protection, but for the welfare of the community and the state as well. Imposition of punishment upon parents, or deprivation of their rights, is not the purpose of the juvenile court acts, including adoption statutes, but rather the promotion of the welfare of the child. Practically all the states have statutes providing for the adoption of children, and in many of them the required consent is limited to the parent to whom a court of competent jurisdiction, as in some divorce or other proceeding, awarded the custody of such child. Our statute provides that the consent of the parent to whom custody has been awarded in a divorce proceeding is sufficient, if the court which entered the decree approves the same. The constitutionality of such statutory provisions has been sustained whenever challenged. Schouler on Marriage, Divorce, Separation, and Domestic Relations, Section 720; 1 Corpus Juris, 1372, and cases there cited. It follows that in case No. 21266 the writ of prohibition should be denied, and in case No. 21315 the judgment affirmed.
Writ denied in case No. 21266. Judgment affirmed in case No. 21315.
MARSHALL, C.J., KINKADE, ROBINSON, JONES, DAY and ALLEN, JJ., concur.