Disregarding the questionable validity of the original order *Page 152 of adoption of the four children dated August 20, 1943, which is not involved in this appeal, the sole question for determination is whether the district court is without jurisdiction to hear and determine the application for adoption of the two younger children, dated September 10, 1945. That court dismissed the petition on the ground that it had no jurisdiction over the matter because the welfare department had withheld its consent to the adoption. In the order of dismissal, the court held, "that this court is without power or authority of law to make any order of adoption in that case for the reason that said order of adoption can not be lawfully made, given or entered without the assent of the division of child welfare service of the department of public welfare of the state of Montana."
The majority opinion poses the question thus: "The only question we have to determine is as to whether the consent of the Welfare Department was necessary before the court could proceed in the matter." The majority answer this by holding, "that the adoption proceeding could not be proceeded with when the Welfare Department withheld its consent."
The basis of reasoning of the majority appears to be the theory that by the order depriving the parents of the custody of the children and placing them in the custody of the welfare department, the department was placed in loco parentis; that because of such supposed relationship between the children and the department, the statutory provisions requiring consent of natural parents must be applied before an adoption can be validly sanctioned by the district court.
While the reasoning upon which the district court's order was based does not appear, apparently that court construed the provisions of section 5859, Revised Codes, as amended by Chapter 115, Laws of 1941, and section 10471, Revised Codes, as requiring the consent of the welfare department before adoption of children in its custody may be ordered. The section first mentioned provides: "A legitimate child cannot be adopted without the consent of its parents, if living; * * *" and provides certain exceptions which dispense with the necessity *Page 153 of consent on the part of the parents. It further provides that a child kept in an orphans' home, asylum or agency, under certain circumstances, may be adopted with the consent of a majority of the board of trustees of said orphans' home, asylum or agency, without the consent of the parents. Section 10471 provides in part: "In any case where the court shall award any dependent child to the care and custody of any association or individual, in accordance with the provisions of this act, the child shall, unless otherwise ordered, become a ward, and be subject to the guardianship of the association or individual to whose care it is committed. Such association or individual shall, by and with the consent of the court, have authority to place such child in a suitable family home, with or without any indenture, and may, by attorney or agent, appear in any court, where adoption proceedings are pending, and assent to its adoption. Such assent shall be sufficient to authorize the court to enter the proper order or decree of adoption. * * * and the court may, at any time, require from such association or person a report or reports containing such information or statements as to the judge may seem proper and necessary to be fully advised as to the care, maintenance, moral, or physical training of the child, as well as the standing or ability of such association or individual to care for such child. The court may change the guardianship of such child, if at any time it is made clear to the court that the same is detrimental to the child or unsatisfactory to the court."
I think that the expression of this court in State ex rel. Sheedy v. District Court, 66 Mont. 427, 213 P. 802, 804, effectively disposes of the contention that consent of a guardian is necessary to confer jurisdiction upon the court to order adoption of the ward. There it is said:
"Under statutes similar to ours it has been held that notice to, or the consent of, the guardian of a minor is not required in a proceeding for his ward's adoption. (Citing cases.) For many purposes the legal guardian of a minor stands in loco parentis to his ward by virtue of his appointment; he has the *Page 154 custody and care of the education of the minor and the care and management of his estate, until such minor arrives at the age of majority or marries, or until the guardian is legally discharged. (Rev. Codes 1921, sec. 10407.) If, clothed with these duties and prerogatives, he is not entitled to notice of adoption proceedings, with much stronger reasoning may it be said that one who stands only temporarily in loco parentis is not entitled to such notice.
"In view of what has been said above, we have no hesitancy in saying that neither relator's consent to the adoption of the minor children in question was necessary, nor was he entitled to notice of the hearing under the statute, and that, upon the filing of the petition for adoption and its presentation to Judge Lynch, he acquired jurisdiction to proceed in the matter and make the order of adoption."
I think that the case of McKenzie v. State Board of Control,197 Minn. 234, 266 N.W. 746, 747, 104 A.L.R. 1460, comes closer to a correct exposition of the law governing the facts before us than has any case cited by respondents. The statute there under consideration provides that no adoption of a minor shall be permitted without the consent of his parents but that under certain conditions the consent of the parents "may be dispensed with, and consent may be given by the guardian, if there be one or if there be no guardian, by the state board of control." Mason's Minn. St. 1927, sec. 8626. In holding that the consent of the board of control is not necessary to confer jurisdiction upon the court, the Minnesota Supreme Court said:
"In furtherance of its design to protect the dependent child's welfare, the Legislature provided for the consent of the board or person having control of the child to its adoption. But it is readily apparent that this consent is not the same right as that exercised by the parents. It is significant that the statute denies the right of adoption when parents, not otherwise incapacitated, withhold their consent, while the consent of incapacitated parents `may be dispensed with' and the consent *Page 155 of the board of control or guardian `may be given.' The consent of those in custody of the child is simply an additional safeguard to the child's welfare. With the child under the control of the state as it is, when in the custody of the state board or a guardian, its welfare is the state's paramount object.
"The reasons for requiring the consent of the guardian are set out In re Mair, supra [184 Minn. 29, 237 N.W. 596.]. It was there said that it might well be argued that those reasons do not apply to the board of control. May that board withhold its consent and thereby defeat the petition when the best interests of the child compel a court to find that failure to grant the petition would be inimical to the best interests of the child? We think it cannot so defeat the manifest purpose of the law. When we consider all of the manifold provisions of the juvenile court act together with the adoption statute, we find none of the reasons applicable to parents or to guardians to be persuasive as to the board. Jurisdiction is complete in the court, and it may proceed with the sole view to the best interests of the child. It need not dismiss on motion of the board, and it may disregard the board's refusal to consent in case that refusal is unreasonable."
Under our statutes the district courts are given exclusive jurisdiction over adoption proceedings, and this jurisdiction has in nowise been circumscribed or taken away by the provisions of the statutes creating the welfare department and prescribing its powers and duties. Under the holding of the majority opinion a district court, in any given adoption proceeding, may be effectively deprived of jurisdiction by the simple refusal of the welfare department to consent to the adoption proposed. Such is not the intention of the Act which contemplates the disposition of children subject to adoption in accordance with their welfare and best interests. It is and always has been the policy of the state to encourage and foster the adoption of homeless children where the circumstances of the case indicate adoption to be to the best interest of the child. Certainly adoption into a desirable home usually, for obvious *Page 156 reasons, will be more conducive to the child's best interests than retention under the control of an agency of the state, which can at most place the child in temporary foster custody. To say that the welfare department may consent to the adoption of a child in its custody, is by no means to say that such consentmust be given in order to confer jurisdiction upon the district court to make an order of adoption.
The apparent legislative intention in providing that the department may consent to the adoption, was that such consent might be given as against the parents, but not that it must be given to confer jurisdiction.
It is my view that the state welfare Act was enacted, in so far as it affects the adoption of a homeless child, to create an agency to investigate the circumstances of any proposed adoption and to give its advise to the court having jurisdiction. Since the welfare department is better equipped to investigate such circumstances, undoubtedly our district courts will and should place great reliance upon the department's recommendations.
It may well be that the court below, having heard evidence in the adoption proceeding and having considered the withholding of consent by the welfare department, in the exercise of a sound discretion, might have denied the application for adoption. In such case the court's ruling would not be disturbed on appeal. This court will not interfere with the action of the trial court in the exercise of its discretion, but here the trial court refused to exercise its discretion by refusing to accept jurisdiction of the cause, which I believe it had and has. Under the decision here arrived at, district courts can and may be deprived of jurisdiction in adoption proceedings, in all cases where the children involved are in custody of the welfare department or other state agency. I am firmly of the belief that such result was not anticipated nor intended by the legislature, and is most certainly a dangerous departure from the policy heretofore existing in this jurisdiction.
It is my view that the trial court should be compelled to *Page 157 accept jurisdiction of this matter and to hear and determine the same upon its merits.
Petition for rehearing denied October 25, 1946.