(dissenting) .
*1031I do not agree with the majority opinion herein and feel that it does a grave injustice to a mother who has now been permanently deprived of her children, and, in fact, even deprived of the right to any knowledge or information concerning the whereabouts or welfare of such children, for the sole and only reason that such mother was so unfortunate as to suffer a serious illness. I am convinced that the purpose for which the appellant Department of Public Welfare was created was primarily to render aid and assistance to those citizens of this state who have been beset by adversity and misfortune, and not for the purpose of dividing families and depriving mothers, who have been guilty of nothing more than having been ill, of their children. The petitioner herein suffered the misfortune of contracting tuberculosis and requiring hospital treatment therefor. At the very time she was faced with the necessity of returning to the hospital for treatment she was further beset by the conduct of her husband who threatened to take the lives of her two children and herself. Faced with such a situation, petitioner turned to appellant for aid and assistance in her time of trouble. The aid and assistance rendered, however, consisted of procuring an order of the county court which appellant now contends and the majority opinion holds had the effect of permanently and finally depriving petitioner of any and all rights whatever in regard to her children. Such opinion is in my judgment morally and legally wrong.
The majority opinion holds that an order of the county court declaring a child to be dependent or neglected and depriving the parents thereof of the custody of such child, which order is not appealed, is final and conclusive and deprives such court of any further jurisdiction in the matter regardless of the circumstances which may thereafter develop. This court has held exactly the contrary, however, in the case of In re Greenback, 207 Okl. 30, 246 P.2d 733, 736, wherein the following language was used:
“It is true that the time for an appeal from the order finding the children to be neglected and granting the custody of the children to Grace Dixon had expired at the time Audrey Greenback, now Newman, filed her application to have the custody of her children restored to her but the county court, we think, under its authority derived from the Statutes Title 10, Secs. 101-114, O.S.1951, and in view of our liberal rule of construction of pleadings when attacked by a demurrer, had jurisdiction to consider the Mother’s application or petition asking for an order granting her the custody of her children. Her application was sufficient to invoke the jurisdiction of the court and withstand the demurrer. In it she alleged that since the former order her circumstances had changed and that she had reformed and was now a fit and proper person with a home for her children and that she was morally and financially able and willing to provide and care for them; that they were not being properly cared for by their present custodian, etc.
“This application makes no complaint as to the original order finding the children neglected and placing them in Grace Dixon’s custody. It is not to review or reverse the former order but is to procure a new judgment on a new state of facts. McFall v. Simmons, Judge, 12 S.D. 562, 81 N.W. 898.
“It is urged by respondent that the Act, Title 10 O.S.1951, Sections 101— 114, made no provision for the continuing jurisdiction of the court except in delinquency cases. Section 101 of the Act defines ‘dependent child’, ‘neglected child’ and ‘delinquent child’Section 114 provides:
“ ‘This article (Title 10, Sections-101-114, O.S.1951) shall be liberally construed, to the end that its purpose may be carried out, to wit: That the care and custody and discipline of the child shall approximate, as nearly as may be, that which should be given by its parents * *
“See Ex parte Lewis, 85 Okl.Cr. 322, 188 P.2d 367, wherein it was held that the Juvenile Court Act should be liberally construed so as to effect its hu*1032manitarian objects. The article composing the Juvenile Court Act does not specifically or expressly provide for a minimum cessation or duration of the wardship, or for further or other proceedings except as to delinquent children as in Section 112. However, the article does not expressly prohibit further proceedings in cases involving dependent and neglected children and a reasonable liberal construction of the entire article would so provide where necessary to properly safeguard a child’s best interests and welfare. In 43 C.J.S. Infants, § 8, it is said:
“ ‘It is the trial court’s duty to ascertain all the facts and to make such investigation as in its judgment will assist in reaching a proper conclusion as to the person who is best qualified to furnish a proper environment and home for the child * * *. The court should make such orders as to the infant’s custody as will properly safeguard its best interests and welfare. An order awarding the custody of a child merely adjudicates the rights of the parties on the question of which party should have the custody, and is not res judicata with respect to future acts and conditions. Furthermore the court cannot establish permanent custody of the infant, and thereby assume to foreclose future judicial consideration of the action in the premises; any order or decree affecting his custody is subject to future control and modification by the court, as subsequent conditions and circumstances may require for his welfare, but an order decreeing custody may not be changed or modified unless an adequate cause therefor arises from changed conditions.’
“This wholesome rule, we think, is applicable to the proceedings of our county courts when performing the duties of a Juvenile Judge.
“Ordinarily the court may change or modify its order at any time. 43 C.J.S., Infants, § 100; Ex parte Woodworth, 92 Okl.Cr. 235, 222 P.2d 528; State ex rel. Hedrick v. Hartford Accident & Indemnity Co., 154 Kan. 79, 114 P.2d 812; In re Houser, 166 Kan. 48, 199 P.2d 499; New Mexico Department of Public Welfare v. Cromer, 52 N.M. 331, 197 P.2d 902.
“In 43 C.J.S., Infants, § 100, subdivision b. Period of Detention, p. 261, it is stated:
“ ‘An adjudication committing a child because of neglect or failure of the parent to provide for it does not deprive the parent of his right to the custody of the child if he subsequently becomes competent and willing to care for it properly, and in such case the court, in the exercise of its * * * equitable power, may restore the child to the custody of its parent, even though he had notice of, and appeared in, the proceeding for commitment, and no appeal has been taken from the order of commitment and the time for appealing has expired, and although tire institution does not consent to the child’s discharge. In determining whether custody of the child should be returned to the parents, the physical and moral welfare of the child is the paramount question, and restoration may be refused where it would not be 'to the child’s benefit. * * *’ (See cases under footnotes of this section.)
“From the rules herein announced, which have been tested and tried through the years, and from a study of comparative law, it is seen that these precedential rules follow substantially the same pattern in the various systems of jurisprudence, and, unless expressly supplanted by statutory enactments, or prevented by statutory inhibitions, we are constrained to apply them in cases concerning infants involving such circumstances as in the instant case.”
The above quoted language of the Greenback case clearly demonstrates the error of the holding of the majority opinion.
There is yet another reason, however, why the majority opinion is in error. Even if the majority opinion is correct in hold*1033ing that a judgment of the county court such as is here involved can only be set aside or modified by complying with sections 1031 and 1033, 12 O.S.1951, it does not follow that the county court here involved had no jurisdiction to vacate the order here involved. 12 O.S.1951 § 1038, provides that a void judgment may be vacated at any time, on motion of a party, or any person affected thereby. Therefore if the order of the county court which petitioner sought to have vacated was void, then certainly such court has jurisdiction to vacate such order. In my opinion, the order of the county court of April 4, 1953, which purported to grant permanent custody of petitioner’s minor children to respondent and to authorize respondent to consent to the adoption of such children by someone else, is absolutely void on its face. The pertinent statutes, 10 O.S.1951 §§ 109 and 110, are set out in the majority opinion. It will be noted that section 109 provides that the court may order a dependent or neglected child committed to the care of a suitable orphans home, some reputable citizen, or any State institution, department or agency, or some association willing to receive it, or may cause the child to be placed in a public hospital or-institution or in a private hospital or institution. It should further be noted, however, that by virtue of section 110, it is only where the court awards a child to the care of an association or individual (as contrasted with a state institution, department or agency), that the child becomes the ward of and subject to the guardianship of the association or individual to whose care it is committed, and it is only such association or individual that may assent to the adoption of such child. Respondent is, of course, a state department or agency and not an association or individual. There is absolutely no authority, either express or implied, for a county court to award to respondent, a state agency, the permanent custody of a dependent or neglected child or to transfer to such agency all rights of a parent, including the right of consenting to its adoption by someone else. Since (as is stated in the majority opinion) the order of April 4, 1953, purports to commit the children involved to a state agency on a permanent basis and to transfer to such state agency all rights of a parent, including specifically the right to consent to the adoption of such children by someone else, and since there is absolutely no authority for the making of such an order, it necessarily follows that such order is void on its face and may be vacated at any time.
There is yet another error in the majority opinion which I feel is worthy of note. The opinion holds that no notice to or consent of petitioner in this case is necessary to legalize the adoption of her children by someone else and that the consent of respondent is all that is necessary. I have already pointed out that there is absolutely no authority for respondent to grant the necessary consent to the adoption of anyone. I wish to further point out, however, why I believe, that no adoption of a child of this petitioner can be valid without the consent of petitioner. 10 O.S.1951 § 44, which is cited in the majority opinion, provides in so far as is pertinent here, that consent is not necessary from a parent who has been judicially deprived of the custody of the child on account of cruelty or neglect. The majority opinion notes that petitioner has been judicially deprived of the custody of her children and therefore concludes that her consent is not necessary to the valid adoption of such children. The majority opinion fails to note, however, that petitioner was not deprived of the custody of her children on account of either cruelty or neglect. The order of the county court purporting to deprive petitioner of the custody of her children contains detailed findings of fact and nowhere in such order do either of the words cruelty or neglect appear. On the contrary, such order specifically finds only that petitioner was ill and that the children were dependent and should be made wards of the court. It should therefore be readily apparent that petitioner has not been judiciously deprived of the custody of her children on account of cruelty or neglect, and that her consent is therefore necessary before any valid adoption of such children can take place.
*1034The majority opinion attempts to justify the obvious weakness of its holding with reference to the necessity of the consent of petitioner to any valid adoption of her children by stating in the last paragraph on page 9 thereof that sections 110 and 109, 10 O.S.1951, have to do with dependent and neglected children and that section 109 only became effective on March 14, 1947, whereas section 44, prohibiting the adoption of a legitimate child without the consent of its parents, was adopted in 1910, and that under the well established rule of statutory construction the last enactment of the legislature takes precedence over prior enactments. The rule of statutory construction so announced is undoubtedly correct, but the facts with respect to the time of the adoption of the three sections involved are just the opposite of those stated in the majority opinion. Section 109, supra, may be found at page 188, Laws of 1909, and section 110, supra, may be found at page 189, Laws of 1909. Although there have been minor amendments to section 109 from time to time, the latest being in 1947, it should be noted that section 109 has nothing to do with consent to adoption, as only section 110 contains any provision authorizing any one other than a parent to consent to an adoption. Section 110, however, was adopted in 1909 and remains to this day in the same form in which it was adopted. If then, as stated in the majority opinion, section 44, supra, was adopted in 1910, which appears to be the case, it, rather than section 110, is the later expression of the legislature and must be held to control.
I am of the opinion that one of the greatest acts of injustice that could be perpetrated on a sick mother has been done in this case and that the order of the county judge who recognized the mistake he had made .and attempted to restore these children to their mother should be affirmed. I therefore dissent.
I am authorized to state that Mr. Justice BLACKBIRD concurs with the views herein expressed.