Matter of Adoption of Gibson

THORNTON, P. J.,

dissenting.

I dissent for the reason that I believe the majority’s position is untenable on two grounds. First, as I see it, the *780appeal should be dismissed, because this court lacks jurisdiction to entertain it. This is true for the simple reason that mother’s new husband did not appeal. ORS 19.029, 109.310(1). Second, even assuming arguendo that mother can somehow appeal, notwithstanding that her new husband did not join in the appeal, I am in disagreement with the majority’s conclusion on the merits after reading the record and briefs in this case. I agree with the trial judge that the petitioner-mother (and her new husband) failed to meet their burden of proof that father wilfully deserted or neglected his minor children without just cause within the meaning of ORS 109.324.

JURISDICTION ISSUE

Addressing the jurisdiction issue first, it is undisputed that wife’s new husband was not named in the notice of appeal. ORS 109.310(1) requires that an adoption petition by a married person “shall not be granted unless the petitioner’s spouse joins therein.” ORS 19.029(b) provides that all notices of appeal must contain, inter alia, “[t]he names of the parties [to the appeal].” The procedure provided in ORS 109.324 for dispensing with the consent of a parent who has deserted or neglected the child (which is involved here) is an integral part of the adoption statutes (ORS 109.305 to 109.410). All sections of a law must be construed in para materia. Rosentool v. Bonanza Oil and Mine Corp., 221 Or 520, 352 P2d 138 (1960). If both spouses must be joined in the petition, it follows that they must be joined in any appeal.

Apart from the above statutes, it has long been the law in this state that all parties to a judgment or decree whose interests may be substantially affected by the adjudication of the appellate court must be included in the appeal. Without all such parties before it, the appellate court has no jurisdiction. Hamilton v. Blair, 23 Or 64, 31 P 197 (1892). The conclusion is inescapable that Robert Street is an indispensable party and that the appeal is fatally defective for failure to include an indispensable party to the appeal. It follows, therefore, that this court has no jurisdiction to entertain it. Cottrell et ux. v. Prier et ux., 187 Or 454, 212 P2d 87 (1949); Adams et al. v. Kennard et al, 122 Or 84, 222 P 1092, 227 P 738, 253 P 1048 (1927). It *781is the duty of this court to inquire into its own jurisdiction when the possibility of a lack of jurisdiction is apparent on the face of the record, even though neither party has raised the issue. City of Hermiston v. ERB, 280 Or 291, 570 P2d 663 (1977); Northern Ins. Co. v. Conn Organ, 40 Or App 785, 791, 596 P2d 605, rev den 287 Or 507 (1979); League of Women Voters v. Lane Co. Bndry Comm., 32 Or App 53, 573 P2d 1255, rev den 283 Or 503 (1978).

ON THE MERITS

Leaving the jurisdiction issue aside and going to the merits, I am in equally strong disagreement with the majority on the merits. Boiled down to the essentials, what we have here is not merely a contested adoption proceeding, but a long, bitter fight between divorced parents over the father’s attempt to exercise his visitation rights. This adoption appeal is simply the latest chapter in this unhappy saga.

This was a six-year marriage. The union produced two children, a son and a daughter. The marital domicile of the couple was in the State of Virginia.1 In 1975, mother filed for divorce in Virginia, and the parties entered into a statutorily sanctioned agreement whereby mother was awarded custody of the children, father was allowed certain visitation rights and agreed to pay $400 per month child support. The parties apparently separated on less than friendly terms. Controversy over visitation was not long in developing. Mother moved first to Richmond, Virginia, and then to Oregon, where her parents lived. Father remained in Virginia.

Father continued to pay some child support until January, 1977. In early 1977, after mother had filed a URESA proceeding in Corvallis, father paid mother’s Virginia attorney some $1400, which included accrued and unpaid support payments. Father testified that he was promised the current address of mother in Oregon as part *782of this transaction, but that this information was never furnished. He sought their address by telephoning her father in Roseburg and by writing mother in care of her parents at Roseburg. He testified that he made numerous other inquiries but without success. Later he turned all matters, including his efforts to contact his son, over to his Virginia attorney. On one occasion he attempted to give the boy a bicycle for Christmas after talking by telephone with the maternal grandfather, but mother refused delivery of it because the son “had no place to ride it.” Father also sent his son hats and a jacket and established a savings account for the boy.

When mother failed to advise father of the whereabouts of the children and would not allow him to visit the son, father went to a lawyer in Virginia. The lawyer advised him that he need not continue to pay child support if mother denied him his right to visitation. Father then stopped paying child support. Whatever may be the law in Virginia in this regard, this was incorrect legal advice insofar as the law in this state is concerned. See Garrison and Garrison, 28 Or App 297, 300, 559 P2d 513 (1977).

In 1980, when mother was in Virginia with the children and her new husband, presumably visiting her new husband’s parents, she did not contact father concerning his visitation rights. When father contacted her he was refused visitation except under restrictive conditions. Father thereupon filed proceedings in Virginia seeking to compel mother to grant him visitation rights. Mother was served with a copy of the motion but evidently chose not to appear at a July 22, 1980, hearing.

On February 11, 1981, the Virginia court ordered mother to allow such rights, to provide father with the address and phone number of her home in Oregon and to allow phone conversations between father and son. The court also ordered father to resume payment of child support. Father did not resume support payments, however, on the advice of his attorney, because mother had not furnished him with her address and phone number as required by the Virginia court order. In May, 1981, father, however, mailed a support check to mother, but it was never cashed.

*783In April, 1981, mother, together with her new husband, filed the instant petition for adoption of the two minor children.

Mother acknowledges that she intentionally failed to inform father where she lived in Richmond, Virginia, or Albany and Corvallis, Oregon, so that he could not exercise his visitation rights. The conclusion is inescapable that mother (and later her new husband), for whatever reason, were not permitting father to exercise the visitation rights guaranteed him by the Virginia divorce decree and had embarked upon a systematic course of conduct designed to make it impossible for father to exercise those rights and to sever and extinguish all ties between the children and their biological father.

The standards for determining a stepparent adoption petition are the same as those governing parental termination proceedings under ORS 419.523. State ex rel Juv. Dept. v. Draper, 7 Or App 497, 503, 491 P2d 215 (1971), rev den (1972). To authorize this adoption without father’s consent and to deprive father of his parental rights under these circumstances would be a gross miscarriage of justice and contrary to the rationale of a long line of precedents in this state. See, e.g., Omlie et ux v. Hunt, 211 Or 472, 316 P2d 528 (1957); Brown v. Taylor, 22 Or App 219, 538 P2d 1268, rev den (1975); Mahoney v. Linder, 14 Or App 656, 514 P2d 901 (1973); Eacret v. Dews, 10 Or App 511, 500 P2d 481, rev den (1972).

The experienced trial judge, who saw and heard the witnesses, reached a conclusion that is amply supported by the evidence. I submit that there is no rational basis for overturning it. I would affirm. As the trial court said from the bench at the conclusion of the hearing:

“ * * * I don’t visualize a father has to hire an investigator to go find where the children are. * * * I don’t believe under these circumstances I can find that he did this without just and sufficient cause.
<( * * * * *
“These children have a right to know their biological family, their extended family, they have the right to preserve the right of inheritance, have a right to maintain the family name.
*784<( *****?>

Finally, it is significant that the United States Supreme Court in a recent landmark decision, Santosky v. Kramer,_US_, 102 S Ct 1388, 71 L Ed 2d 599 (1982), declared unconstitutional a New York law allowing termination of parental rights on proof by a “fair preponderance of the evidence.” The court held that the fundamental liberty interest of natural parents in the care, custody and management of their child is protected by the Fourteenth Amendment and that therefore such proof must be by “clear and convincing evidence.” This decision underscores the high importance that the nation’s supreme judicial authority attaches to the protection and preservation of parental rights and to the high standard of proof required in order to judicially terminate those rights.

For the foregoing reasons I respectfully dissent.

In Grubs v. Ross, 291 Or 263, 630 P2d 353 (1981), our Supreme Court held that Oregon courts have no jurisdiction to modify a Montana decree of child custody where Montana continues to have modification jurisdiction under the Uniform Child Custody Jurisdiction Act. Query: Should this rule apply to adoption proceedings filed in the second state?