In Re Adoption of Karns

I respectfully dissent.

In In re Adoption of Alley, 234 Iowa 931, 14 N.W.2d 742, so much relied upon by the majority, I voiced my dissent when the majority of this court held an adoption could be consummated without the father's consent when the record showed the father was mentally sick at the time of the divorce and the income from his property actually supported the children. The majority opinion there ignored the record of the father's income-producing property that was turned over to the children and held the mother could give his children in adoption without his consent. The decision was probably harmless in that case for there the adoption petition had been denied and the reversing opinion of the majority only directed a hearing and determination by the trial court.

Here the result is tragic. A soldier father, with four bronze campaign medals and the Purple Heart, returns from the war to find his infant daughter, born while he was in service, adopted out without his knowledge or consent. The opinion can be sustained only by holding the mother is the person who had the care and provided for the wants of the child. Yet the record shows that the father took an emergency furlough home the first time he heard that his ex-wife was to be a mother, for the very purpose of taking care of her and, I think we can assume, for the purpose of caring for the expected child, but she spurned his offer.

On his next furlough the child was nineteen months old and the record is undisputed that he offered the mother, who had married again, assistance "more or less a monthly allowance" and it was refused. He testified: "Her husband blocked that allotment."

When he next saw the child, on his return from overseas service, it was at the grandmother's and his request to take the child was refused. He then tried to reopen the divorce action to get a decree granting custody of the child to him and went back to camp. His attorneys could not locate his ex-wife for service. While in camp he made application for an allotment for the child but the allotment checks were returned and he was notified by the grandmother that she had obtained a decree of adoption. As the grandmother testified:

"When I found that he filed for the custody of the child, I came in here and filed adoption papers — I took steps to protect her which consisted in going up to this judge and having him sign the adoption procedure."

It was as simple as that. Can it be that the adoption statutes are to be used to forever deprive a soldier parent of his child, without any notice or any hearing, on the mere consent of the mother, who refused his offered assistance, when there has been no decree of any court depriving the father of his common-law and statutory right of equal custody with the mother?

What is the record with respect to the mother's being the person who had the care and provided for the wants of the child? The child was born at the grandparents' home March 1, 1941. She lived at her grandparents' home with her mother until the latter married Robinson in September 1942 and went to Missouri, taking the baby with her. The plaintiff's stepmother testified that when she saw the baby and the Robinsons in Missouri, Mrs. Robinson told her that "she had snatched the baby from her mother's home." The baby was brought back to the grandmother's home by Robinson about September or October of 1943, where it has been ever since.

The plaintiff testified:

"I left this country to go to Africa October 23, 1942, after I had seen the child at Alexandria. I stayed abroad 23 1/2 months. I received letters that Norma Karns had abandoned the child and went to Montana with her husband and left the child in the care of the grandmother at that time. That is what the grandmother told me when I went down there. Q. She said the child was abandoned to them? A. That is what she told me, and my stepmother, at that time."

The plaintiff's stepmother corroborated the plaintiff when she testified:

"I next saw the child in September, 1944, after Mr. Karns came home from service and then heard the conversation between Louis Karns and the Kinkeads. Norma was not there. Mrs. Kinkead said Norma had gone away and left the child with her. She told me that Norma had never cared anything about the baby at all; and that she and her husband intended to keep the baby."

The grandmother denied that her daughter abandoned the child. She testified:

"Q. And you say that your daughter, Norma, never abandoned this child? A. No. I did not say she abandoned it. I say she left it in my care because she could not take care of it. She was married to Tom Robinson and was in good health then as far as I know. She brought the child back to me. She sent it back. She went to the hospital but Tom Robinson brought it over to me. She said she had an operation. I don't know just what it was. It was in September. October 1st they brought her back. That would be in 1943, so she had the child about ten or eleven months. She went to St. Mary's Hospital at Quincy, Illinois, and was living with Robinson then. I never asked her to take the child after she got out of the hospital because she said her nerves would not let her. As far as I know, she has been unable to take it ever since. She says she is self-supporting at the present time."

The child's mother was not present at the trial. The grandmother, testifying at the trial, stated:

"So far as I know, Norma Karns is at Bozeman, Montana. I don't know her address. I don't think she is still living with Tom Robinson. I would rather think she is divorced."

This is the record which the majority feel establishes that the mother was the parent having the care and providing for the wants of the child so that she could secretly consent to the child's adoption and forever deprive the natural father of his child, even though the father was offering to care for the child and provide for its wants.

In Rubendall v. Bisterfelt, 227 Iowa 1388, 1390, 291 N.W. 401,402, we held the mere promise or stipulation by the father to support the child was sufficient to void an adoption decree obtained without the father's consent. And there is nothing in the opinion that shows that the father carried out the stipulation or contributed one cent to the child's support. There we stated:

"Appellees argue that consent of appellant to the adoption was unnecessary because, they say, after the divorce the mother was `the parent having the care and providing for the wants of the child'. However, the record shows the parties had stipulated [and the decree recognized] that in case a divorce was granted appellant would contribute to the support of the child and should have the right of visitation. * * * Under the circumstances it cannot be said the mother was the parent who provided for the wants of the child to the exclusion of appellant."

If a father who agrees to support a child, or is ordered to support a child, is such a parent who must consent before a valid adoption is consummated, then I feel a soldier father who offers to support his child is also such a parent who must consent before a valid adoption is consummated. The majority opinion cites the Rubendall opinion but only to dispose of a contention not disclosed in the opinion. Surely the Rubendall opinion is now overruled without direct reference.

With respect to the issue that was litigated being the same issue that the divorce court would litigate, I do not agree with the majority. The issue here was the legality of the adoption decree. Perhaps the plaintiff did introduce testimony of his good home, but the adoption statutes contemplate a different kind of hearing from the ordinary action. He should not be penalized for this. He is not asking for custody of the child. He asks that the court that has power to grant simple custody be allowed to act. After all, adoption is final and custody may not be. The custody action may at least give him some right to support his child and to visit his child. The adoption decree takes away all rights of a father. To me it is far too drastic to render secretly against a soldier who, I think, did all he could to support his child. The decree tells him he can never see his child again or have a part in her education or support because the mother, who, under the record, evinced little interest in the child, was careful to refuse his offers of support. I would reverse.

WENNERSTRUM, J., joins in this dissent.