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Thies v. Barnes

October 19, 1972

THIES ET UX, RESPONDENTS,
v.
BARNES, APPELLANT



Appeal from Circuit Court, Douglas County. Don H. Sanders, Judge.

James H. Spence, Roseburg, argued the cause for appellant. With him on the brief were Washburn, Farrell & Spence, Roseburg.

Kenneth A. Morrow, Eugene, argued the cause for respondents. On the brief were Mulder, Morrow & McCrea, Eugene.

Thornton, Judge. Schwab, Chief Judge, and Foley, Judge.

Thornton

This appeal is from a decree of the circuit court for Douglas County allowing petitioners John and Claudia (Barnes) Thies to adopt James Alan Barnes, a minor. Mrs. Thies is the natural mother of the child, which was born as issue of her previous marriage to James Barnes, the natural father, herein referred to as respondent. John Thies is her present husband.

The petition for adoption was filed June 28, 1971. Respondent James Barnes withheld his consent and contested the adoption.

Jurisdiction to proceed with the adoption in the absence of the natural father's consent was sought under ORS 109.324, which provides:

"* * * [I]f the court finds that such parent

has wilfully deserted or neglected without just and sufficient cause to provide proper care and maintenance for the child for one year next preceding the filing of the petition for adoption, the consent of such parent at the discretion of the court is not required and, if the court determines that such consent is not required, the court shall have authority to proceed regardless of the objection of such parent * * *."

A hearing was held on December 3, 1971, and the trial court found jurisdiction to proceed with the petition for adoption on the ground that under ORS 109.324 the consent of the natural parent was not required because he "neglected without just and sufficient cause to provide proper care and maintenance for the child for one year next preceding the filing of the petition for adoption." A further hearing was held February 17, 1972, following which the circuit court entered its decree allowing the adoption.

The natural father appeals contending that the trial judge erred:

(1) In ordering that his consent to the adoption was not required;

(2) In denying the father's motion to dismiss the petition for adoption because of the lapse of more than six months between the filing of the petition and the ...


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