Appeal from Circuit Court, Lincoln County. Eugene K. Richardson, Judge.
Douglas W. Daughtry, Lincoln City, argued the cause for appellant. With him on the brief were Bennett, Gates & Daughtry, Lincoln City.
James H. Lewelling, Newport, argued the cause and filed the brief for respondents.
Thornton, Judge. Schwab, Chief Judge, and Langtry, Judge.
This is an appeal by the natural mother seeking to set aside the decrees of the circuit court permitting petitioners to adopt her twin daughters. Both petitions for adoption were consolidated at trial and on this appeal. Jurisdiction was sought under ORS 109.326,*fn1 petitioners alleging that the natural mother had given her written consent*fn2 for the adoption and that she is
unwed. There is nothing in the record to indicate that the natural father was served with any notice of the proceedings.
The natural mother filed a revocation of her consent and intervened in the proceedings, challenging the jurisdiction of the court. The trial court ruled that she was estopped to withdraw her consent and entered decrees granting the petitions for adoption of both minor children.
On appeal the natural mother alleges: (1) the trial court erred in finding that she was estopped to withdraw her consent and (2) notwithstanding a finding of estoppel, the court should have considered options available under the adoption laws other than granting the petitions for adoption.
Under our adoption laws, consent of the parents, guardian or other person in loco parentis (except under certain contingencies not involved here), is jurisdictional, and in the absence of such consent the court is without power to proceed. Hughes v. Aetna Casualty Co., 234 Or 426, 435, 383 P2d 55 (1963); Dugger et ux v. Lauless, 216 Or 188, 194, 338 P2d 660 (1959); Hessner et ux v. Bilyeu, 210 Or 266, 268, 310 P2d 305 (1957); Williams et ux. v. Capparelli, 180 Or 41, 44, 175 P2d 153 (1946). If the court proceeds without the required consent "its decree will be a nullity, not voidable but void * * *." Furgeson v. Jones, 17 Or 204, 219, 20 P 842 (1888); accord, In re Estate of Meyers, 197 Or 520, 532, 254 P2d 227 (1953).
As already noted, jurisdiction to proceed with the adoptions was sought under ORS 109.326, which essentially provides that where the children to be adopted are illegitimate, the consent of the natural mother is required but that the natural "father of the
child shall be disregarded just as if he were dead."*fn3 The requirements for jurisdiction under ORS 109.326 are that the natural mother of the child (1) be "unmarried at the time of the conception of the child," (2) remain "unmarried at the time of the birth," (3) "not [be] married to the [natural] father * * * at the time of her consent" and (4) did in fact consent.
The essential facts are as follows:
The twins sought to be adopted by petitioners were born January 29, 1970, in French Camp, California, to Barbara Anne Biggs and Virgil John Biggs. There is a conflict in the record as to the marital status of the natural parents. The mother testified that she was married to Virgil John Biggs in Nogales, Mexico, on February 14, 1969; that she and Mr. Biggs signed a certificate, paid the required fee, were married in a civil ceremony and thereafter considered themselves (and held themselves out as) husband and wife. However, Mrs. Biggs did not produce a marriage certificate and she further testified she had been informed by officials in Nogales that they did not have a record of the marriage.
The record, on the other hand, reveals several documents (including the consent to adoption and withdrawal of consent) executed by Mrs. Biggs which
state that she was unmarried at the time of the birth of the twins. At trial she sought to explain this inconsistency saying that she had always considered herself married, but that by the time she executed the above documents, she had become uncertain of the validity of her marriage. It had been indicated to her, apparently by an unidentified welfare caseworker, that she probably was not married. In all her transactions with public welfare in Oregon, Arizona and California, ...