Oregon Court Case: Adoption of Green

In the Matter of the Adoption of Sherri Lynn Green, an infant. SMITH et ux, Appellants, v. GREEN et ux, Respondents 

COURT OF APPEALS OF OREGON, Department One 

4 Ore. App. 533; 480 P.2d 437 

October 26, 1970, Argued 

February 11, 1971 

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

Affirmed in part; reversed in part. 

COUNSEL:
Harrison R. Winston, Roseburg, argued the cause and filed the brief for appellants. 
No appearance for respondents. 

JUDGES:
Langtry, Judge. Schwab, Chief Judge, and Foley, Judge. 

LANGTRY, J. 
This is an appeal from a decree denying a petition for adoption of a minor child. The petition was based upon the narrow ground under ORS 109.324 of "neglect without just and sufficient cause to provide proper care and maintenance for the child for one year next preceding" the filing of the petition. 
The parents of the child were properly served with citation at their domicile in Utah, as required by ORS 109.330, and they appeared by written answer and in person. The answer, inter alia, alleged that the child was being wrongfully withheld from them by petitioners, that it is in the child's best interest that she be returned to their custody, and demanded the same. 
Evidence was that petitioner wife is an aunt of the natural father of the child, who was born January 29, 1964. Petitioners and the child's parents were domiciliaries of Utah. The women worked together and the men had worked together. The parents were having marital and financial trouble and, as a result, on August 21, 1964, they and the petitioners went to a Utah lawyer and had him prepare a written contract which they all then signed, under which, in consideration of the agreement of the petitioners to support and maintain the child and give her the same love and affection they gave their own children, they placed the custody of the child with the petitioners. The parents agreed that after the child had resided with the petitioners for one year they would "appear in court and give the consent necessary for the adoption of such child." This written contract was received in evidence without objection. 
In July or August of 1965, a disagreement arose between petitioner wife and the natural mother, and the latter sought return of the child. The evidence as to time when this occurred is disputed, but from all of the evidence it can be inferred that one year from August 21, 1964, had elapsed. She met resistance and did not take the child. The evidence also is disputed as to the exact time, but about September 5, 1965, according to the most reliable testimony in the record, petitioner wife took the child to Colorado for about two months, and then, taking the child with her, moved to Grants Pass, Oregon, to join her husband. Previous to their Utah residence, all of the parties had resided in the Grants Pass area. Petitioner husband, when he went to Grants Pass in 1965, continued to work for the same man that he and the child's natural father had together previously worked for in the same area. Petitioners never notified the parents where they had gone. From 1965 until the petition was filed in 1969, they lived continuously in Grants Pass and nearby Glendale. The parents of the child continued to live in Utah. They were frequently in contact with relatives of both couples in Oregon and Utah who knew the whereabouts of each. They visited several times in Oregon during the same years and made no serious effort to locate the petitioners and the child on those occasions, although the circumstances shown in evidence make it apparent that they must have known petitioners were in the Grants Pass area. Obviously, they made no contribution to the child's support. The evidence which we have reviewed, although it is in sharp conflict, fairly supports the findings of the trial court in the following regards: 
"* * * More probably than not Mrs. Smith [petitioner] left [Utah in 1965] to prevent the mother from retaking her child. * * * [T]he court is satisfied from the evidence that had the Greens during the year immediately preceding the filing of the petition seriously undertaken to locate Smiths and their child, they would have in all probability succeeded. * * * [Petitioners] have reared a healthy, happy, contented child. * * * [If] the rule applicable was that of custody in a suit for divorce, i.e., the best interest of the child, the result herein would be different. It does no injustice to the parents to say that after the period of time that has elapsed in this case -- here the child has virtually spent the first six years of her life in the home of the petitioners, whose rearing of the child simply cannot be faulted -- that it would seem the child's best interest dictates that she remain where she is. She is virtually a stranger to her parents and her brothers and sister * * *." n1