Oregon Court Case: Adoption of Kyle

In the Matter of the Adoption of Jon Paul Michael Kyle, A Minor. LARRY D. and JUDY A. STURSA, Respondents, v. MICHAEL M. KYLE, Appellant

CA No. A49713 

COURT OF APPEALS OF OREGON 

99 Ore. App. 236; 782 P.2d 158 

October 5, 1989, Argued and submitted 

November 8, 1989 

Appeal from Circuit Court, Clackamas County. Richard J. Burke, Senior Judge. No. A87-11-7. 

Affirmed. 

COUNSEL:
Theresa L. Wright, Salem, argued the cause for appellant. With her on the brief was Willamette Legal Clinics, Salem. 
Kevin Chames, Portland, argued the cause and filed the brief for respondents. 

JUDGES:
Richardson, Presiding Judge, and Newman and Deits, Judges. 

RICHARDSON, J.
Appellant, who has been sentenced to a term of more than three years and has been incarcerated at the state penitentiary for more than three years, seeks review of the trial court's order allowing the adoption of his minor son, without his consent and over his objection, by the current husband of the child's mother. n1 ORS 109.322 provides, in relevant part: 

"If either parent * * * is imprisoned in a state or federal prison under a sentence for a term of not less than three years and has actually served three years, there shall be served upon such parent, if the parent has not consented in writing to the adoption, a citation in accordance with ORS 109.330 to show cause why the adoption of the child should not be decreed. * * * Upon hearing being had, if the court finds that the welfare of the child will be best promoted through the adoption of the child, the consent of the * * * imprisoned parent is not required, and the court shall have authority to proceed regardless of the objection of such parent."

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n1 Appellant and the mother were married 20 days after the child was born. Appellant's incarceration began before that time. He had been convicted of first degree rape, sodomy and kidnapping and was sentenced to 20-years imprisonment on each, with a 10-year minimum on each.

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Appellant argues in his first assignment that the provisions of ORS 109.322 "relating to felons are not enforceable." He contends that ORS 109.322 is contrary to ORS 137.275, which provides: 
"Except as otherwise provided by law, a person convicted of a felony does not suffer civil death or disability, or sustain loss of civil rights or forfeiture of estate or property, but retains all of the rights of the person, political, civil and otherwise, including, but not limited to, the right to vote, to hold, receive and transfer property, to enter into contracts, including contracts of marriage, and to maintain and defend civil actions, suits or proceedings."

Appellant's reasons for considering the two statutes to be incompatible amount to little more than his perception that they promote conflicting policies. Although the underlying policies of the statutes are different, they are not inconsistent. ORS 137.275 was enacted to reduce secondary sanctions for the commission of felonies; ORS 109.322 attempts to facilitate the welfare of children whose natural parents are subject to long-term imprisonment. In any event, the evidence is compelling that the legislature did not intend to displace ORS 109.322 through the enactment of ORS 137.275. 

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