IN RE ASTERBLOOM'S ADOPTION (TERMINATION OF PARENTAL RIGHTS)

Key holdings

Practitioner summary

Appeal from an order denying the natural father's motion to set aside a 1939 stepparent adoption. Held: the case is governed by N.C.L. sec. 9481; upon the mother's consent and the judge's finding that the father had abandoned the child, the court had jurisdiction to enter the adoption without the father's consent or notice to him. Adoption statutes dispensing with a delinquent parent's consent and notice are constitutional, the legislature having wide discretion to define forfeiting conduct (Hersey v. Hersey, 271 Mass. 545, 171 N.E. 815); but the court need not decide the constitutional question because the father's conduct estopped him from complaining of lack of notice (Jackson v. Spellman, 55 Nev. 174, 28 P.2d 125). The undisputed evidence showed a settled purpose to forego all parental duties - express renunciation followed by disappearance, cessation of support though able to pay, and no contact - which constituted abandonment; abandonment does not require that the child be left in a destitute condition (In re MacLean, 109 Misc. 479, 179 N.Y.S. 182). Any notice concern was cured by the father's opportunity to be heard on his own motion, at which he failed to appear and testify. Affirmed.

In plain language

After a mother divorced the father in 1937 and remarried, her new husband, the child's stepfather, adopted the boy in 1939. The court granted the adoption without the natural father's consent, finding that he had abandoned the child. Almost seven years later the father moved to set aside the adoption, arguing that he never received notice and never consented, so the court lacked jurisdiction. The Nevada Supreme Court affirmed the denial of his motion. The adoption statute allowed the judge, upon finding abandonment, to proceed without the absent parent's consent, and did not require notice to a parent who had abandoned the child. Even if notice were otherwise required, the father was estopped by his own conduct: he had told the mother and her attorney he was "dropping out of the picture," then disappeared, stopped paying support although he was well able to pay, and made no effort to contact his son. His belated motion - at which he did not even appear to testify - was properly denied. The court also held that abandonment does not require that the child be left destitute; it means the neglect and refusal to perform the natural and legal obligations of care and support.