In Re the Adoption of Reinius

346 P.2d 672, 55 Wash. 2d 117, 1959 Wash. LEXIS 497

• Court: Washington Supreme Court
• Decided: November 19, 1959
• Docket: 34589
• Status: Published

Opinions

Finley, J.

In this appeal the appellant, Washington Children’s Home Society, challenges the validity of a decree of adoption.

The two minors in question are twins, born in September 1956 to an unmarried mother. She requested aid from the Pierce county welfare department in caring for the two minor children. It was anticipated that the mother would promptly sign a relinquishment and consent to adoption; the children were placed in separate foster homes pending such action. However, the mother did not consent to adoption until July 1957.

In September 1957, the juvenile court, by an appropriate order, placed the twins in the custody of the Washington Children’s Home Society (hereafter referred to as the Society) for the purpose of adoption. The effect of this order was to make the Society the “custodial guardian” of the children. In October 1957, the respondents herein, Howard Pelland and Edythe Pelland, husband and wife, who, by appropriate administrative action, had become foster parents for one of the twins and were being paid for such services at public expense, petitioned to adopt both of the twins. They did not request the Society to consent to the contemplated adoption. Actually, in becoming foster parents, they orally agreed that they would not attempt to adopt the minor placed in their care.² When the Society learned about the action of the foster parents in breach of the oral agreement and in violation of approved standards respecting foster home care, it intervened to oppose the petition for adoption.

After a hearing on the petition for adoption (filed by the foster parents), the trial court approved the petition and entered a decree of adoption and an order dispensing with the Society’s consent.

Basically, it is the position of the Society that the adoption statutes, as amended, permit dispensing with the requirement of its consent respecting a proposed adoption, only in the exercise of sound judicial discretion; that the action of the trial court in the instant case was arbitrary and an abuse of discretion rather than a proper exercise of sound judicial discretion.

For a proper understanding of the issue presented, it is necessary to examine carefully and in proper context the purposes of the adoption statutes, earlier adoption statutes, and cases construing the earlier statutes.

We believe that the purpose of our modern adoption statute, Laws of 1955, ch. 291, p. 1299 [cf. RCW 26.32], is the threefold protection of: (1) the adoptive child—from unnecessary separation from his natural parents and from adoption by persons unfit, unsuited, or unqualified to have the responsibility of the particular child; (2) the natural parents—from hurried and abrupt decisions to relinquish custody of their children; and (3) the adopting parents— from unhappiness, embarrassment and heartache, by providing them with information about the particular child and his background, and by protecting them and the child from subsequent disturbance of family relationships by the natural parents. See The Law of Adoption: Ancient and Modern, 9 Vanderbilt L. Rev. 743 (1955-56).

It is the function and responsibility of the courts to see that the adoption statute is so administered that it works in practice in a manner that recognizes and implements the above indicated purposes of this modern and socially desirable legislative enactment. The extent to which this is accomplished, generally speaking, determines whether sound judicial discretion has been exercised in particular adoption cases.

The Child Welfare League of America has promulgated a code of approved standards or procedures for use in the adoption placement of children. (Pamphlet entitled, Child Welfare League of America Standards for Adoption Service, published 1958). These standards are not the notions of any one individual. They are a composite of the experience, research and study of many people working over a period of many years with many private and public agencies handling adoptions throughout the country. The standards offer general information and some specifics to which a judge may turn for guidance in his effort to exercise sound judicial discretion in handling a particular adoption.

The problem of an appellate court in reviewing adoption cases such as the case at bar is not a simple one. It would be most helpful—and, perhaps, in some cases decisive respecting affirmance or reversal—to have detailed findings of fact made by the trial judge, indicating those factors he considered significant or determinative; among other things, whether approved adoption standards were referred to, and the extent to which the trial court recognized and attempted to follow and effectuate these standards.

The contentions advanced herein by appellant Society were presented to the court in State ex rel. Van Cleave v. Frater (1944), 21 Wn. (2d) 231, 150 P. (2d) 391. However, in the Van Cleave case the court was interpreting and applying the adoption statutes (Laws of 1943, ch. 268, § 3, p. 828) as then enacted. In the Van Cleave case the court merely held that under the existing statutes written consent need be filed prior to a hearing on the merits of the petition only (1) by the children, if fourteen years of age, or over; (2) by the parents of legitimate children; (3) by the mother of illegitimate children; and (4) by the legal guardian, if any. Since the approved adoption agency was not within the above categories, its written consent was held to be unnecessary.

Thereafter, the legislature amended the adoption laws by adding a fifth subsection to § 3, ch. 268, Laws of 1943 (see Laws of 1947, ch. 251, § 1, p. 1038). In 1955, the legislature enacted a new adoption law: Laws of 1955, ch. 291, p. 1299. The pertinent language in § 3 of that statute reads as follows:

“Sec. 3. Written consent to such adoption must be filed prior to a hearing on the petition, as follows:

“ (5) If the person to be adopted is a minor and has been permanently committed upon due notice to his parents by any court of general jurisdiction to an approved agency, then by such approved agency, in which event neither notice to nor consent by its parents in the adoption proceeding shall be necessary: Provided, That if the approved agency refuses to consent to the adoption, the court, in its discretion, may order that such consent be dispensed with.” (Italics ours.)

An “approved agency” means “any public or private association, corporation or individual who has custody of a minor child with lawful authority to place such child for adoption.” Laws of 1955, ch. 291, § 1, p. 1299. In the case at bar, the Society meets the indicated qualifications.

Section 7(1) of the 1955 act, supra, reads:

“(1) The written consent shall be acknowledged before a notary public and filed with the petition or at all events before any action is taken by the court in such proceedings. . . . ” (Italics ours.)

Section 5 of the 1955 act, supra, provides for a hearing for the purpose of determining whether the consent of a parent shall be dispensed with; upon proper notice and hearing, the court may order that such consent shall not be required prior to adoption.

In the light of the foregoing, we believe the legisislature intended that, normally, where custody has been given to an approved agency, the written consent of the approved agency should be on file before action is taken granting a petition for adoption. In fact, from our examination of the statutory provisions, as emphasized above, it would seem that when a child is placed with an “approved agency” for adoption, thereupon, the agency, as custodial guardian, in effect stands in loco parentis and takes the place of the natural parents or legal guardian of the child in regard to the matter of consent to an adoption, in order to safeguard the interests of the child.³ When an approved agency, as the custodial guardian, refuses to file its written consent in an adoption proceeding, the statute contemplates a full hearing on the reasonableness of its action. If the custodial guardian is unreasonable in the withholding of its consent,—if it is not looking out for the best interests of the child—the court, of course, in the proper exercise of judicial discretion, may enter an order dispensing with the necessity of consent. See 39 Minn. L. Rev. 567, Adoption— Consent of Guardian Where Custodial Guardian is a Charitable Child Placing Agency. But the matter of consent of an approved agency cannot be dispensed with or ignored arbitrarily any more than it could be in the case of natural parents who refuse to consent to adoption of their offspring. In both instances, the welfare of the minor is the prime and controlling consideration—in fact, the only consideration. In that respect, the court “is the ultimate protector of helpless children.” State ex rel. Van Cleave v. Frater, supra.

“Rights of adoption are created by statute, and in order to effect the adoption of a child, the procedure set up by the statute must be strictly followed. In re Renton’s Estate, 10 Wash. 533, 39 Pac. 145; In re Nelms, 153 Wash 242, 279 Pac. 748; In re a Minor, 191 Wash. 452, 71 P. (2d) 385.” In re Blake (1944), 21 Wn. (2d) 547, 151 P. (2d) 825.

In passing, it may be well to observe that there is no absolute necessity for a separate hearing on the issue of dispensing with the Society’s consent. In other words, that matter and the petition for adoption may be determined in the same hearing. Whether there is a single hearing or separate hearings, however, there is an essential requirement of adequate notice and an opportunity for the Society to be fully heard. This, of course, assumes that sound judicial discretion, based upon an informed and unbiased judgment, shall be exercised as to the issue of dispensing with the consent of the approved adoptive agency.

It seems to us that the foregoing evaluation relative to the intent and purpose of the legislature in enacting § 3, chapter 291, Laws of 1955, finds support in common sense. In this connection, it may be well to remember and to emphasize that an approved adoptive agency obtains custody of a child for adoption purposes in the first instance only through appropriate court proceedings. Furthermore, at such time, the court has complete control of the situation. If there is any judicial doubt as to the competency of the approved agency, the court need be under no compulsion to place a child with that agency for adoptive purposes— and, of course, should refrain from doing so. However, once the court makes the determination that it is for the best interest and welfare of the child that such child be committed to the custody of the particular agency for adoptive purposes, then it would seem logically compelling that the agency should be given every reasonable opportunity, and in this respect should be supported by the courts in its programming or actions designed to find proper adoptive parents and to place the child permanently with such parties for adoption.

The particular area in public administration of child welfare requires the closest of cooperation and understanding between the courts and the approved agencies. Neither can function effectively in the best interests of the large number of children in need of public child care services without the help and understanding of the other. ,

In our complex society, neither the courts nor the social agencies can do the work alone. It involves a mutual responsibility rather than a distinct and separate one. It is a responsibility and a function that must be understood and shared by the courts and the social agencies.⁴

With the above observations in mind, let us examine the circumstances surrounding the trial court’s decision in the instant case. During the course of the hearing, the trial court did allow testimony to be introduced concerning the parents contemplated by the Society for these minor children. However, from reading his memorandum decision, it seems to us that the trial judge did not consider such evidence relevant; and that, in this connection, he gave little or no consideration to the investigative work and the planning by the Society in behalf of the twins. Inter alia, the memorandum decision states:

“Now, it should be borne in mind that when a petition for adoption is filed that this does not place in the public domain all of the issues to be determined or weighed at large by the public. In other words, when a petition for adoption is filed all other persons who might be interested in adopting the child can not be heard nor permitted to enter the arena and urge that they are more suitable or that they would be better adoptive parents. . . . The matter does not become a litigable one between the petitioners and the world at large.

“ . . . The law governing adoptions does not grant unto welfare agencies or to private agencies the sole and exclusive power to deal with children or arrange for their adoption.”

It appears to us that the trial court arbitrarily dispensed with the consent of the Society relative to the proposed adoption, asserting in the process (a) that the Society, its views and functions, in effect, had no more standing in court than any stranger from the “world at large,” and (b) that in such matters the law gives “sole and exclusive power,” not to “approved agencies” (public or private), but to the courts. We cannot agree with this.

The legislature has seen fit to provide that the Society must consent to the adoption of any child placed in its custody. In this connection, the legislature has recognized that such consent may be dispensed with by order of the court in the exercise of sound judicial discretion. This certainly does not sanction arbitrary action. It contemplates, as indicated heretofore, the exercise of an informed judgment reasonably supported by the facts. In other words, consent may be dispensed with, but only where the trial court makes a determination, supportable by the facts, that such action is in the best interests of the minor child. The issue, then, is not solely whether the petitioning parents are fit. The trial court must, in the exercise of sound judicial discretion, determine further: whether it is in the best interests of the minor child to order that the Society’s consent be dispensed with.

Since, from our examination of the record, the trial court seems to have been under the erroneous assumption that the only issue relative to dispensing with the Society’s consent was the fitness of Mr. and Mrs. Pelland, adoption petitioners, this case must be reversed and remanded for further proceedings in full conformity with the views expressed herein. Pending such action, the status quo shall be maintained as to the minor children involved. It is so ordered.

Weaver, C. J., Hill, Rosellini, Foster, and Hunter, JJ., concur.

2 It should be noted with emphasis and real significance that people who meet reasonably appropriate standards and are adequate as foster parents for temporary or transitory care and custody of very young children are not necessarily adequate as adoptive parents, because of age or other factors. As a matter of fact, child placement with foster parents, almost without exception, is supposed to be temporary and transitory and, usually, is understood by all concerned to be so. On the other hand, for the purpose of permanent placement, the Society, or other comparable child-care agencies, makes a careful and expert study of prospective adoptive parents and attempts to make permanent placements of minor children in homes which will be consistent with age, race, and religion, as well as other factors, in terms of the best interests and welfare of the child. The foregoing certainly implies no criticism of the foster home parents in the instant case or of the many middle-aged and older people who participate in the foster home care program and render most valuable services to many unfortunate minor children in need of temporary child-care services in our state. It is merely a recognition of the fact that foster home parents are selected to provide temporary transitory care. They can and do function effectively in this particular respect. They are not selected or expected to provide permanent care and custody. The considerations, applicable and controlling as to the two different situations, are simply not the same.

The 1958 report of the Washington Children’s Home Society reads, in part, as follows:

“In 1958 the Society provided 44,812 days’ care for infants and children in foster family homes. An average of 123 children were cared for at all times. Most of the children stayed in foster homes less than three months before going to their new and permanent families, or returning to their homes.

“We at the Washington Children’s Home Society are much involved with babies. Of the 341 youngsters placed for adoption last year (a record), 281 were less than a year old. Many of these infants went to their permanent homes at less than one month of age.

“The needs of the children past infancy are even more pressing. More homes are always needed for older children, including brothers and sisters who should stay together. Forty of the children placed were from one to six, and twenty were older. Seventy-two of the infants and older children placed were of minority or mixed race.

“More applications to adopt children were received than ever before. The year began with 340 couples on the waiting list; 582 applications were received, and 371 families were waiting at the beginning of 1959. Six out of seven of the applications received were accepted for complete study. Three out of five families accepted for study received children. (One family in five withdraws its application and it is necessary for the Society to decide against placing a child with one family in five.)

“The average waiting time was reduced still further—to less than 10 months for families receiving infants, and to an even shorter time for those adopting older children. Two-thirds of the 331 [or 221] families who received children waited less than one year after making application.”

3 The writer of the majority opinion assumes full responsibility for referring to an interesting article appearing in 41 A. B. A. Journal 1125. The article stresses the importance of understanding the “role of the social agency in the adoption process.” In the hope of aiding in that understanding, the writer of this opinion takes this opportunity to quote at some length from the article.

“In this age of increased understanding of human development, of interdisciplinary approach in identifying and eliminating the sources of human unhappiness and ill health, the responsibility of the lawyer [and the judge] in the adoption process must be viewed in perspective.”

A lawyer or judge “who has observed some of the disastrous consequences of misguided adoptions, or attempts at adoption, knows the hazards involved. A substantial part of the legal profession is not generally aware of the nature and character of the social work profession, that it has developed special skills based on a body of knowledge developed over many years. This is true not only in relation to adoptions but to many other fields of social service.

“A trained social worker has completed four years of college work and at least two years toward a master’s degree which includes a year of supervised work, equivalent to an internship, in the field of her choice. For an adoption worker, usually an additional period of service in the field of child welfare is required. Not only trained social workers, but pediatrician, nursing staff, consultant psychiatrist, psychologist, lawyer and other specialists, called in as they are needed, are included on the staff of the larger agencies.

“Social agencies themselves have been highly critical of the slowness in processing adoption applications. The better agencies have pioneered in servicing adoption requests promptly. They have stripped their adoption service of all detail which diverts them from the main job of finding each child a permanent home by the time he is twelve weeks or younger, depending on his condition. They believe that couples are entitled to know rapidly whether their home can be used for a child, and they are entitled to be free of the stigma of being ‘rejected applicants’. By knowing their children well and interviewing only a small number of families appropriate to these children each month, the need for cumbersome waiting lists is dispensed with. For the purposes of this discussion, it may be well to review the way in which adoption is handled in a recognized agency of good standards.”

Ideally, the children “would be placed in adoptive homes when released from the hospital. In practice, however, it is to the best interests of child and family to provide a period of observation. Some infants with full family history, whose mothers have gone through a normal pregnancy and delivery and whose condition at birth is good, can be placed very early. In other cases the period of longer observation under the care of a warm foster family, with continued supervision by a caseworker, periodic examination by pediatrician, psychologist, and other specialists as indicated, permit the agency to make some predictions as to the child’s emerging personality and needs. Thus, knowing the babies who will be ready for adoption in a given month, the agency can interview only a few couples who seem to be natural parents for these children.

“At what age is a couple old enough to rear a child to maturity, at what age too old? . . . The laws of biology were not developed by social workers. In placing children, social workers must give consideration not only to the present, but to the child’s long maturing process. The capacity to respond with zest to the demanding years of boundless energy with which healthy children are endowed is not characteristic of the older age group. There are individual differences based on physical constitution, and rigid rules as to age can lead to injustice, but, in general, the best interests of the child require placement in younger families, families who are, however, considerably above the 20 to 24 year age bracket.”

To find proper adoptive families, the adoptive couples are interviewed through friendly conversations relative to their feelings “about parenthood by adoption,” and about their expectations for a child.

“In general, the couple selected will be one comfortable with each other, recognizing and accepting each other’s faults, knowing and complementing each other’s strengths. They are reasonably content with themselves and their way of life. Most important, they have faced their disappointment in not having a family naturally and can accept an adopted child for himself alone, for his own special characteristics, for the joys and problems any child presents.

“Just as important as knowing and understanding the children they place is sympathetic understanding of the families they seek to help. When an agency has learned to know husband and wife reasonably well, has established the fact that they are physically healthy, and financially able to care for a child (standards here are modest), the prospective parents are told about the child who seems to share basic similarities with them. They are helped to understand his history, and this is done in ways which in later years will prove helpful to the child in achieving a sense of his own dignity and worth.

“In short, agencies are not seeking certified babies for certified families. They are seeking to understand in the shortest time consistent with the future well-being of the adopted family they are bringing together the special needs of the child, the special qualities of the family to whom society, through the auspices of a social agency, is entrusting a young baby to be reared to mature, effective adult life. Following placement, all casework efforts are directed toward helping families grow comfortably together, continuing contact with the family usually for a year following placement. At this time legal adoption is recommended with the family going to their own attorney, but the agency stands ready at all times, even following adoption consummation, to be of assistance to the adoptive family if this is requested.”

Black marketing and gray marketing of babies, without such thorough investigative processes as outlined above, has led to many tragic cases “of adoptive parents who have had their child taken from them, long after placement, when a mother has changed her mind; adopted children who develop serious physical or mental defects; adopted children whose mixed racial background does not become apparent until it is too late to make a wise choice of family on the basis of the child’s characteristics; and adopted children of low intelligence placed with adoptive parents having ambitions for the child which cannot be fulfilled.

“Many independent adoptions do work out successfully but the chances for this, according to the late Dr. Amatruda, for many years associated with Dr. Gesell in the Yale University Clinic of Child Development, are only 50 per cent.

“In short, an independent adoption has the same statistical ratio of success as chance.

“The whole purpose of adoption is to bring together a family unit in which parents and children may find in each other a reasonable degree of pleasure. An adoptive placement must not be based upon vague fulfillment of a couple’s longing for a child by placing any child in the home. It must be predicated upon the particular needs of an individual child, upon the characteristics of the family undertaking to rear him.”

4 On the basis of information available, it seems very clear that foster home care and a workable foster home program for minors pending adoption is a most desirable alternative to institutional care for such minors pending their permanent placement with adoptive parents. If the rather extensive and supervised program of foster home care in our state is to function efficiently, and is to be relied upon and used by approved agencies as the most desirable method of providing temporary and transitory care for minors pending their permanent placement for adoption, all concerned must understand that foster home placement is temporary and transitory, and all concerned, including the foster parents, the courts, and the agencies, should be content to abide by reasonable standards and rules regarding the operation and functioning of the foster home care program. It is time consuming and costly for an approved agency to investigate prospective adoptive parents and to work with them on a prospective plan of adoption. Under the circumstances, it is not conducive to orderly and effective operation of the foster home care program to permit foster parents, who, understandably, may have become attached to children placed in their care, to interrupt and to set aside for naught a plan of adoption made by an approved agency.

In 1957, 2,248 adoptions were officially sanctioned by the courts of this state; 1,160 of these were cases where the adopter was not related to the adoptive child. Of this latter group, 58.9%, or 683, were processed and completed by the six approved adoptive agencies in this state as well as the state department of public assistance. (The six approved agencies are: Washington Children’s Home Society; Medina Children’s Service; Associated Lutheran Welfare; and three Catholic children’s homes, operating in different parts of the state.) The foregoing statistics illustrate the socially significant function being performed by approved adoptive agencies in the placing of destitute minor children of our state in suitable homes.