Strobel v. Garrison

459 P.2d 1001, 255 Or. 16, 1969 Ore. LEXIS 579

Opinions

O’CONNELL, J.

This is a proceeding in habeas corpus brought by plaintiff to obtain the custody of her infant child. Defendants appeal from a judgment ordering defendants to deliver the child to plaintiff.

In July, 1967 plaintiff, fifteen years of age and unwed, conceived a child. In February, 1968 plaintiff entered the Salvation Army’s White Shield Home for expectant unwed mothers. While there plaintiff informed the social service supervisor that she had decided to have her child adopted through a child-caring agency. The supervisor notified defendant Waverly Children’s Home of plaintiff’s desires, whereupon a representative from Waverly met with plaintiff and explained the services of Waverly.

On March 26, 196S plaintiff gave birth to a child and on April 1, 1968 the Waverly representative came to the White Shield Home to obtain from plaintiff a formal surrender of the child and a consent to adoption. At that time plaintiff executed a “Surrender and Release” which is set out in the margin.

Footnotes

•

①

A few minutes later and as a part of the same transaction plaintiff signed a “Certificate and Waiver” which is also set out in the .margin.②

On May 21, 1968 Waverly placed the child with prospective adoptive parents. Plaintiff married Mer rill Strobel on June 1,1968. Merrill was not the father of her child. On June 29, 1968 plaintiff telephoned Waverly requesting the return of her child, which Waverly refused whereupon plaintiff brought this habeas corpus proceeding.

The trial court, relying upon Dugger v. Lauless, 216 Or 188, 338 P2d 660 (1959), held that plaintiff could withdraw her surrender and release and consent to adoption. In Dugger v. Lauless, supra, which involved a non-agency adoption, we held that the natural parents of the child may withdraw their consent prior to the. entry of a decree of adoption unless they are estopped to do so. In the present case the trial court found that there was no basis for an estoppel.

Defendants contend that Dugger v. Lauless, supra, is hot applicable to the present case because here the child was surrendered to a licensed child-caring agency and that in these circumstances ORS 418.270 is controlling.

ORS 418.270 provides as follows:

“(1) Incorporated private child-caring agencies may receive needy or dependent children from their parents or legal guardians for special, temporary or continued care. The parents or guardians may sign releases or surrenders giving to such organizations guardianship and control of the persons of such children during the period of such care, which may be extended until the children arrive at legal age. Such releases do not surrender the rights of such parents or guardians in respect to the adoption of such children and do not entitle such organizations to give consent to the adoption of- said children unless the release or surrender expressly recites that it is given for the purpose of adoption.

“(2) Any entire severance of family ties of such children by adoption or otherwise shall be accomplished only by the order of a court of competent jurisdiction.

“(3) It is unlawful to present a child surrendered to an agency by a parent, parents or guardian for a court to pass upon the adoption of said child until at least six months have elapsed after signing the surrender.

“(4) Parents or legal guardians of children whom they have by release or surrender agreement given into the guardianship of incorporated child-caring organizations may subsequently waive their right to personal appearance in court in matters of adoption of such children, and file their appearance and consent by a duly signed and attested certificate, which the court shall recognize as a valid basis for judicial consent in such cases, in which event, the child-caring organization may use the release or surrender as provided in subsection (1) of this section without the necessity of the six-month period having expired.”

As we noted above, plaintiff signed both the surrender (reciting her consent to the adoption) as provided in subsection (1) of OES 418.270, and waiver of appearance provided for in subsection (4).

Defendants contend that the execution of these two instruments by plaintiff fulfilled the requirements of OES 418.270, the effect of which was to sever irrevocably plaintiff’s right to the custody of her child.

The statute makes it clear that in the absence of the execution of a waiver of appearance and consent (subsection (4)), a child in the custody of a child-caring agency cannot be adopted until at least six months have elapsed after the parent has signed the surrender (subsection (3)). It seems apparent that this six-month moratorium was designed to give the parent who had surrendered his child to an agency and consented to adoption the opportunity to change his mind within the six-month period. However,. subsection (4) lifts the moratorium where the parents file a certificate of consent and waiver of appearance.

It will be noted that subsection. (4) provides that the parents “may subsequently waive their right to personal appearance in court * * (Emphasis added.) The certificate executed by plaintiff would not toll the six-month waiting period and permit the entry of a decree irrevocably foreclosing plaintiff from regaining custody of her child unless the certificate is deemed a subsequent writing within the meaning of the statute.

The certificate of waiver was executed seven minutes after the execution of the surrender and release. Does this constitute a subsequent waiver? Defendants argue that it does, even though the certificate was executed as a part of the same transaction in which the surrender was executed.

Subsection (1) of QRS 418.270 provides, in effect, for consent to adoption as a part of the instrument of surrender. Subsection (4) provides for something more than the giving of consent; it is a provision relating to waiver of appearance in court. Thus it provides that parents “may subsequently waive their right to personal appearance in court” and file their appearance “and consent by a duly signed and attested certificate, which the court shall recognize as a valid basis for judicial consent in such cases * * *” (Emphasis added.)

We interpret this provision as requiring a waiver of appearance in a specific proceeding in which specified adoptive parents are petitioners. We do not think that the legislature intended to establish a procedure -whereby parents could waive their right to personal appearance in any adoption proceeding which might be brought by someone in the future.

This interpretation of subsection (4) fits it into the other subsections of OES 418.270. If a parent consents to the adoption as a part of the execution of the surrender provided for in subsection (1) and six months elapses, the original consent will, upon the entry of the decree of adoption, operate to bar the .parent from regaining custody of the child.

• We think that this was the legislative purpose in enacting subsection (3). Six months is an adequate period of time for parents to consider the consequences of their action in giving the child-caring agency consent to adoption and to decide whether to withdraw their consent. But the legislature apparently felt that a moratorium of less than six months would be adequate if the parents were apprised of a proceeding which had been instituted to adopt their child. The parents would then be faced with the imminent loss of their child and would, presumably, give their consent by signing the certificate of waiver of appearance only after carefully reappraising their previous action in granting consent to the child-caring agency.

By requiring this subsequent waiver and consent the legislature reduced the danger of a consent given impulsively or under circumstances, such as' in the present case, where the parent is under pressures or faced with alternatives which impel consent as the lesser of two immediate evils.

In the present case plaintiff did not execute a waiver of appearance as a part of a specific judicial proceeding for adoption. Under these circumstances plaintiff has the right to regain custody of her child and for that purpose to revoke the authorization to give consent to adoption which she granted to Waverly in the “Surrender and Eelease,” unless plaintiff was estopped to revoke this consent.

The trial court, after carefully considering the factors relevant to estoppel.which we set out in Dugger v. Lauless, 216 Or 188, 338 P2d 660 (1959), found that plaintiff ivas not estopped. We agree with the trial court’s conclusion.

The judgment of the trial court is affirmed.

“SURRENDER AND RELEASE

“I, Vikki Lee Anderson, am the mother of Baby Boy Anderson, a male child born on the 26th day of March, 1968 at Port land, Oregon. I was not married at the time of the conception of said child and I have not married since then.

“I hereby absolutely and permanently surrender and release all my parental right, custody, and guardianship and control to and over my said child to WAVERLY CHILDRENS HOME, a private child-caring agency incorporated and licensed under the laws of Oregon.

“I understand and agree that this surrender and release is expressly given, among other things, for the purpose of adoption, and I authorize WAVERLY CHILDRENS HOME to place said child for adoption and in my stead to give or withhold its consent to such adoption.

“I further authorize WAVERLY CHILDRENS HOME, without notice to me, to do or cause to be done any and all acts and things which it may consider to be for the best interest of said child and to appear in my place and stead in any proceeding relating to said child.

“I have read and understand this surrender and release and sign it of my own free will. I WAIVE ANY RIGHT TO REVOKE THIS DOCUMENT.

“Executed this 1st day of April, 1968 at 9:40 o’clock A.M.

“Vikki Lee Anderson”

•

“CERTIFICATE AND WAIVER

“I, Vikki Lee Anderson, am the mother of Baby Boy Anderson, a male child born on the 26th day of March, 1968, and have previously surrendered and released said child to WAVERLY CHILDRENS HOME.

“I hereby waive appearance and notice of any right to appear in the matter of the adoption of said child.

“I execute this certificate and it may be filed as my appearance and consent so that the court may pass upon the adoption of said child without waiting for the expiration of six months after the date of said surrender and release.

“I have read and understand this certificate and sign it of my own free will. I WAIVE ANY RIGHT TO REVOKE THIS CERTIFICATE. . ..

“Executed this 1st day of April, 1968, at 9:47, o’clock A.M.

“Vikki Lee Anderson”