Hayes, In re
| Decision Date | 21 April 1999 |
| Citation | 160 Or.App. 24,979 P.2d 779 |
| Parties | In the Matter of Aja Juan Hayes, a Minor Child. Karene McCULLEY and Eugene Forte, Petitioners, v. Lolita BONE, Respondent. (970304; CA A100393) |
| Court | Oregon Court of Appeals |
John Chally, Portland, argued the cause and filed the briefs, for appellants.
Ellen Mendoza, Oregon City, argued the cause and filed the brief, for respondent.
Before De MUNIZ, Presiding Judge, and HASELTON and LINDER, Judges.
This case involves the private adoption in Oregon of a child born in Arkansas. The biological mother filed a motion in the Oregon trial court to set aside the adoption decree on grounds relating to the court's jurisdiction and the validity of mother's consent. Prospective adoptive parents disputed mother's ability to challenge the decree after its entry and after the time for appeal had run. Adoptive parents also contested the grounds on which mother sought to have the decree set aside. The trial court decided that it had subject matter jurisdiction over the adoption but concluded that mother was entitled to challenge the decree and that mother effectively had revoked consent to the adoption. The trial court therefore set aside the decree, dismissed the adoption petition, and entered a writ directing adoptive parents to return child to mother. Adoptive parents appeal, challenging the trial court's decision on the merits. Mother cross-assigns error to the trial court's decision regarding jurisdiction. We review the facts de novo, ORS 19.125(3), and the legal issues for errors of law. For the reasons that follow, we affirm.
Mother gave birth to child in Arkansas on July 4, 1996. Mother was then 25 years old, was living with child's putative father, and was working at an unskilled job for low wages. She also had two other children: a daughter who lived with her and a son who lived with and apparently was supported by mother's aunt. Approximately three weeks after child's birth, mother and both children moved in with her mother (grandmother). Mother's family became very involved with child's daily care, with mother's 16-year-old sister and child's great-grandmother taking care of child when mother was at work or otherwise away from home.
Soon after birth, child developed medical complications--including asthma--that required medication as well as a heart and breathing monitor. Mother reduced her work hours to attend school. She began to fear losing her job because she was often disrupted at work to tend to child's medical needs. Because she had reduced her work hours, she lost her health insurance and had On August 27, 1996, mother contacted Kaye McLeod, an Arkansas attorney who handles adoptions, and expressed an interest in placing child for adoption. A few days later, McLeod called mother to tell her that she had identified adoptive parents as a potential family for child. Mother continued to have periodic telephone contact with McLeod regarding the adoption process and met with her in person on November 22, 1996. McLeod provided information about adoptive parents and arranged for mother to have direct contact with them. After that, mother became acquainted with adoptive mother by telephone.
to pay for child's prescriptions and medical care out of her own pocket. Around that same time, the putative father stopped assisting with child's [160 Or.App. 27] care or support and filed a paternity action seeking to establish whether he was child's biological father. Mother was struggling to care for child and began to consider placing child for adoption.
On December 4, 1996, mother went to McLeod's office and signed several documents, including a "Consent to Adoption" and a "Certificate of Irrevocability and Waiver." The consent form gave "full and free consent to the adoption" and relinquished "custody, guardianship and control of the child." The consent form also contained the following "waiver" language:
The certificate of irrevocability and waiver stated:
McLeod and mother gave conflicting accounts of the circumstances surrounding the signing of the consent forms. 1 According to mother, she did not understand that McLeod was going to ask her to sign the forms on that day, she felt rushed, and she was not told that she could obtain separate legal advice. Mother asserted, in fact, that she believed that McLeod was acting as her attorney. In contrast, McLeod maintained that, although she was not present when mother signed the documents, she did read the documents to mother afterward and advised her that she had a right to obtain her own attorney. McLeod also remembers that mother was in a hurry and was anxious to leave. Both McLeod and mother agree, however, that mother did not receive any independent legal advice and was not aware of the contents of the documents until after she had signed them.
According to McLeod, mother did not waver about the adoption at any time between their initial conversation and the transfer of custody. McLeod described mother as pragmatic and unemotional as well as persistent and anxious to complete the adoption. McLeod acknowledged, nevertheless, that she had significant doubts about whether mother in fact would complete the adoption. McLeod specializes in handling adoptions and understood the factors that create a risk of "disruption" by the biological mother. In assessing this adoption, she put it in a "high risk" category for several reasons: (1) child was older and had been in mother's custody and care for a significant length of time; (2) McLeod knew that mother expected her family to disapprove of her effort to release child for adoption; (3) McLeod was aware that mother once before had considered adoption for one of her children and then had changed her mind; and (4) the putative father refused to consent to the adoption until paternity was established and had expressed his intent to seek custody if he turned out to be child's father. Adoptive parents continued exploring The results of the paternity tests finally became available in mid-February. They established that the putative father, who was named on child's birth certificate, was not child's biological father. His consent was therefore no longer needed. McLeod continued making arrangements for the adoption. Because adoptive parents had not yet completed an updated home study, the transfer of custody was postponed until March.
other adoption opportunities during this time period.
On March 9, 1997, mother relinquished physical custody of child to adoptive parents. McLeod arranged for child to be transferred physically to adoptive parents on that date at a hotel in Little Rock. Adoptive mother traveled to Arkansas, was with McLeod at the hotel for the transfer, and then remained in Arkansas with child for two more days while McLeod obtained approval of the Oregon Interstate Compact on Placement of Children (ICPC) administrator. The Arkansas ICPC administrator had previously authorized child's placement in Oregon, designated that the adoption was to be completed in Oregon, and consented to having an Oregon agency supervise the adoption, make the placement investigation, and prepare the placement report. On March 11, 1997, as soon as the Oregon ICPC approval was received, adoptive mother returned to Oregon with child.
Meanwhile, mother had not revealed her plans to her family. Mother initially handled child's absence by leading her family to believe that child was staying with a friend for a few days. On March 13, two days after child arrived in Oregon, mother's family discovered that she had placed child for adoption. Mother's family was frantic and upset. Grandmother and mother's aunt personally called McLeod, demanding child's return. They also called adoptive parents, accused them of kidnaping child, and made other threats. Despite those telephone calls, adoptive parents decided to go ahead with the adoption, reasoning that "the child deserved a more stable family." Within days of those calls, adoptive parents had changed their telephone number.
Mother contends that she had by then unequivocally changed her mind and had expressed that to McLeod. McLeod contends that each time she talked directly and privately with mother, mother told McLeod that her family was not accepting her decision but that she still wanted to go forward with the adoption. Not disputed is the fact that mother, along with several members of her family, went to the police department on March 14 and accused adoptive parents and McLeod of kidnaping child. Mother told the police that she had changed her mind and did not want to go through with the adoption. When the police contacted McLeod, she told them that the paperwork was in order, that mother in her last contact with McLeod still wanted to go through with the adoption, and that if mother had changed her mind, she needed to get a lawyer.
Grandmother then proceeded to retain a lawyer for mother. She did not know whom to call, so she contacted an Arkansas attorney, A. HaLarear Piper, after picking her name randomly out of the telephone book. Her first contact with Piper was on Friday, March 14, the day after the family learned of the adoption placement. Grandmother hired Piper on the following Monday, March 17, giving her $700 to represent mother in her attempt to revoke consent and contest the adoption. That same Monday, following the calls...
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