In re Estate of Fleming

• Decision Date: 18 January 2000
• Docket Number: No. 43378-4-I.,43378-4-I.
• Citation: 991 P.2d 128,98 Wash.App. 915
• Parties: In re the ESTATE OF Thomas A. FLEMING, Deceased. Antonio B. Marzan, individually as half-brother of Thomas A. Fleming, and as Personal Representative of the Estate of Margaret Mary Fleming, Appellant, v. Judith Kovacs, as Personal Representative of the Estate of Thomas A. Fleming; and the State of Washington Department of Revenue, Respondents.
• Court: Washington Court of Appeals

991 P.2d 128

98 Wash.App. 915

In re the ESTATE OF Thomas A. FLEMING, Deceased.

Antonio B. Marzan, individually as half-brother of Thomas A. Fleming, and as Personal Representative of the Estate of Margaret Mary Fleming, Appellant, v. Judith Kovacs, as Personal Representative of the Estate of Thomas A. Fleming; and the State of Washington Department of Revenue, Respondents.

No. 43378-4-I.

Court of Appeals of Washington, Division 1.

January 18, 2000.

Michael M. Feinberg, Tracy M. Miller, Karr Tuttle Campbell, Seattle, for Appellant, on appeal.

Karen Marie Thompson, Thompson & Howie, Seattle, for Respondent Judith Kovacs, on appeal.

Cindy R. Evans, Asst. Atty. General, Olympia, for Respondent State of WA. Dept. of Revenue, on appeal.

BAKER, J.

Margaret Fleming voluntarily surrendered her infant son Thomas Fleming to a charitable organization for adoption. At that time, she agreed to a court order that permanently relinquished all maternal rights to him. However, Thomas was never adopted. He died intestate fifty years later with no spouse or issue. Margaret Fleming and her laterborn son Antonio Marzan now assert that they are intestate heirs of Thomas. Because we hold that the termination order permanently divested Fleming and her kin of intestate inheritance rights, Thomas's estate escheats to the State of Washington.

I

Thomas A. Fleming was born out of wedlock to Margaret Fleming in 1946. Paternity was never established. Ms. Fleming decided to give up her son for adoption. The King County Juvenile Court entered a parental termination order in 1947 stating that Margaret Mary Fleming was "hereby permanently deprived of any and all maternal rights and interests in and to the said Baby Boy Fleming," committing him into the permanent custody of Catholic Charity of the Diocese of Seattle, and authorizing that organization to consent to his adoption. Thomas was never adopted. He lived in foster care until the age of majority.

Thomas died intestate in 1996. He was not married and he had no children or stepchildren. Thomas was survived by two biological relatives: his mother Margaret Fleming and his half-brother Antonio Marzan, who was born to Ms. Fleming after she terminated her parental rights to Thomas.

In 1998, Judith Kovacs, the personal administrator of Thomas's estate, filed a petition for determination of heirship. She asked the court to find that Margaret Fleming and her kin were not entitled to inherit in intestacy from Thomas because Ms. Fleming had terminated all maternal rights to Thomas at his birth. She argued that Thomas's estate should therefore escheat to the State of Washington because he died intestate without any legal heirs. In the alternative, she asked the court to instruct what action she should take if it determined that there are potential heirs to the estate. Ms. Fleming and Mr. Marzan then filed a response and objections to the petition.

The commissioner agreed with Kovacs and ruled that the estate escheated because Thomas died without legal heirs. He found that the 1947 order terminating Margaret Fleming's maternal rights to Thomas also extinguished her right to intestate inheritance, and that Marzan could not inherit from Thomas because his right to intestate inheritance derived from Margaret Fleming's extinguished maternal rights. Margaret Fleming died soon after, and her son Marzan was appointed personal representative of her estate. Marzan then filed a motion to revise the ruling of the commissioner. The superior court upheld the commissioner's order. Marzan now appeals that ruling.

II

As a preliminary matter, Marzan contends that Kovacs, as the personal representative of the estate, lacked standing to argue in favor of escheat because the State waived its right to serve as personal administrator under RCW 11.08.160 and because there were potential intestate heirs. We disagree. There is nothing in the probate statutes or case law that constrains the personal representative's authority to present evidence of escheat to the court when the State declines the right to serve as personal administrator. A personal representative has a duty to exercise the utmost good faith and to utilize the skill, judgment and diligence which would be employed by an ordinarily cautious and prudent person in the management of her own business affairs.¹ While we need not hold that Kovacs had a duty to argue in favor of escheat, it is clear that she had standing to do so when a good faith argument under the facts and law appeared to merit such a conclusion.

The primary issue in this case is whether the 1947 termination order permanently deprived Margaret Fleming of the right to inherit in intestacy from Thomas. This is an issue of first impression in Washington. There are numerous cases addressing the intestate inheritance rights of adopted children and their kin. Thomas was never adopted, however, so those cases are not dispositive. Therefore, we must rely on statutory interpretation to determine the legal effect of the parental termination order on Fleming's intestate inheritance rights. Issues of statutory construction are questions of law, reviewed de novo on appeal.²

We first determine which statutes govern the legal effect of the termination proceeding. Kovacs and the State urge us to apply current dependency and adoption statutes because the probate statutes that apply are those in effect at the time of the decedent's death, and the intestacy statutes vest heirs with legal interests only upon the death of their intestate ancestor.³ Marzan agrees that modern probate statutes apply, but argues that the termination proceeding is a separate matter that must be considered under the 1947 statutes. We hold that the legal effect of the 1947 termination order must be analyzed under the statutes in force at the time of the termination proceeding, not under those in effect at the time of Thomas's death in 1996.⁴ The 1947 parental termination order was issued under Rem.Rev.Stat. § 1700, which governed surrender of a child to a charitable society for the purposes of receiving, caring for, or placing the child out for adoption. Therefore, we consider the termination order in light of that statute, and we need not address the arguments advanced by Kovacs and the State regarding the application of modern adoption and termination statutes to this case.⁵

We next determine whether the 1947 statute and termination order operated to permanently divest Margaret Fleming of her right to intestate inheritance from her biological son Thomas.

Under Rem.Rev.Stat. § 1700, when a child is surrendered to the care and custody of a benevolent or charitable incorporated society for the purpose of receiving, caring for, or placing the child out for adoption,

then, (but not otherwise), the rights of its natural parents or of the guardian of its person (if any) shall cease and such corporation shall become entitled to the custody of such child, and shall have authority to care for and educate such child or place it either temporarily or permanently in a suitable private home in such manner as shall best secure its welfare.

The 1947 order approved Margaret Fleming's voluntary relinquishment "of all of her maternal rights and interests in and to the said child," ordered that Margaret Fleming "is hereby permanently deprived of any and all maternal rights and interests in and to the said Baby Boy Fleming," and committed Thomas to the permanent custody of the Catholic Charities of the Diocese of Seattle.

Margaret Fleming chose to surrender Thomas to a charitable society under Rem. Rev.Stat. § 1700. By the express language of that statute and the termination order, Margaret Fleming was permanently deprived of all maternal rights and interests in Thomas. The statute and order need not...