J.B.D. v. Plan Loving Adoptions Now, Inc.

• Jurisdiction: Oregon
• Parties: In the Matter of the Adoption of G.I.B., aka G.I.B.D., a Minor Child. J.B.D., Appellant, v. PLAN LOVING ADOPTIONS NOW, INC., (PLAN), E.A.T., and P.A.T., Respondents.
• Citation: 218 Or. App. 75,178 P.3d 266
• Docket Number: A133920.,05C-31924.
• Court: Oregon Court of Appeals
• Decision Date: 13 February 2008

178 P.3d 266

218 Or. App. 75

In the Matter of the Adoption of G.I.B., aka G.I.B.D., a Minor Child.

J.B.D., Appellant, v. PLAN LOVING ADOPTIONS NOW, INC., (PLAN), E.A.T., and P.A.T., Respondents.

05C-31924.

A133920.

Court of Appeals of Oregon.

Argued and Submitted September 12, 2007.

Decided February 13, 2008.

Monica L. Finch argued the cause for appellant. With her on the brief was Eli D. Stutsman, Portland.

Gilbert B. Feibleman, Salem, argued the cause for respondents. With him on the joint brief were Feibleman & Case, P.C., for respondent Plan Loving Adoptions Now, Inc., (PLAN), and Scott C. Adams and Law Offices of Scott C. Adams, Banks, for respondents E.A.T. and P.A.T.

Before LANDAU, Presiding Judge, and SCHUMAN and ORTEGA,^* Judges.

SCHUMAN, J.

Plaintiff, the birth mother of G, released and surrendered him to an adoption agency called Plan Loving Adoptions Now, Inc. (PLAN), and consented to his adoption from that agency. G was subsequently adopted by E.T. and P.T. (the Ts). Thereafter, plaintiff filed a motion to set aside the adoption. The trial court denied that motion, and plaintiff appeals. We affirm.

The following facts are undisputed. When plaintiff was approximately three-months pregnant, she contacted PLAN, an Oregon-licensed adoption agency, regarding the placement of her unborn child. PLAN introduced plaintiff to potential adoptive parents, and, after several meetings that did not lead to a mutually satisfactory arrangement, plaintiff ultimately met the Ts. Because they expressed a willingness to permit some degree of relationship between plaintiff and her child after adoption, plaintiff agreed that they would be acceptable adoptive parents. In the months before G's birth, plaintiff and the Ts visited each other frequently and apparently developed a good relationship. By that time, the birth father had consented to the adoption; he is not involved in this case.

G was born on June 3, 2005. Two days later, PLAN visited plaintiff in the hospital and presented her with two documents required by ORS 418.270 and ORS 418.275. Those statutes authorize and govern so-called "agency adoptions," that is, adoptions in which the birth parents relinquish to a licensed agency their parental rights regarding a child and authorize the agency to place the child in an adoptive home.¹ In the first document, "Surrender, Release and Consent to Adoption," plaintiff released to PLAN all of her parental rights to G "with the intent and understanding that PLAN would have authority to place the child for adoption and to consent to any adoption of the child." She also signed a "Certificate of Irrevocability." That document stipulated that her consent and release became "irrevocable" as soon as PLAN placed G in the custody of someone else for the purpose of adoption; it also contained a waiver of her right to notice of, and appearance in, any legal proceeding involving adoption of G. Plaintiff signed both forms, and PLAN placed G with the Ts that day.

For approximately two months, plaintiff frequently visited G at the Ts' home. Then, around July 24, 2005, the Ts began to restrict her access to G. Shortly thereafter, plaintiff sought legal advice and had no further contact with G, adoptive parents, or PLAN until this proceeding began.

The Ts obtained a judgment of adoption on September 1, 2005; plaintiff neither sought to intervene, nor to otherwise appear in the proceeding, nor, by the time of the proceeding, did she indicate to the Ts, the court, or (insofar as the record indicates) any person except perhaps her attorney, that she intended to revoke her consent. However, on October 26, 2005, some two months after the judgment, plaintiff, having apparently decided to challenge the adoption, had her attorney prepare a petition to open the sealed file in the adoption proceeding. She did not notify PLAN or the Ts of the petition, and the court never responded to it. The lack of response was due either to administrative confusion resulting from the need to relocate records from the Marion County Courthouse after a fire or to the fact that plaintiff's attorney did not pursue his request.

On May 1, 2006 — that is, approximately 11 months after surrendering G to PLAN and consenting to his adoption and eight months after the adoption judgment — plaintiff filed a motion to set that judgment aside. She alleged that (1) PLAN and the Ts obtained her consent by fraud or misrepresentation; (2) her consent was invalid due to duress; (3) she lacked capacity to give consent; and (4) the judgment should be set aside under ORCP 71 B(1)(a) through (d).² The trial court denied plaintiff's motion after a pretrial hearing. The judgment recited several reasons for the denial: plaintiff lacked "standing"; her motion was not timely filed; she was estopped from challenging the adoption; and the allegations in her motion were insufficient to support a finding of fraud, misrepresentation, duress, or incapacity. Plaintiff appeals, and we affirm.

This case presents a narrow and novel question: Can a birth parent who has consented to an agency adoption, and who has neither attempted to revoke her consent nor intervened in the adoption proceeding, subsequently invoke the jurisdiction of the court by moving to set aside the judgment of adoption if the motion is made within a year of the judgment?³ Four considerations color (but do not control) our treatment of this question. First, adoptions in Oregon are governed by statute:

"[T]he court in adoption proceedings is exercising a special statutory power not according to the course of the common law, and when its decree is called in question, even collaterally, no presumptions in favor of jurisdiction are indulged, but the facts necessary for jurisdiction must appear affirmatively, on the face of the record."

Hughes v. Aetna Casualty Co., 234 Or. 426, 432-33, 383 P.2d 55 (1963). Second, one of the legislative policies reflected in the adoption statutes is to promote finality to adoption judgments. Hogue v. Olympic Bank, 76 Or.App. 17, 28, 708 P.2d 605 (1985), rev. den., 300 Or. 545, 715 P.2d 92 (1986). Third, in a proceeding to effect an agency adoption such as the one at issue in this case, the birth parent is not a party and has no right to notice or participation. ORS 418.270; ORS 418.275; Sant v. Open Adoption and Family Services, Inc., 153 Or.App. 114, 120-21, 956 P.2d 226 (1998). And fourth, despite the parties' and the trial court's characterization, this case does not implicate a question of "standing." The issue in this case is not whether plaintiff has standing, but whether any statute or other principle of law enables her to seek judicial nullification of the judgment in a case to which she was not a party.

Plaintiff argues that three sources enable her to move to set aside the judgment of adoption: ORS 109.381(3), ORCP 71 B(1)(a) and the court's inherent powers. For the reasons that follow, we disagree.

Plaintiff's primary argument relies on ORS 109.381(3):

"After the expiration of one year from the entry of a judgment of adoption in this state the validity of the adoption shall be binding on all persons, and it shall be conclusively presumed that the child's natural parents and all other persons who might claim to have any right to, or over the child, have abandoned the child and consented to the entry of such judgment of adoption, and that the child became the lawful child of the adoptive parents or parent at the time when the judgment of adoption was rendered, all irrespective of jurisdictional or other defects in the adoption proceeding. After the expiration of the one-year period no one may question the validity of the adoption for any reason either through collateral or direct proceedings, and all persons shall be bound thereby. However, the provisions of this subsection shall not affect the right of appeal from a judgment of adoption as may be provided by law."

(Emphasis added.) Plaintiff contends that the negative implication of ORS 109.381(3) is that a nonparty to an adoption proceeding who can demonstrate a constitutionally sufficient interest in the judgment of adoption may challenge that judgment within one year. Based on the text and context of the statute, however, we are persuaded that plaintiff is wrong.

First, nothing in the text amounts to an affirmative authorization to bring an action within one year; rather, it is a statute of limitation. Hughes, 234 Or. at 448, 383 P.2d 55. The fact that an action is filed within a limitation period does not imply that a court must therefore adjudicate it. For example, a court need not adjudicate a timely filed tort claim by a plaintiff claiming damages due to reading about an automobile accident in the newspaper. Second, although the last sentence of the statute deals technically with appeals from adoption judgments and not motions to set them aside, the clear implication is that challenges to adoption judgments find their source in other provisions of law. If ORS 109.381(3) itself "provided by law" a method to challenge a judgment of adoption, the sentence would be nonsense. Third, ORS 109.381(3) replaced former ORS 109.380, which affirmatively stated that a birth parent "may, at any time within one year * * * apply to the circuit court to reverse the [adoption] decree." Former ORS 109.380 (1957), repealed by Or. Laws 1959, ch. 609, § 5. Thus, the legislature eliminated wording that would expressly have allowed plaintiff to bring this action and replaced it with wording that does not. And finally, we have held that ORS 109.381 "does not provide a `different procedure' than the rules [of civil procedure] for objecting to a decree of adoption." Wimber v. Timpe, 109 Or.App. 139, 144, 818 P.2d 954 (1991) (quoting ORCP 1 A).

We therefore turn to plaintiff's argument under ORCP 71 B(1)(a), quoted above, 218 Or.App. at 79 n. 2, 178 P.3d at 269 n. 2. We note, preliminarily, that there is some authority for the...