S. O. v. W. S.
| Decision Date | 30 April 1982 |
| Docket Number | No. 5856,5856 |
| Citation | 643 P.2d 997 |
| Parties | S. O., Natural Mother, Appellant, v. W. S. and P. S., Adoptive Parents, Appellees. In the Matter of the ADOPTION OF J. D. S., a Minor. |
| Court | Alaska Supreme Court |
Before RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ.
About five months prior to her son's birth, S.O. resolved that she would give her child up for adoption. Expecting to be hired for a job on the North Slope, S.O. felt that she would be unable to give the child the love and attention it would need. She also thought it important for a child to grow up in a two parent home, which she could not provide as she did not intend to continue her relationship with the child's natural father.
S.O. initially investigated the possibility of an agency adoption and contacted the Department of Health and Social Services and Catholic Social Services. When she asked for information about prospective adoptive parents both agencies told her that the agency makes the placement decision and therefore could not give her the type of information that she sought. The agencies suggested that she consider a private placement if she wanted to influence the selection of the adoptive parents.
Sometime in May 1980, the natural father's mother and stepfather learned of S.O.'s pregnancy and her intention to have the unborn child adopted. They also learned that she had contacted an attorney to whom she had given a questionnaire for prospective parents to answer, but had as yet received no response. They told S.O. that some friends of theirs, W.S. and P.S., wanted to adopt a child so S.O. gave them a copy of the questionnaire to give to W.S. and P.S. to fill out. In accord with S.O.'s request, the couple's name was not disclosed to her.
On the following day the completed questionnaire was returned to S.O. and, upon reviewing the responses given by W.S. and P.S., she decided that they would be suitable adoptive parents. At the suggestion of the natural father's mother and stepfather, S.O. contacted attorney Wayne Ross, who, S.O. was informed, had had experience with adoption matters. Mr. Ross was to represent S.O. in the adoption, but his fee was to be paid by the adoptive parents, W.S. and P.S.
W.S. and P.S. retained as their attorney Frederick Pettyjohn, who suggested that the required agency home study 1 be conducted by the Department of Health and Social Services. However, aware that W.S. and P.S. had once unsuccessfully tried to adopt a child through Catholic Social Services, Mr. Ross insisted that that agency do the home study. Mr. Pettyjohn assented, and so Catholic Social Services did the study and approved W.S. and P.S. as adoptive parents.
A copy of the study was sent to Mr. Ross accompanied by a letter from the agency stating that the contents of the report were not to be divulged to his client. Nonetheless, Mr. Ross phoned S.O. and told her that the agency had given its approval and read her various portions of the report praising W.S. and P.S. as prospective parents. However, he omitted all references to the couple's past effort to adopt a child and to an earlier drinking problem of P.S., the adoptive mother.
On the evening of July 22, 1980, S.O. gave birth to J.D.S. The following morning, while still at the hospital, S.O. signed a document entitled "Relinquishment of Parental Rights" in the presence of Mr. Ross, a notary and several others. The document purported to terminate the parent-child relationship between S.O. and her child and grant custody of the boy to Mr. Ross with authorization to take all steps necessary for the child's adoption. On that same day, Mr. Ross signed a document entitled "Release and Consent," which was also notarized and purported to relinquish any claim Mr. Ross had to the child and to give his consent to the child's adoption by W.S. and P.S. Shortly after S.O. left the hospital, Mr. Pettyjohn picked up J.D.S. and delivered him to the adoptive parents, with whom he has lived ever since.
On August 7, 1980, W.S. and P.S. filed a petition for adoption in the superior court. By letter dated August 12, 1980, Master Andrew Brown informed Mr. Pettyjohn that he would not schedule a hearing on the petition as the relinquishment signed by S.O. was not executed before an agency or court as required by AS 20.15.180(b)(1). 2 Mr. Pettyjohn contacted Mr. Ross and informed him of the problem at which point Mr. Ross' office contacted S.O. and asked her to come in and arrange to sign another relinquishment before a judge.
It appears that about a week after giving birth to J.D.S., S.O. had attended a Christian fellowship at which she was "saved." She decided to attend Bible College and thus abandoned her plans to take a job on the North Slope. She also began to have misgivings about her decision to give up her child but believed that the adoption had gone through. When she learned that it had not, she decided that she wanted J.D.S. returned to her.
On August 29, 1980, S.O., represented by different counsel, filed in superior court a withdrawal of consent pursuant to AS 20.15.070(b). 3 On September 5, she filed a motion for the return of her child. On September 19, Superior Court Judge Ripley signed a pretrial order setting a hearing for October 6, 1980, and appointing a guardian ad litem to represent J.D.S. It was at about this time that S.O., through discovery, first learned that the adoptive mother had once had a drinking problem.
The hearing was held before Master Marjorie Bell and, being heard on a time-available basis, lasted nearly two months. 4 Pursuant to an agreement between the parties, J.D.S. remained in the custody of the adoptive parents, but S.O. was allowed visitation. After considering the written final arguments, including one submitted by the guardian ad litem in favor of the adoption, Master Bell issued a report recommending that the petition for adoption be granted. Pursuant to S.O.'s motion for rejection of the Master's report, a hearing was held before Judge Ripley on February 13, 1981. On February 16 he ordered that the Master's findings be adopted, that a decree of adoption enter, and that S.O. be allowed continued reasonable visitation with J.D.S. pending the outcome of a timely appeal. The superior court awarded W.S. and P.S. $8,000 in attorney's fees and assessed S.O. costs amounting to $922.10.
On appeal, S.O. asserts that the lower court erred in finding that she validly consented to the adoption of her son by W.S. and P.S. She also claims that it was error to refuse to let her withdraw her consent to the adoption. Finally, she claims that the award of costs and attorney's fees is not authorized by Civil Rule 82 and violates her due process and equal protection rights under the Alaska and United States Constitutions.
AS 20.15.040(a)(1) requires a natural mother's written consent to her minor child's adoption before a petition to adopt may be granted. 5 AS 20.15.060 specifies how such consent is to be executed.
(a) The required consent to adoption shall be executed at any time after the birth of the child in the presence of the court or in the presence of a person authorized to take acknowledgements.
(b) A consent which does not name or otherwise identify the adopting parent is valid if the consent is executed in the presence of the court or a person authorized to take acknowledgements and contains a statement by the person whose consent it is that the person consenting voluntarily executed the consent irrespective of disclosure of the name or other identification of the adopting parent.
The document signed by S.O. shortly after her son's birth satisfies the requirements of subsection (a). It does not, however, name or otherwise identify W.S. and P.S. as the adoptive parents nor contain a statement that S.O. waived such disclosure. The Master nonetheless found that S.O. effectively consented to her son's adoption. Our task is to determine whether the failure to comply strictly with AS 20.15.060(b) vitiates S.O.'s otherwise valid consent. 6 We hold that it does not.
The record shows that S.O. did not want to know the identity of the adoptive parents. In addition, the Master found, and this finding is not disputed, that S.O. signed the document in question with W.S. and P.S. in mind and that she would have signed it had it contained a statement waiving disclosure of their identity. Under these circumstances we decline to hold that the technical failure to comply with AS 20.15.060(b) nullifies S.O.'s otherwise valid consent. When, as here, it is clear that the statutory purpose has been fulfilled, substantial compliance with the requirements governing consent to adoption is sufficient. 7 See Hall v. Hayes, 441 S.W.2d 275, 277 (Tex.Civ.App.1969); Cohen v. Janic, 57 Ill.App.2d 309, 207 N.E.2d 89, 91 (1965). See also Application of Hendrickson, 159 Mont. 217, 496 P.2d 1115, 1118 (1972).
S.O. also maintains that her consent to the adoption is invalid because it was induced by misrepresentations and omissions of critical information. She argues that the answer given by P.S. and W.S. to the first question of the questionnaire she prepared was incomplete and deceptive. 8 She also claims that Mr. Ross deceived her when, in reading to her portions of the Catholic Social Services study, he failed to mention that P.S. once had a drinking problem and that the adoptive parents had been unsuccessful in their earlier attempt to adopt a child through that agency. 9
The first question that appears on S.O.'s questionnaire asks:
Do you consume alcoholic beverages? How often and how much?
The response given by W.S. and P.S. states:
My husband and I generallt (sic) enjoy a drink at the end of the work day, prior to the dinner hour....
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