Santore, Application of

• Decision Date: 30 January 1981
• Docket Number: No. 4693-II,4693-II
• Citation: 28 Wn.App. 319,623 P.2d 702
• Parties: In the Matter of the Application of Richard J. SANTORE and Karen D. Santore, for a Writ of Habeas Corpus.
• Court: Washington Court of Appeals

Page 319

28 Wn.App. 319

623 P.2d 702

In the Matter of the Application of Richard J. SANTORE and Karen D. Santore, for a Writ of Habeas Corpus.

No. 4693-II.

Court of Appeals of Washington, Division 2.

Jan. 30, 1981.

Craig L. Powers, Tacoma, for appellant.

Martha Eller, Tacoma, guardian ad litem.

John L. Messina, Bobbee Musgrave, Tacoma, for respondent.

REED, Chief Judge.

Richard and Karen Santore appeal from an order dismissing their petition for a writ of habeas corpus, which they filed to regain custody of Mrs. Santore's infant son from an adopting couple. We affirm.

In November of 1978, Karen Santore moved from Massachusetts to Pierce County, Washington, immediately filing a petition for dissolution of her marriage to Richard Santore. In late January or early February of 1979, Mrs. Santore became pregnant by Michael Murphy, who died suddenly in mid-February without knowing of the pregnancy. In March, a nun referred Mrs. Santore to a Tacoma obstetrician, Dr. Peter Kesling. Mrs. Santore mentioned adoption to Kesling at her first appointment with him. During this initial consultation, Mrs. Santore told Kesling she did not want her husband to know about the pregnancy because she feared losing custody of her children in the pending dissolution action. She also mentioned that the dissolution trial was scheduled at about the date of her expected delivery. Kesling suggested she consult with her attorney.

Seeking information on adoption, Mrs. Santore contacted several individuals and agencies, including Catholic Community Services, which informed her she would have to obtain her husband's consent to the adoption. In July, Mrs. Santore told Kesling of her distress over Catholic Community Service's spousal consent requirement. Kesling then referred her to Tacoma attorney James Mason to investigate the possibility of a private adoption. Mason prepared a consent to adoption for her signature and, in an effort to avoid the requirement of her husband's consent, a paternity affidavit. Mason and his secretary reviewed the consent form and adoption procedures with Mrs. Santore and gave her a copy of the consent form to keep, explaining that she would be offered an identical copy to sign after the baby was born. At the request of Mrs. Santore, Mason contacted the attorney handling her dissolution to postpone the trial date.

In late September 1979, Mrs. Santore informed Mason her husband had discovered she was pregnant. She told Mason her husband would sign whatever documents were necessary to complete the adoption. Mason mailed a consent form to Mr. Santore, but Mr. Santore refused to sign the form because it did not state clearly enough that he was not the natural father. Although Mason subsequently mailed an amended consent clarifying the point, Mr. Santore never signed either consent.

On October 22, 1979, Mrs. Santore gave birth to a baby boy. Two days later, she signed the consent to adoption and a relinquishment form authorizing the hospital to release the child to Mason for a pending adoption. The same afternoon, Mason presented the consent to adoption, a petition for adoption, an order appointing next friend, and the paternity affidavit to a Pierce County court commissioner. Mason previously had filed an unverified preplacement report by the court-appointed next friend. After reviewing these documents, the commissioner signed an order relinquishing the child to the adopting parents.

On November 15, 1979, Mrs. Santore signed a revocation of consent to adoption. Four days later, the Santores filed the revocation and a petition for a writ of habeas corpus. On March 21, 1980, the adopting husband filed a sworn statement that he had caused to be filed all reports known to him of preplacement studies on him and his wife. Thereafter, the trial court consolidated the petition for writ of habeas corpus with the petition for adoption. See Rizo v. Burruel, 23 Ariz. 137, 202 P. 234 (1921). On April 8, 1980, following a four-day trial, the court dismissed the habeas corpus petition. The Santores appealed. ¹

First, the Santores have indiscriminately assigned error to each of the trial court's 48 findings of fact, contending they are unsupported by substantial evidence. We decline to examine the evidence supporting the findings, however, because the Santores have failed to comply with RAP 10.3(g), which requires a separate assignment of error for each finding of fact a party contends was improperly made, together with a reference by number to each contested finding. Consequently, the trial court's findings of fact become the established facts of the case, and our function is limited to determining whether the findings of fact support the trial court's conclusions of law and judgment. In re Bennett, 24 Wash.App. 398, 400-01, 600 P.2d 1308 (1979).

Next, the Santores challenge the constitutionality of RCW 26.32.916, ² upon which the trial court relied to dismiss their habeas corpus petition. The purpose of this statute was to cure the unintentional repeal in Laws of 1979, 1st Ex.Sess., ch. 165 (effective September 1, 1979) of all provisions in RCW 26.32 permitting adoption by written consent of the natural parents. Substitute House Bill No. 1729, 46th Legislature (1980) (House Judiciary Committee). The Santores argue (1) the statute retroactively interferes with their "vested rights," in violation of the due process and contract clauses of the federal and state constitutions, by making effective Mrs. Santore's consent to adoption, which was ineffective under the law existing when the consent was executed; and (2) the statute violates due process by conferring arbitrary discretion on trial courts.

As to the first of these arguments, we note that a retroactive statute is unconstitutional under the due process or contract clauses only if the statute is unfair or unreasonable. 2 C. Sands, Statutes and Statutory Construction § 41.05 (4th ed. 1973); Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv.L.Rev. 692, 694-95 (1960). See Ketcham v. King County Medical Serv. Corp., 81 Wash.2d 565, 570, 502 P.2d 1197 (1972) (impairment of contract). The proper test of the constitutionality of retroactive legislation is whether a party has changed position in reliance upon the previous law or whether the retroactive law defeats the reasonable expectations of the parties, not whether the law abrogates a "vested right," which is merely a conclusory label. 2 C. Sands, supra at § 41.05; Hochman, supra at 696. Curative laws, such as RCW 26.32.916, which implement the original intentions of affected parties are constitutional because there is no injustice in retroactively depriving a person of a right that was created contrary to his expectations at the time he entered into the transaction from which the right arose. McNair v. Knott, 302 U.S. 369, 372-73, 58 S.Ct. 245, 247, 82 L.Ed. 307 (1937); Goddard v. Frazier, 156 F.2d 938, 942-43 (10th Cir.), cert. denied 329 U.S. 765, 67 S.Ct. 124, 91 L.Ed. 659 (1946); 2 C. Sands, supra at § 41.12; Hochman, supra at 720-21. See In re Morrison's Adoption, 267 Wis. 625, 66 N.W.2d 732 (1954). Application of RCW 26.32.916 defeats no justifiable reliance interests of the Santores. Mrs. Santore intended to relinquish her child when she signed the consent and did not sign in reliance upon the then defective provisions of RCW 26.32 created by the 1979 amendments. Indeed, the record indicates that the Santores were unaware of the 1979 amendments until after they filed the habeas corpus petition.

We need not address the Santores' argument attacking the clause in RCW 26.32.916 conferring discretion on the court ³ because even if we were to hold the clause invalid, the remainder of RCW 26.32.916 would be severable and unaffected. Laws of 1980, ch. 85 § 2; O'Connell v. Conte, 76 Wash.2d 280, 287, 456 P.2d 317 (1969); Boeing Co. v. State, 74 Wash.2d 82, 88, 442 P.2d 970 (1968). In any event, holding the clause invalid would not affect the outcome of the case because the trial court did not base its opinion on this provision of the statute.

Because we conclude that RCW 26.32.916 is not unconstitutional and therefore governs this case, we must next determine whether the relinquishment proceeding complied with the provisions of RCW 26.32 as it existed prior to September 1, 1979. The Santores contend that the proceeding was fatally deficient in failing to satisfy two statutory requirements: (1) the preplacement report presented to the commissioner at the relinquishment hearing was not verified; ⁴ and (2) no sworn statement that the adoption petitioner had filed all preplacement reports known to him was filed prior to the relinquishment hearing. ⁵ Although both statutory provisions are couched in mandatory language, the trial court concluded that they are merely directory and that noncompliance did not render invalid the relinquishment order entered in this case.

Although adoption statutes, being in derogation of the common law, should be strictly construed, In re Adoption of Hickey, 18 Wash.App. 259, 567 P.2d 260 (1977), they should not be given a construction so narrow and technical as to defeat their manifest intent and beneficial aims. In re McFarland, 223 Mo.App. 826, 12 S.W.2d 523, 525 (1928); Gebhardt v. Warren, 399 Ill. 196, 77 N.E.2d 187, 191 (1948). One important objective of the relinquishment and adoption statutes is to protect the adopting parents, the child, and the new family relationship from subsequent disturbance by the natural parents. In re Adoption of Reinius, 55 Wash.2d 117, 346 P.2d 672 (1959); In re Adoption of Baby Girl K, 26 Wash.App. 897, 615 P.2d 1310 (1980). This desirable objective suggests that courts should be reluctant to invalidate adoption proceedings on technical grounds. H. Clark, The Law of Domestic Relations 615 (1968).

With this in mind we conclude there need not be strict compliance with each and every provision of the adoption st...