Small v. Andrews

• Decision Date: 14 January 1975
• Citation: 20 Or.App. 6,530 P.2d 540
• Parties: , 74 A.L.R.3d 413 In the Matter of the Adoption of Baby Girl Andrews, aka Shona Rose Andrews. Richard Lee SMALL and Marina M. Small, Appellants, v. Violet Rose ANDREWS, Respondent.
• Court: Oregon Court of Appeals

Page 540

530 P.2d 540

20 Or.App. 6, 74 A.L.R.3d 413

In the Matter of the Adoption of Baby Girl Andrews, aka

Shona Rose Andrews.

Richard Lee SMALL and Marina M. Small, Appellants, v. Violet Rose ANDREWS, Respondent.

Court of Appeals of Oregon.

Argued and Submitted Nov. 21, 1974.

Decided Jan. 14, 1975.

Franklyn N. Brown, Tigard, argued the cause and filed the briefs for appellants.

Kenneth W. Saxon, Portland, argued the cause for respondent. With him on the brief was Michael H. Marcus, Portland.

Before SCHWAB, C.J., and LANGTRY and FORT, JJ.

LANGTRY, Judge.

Petitioners have appealed from an order of the circuit court disallowing their petition for the adoption of Shona Andrews, born June 1, 1972 in Edmonton, Alberta. That petition--initially filed on November 16, 1973--included as an attachment a handwritten consent to the adoption dated July 3, 1973 and signed by the child's natural, unwed mother in Edmonton. The circuit court on February 1, 1974 received by mail from the Supreme Court of Alberta a document entitled 'Writ of Habeas Corpus,' dated January 16, 1974, ordering the return of the child to that province, as well as a formal written withdrawal of the consent to adoption, dated January 29, 1974, signed by the mother. On February 13, 1974, pursuant to petitioners' motion of the same date, the circuit court issued an order requiring appearance by the natural mother on April 30, 1974 to show cause why the adoption petition should not be granted. At the request of her retained counsel the adoption hearing was ultimately held on July 12. After hearing evidence concerning the circumstances of the consent and subsequent events and considering the report of the Oregon Children's Services Division (ORS 109.310(3) and (4)), the circuit court concluded that it was inclined, on the facts presented, to find that an estoppel of the natural mother's attempted withdrawal of consent had been established, but stated it was compelled to deny the petition on the basis of the most recent controlling appellate case on the subject, Franklin v. Biggs, 14 Or.App. 450, 513 P.2d 1216, Sup.Ct. review denied (1973).

Apart from specific statutory exceptions (ORS 109.314 to 109.329) the consent of parents, guardian or other person in loco parentis has been made a jurisdictional prerequisite to the entry of any adoption decree (ORS 109.312) in this state; action taken in the absence of the necessary consent is 'a nullity, not voidable but void * * *.' Furgeson v. Jones, 17 Or. 204, 219, 20 P. 842, 11 Am.St.R. 808, 3 L.R.A. 620 (1888); Hughes v. Aetna Casualty Co., 234 Or. 426, 383 P.2d 55 (1963); In Re Estate of Meyers, 197 Or. 520, 532, 254 P.2d 227, 233 (1953).

At the time of the proceeding below, ORS 109.326 provided essentially that, where the child to be adopted was illegitimate, only the consent of the natural mother would be required, with the natural father being 'disregarded just as if he were dead * * *.' The circuit court apparently relied on this statute in declining to require notification to or consent from the natural father whose identity became known in the course of these proceedings.

In Franklin v. Biggs, supra, we suggested by way of a footnote that the United States Supreme Court's decision in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), might have placed the constitutionality of ORS 109.326 in some question. On October 15, 1974 the statute was held to be 'constitutionally null and void and, hence, unenforceable' by the United States Court of Appeals for the Ninth Circuit which specifically relied upon the Stanley decision. The court there said:

'This appeal challenges the validity of an Oregon statute, ORS 109.326(1). In effect, the statute permits the adoption of a child born out of wedlock upon the consent of the natural mother, without notice to, or the consent of, the natural father.

'* * *.

'At the oral argument of the cause in this court, conducted on October 8, 1974, the Solicitor General of the State of Oregon conceded, in effect, that the state statute in question was out of harmony with the Federal Constitution. Pursuant to that concession, and upon the authority of Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), and Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962), it is hereby adjudged and declared that the application of the statute in question would infringe upon the Federal constitutional rights of the appellant and all natural fathers similarly situated. We further declare that the said statute is constitutionally null and void and, hence, unenforceable.' Miller v. Miller, 504 F.2d 1067 (9th Cir. 1974).

Although the circuit court's failure to take steps calculated to notify the natural father once his identity was known would thus appear to constitute an adequate ground for sustaining the denial of the adoption decree, the presence of some evidence indicating that the consent of the father in this case might ultimately be dispensed with ¹ requires us to proceed with a consideration of the specific question regarded as determinative by the circuit court--the revocability of the natural mother's consent of July 3, 1973.

Ms. Andrews--an unwed, unemployed 18-year-old at the time--surrendered her one-year-old daughter to Mr. Small's mother--Jesse Small--in Edmonton the day after signing the written consent introduced by petitioners. Jesse Small proceeded with the child to California, where she turned the child over to the petitioners, her son and daughter-in-law. After reflecting upon her action, Ms. Andrews felt that she had made a mistake and wished to be reunited with her daughter. She then contacted Jesse Small at her home in Portland to communicate this change of heart no later than two to three weeks after the petitioners had acquired custody of the child, that is, toward the end of July 1973. On the day following her conversation with Jesse Small, Ms. Andrews also telephoned the petitioners in California in order to make them aware of the change. She testified that she was told when she made her telephone call that the child would be returned only if she would either pay the expenses to be incurred in transporting the child to Edmonton, or travel to California herself in order to take custody there. Being without the resources to take advantage of either of these options, Ms. Andrews then contacted the Department of Human Resources and Welfare in Edmonton which aided her in her efforts to regain the child's custody, resulting, among other things, in providing her with legal assistance. A welfare caseworker from Alberta called upon petitioners in person in California on September 9, 1973, seeking to have them return the child, but they refused. Petitioners moved to Portland in the late summer of 1973 without having initiated adoption proceeding in California and without notifying Ms. Andrews.

Having been apprised of these facts, as well as many more which included the circumstances of the concerned parties, the circuit court found:

'* * * The official retraction was January 29, 1974, and that is well short of a year. The acknowledgement (sic) is that there was an indication within a matter of less than a month after consent was given and throughout the late summer, fall, and winter and prior to the filing of the formal retraction other indications of retraction had been given from time to time, and efforts to implement, on the part of this 19-year old girl, an effective, legal retraction were made through her lawyer and through telephone calls and communications.'

There was no evidence showing misconduct, neglect or mistreatment on the part of Ms. Andrews during the year she had cared for her daughter preceding transfer of the child to the petitioners.

Until the Supreme Court's decision in Williams et ux. v. Capparelli, 180 Or. 41, 175 P.2d 153 (1946), it appears that a natural parent in Oregon was absolutely entitled to withdraw his or her consent to an adoption at any time prior to the entry of a decree.

In Williams the court said:

'* * * (A) natural parent who has consented to the adoption of a child in compliance with a statute which makes such consent a prerequisite to adoption may effectively withdraw or revoke his consent at any time before the court has made a decree of adoption.' 180 Or. at 45, 175 P.2d at 154.

Included in its decision was the additional observation that recent 'interesting and persuasive' decisions then 'contrary to what we conceive to be the weight of authority * * *' had applied the doctrine of equitable estoppel in denying the right of a parent to withdraw consent. Specific note was made of those matters taken into consideration by courts invoking the doctrine:

'* * * (T)he circumstances under which the consent was given; the length of time elapsing, and the conduct of the parties, between the giving of consent and the attempted withdrawal; whether or not the withdrawal of consent was made before or after the institution of adoption proceedings; the nature of the natural parent's conduct with respect to the child both before and after consenting to its adoption; and the 'vested rights' of the proposed adoptive parents with respect to the child. In some cases, courts have considered the relative abilities of the adoptive parents and of the natural parents to rear the child in the manner best suited to its normal development, and other circumstances indicative of what the best interests of the child require. * * * Nevertheless, it would seem that courts should not interfere with the natural relationship of parent and child upon the sole ground that the proposed adoptive parents are able to give the child superior advantages over those within the means or social status of the natural parents * * *.' (...