Stubbs v. Weathersby

• Decision Date: 30 March 1995
• Parties: In the Matter of the Adoption and Change of Name of Yasha Raynae Weathersby, a Minor. Carl STUBBS and Yvonne Stubbs, Respondents on Review, v. Thomaszine WEATHERSBY, Petitioner on Review. CC 58-90-00971; CA A78470; SC S41287.
• Court: Oregon Supreme Court

Page 991

892 P.2d 991

320 Or. 620

In the Matter of the Adoption and Change of Name of Yasha

Raynae Weathersby, a Minor.

Carl STUBBS and Yvonne Stubbs, Respondents on Review, v. Thomaszine WEATHERSBY, Petitioner on Review.

CC 58-90-00971; CA A78470; SC S41287.

Supreme Court of Oregon,

In Banc.

Argued and Submitted Nov. 1, 1994.

Decided March 30, 1995.

[320 Or. 621-B] Cristina Sanz and Maureen H. McKnight, of Lane County Legal Aid Services, Inc., Medford, argued the cause on behalf of petitioner on review. On the petition was Cristina Sanz.

Greg A. Hunt, Eugene, argued the cause on behalf of respondents on review.

Julie A. Stevens and Robin J. Selig, of Multnomah County Legal Aid Service, Inc., Portland, and Joan Zorza and Nancy S. Erickson, of Nat. Center on Women and Family Law, Inc., New York City, filed an amici curiae brief on behalf of Multnomah County Legal Aid Service, Inc., and Nat. Center on Women and Family Law, Inc.

UNIS, Justice.

Mother appeals from the decision of the Court of Appeals that affirmed the trial court's decree of adoption of Mother's minor daughter (Child) by Carl and Yvonne Stubbs. Stubbs v. Weathersby, 126 Or.App. 596, 869 P.2d 893 (1994). For reasons that follow, we affirm, but on different grounds.

When Mother was five months pregnant with Child, she moved from Texas to Washington state. Child was born March 14, 1989, in Washington. When Child was less than one month old, Mother met with the Stubbses, who lived in Oregon, to discuss the possibility of having the Stubbses care for Child. Because the Stubbses were interested only in adopting Child, no agreement resulted, and Mother retained custody of Child. Mother and Child lived together in a crisis pregnancy shelter until April 17, 1989. At that time, Mother voluntarily placed Child in foster care with Catholic Community Services in Washington, because Mother was required to move out of the shelter and had no other place to live.

In June 1989, Mother rented an apartment and sought to regain physical custody of Child. The agency refused to relinquish custody and filed a juvenile court dependency proceeding in King County, Washington, on June 28, 1989. A hearing was held on June 29, 1989, and the court ordered that Child be continued in foster care. Another hearing was held on July 28, 1989, at which time the court again ordered that Child be continued in foster care. While Child was in foster care, Mother visited Child once or twice a week.

In October 1989, Mother was forced to move out of her apartment because her apartment was sold. Child remained in foster care. Mother informed Dr. Virginia Phillips that she wanted to place Child for adoption. Dr. Phillips was aware that the Stubbses were interested in adopting a child, and she informed them that Child was available for adoption.

On November 1, 1989, Yvonne Stubbs went to Washington from Oregon to pick up Child. Mother typed and signed a document dated November 1, 1989, which stated:

"[Child] has been placed in the care of Yvonne Stubbs and Carl Stubbs, by [Mother].

"They will be caring for her during this adoptive process, after which they will become her legal parents."

The document was not notarized or witnessed. Yvonne Stubbs returned to Eugene, Oregon, with Child. On November 8, 1989 On January 11, 1990, Mother telephoned the Stubbses and told them that Child's father might want Child back. On January 30, 1990, the Stubbses filed a petition for adoption of Child in Lane County Circuit Court, asserting that Mother had consented to the adoption in writing. On February 1, 1990, the court entered an order appointing the Stubbses as temporary guardians of Child.

the juvenile court dependency proceedings pending in Washington state were dismissed.

In February 1990, Mother told the Stubbses that she wanted Child back. On April 2, 1990, Mother sent a letter to the circuit court, stating, "I would like to inform the court that I have revoked my consent to have my child adopted!!! * * * I am in no way consenting to my daughter being adopted!!!" (Emphasis in original.)

Mother later obtained representation by counsel. Mother filed two motions to dismiss the adoption proceeding, which were denied. Mother intervened in the adoption proceeding and filed objections to the petition for adoption.

On December 28, 1990, the Stubbses filed a supplemental petition for adoption. In addition to Mother's alleged consent, the supplemental petition alleged that Mother, without just and sufficient cause, had willfully deserted or neglected to provide proper care and maintenance for Child for the year preceding the filing of the supplemental petition. A trial was held in April 1991. The trial court, applying Oregon law, concluded that Mother had consented to the adoption and that Mother was estopped from revoking her consent. The trial court also concluded that, for one year preceding the filing of the supplemental petition, Mother had willfully neglected, without just and sufficient cause, to provide proper care and maintenance for Child. The circuit court granted the Stubbses' petition for adoption. Mother appealed.

In June 1992, the Court of Appeals remanded the case to the circuit court for a hearing to determine whether the circuit court had jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), ORS 109.700 to 109.930. Stubbs v. Weathersby, 113 Or.App. 501, 833 P.2d 1297 (1992). After a hearing on remand, the circuit court entered a judgment that "ratified and confirmed" the prior judgment.

Mother again appealed, arguing (1) that the circuit court lacked jurisdiction under the UCCJA and that Oregon was an inconvenient forum, (2) that Washington law applied to the adoption proceeding, (3) that she never executed a valid irrevocable consent to the adoption, (4) that she validly revoked her alleged consent, and (5) that the circuit erred in finding that she had neglected Child without just and sufficient cause for one year.

The Court of Appeals affirmed, holding that the circuit court had jurisdiction under ORS 109.730(1)(b) and that Oregon was a proper forum. Stubbs, 126 Or.App. at 600-02, 869 P.2d 893. The court, applying Oregon law, also held that Mother had consented to the adoption and that Mother was estopped from revoking her consent. Id. at 602-08, 869 P.2d 893. One judge dissented, because he believed that the circuit court lacked jurisdiction under the UCCJA. Id. at 608-13, 869 P.2d 893 (Landau, J., dissenting). We allowed Mother's petition for review and now affirm the decision of the Court of Appeals on different grounds and affirm the judgment of the circuit court.

JURISDICTION

We first address whether the trial court had jurisdiction under the UCCJA, ORS 109.700 to 109.930. The UCCJA applies to adoption proceedings. State ex rel Torres v. Mason, 315 Or. 386, 848 P.2d 592 (1993). ¹

The UCCJA provides four bases for jurisdiction: (1) "home state" jurisdiction, (2) "significant connection" jurisdiction, (3) "emergency" jurisdiction, and (4) "default" jurisdiction. ORS 109.730(1). Each basis of jurisdiction under the UCCJA depends on the factual circumstances surrounding the child custody proceeding. To determine jurisdiction Ordinarily, a proceeding is deemed "commenced" when the complaint is filed. ORCP 3. This case involves an initial petition for adoption and a supplemental petition. The initial petition was filed on January 30, 1990. That petition alleged as the sole basis for adoption that Mother had consented to the adoption. The Stubbses filed a supplemental petition on December 28, 1990, ² alleging that Mother had neglected child from December 28, 1989, to December 28, 1990. We must consider whether, for the purposes of the UCCJA, this proceeding is deemed "commenced" as of the filing of the initial petition or as of the filing of the supplemental petition for adoption.

we consider the facts as of the date that the adoption proceeding was commenced. Torres, 315 Or. at 393 n. 6, 848 P.2d 592.

The UCCJA is to be construed to promote the purposes of that act as set forth in ORS 109.720(1). ORS 109.720(2). A number of those purposes bear on the determination of when the proceeding is deemed "commenced" for the purposes of determining jurisdiction. The UCCJA is intended to, among other things, (1) avoid jurisdictional conflicts with courts of other states, (2) assure that child custody litigation ordinarily takes place in the state with which the child and the family of the child have the closest connection and where significant evidence concerning care, protection, training, and personal relationships of the child is most readily available, (3) discourage continuing controversies over child custody, (4) deter abductions and other unilateral removals of children undertaken to obtain custody awards, and (5) avoid the relitigation of custody decisions. ORS 109.720(1).

Based on the purposes of the UCCJA, it is clear that an amendment to a petition for adoption ordinarily will not affect the date as to which jurisdiction is determined. Such a practice would encourage abduction of children and lead to continuing controversies over child custody disputes. Indeed, when a pleading is amended, the date of the amended pleading relates back to the date of the initial pleading "[w]henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." ORCP 23 C. Thus, when a party files a petition for adoption and then amends the petition at a later date when the facts on which UCCJA jurisdiction is based are more favorable to the petitioner, the amendment generally will not affect the date on which the proceeding was "commenced."

That general rule does not apply to the circumstances in this case, however. The allegation of neglect in the supplemental petition did not arise out of the conduct, transaction, or occurrence set forth or...