Oregon Advisory Opinions January 01, 1943: OP 1

Advisory Opinion Text

Consent of parent, if competent, is a condition precedent to adoption of a child.

January 11, 1943.

Miss Loa Howard,

Administrator, State Public Welfare Commission.

Dear Madam: Under date of January 8, 1943, you request my opinion whether or not, under the laws of Oregon, a mother who has relinquished her child for adoption may withdraw her consent prior to the granting of a decree of adoption.

I do not find anything in the Oregon statutes relating to the matter or any opinions of the Supreme Court of this state construing our adoption statutes in that regard.

Section 63-402, O. C. L. A., requires the consent of the parents of the child, or the survivor of them, to the adoption.

Section 63-404, O. C. L. A., requires that if a parent does not consent to the adoption of his child, the court shall order a copy of the petition and citation thereon to be served on him personally.

In 2 C. J. S., page 386, section 21, para­graph (4), the following rule is an­nounced:

"Consent may be withdrawn at any time before adoption, even though given in writing, and accompanied by transfer of the custody of the child, and even though the natural parent had abandoned the child; and an adop­tion based upon a consent that has been withdrawn is void."

Citing:

Hebhardt v. Anderson, 7 Pa. Dist. & Co., 139, to the following effect:

"Until a legal adoption has been effected, a consent may be revoked, even though the child has been placed with a welfare agency with a view to its adoption by others."

Also citing:

State v. Beardsley, 183 N. W. 956;

149 Minn. 435. In re Nelms, 279 Pac. 748; 153 Wash.

242.

Andrews' Adoption, 14 Pa. Dist. & Co. 343.

See, also, my opinion of May 7, 1938, to the Child Welfare Commission, Opin­ions of the Attorney General, 1936-1938, page 644.

It is the rule that the statutes relating to adoption are to be strictly construed.

In that connection, in Furgeson v. Jones, 17 Or. 204, 20 Pac. 842, the court said, page 217:

"* * * The right of adoption, then, being in derogation of common law, is a special power conferred by statute, and the rule is, that such statutes must be strictly construed. (Brown v. Basey, 3 Dall. 365; Dwarris on Statutes 257.) This being so, the statute must receive a strict interpre­tation, and every requirement essential to authorize the court to exercise the special power conferred must be strictly complied with."

Page 218:

"* * * The reason is, that consent lies at the foundation of statutes of adoption, and when it is required to be given and submitted to the court, the court cannot take jurisdiction of the subject-matter without it."

Page 219:

"It is thus apparent that if the par­ents are living and do not belong to the excepted classes, that their consent must be obtained and is a prerequisite to jurisdiction; that without such con­sent jurisdiction does not attach, and the court is without authority to act and make a decree of adoption, and if it undercakes to do so, its decree will be a nullity, not voidable but void, and may be collaterally assailed in any action."

See, also, further authorities cited in said opinion, among which is In re Rising, 104 Wash. 581, 177 Pac. 351, in which it was held that a writing exe­cuted by the motner of an iiiegnimate child on delivering it to a foundling home, stating that she voluntarily gave up all claim to the child, was sufficient as cutting off her rights in subsequent adoption proceedings, although not men­tioning the name of the person to whom possession of the child was given.

It is my opinion that if the parent, who has consented to the adoption of a child, is a competent person, such consent may subsequently be withdrawn at any time prior to the decree of adoption; otherwise such decree would be made without the consent of the parent as required by law.

I. H. VAN WINKLE, Attorney-General, By Willis S. Moore, Assistant.

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