The necessity for the court order of relinquishment in adoption proceedings in Washington has until recently presented a confusing problem

Sweet, John W.

English

UW Law Digital Commons (University of Washington)

Washington Law Review Volume 23 Number 3 8-1-1948 Use of the Court Order of Relinquishment in Adoption Proceedings in Washington John W. Sweet Follow this and additional works at: https://digitalcommons.law.uw.edu/wlr  Part of the Family Law Commons Recommended Citation John W. Sweet, Comment, Use of the Court Order of Relinquishment in Adoption Proceedings in Washington, 23 Wash. L. Rev. & St. B.J. 254 (1948). Available at: https://digitalcommons.law.uw.edu/wlr/vol23/iss3/4 This Comment is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington Law Review by an authorized editor of UW Law Digital Commons. For more information, please contact cnyberg@uw.edu. WASHINGTON LAW REVIEWANDSTATE BAR JOURNALEDITORIAL BOARD OF THE LAW SCHOOLSTUART G. OLES, EditorLuvERN V RIEKE, Assoctate Editor DARE.LL E. RiEs, Contributions EditorROGER L. OLSON, Business ManagerMARSHALL D. ADAmS RICHARD A. CLARK WILLIAM A. ROBERTSJoHN D. BLANKINSHIP JAMES R. ELLIS JOHN F ROBINSONSIDNEY R. BUCKLEY E. ROBzRT FUSTOE CHARLES L. SAYRESTANLEY J. BURKEY DEAN W LONEY MIILim C. THOMASEDWARD M. NOLLMEYERMILTON D. GREEN, Faculty AdmnserJOHN W RIcHAWS, Faculty Busness ManagerThe Far Eastern Section is jointly sponsored bythe Law Remew and the Far Eastern Institute.COMMENTSUSE OF THE COURT ORDER OF RELINQUISHMENT INADOPTION PROCEEDINGS IN WASHINGTONJOHN W SWEET*The necessity for the court order of relinquishment in adoptionproceedings in Washington has until recently presented a confusingproblem. In 1939 the legislature enacted a statute entitled "PersonsAuthorized to Adopt Children,"' which provided:It shall be unlawful for any person, firm, society, association or corpora-tion, except the parents, to assume the permanent care, custody or controlof any child under the age of majority, unless authorized so to do by awritten order of a superior court of the state.The statute also makes it unlawful for a parent to relinquish custodyof a minor child without such an order.Those who initiated the statute and backed its passage felt that it* LL.B., University of Washington, 1948.'Wash. Laws 1939, c. 162, § 1, appearing as REM. Rzv. STAT. § 1700-1, [P P C.§ 358-1].COMMENTSwould provide close judicial supervision of the transfer of custody inorder that the bartermg of' mnnor children might be effectively pre-vented. It was intended in addition to protect the rights of naturalparents by making it more difficult to perpetrate a fraud upon themin procuring the relinqushment of a child. The 1939 statute is quitesimilar to the 1933 statute, which reads as follows:It shall be unlawful for any person, firm, society, association or corpora-tion, except the parents, or relatives within the second degree, or a benevo-lent or charitable society incorporated under the laws of this state for thepurpose of, and engaged in the business of, receiving, caring for, and placingout for adoption, orphan, homeless, neglected, abandoned or, abused minorchildren, to assume the permanent care, custody, or control of any childunder fourteen (14) years of age, unless authorized to do so by an orderof the court.2This prior statute clearly seems to have been designed to eliminatetrafficking in children and the z939 statute appears to have beenintended to expand the coverage of the earlier law by omitting theexceptions as to charitable institutions that were contained in the 1933statute.In 1943 there was enacted legislation which purported to be a com-plete act covering the matter of adoption.$ This statute fully pre-scribes the procedure necessary for obtaining an order of adoption,and at no point in the statute is the order of relinquishment mentionedor its use specifically required. The 1945 amendments " and the 1947amendments' pertaining to adoption do not add anything with regardto the use of the relinquishment order.Prior to the decision in the case of In the Matter of the Adoption ofDonna Mae Sipes6 it was not settled whether it was necessary to ob-tain a court order of relinquishment as a condition to jurisdiction tohear and determine whether or not the adoption would be permitted.An informal poll of eleven of the superior courts of this state wastaken recently Five of the courts required such an order. One courtreplied that four of the judges who alternated in that court in thehearing of adoption cases required the order while the fifth judge did2 Wash. Laws 1933, c. 62, § 1. Repealed, Wash. Laws 1935, c. 151 § 78 Wash. Laws 1943, c. 268, appearing as REr. REv. STAT. Supp. 1943, §§ 1699-1 to1699-17, [P. P C. §§ 354f-1 to 354-33].4 Wash. Laws, 1945, c. 191, appearing as REm. REv. STAT. Supp. 1945, § 1699-12,[P. P C. § 354f-23].5 Wash. Laws 1947, c. 251, appearing as REm. REv. STAT. Sup'. 1947, §§ 1699-4,.9,10, 12, and 15.624 Wn. (2d) 603, 167 P. (2d) 139, (1946).WASHINGTON LAW REVIEWnot. The other five courts did not require the order." As to whetherthe court would consider the existence or nonexistence of an order ofrelinquishment relevant in the event that a natural parent whose con-sent was requisite to adoption desired to withdraw consent, one courtthought that it was relevant; five courts thought it not relevant; inone court the judges were not in agreement; while the question hadnot risen before four of the courts.' All eleven courts agreed that anorder of relinquishment would not be required in a guardianship pro-ceeding even though it nught involve the assuming of permanent care,custody or control of a child under the age of majorityThe confusion in this matter has been substantially rectified by thedecision in the case of In the Matter of the Adoption of Donna MaeSipes.' In this case the natural mother of an illegitimate child, shortlyafter the birth of the child, executed and delivered to A a writtendocument of consent for the adoption of this child by A, leaving thechild in the custody of A. No court order of relinquishment was ob-tained. Subsequently an adoption proceeding was conducted in theregular manner in accordance with Rmxi. REv STAT. Supp 1943,§§1699-1 to 1699-17 [P.P.C. §§354f-I to 354f-33 ], whereby A wasgiven an interlocutory order of adoption. Within the six months inter-locutory period prescribed by REm. REv STAT. SuPP 1943, §1699-12[P.P.C. §354f-23], the mother petitioned to have the interlocutoryorder vacated, setting up the failure of A to get an order of relinquish-ment as prescribed by RE . REv STAT. §1700-I [P.P.C. §358-I]Here was presented a question of first impression in this state: Canthe mother of an illegitimate child execute a valid consent sufficientto give the court jurisdiction of an adoption proceeding, without firstsecuring the order of relinquishment? The trial court denied themother's petition to vacate the interlocutory order of adoption of her7 The question used in the poll was worded. "In a regularly conducted adoptionproceeding [before In the Matter of the Adoption of Donna Mae Sipes, 24 Wn.(2d)603, 167 P. (2d) 139 (1946) ]was an order of relinquishment required before the adop-tion petition was approved?" The Superior Courts of the Counties of Whatcom, Ferryand Okanogan, Stevens, Garfield and Columbia, and Kittitas answered this "Yes",while the Superior Courts of the Counties of Lewis, Clark, Douglas and Grant, Adamsand Benton, and King replied. "No." In Spokane County the judges' opinions were notin agreement as to the answer to this question.s The question was worded. "In the event that a natural parent whose consent wasrequisite to adoption desired to withdraw consent during the six months interlocutoryperiod, was the existence or nonexistence of an order of relinquishment considered rele-vant?" The Superior Court of Stevens County answered this in the affirmative; thecourts of Lewis, Clark, Douglas and Grant, Adams and Benton, and King countiesanswered in the negative, while the judges of the Spokane County Superior Court dis-agreed as to the relevancy of the order.9 Supra, note 6.COMMENTSchild and entered a final order of adoption. This judgment was affirmedon appeal.The Supreme Court of Washington reasoned that the relinquish-ment statute was designed to prevent the release of children to per-sons, associations, and corporations who did not desire to adopt suchchildren, but who procured their permanent care, custody, and con-trol and thereafter placed them out for adoption. The statute, it said,was never intended to apply to a situation where the parent, who waslegally entitled to consent to the adoption of her child, had given thatconsent in writing, and the adopters had proceeded to obtain an orderof adoption.The decision appears to have the effect of removing from the adop-tion proceeding the court order of relinquishment in all cases wherethe persons whose consent is necessary for adoption have given writ-ten consent. The child care and protective organizations do not usethe order, for, before taking a child into custody, such groups (whichhave as their objects the purpose of caring for or obtaining homes fordependent, neglected, or delinquent children) procure a commitmentof such children from the Juvenile Court pursuant to statutes designedto handle cases of delinquent or dependent children." And such insti-tutions do not relinquish custody of a child until the interlocutoryorder of adoption" has been granted. Certain hospitals have followedthe practice of requiring a court order of relinquishment before per-mitting a person other than the natural parent to take the child fromthe hospital in order to fully protect themselves; however, even thisprecautionary step would not seem necessary if the hospital haswritten consent of the natural parent to the release of the child.Most assuredly, the natural parents who are relinquishing theirchild to another should be given adequate protection from those per-sons and associations who would wrongfully take the child from itsparents. But to require a court order of relinquishment as a conditionto the entertaining of an adoption petition is to put the cart beforethe horse. Our adoption statutes provide for a thorough investigationto be made before even the interlocutory order is granted.1 Notice toa nonconsenting parent or guardian is required by statute, 2 and thecourts have in the case of In the Matter of the Adoption of a Minor"3made it clear that the notice provisions will be given broad interpre-10 E REV. STAT. §1987-9; [P.P.C. §359-15].11 RE. REv. STAT. SuPP. 1947, §1699-10.12 REm. REv. STAT. Supp. 1947, §1699-9.18 129 Wash. Dec. 700, 189 P.(2d) 458, (1948).WASHINGTON LAW REVIEWtation and that the spirit of the statute will not be circumvented bythe use of technicalities. In the latter case the court held that it wasnecessary that the husband of the mother of an illegitimate child begiven notice of the adoption proceedings, the child being presumptivelyhis. This was held in spite of the language of the statute which reads:"If the court is satisfied of the illegitimacy of the child to be adopted,and so finds, no notice to the father of such child shall be required.""The courts similarly require strict adherence to the written consentprovisions of the statute,"' the court deciding in In The Matter of theAdoption of Lots Ann Hope"6 that consent of both parents is neces-sary before the court will permit the adoption of children born of anillegal marriage contracted in good faith and later annulled.It is clear that the natural parents are given adequate protectionunder our present adoption procedures. If a parent whose consent isnecessary for adoption has given written consent for a particularperson to adopt the child there should be a showing of fraud or of verystrong and compelling circumstances why that parent should beallowed to revoke the consent after the interlocutory order of adop-tion has been granted. To permit otherwise would be to subject theproceedings to a degree of uncertainty and unfairness which the adop-tion statute was designed to avoid.It appears that for all intents and purposes the court order of relin-quishment is no longer a necessary step in the state of Washington'sprocedure for the supervision of the welfare of children. In the Matterof the Adoption of Donna Mae Sipes" removes this order from theadoption procedure whenever written consent has been given, and theDelinquent Children and Juvenile Court laws1 8 prescribe adequateprocedures and are customarily used for the relinquishment of childrento those who do not themselves desire to adopt. This result seemsdesirable, for it eliminates from the adoption system a step winchseemed superfluous. The statutory plan for adoption has in manycourts functioned smoothly without requiring the order of relinquish-ment.19 The holding should assist in making the Washington adoptionsystem operate in a uniform and sure manner, giving ample protectionto all parties concerned."4 The last sentence of REm. REv. STAT. Supp. 1947, §1699-9.25 REm. REV. STAT. Supp. 1947, §1699-4.6 130 Wash. Dec. 170, 191 P.(2d) 289, (1948).17 Supra, note 6.i8 Rzm. REv. STAT. §§1987-1 to 1987-18, [P.P.C. §§359-1 to 359-35].19 Supra, note 7

Use of the Court Order of Relinquishment in Adoption Proceedings in Washington

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Use of the Court Order of Relinquishment in Adoption Proceedings in Washington

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