(Cite
as: 27 Wash.App. 278, 616 P.2d 1263)
Court
of Appeals of Washington, Division 1.
In
the Matter of the ADOPTION of BABY NANCY, A Minor.
No.
8630-8-I.
Sept. 22, 1980.
Reconsideration
Denied Oct. 21, 1980.
*279
**1264
Halverson, Strong, Moen & Chemnick, Eugene M. Moen, Seattle, for appellant.
Daniel Hoyt Smith, Seattle,
for respondent.
DURHAM-DIVELBISS, Judge.
This is an action to
vacate an interlocutory Decree of Adoption.
Nancy was born on October
6, 1975 to George and Gloria. George and his father, David, provided for
most of her care, particularly after Gloria's death in July, 1977. Nancy,
who suffered from language and learning disabilities, was treated at the
University of Washington's Child Development and Mental Retardation Center.
In January, 1978, Nancy was taken to the International Child Care Center,
where Bonnie was employed. After about 3 months, Bonnie began
taking the child home with her for overnight visits and by June, 1978,
she undertook virtually full-time care.
At that time David believed
it would best serve Nancy's interests for her to be adopted by Bonnie.
In August of 1978, a petition for adoption was prepared for Bonnie by
an attorney retained by David, but George refused to sign the "consent
to adoption." However, under pressure from his father, he ultimately
agreed. On November 15, 1978, he signed a consent to adoption and waiver
of notice which stated that he understood that the effect of an adoption
was to terminate all parental rights and that the consent could not be
revoked except in the case of fraud of the adoptive parent or mental incompetency
of the consenting parent.
The petition for adoption
was filed November 28, 1978, and on November 30, 1978, an order authorizing
relinquishment of custody and approving the consent to adoption was signed
by the court. At the same time an order appointing the King County Adoption
Service as next friend was also signed.
On May 4, 1979, the final
hearing was held and an interlocutory decree of adoption was entered.
Pursuant to the *280
waiver he had signed, George was given no notice of this hearing. On October
26, 1979, David and George had changed their minds regarding the adoption
and filed a petition to vacate the decree. After trial to the court, findings
of fact, conclusions of law, and an order vacating the decree of adoption
were entered. By virtue of a Commissioner's
Ruling granting a stay pending appeal, the child has remained with the
adoptive mother. Bonnie appeals.
**1265
She first assigns error to the trial court's conclusion that the Order
of Relinquishment and Approval of Consent entered November 30, 1978, was
invalid because it was not based on the written approval by the next friend
appointed at that time.
RCW 26.32.070(3) (repealed
effective 1979) provided:
The
court, prior to signing an order of relinquishment, may appoint a next
friend, as hereinafter provided in RCW 26.32.090, who shall report to
the court either orally or in writing as to the competency of the parent
signing the consent, whether or not such consent is voluntary, and whether
or not at that time anything affirmatively appears that the best interests
of the child would not be served by the adoption. The order of relinquishment
shall not be signed without the written approval of the next friend and
without the court calling a hearing as to the advisability of the relinquishment,
whenever the court appoints a next friend.
This statute must be
read together with RCW 26.32.090 which provides in part:
Upon
the filing of a petition for adoption, the court shall cause an investigation
of the propriety of the adoption to be made. The court shall appoint .
. . (a) next friend . . . to make such investigation. . . .
The appointment of a next friend upon the filing of a petition for adoption
is clearly mandatory. RCW 26.32.090. However, appointment of a next friend
prior to signing of an order of relinquishment is discretionary. In re
Adoption of Hernandez, 25 Wash.App. 447, 607 P.2d 879 (1980). Written
approval of the next friend is not required in every *281
case, but only "whenever the court appoints a next friend" pursuant
to RCW 26.32.070(3).
The order appointing
a next friend recited that a petition for adoption had been filed. It
ordered that
King
County Adoption Service be and hereby is appointed as next friend of the
child to make a complete investigation and report relative to the proposed
adoption.
The order did not mention
either the consent or the relinquishment. The language of this order together
with the fact that it was signed contemporaneously with the order authorizing
relinquishment, requires us to conclude that the trial court was complying
with RCW 26.32.090. Had the court been exercising its discretion pursuant
to RCW 26.32.070(3), it would not have signed the relinquishment order.
Thus, the trial court's findings on this ground are without basis.
Bonnie next assigns error
to the trial court's conclusion that because George had indicated a possible
desire to withdraw his consent, he was entitled to notice of the May 4,
1979 final adoption hearing.
RCW 26.32.080 (repealed effective September 1979) provided in part:
(1)
The court shall direct notice of any hearing under RCW 26.32.050 to be
given to any nonconsenting parent or guardian, if any, and to any person
or association having the actual care, custody, or control of the child:
. . .
George, as a consenting
parent, was not entitled to notice under this provision. In re Adoption
of Jackson, 89 Wash.2d 945, 578 P.2d 33 (1978). Moreover, he had expressly
waived notice in his consent to adoption. We can find no support for the
trial court's conclusion that a consenting parent's vacillation, subsequent
to signing a consent to adoption, entitles him to notice.
Bonnie next assigns error
to the trial court's conclusion that the Indian Child Welfare Act of 1978
(25 U.S.C.A. ss 1901 (Supp.1979) et seq.), which established minimum federal
standards for the removal of Indian children from *282
their families, applied to this action. We agree with Bonnie that it did
not apply insofar as the finality of the adoption was concerned. Congress
anticipated such problems and provided that the Indian Child Welfare Act
of 1978, does not apply to adoptive placement "initiated or completed
prior to one hundred and eighty days after November 8, 1978, but shall
apply to any subsequent proceeding in the **1266
same matter . . . ." 25 U.S.C.A. s 1923 (Supp.1979).
The final adoption hearing
here was held within the 180-day period. We do not agree
that the action to vacate the adoption was a "subsequent proceeding"
and that therefore, the Indian Child Welfare Act of 1978 applied.
Congress could not have
intended any adoption of an Indian child, no matter when completed, to
be upset by a subsequent action to vacate. Otherwise 25 U.S.C.A. s 1923
(Supp.1979) would be meaningless. For example, 25 U.S.C.A. s 1913 (Supp.1979)
requires a valid consent to termination of parental rights to be "accompanied
by the presiding judge's certificate that the terms and consequences of
the consent were fully explained in detail and were fully understood by
the parent . . . ." Obviously this was not done here and likely would
not have been done in any proceeding initiated prior to the Act. 25 U.S.C.A.
s 1914 (Supp.1979) allows a termination of parental rights to be invalidated
upon a showing that 25 U.S.C.A. s 1913 (Supp.1979) was violated. If 25
U.S.C.A. s 1914 (Supp.1979) applied to this case, all adoptions of Indian
children could be upset even though they had been final for years. This
could not have been the intent of Congress.
Finally, Bonnie assigns
error to the trial court's conclusion that the consent to adopt was invalid
because it was not voluntary and complete. With regard to the validity
of the consent the court entered the following findings of fact and conclusion
of law.
The
original document purporting to be a consent to adoption executed by George
on November 15, 1978, was in fact, and was understood by the and case
worker
*283
to be, the conditional consent, predicated on an agreement between George
and Bonnie that, as Bonnie had assured him before the consent was signed,
George would maintain permanent visitation rights with his daughter, and
that she would grow up knowing him as her father, and David as her grandfather.
The consent was therefore not totally voluntary, complete, and unconditional,
as required by law.
(Surnames omitted.) Finding
of fact No. 5.
The
concept of "adoption" is different in Indian culture from the
concept in Anglo-American law, in that in Indian culture adoption is not
necessarily accompanied by a total abandonment of the parent-child relationship
by the natural parent. This contribution to George('s) willingness to
agree to an "adoption" to give his daughter Nancy, whom he loved,
a good home, without the legally necessary agreement to total relinquishment
of parental rights required to have a consensual adoption under our law.
(Surname omitted.) Finding
of fact No. 6.
A
consideration of all of the facts and circumstances of this case, based
on the court's evaluation of all the evidence and the testimony of the
witnesses requires the trial court to conclude that clear and convincing
evidence establishes that the consent here was not a voluntary, unequivocal,
or unconditional relinquishment of parental rights, and therefore was
an insufficient legal basis to support a Decree of Adoption.
Conclusion of law No. 5.
The primary interest
of the public is to preserve the integrity of the adoptive process. In
re Sage, 21 Wash.App. 803, 586 P.2d 1201 (1978). Adoption is a humane
solution to the problem of unwanted or neglected children and the public
has an interest in maintaining a system that promotes the supply of capable
parents to adopt without affecting the willingness of biological parents
to make decisions in the best interest of their children. In re Sage,
supra at 807, 586 P.2d 1201.
To promote these ends,
the legislature has adopted a system of relinquishment and consent to
adopt so that once *284
the consent is approved and the order of relinquishment entered "it
is not revocable except for fraud practiced by the petitioners or mental
incompetency of the person signing the consent." In re Adoption of
Jackson, supra, 89 Wash.2d at 949, 578 P.2d at 36; RCW 26.32.070. Bonds
between the child and prospective **1267
adoptive parents are formed quickly. "The early confirmation of the
consent and relinquishment removes a major uncertainty." In re Adoption
of Jackson, supra at 950, 578 P.2d at 36. A procedure allowing the consent
to be too easily set aside reinstates that uncertainty. This uncertainty-the
possibility of losing a loved child after emotional ties have formed-affects
the public interest by discouraging potential adoptive parents.
In this case, the trial
court made no finding of fraud or mental incompetency.
Rather, the trial court found the consent was "not totally voluntary,
complete, and unconditional, as required by law." The court held
that George's understanding that he would be able to continue to visit
Nancy made the consent incomplete and therefore of no effect.
A similar issue was recently
faced by this court in In re Adoption of Baby Girl K, 26 Wash.App. 897,
615 P.2d 1310 (1980). There the question was the validity of a written
surrender to an adoption agency rather than a consent to adopt. The trial
court found that the surrender was not voluntary because the mother was
uncertain and indecisive and did not fully understand the legal effect
of the surrender. We held:
None
of these findings supports a conclusion that the mother acted without
volition. We hold that a lack of full understanding of the consequences,
coupled with inexperience, emotional stress, uncertainty and indecisiveness
are insufficient findings to allow repudiation of the surrender.
In re Adoption of Baby
Girl K, supra at 904, 615 P.2d at 1315.
George signed the consent
form of his own free will. Absent fraud or mental incompetency, he was
deemed by *285
law to understand its contents. In re Adoption of Baby Girl K, supra.
As we stated:
If
the trial court's ruling were upheld, countless adoptions would be jeopardized,
and the strong public interest in the integrity of the adoptive process
would be undermined. See In re Sage, supra.
In re Adoption of Baby Girl K, supra at 905, 615 P.2d 1316.
In the present case the
trial court relied on George's cultural background and certain discussions
regarding visitation to conclude that the consent was not voluntary. The
trial court made no finding of mental incompetency, fraud or other overreaching
and we can find no evidence that would support such findings. The consent
which George signed stated that he understood that
the
nature and effect of a Decree of Absolute Adoption is to extinguish and
terminate all rights, duties, obligations and liabilities of the natural
parent or parents of the adopted child in relation to the custody, maintenance
and education of the child thereafter; and also to deprive the natural
parent permanently of their parental rights in respect to the adopted
child.
Jean Norman of King County
Adoption Services testified that, in fact, George had read the consent
form and she had explained it to him.
There being insufficient
basis in the findings and the record to repudiate that consent, the vacation
of the decree of adoption is reversed.
ANDERSON and JAMES, JJ.,
concur.
27 Wash.App. 278, 616
P.2d 1263
|