Untitled Texas Attorney General Opinion ( 1947 )

THE L%-ORNEY GENERAL
OF TEXAS
PRICE DANIEL
ATTORNEYGENERAL
February 27, 1947
Hon. John H. Winters Opinion v-57
Execut lve Dlreator
State Department of lb: Sussialeacy of par-
Public Welfare ental consent Ser
Austin, Texas aQeption under Ar-
tic&e 466, Sestien
6, of thLwToxal!s
statute, tc place
the ahlld for adop-
Dear Sir: tma.
lie have your rei@eSt fcr an oplulua in the fol-
lowing situations
. The child in quest ien was born out of wedlock
in North Carolina on February 12, 1945 %#MW-
after the mother a resident of North &aroIina
turned the child’over to the Superintendent of’Pub*
lit Welfare of Rouan Couqtg, IQwtB Csrolinar, bj an
instrument entitled “Parent ‘8 Burrender Affidavit
for Adoption Proceedinga”, Which reclt,es that the
mother voluntarily released all olalm to tihe child,
The Instrument reads further: “I do ht+re,by grant
to the said Superintendent the authsrZti$ tQ Place
my child * * * in a foster home nelected by the
said superintendent with the privilege ,,oSI”,“g$
adoption without further notice to me.
same instrument she agreed with the Superintendent
and any prospective adopting parents, that she
would make no clsim to any estate of said minor#
etc. The Superintendent accepted the child ana
placed it in a foster home in North Carolina. The
child ,ls now in Texas. How it got to Texas, or
where and by whom it is being kept la not stated,
No further consent has been given by the mother
to any adoption, It is now contemplated t,hat th@
child will be adopted in Harris County, Texa6, ‘0111-
der order of a Court of Harris County, Texas, The
consent of the SuperlatetMesrPt of PublLc Welfare of
Rowan County, North Carolina, has been obtained te
the contemplated adoption in IEiarris Ccuntg. YOU
wish to know if the consent of such superintendent
alone Is suSSicLent “aonsent” uader Art. 46a-c6)
. .
Hon. John Ii. Winters, Page 3, V+7
The cases are uniform that consent is necessary
to the Court’s jurisdiotion in an Udoptlon proceeding.
Pearce v. Harris, 134 S.W. (2d) 859; Tex. Sur., Sup,
1943, he 62 -(the sectlon on Adoption bein re-wrttten
in this supplement) ; 1 Am, Sur. 639; 642 ?Adopt;iori
of Children, Sections 36 and 40) +
The T&x&! case moat nearly in point la @hat of
Davis v. Sears, 35 S .W. 99 (1931). In that case, 8(l
unmarried mother, in 1925, when her baby was a -week
old, gave her child to the Hope Cottage of Callea,
with authority for that institution to secure a home
for the child, with people of its selection, who
might or might not adopt the beby. She waived ST1
rights to the child. The i&ant was plaoed by the
Hope Cottage with Davis an8 wife, ~$0, Without fur-
.. ther consent of the mother or court proceedings in-
valving the mother, adopted thm ahtld. The natural
father thereafter s&rrled the metksr, They had con*
tribute8 nothing to its support and evidenced n,o
intereat in the child. After “about two years
the natural mother and father brought suit age&at
the adopting parents to recover possession of the
child. Upon a finding by the trial court that It
would be to the beat interest of the ahild, it w&s
held that the adopting parents were entitled to
keep the child. Upon appeal to the Court of Civil
Appea 1s , the judgment of the trial court was re-
versed and rendered in favor of the natural psrents*
Sears v. Ilsvla, 19 S.W. (26) 159. (1929). Judge
Funderburk sustained the contention that the adopt-
ing parents acquired no rights to the custody of
the c421d by the writing which gave the child over
te t&a institution fer placing In &thome and adop-
tion. The opinion reads:
“An agreement respecting the relin-
qaishment by a parent ef the custody of 8.
child, which does not eont,emplete edoption
of the .chlld by a part loular P~)CSQQ,is,
we think, of ne more binding effect Ghan
rep0 all suob *greewea prim to, the e0-
actmelrt of said stat&r. tie atitute it*
self, when read la the light ef its pur-
pose aforesaid, implies the irrvalidltf
of an agreement lib th# one ve have here,
It doer not purport to be a transfer to
any one. Rather , it is ia terma a power
Hon. John B. Winters, Page 4, V-57
of attorney, attempting to authorize Hope
Cottage Association to transfer the cua-
todg of the child to some unknown peraon
who my hove no lutoatiota to adopt it sad
ry kvo pFeriaurly decl8red. @a&l w&l&tef
intentlea. * * *’
The Judge concluded, saying, “Such situations can
always be avoided by procuring a legal transfer of par-
ental authority or by making an adoption after the ex-
piration of a three year period abandonment. ” (The
abandonment period was later changed by statute to
two years .)
Upon further appeal (19311, the Supreme Court, act-
ing through the Commlsslon of Appeals, reversed the
holding of the Court of Civil Appeals, and affirmed the
judgment of the trial court giving custody to the adop-
ting pnrenta. The decision was based solely on the
grounds of the beat Interest of the child. That court
tho t that the evidence showed conclusively that it
was 7 o the best Interest of the child that it be re-
tained In the custody of the adopting parents. (BY
the time the Supreme Court acted in this case, the
child was five years old) e Concerning the consent.
given by the mother to the Hope Cottage, however,
the Court said: “The instrument by which the mother
evidenced her act of relinquishment is in no sense
an authority autherizlng an one to adopt the child. m
Davis v. Sears, 35 s.w, (2aS 99.
The above case was decided upon an old statute
which provided that “the parent or parents of a child
who is to be so adopted w by Instrument in writing
* * transfer their parental authority * * --
to the adop-
tive parents. * * ” A few months after the decision
mhe Avis case, that statute was amended tomread,
in part: “Except as otherwise specified in this Sec-
tion, no adopt Ion sha1.I be permitted except with the
written consent of the llvlng parents of the child.”
(Acts 1931, 4ibra bg. p. 300, tlh. 77.1 The require-
lent tat t8s CoRueRt et tbo parat k (iirmetly) to
the “a’rloptlro pare& m vas altted, the requirewnt
of tko 1931 AmYrat boi~g t&t the writtom ommomt
h o g ir ato
~ th e
lep tia .Rn 8tqtrto vas ayim
amsnded In 1937 but the vortiu o? tkt partlamlar
sentence was not cbagebd. The 1937 hadmeat la
the Law today.
r
’ * * * the m&h##r Left the ok114 wit’h
the 3t a Vlqcents Hospital * * *, and had ex-
ecute& a surrecu$er ef the child to the hos-
pital 0 The caly couent attached to the petl-
tlon is that of the hospital. ?%e writing
signed by the motheP, authorU3;1n& fhe hos-
pital to plaae the ah114 in a good family
1for adopt ion ps was nat a consent mde in
thl@ m,*tLeuUr proceeding a,nd Qld sot sat-
Itis Me etatute.“
Similarly the uase 0s %a Rw H&&P, 1Q 8, Is; t@,
620 (HcCc 1940)) a mot&ea Bsdl givea her infant child to
the Childrents Home Society ob worth Ciiirolina, Ino.,
with the agreement that the %oclety night obtain fer
the child a legal adopt ion by suorh pbraan OF persane as
my be chosen by the Soclatf. The Society did place
the ahild for adoption. The Nat-1 mother dLd not con-
sent to the adopt ion. The Su9~e%w Court af North
Hon. John H. Winters, Page 6, V-57
Carolina (from which the instant case arose) said:
‘We regard It (the consent) as insuffi-
cient for that purpose. Tim’consent noted in
the adoption proceeding Is the consent of the
Children’s Home Society of North Carolina, Inc.,
and not that of the mother. * *. The consent
must et least be in Sbir contemplation of the
proposed adoption, and this includes Its most
essential feature - the Identity of the adop-
t ive parents. Except in the caao of abandon-
ment, it Is not without reeson that society
looks first to the concern and Sorealgnt of
the natural parents in selection for the child
adoptive parents into whose hands they surrender
the duties and burdens of custody, training,
and tuition * * *.‘I
After the above holding of the Supreme Court of
Borth Carolina, the statute in lsorth Carolina was amend-
ed to read as follows :
“Provided, that when the parent * * * of
the child hea in writing surrendered the child
to a duly licensed child-placing agency, or the
Superintendent of Public Welfare of the County
end has in writing consented to adoption OS the
child by any person or persona to be designated
by said agency or officer, this shall be deemed
a sufficient consent for the purposes of this
chapter, and no further consent of the parent
* * * to a speciSic adoption shell be necessary.
+ * *-” (Public Laws of North Caroline 1941,
al. 281, p” 411)
While the consent given by the mother in this part i-
cular case would probably have been sufficient for an
adoption in north Caroline uader similar circumstances,
it Is not sufficient under the Texea law. A comparison
of this statute with the Texas statute will denowtrate
their difference, - - the North Carolina statute plein-
ly providing that once parent81 consent was given to
the persona or agencies named above, no further conseat
was required. The Texas statute, however, requires par-
ental consent to the adoption Itself. This conclusion
Is reached upon the consideration of the language used
in the Court of Civil Appeal’s opinion set out herein
in &via v, Sears, and the requirement of the present
.
Hon. Joha H. Winters, Page 7, Y-57
statute that ” * * tao adoptkon shall be permitted ex-
cept with the written consent of he
a child. * + *n The consent ti~tka~a````~ %
the situation Inquired about is not the consent OS the
parent, but is the consent of the BuperiatoR@@t OS
Public Welfare of Rowan Cwnty, IVwth CarolZ$k&.
This eosclusloa is fwt&w supp&t~md by the TC-
quiremnt of tha Texas statute that where ccBn#imt ei
the w&per temieat OS an %autatu,tien is used for the
adoption o9 a cR$ld, the parental rights OS the natural
w
eats
t
Y? or
ot
vfded, howavw,that in 8u@,,01eea sdap
ted only a
of the h6ln6 4f%Nw***
e of the ahtld has besa tran8-
fsrrsd by a Juvsalb @alHi or other Qourt eS
competent jwir$liott6ua
Art Iale 46a, SW. 6, mtkor two rxcoptkoa8 to the
requiremat op oenraat 0r Glae mto;nl prr*ntrR
(11 This ffirrt rar*yr;isa ti to aover
the eltuat 3.00 where U&VIW&antw lureat 8 brvo
(a) voluntarily abondmerd and derrwt@d a OiUil
for tuo yew&, (b) EMU h&v* lo t it la thd
owe end muohed~ of othm@, cad f a) ha60 Qob
(2) Suoh oonmot rhrll sot be arorrur~
vba the grrental ri*ts &vr beaa taml ted
by order of the Juvenlltr Cobwt OF obkr s owt
OS compotrat jurfsdlotivn. In ruab inabum,
tho co~oo~at ir to 80 qivsn bt t&o Srt+rrlatra-
dent of an inabltaUl68 m irditibbal Iat0 whore
care the ohild haa Woo eatruUt.~d~ Th* Prreaa*l
- .
Eon. John H. Winters, Page 8, V-57
rights have not been terminated in your c8se
by a Court O (see De Witt v. Brooks, 143, Tex.
122, 182 S.W. (261, 687; and Matthews v,
Whittle, (Tex. Clv. App.), 149 S.W. (26) 601.)
Your question is answered that the Court in this In-
stance does not have authority to preoeed with the adop-
tion in oontrovarsy for lack of proper consent from the
natural parent q
Ths coPseat of the mrried mother given
to the Superintendent of Public Welfare of Rowan
County, North Carolina, to place a child for ad-
option, coupled with the cmnaant of such I?luper-
intendeat to the particular adoption, 19 not
suff’icient oonaent undelr Article 4&, Bloc. 6 of
the Texas statutes, to authorZte aa adoption in
Texas o In the absence of abandonsleet and fail-
ure to support, or the removal of ~renti31 rights
by order of the Juvenile Court or other Court
of competetit jurisdiction, consent of the natural
prent of a child to the portlcular adopting par-
ent is required under the above statute.
Very truly yours,
ATTORNNY
GEN!SRAL
OF TEXAS
C. P, Atkinson
AmistaOt
JROtacntnarj APFTWVBD
PgEl, 2’7, 19&’