§60.15 Discussion of Legal Issues

• Jurisdiction: Washington

§ 60.15 DISCUSSION OF LEGAL ISSUES

[1] Jurisdiction and Venue

A Washington superior court has jurisdiction to hear an adoption petition when either the person to be adopted or the adoptive parents are residents of Washington. In re Adoption of Baby Boy C.,31 Wn. App. 639, 644 P.2d 150 (1982). This is so even if the petition is not filed in the county of the adoptive parent's residence or in the county of the child's domicile. Id.; see also Ralph v. Dep't of Natural Resources, 182 Wn.2d 242, 343 P.3d 342 (2014). For purposes of venue, petitions may be filed in the superior court of the county in which the petitioner is a resident or the superior court of the county in which the adoptee is domiciled. RCW 26.33.030(1). The statutory language is discretionary and not mandatory on this point.

A court has no authority to approve a consent, thereby terminating parental rights, outside the context of an adoption or dependency proceeding. See In re Marriage of Furrow, 115 Wn. App. 661, 63 P.3d 821 (2003).

[2] Consent for Relinquishment

[a] Construction

Consent provisions are strictly construed because an adoption absolutely severs a biological parent's relationship with his or her child. In re Lease, 99 Wash. 413, 169 P. 816 (1918).

A parent has a fundamental due process right to voluntarily execute a consent to relinquish parental rights for the purpose of an adoption. In re Welfare of H.Q., 180 Wn. App. 397, 321 P.3d 309, op. withdrawn and superseded on denial of recons., 182 Wn. App. 541, 330 P.3d 195 (2014). In Welfare of H.Q., the court involuntarily terminated a birth father's parental rights, rather than determining whether he had the capacity to sign a voluntary relinquishment, thus allowing him the ability to enter into an open adoption agreement.

[b] Content

A birth parent's consent to the adoption of his or her child need not identify by name the persons adopting the child. In re Jackson's Adoption, 89 Wn.2d 945, 578 P.2d 33 (1978). A written consent that does not name or identify the adopting parent "is valid if it contains a statement that it is voluntarily executed without disclosure of the name . . . of the adopting parent." RCW 26.33.160(5). The statutory language is ambiguous as to whether a consent that does not contain the provision of RCW 26.33.160(5) is invalid. It is therefore prudent to use the suggested language.

[c] Grounds for Revocation

If a consent has been obtained through fraud or duress, or if there is a lack of mental competency on the part of the parent signing the consent, the consent may be revoked within one year from the date it was approved by the court. RCW 26.33.160(4)(g). Fraud, however, does not need to be proven by the traditional nine elements; it may be shown by undue influence or overreaching.

The court in In re Perry, 31 Wn. App. 268, 641 P.2d 178 (1982), held that when a consent was obtained by means that seriously impaired the free and competent exercise of judgment, such consent may be revoked. Perry involved a Washington agency that flew an expectant mother into the state of Washington and provided her with medical care at a hospital connected with the agency. The mother was not informed of her right to keep her child even after accepting medical benefits, was not advised of her right to independent counsel, and was incorrectly told that another mother in a similar situation had gotten her child back after seven months. Significantly, in holding that the consent could be revoked, the court returned the child to its birth mother and found that there would be no harm to the child in moving the child from its adoptive home back to its birth mother.

A birth parent, however, cannot merely argue that he or she did not realize the full extent of the consequences of the act of consent. In re Adoption of Baby Girl K., 26 Wn. App. 897, 615 P.2d 1310 (1980). In addition, repudiation of a signed consent is generally contrary to the policy of protecting new family relationships from disturbance by the birth parent. Id. at 905.

The court in In re A.S. v. Department of Social & Health Servs. (DSHS), 65 Wn. App. 631, 829 P.2d 791 (1992), held that when the DSHS caseworker had misinformed the birth parents that their child had cerebral palsy, the parents were entitled to vacate the termination orders on the basis that their consents were obtained by fraud.

In re Dependency of G.C.B., 73 Wn. App. 708, 870 P.2d 1037, review denied, 124 Wn.2d 1019 (1994), involved a birth mother who had voluntarily relinquished her parental rights in a dependency proceeding. Over a year later, she discovered that the DSHS had placed the child with a same-sex couple for the purposes of adoption. It seems that rather than seeking a revocation of her consent on the basis of fraud by the DSHS, the biological mother brought her own petition for adoption in an apparent effort to block DSHS's plan. The court held that a parent whose rights have been terminated may not relitigate that issue through a petition for adoption. Id. It also held that when DSHS becomes the legal custodian of a child with the authority to place the child in the care of prospective adoptive parents, a party who lacks department sponsorship may obtain leave to file a petition only by proving to the court that the custodian's pre-adoptive planning and placement constitute an arbitrary and capricious exercise of authority. Id.

In In re Welfare of J.N., 123 Wn. App. 564, 95 P.3d 414 (2004), review denied, 154 Wn.2d 1003 (2005), the court held that emotional distress alone does not vitiate an otherwise voluntary decision to relinquish parental rights.

[3] Requirement of Notice

There are notice requirements for...