§19.6 Revocation of Consent and Attack On Judgment

• Jurisdiction: Oregon

§ 19.6 REVOCATION OF CONSENT AND ATTACK ON JUDGMENT

§ 19.6-1 Generally

When a birth parent signs a certificate of irrevocability, the parent's right to revoke the consent is limited in both agency adoptions and independent adoptions. See ORS 109.301(2); ORS 418.270(4). See also Form 19-2 (certificate of irrevocability and waiver—independent adoption). There is no constitutionally vested right of revocation. See McCurdy v. Albertina Kerr Homes, Inc., 9 Or App 536, 498 P2d 392 (1972).

In independent adoptions lacking a certificate of irrevocability, a birth parent may withdraw consent to an adoption before entry of an adoption judgment. See § 19.6-3(a). There are some circumstances in which a birth parent will be estopped from revoking consent. See Dugger v. Lauless, 216 Or 188, 198-99, 338 P2d 660 (1959).

§ 19.6-2 Mechanics of Revocation

Once an adoption proceeding has commenced, a birth parent may not revoke consent except by notice of revocation filed with the court. See Dugger v. Lauless, 216 Or 188, 193, 338 P2d 660 (1959). A statement in the placement report prepared by the adoption agency and filed with the court that a birth mother desires to revoke her consent has been held sufficient. See McCulley v. Bone (In re Hayes), 160 Or App 24, 48-49, 979 P2d 779, rev allowed, 329 Or 358, rev dismissed, 329 Or 523 (1999); Dugger, 216 Or at 193-94.

PRACTICE TIP
The following documents should be filed with the court on behalf of the parent revoking consent: (1) a written revocation and withdrawal of consent, (2) a motion and order to show cause with supporting affidavit, and (3) a motion to stay the adoption proceedings pending a decision on the effectiveness of the revocation.

§ 19.6-3 Revocation of Consent in Independent Adoptions

§ 19.6-3(a) Revocation When There Is No Certificate of Irrevocability

In an independent adoption, if the certificate of irrevocability provided for in ORS 109.301 has not been used, a birth parent may withdraw consent to an adoption at any time before entry of the adoption judgment. A birth parent may, however, be estopped from withdrawing consent to an adoption based on the circumstances surrounding the giving of consent. See, e.g., McCulley v. Bone (In re Hayes), 160 Or App 24, 979 P2d 779, rev allowed, 329 Or 358, rev dismissed, 329 Or 523 (1999) (the certificate of irrevocability failed to comply with ORS 109.301); C. v. J. (In re Adoption of Baby Girl J), 35 Or App 833, 583 P2d 22 (1978); Curran v. Vaida, 34 Or App 631, 579 P2d 313 (1978) (the mother was not estopped from revoking consent when the adoption was made during a time of personal crises and without benefit of legal counsel); H. & H. v. O. & W. (In re Adoption of D), 28 Or App 887, 889-90, 561 P2d 1038 (1977) (the parents were not estopped from revoking consent when an attempt to revoke consent was made just weeks after consent...