OF TEXAS PRICE ATTORNEY GENERAL DANIEL

February 27, 1947 John H. Winters lve Dlreator Opinion v-57 Hon. Execut State Department of

lb: of par- Sussialeacy ental consent Ser aQeption under Ar- tic&e 466, Sestien 6, of thLw Toxal!s statute, tc place the ahlld tma. Public Welfare Austin, Texas

for adop- Dear Sir:

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 turned the child’over lit Welfare of Rouan Couqtg, instrument entitled for Adoption Proceedinga”, Which reclt,es mother voluntarily The Instrument reads to the said Superintendent my child * * * in a foster home nelected said superintendent with the privilege adoption without same instrument she agreed with the Superintendent and any prospective would make no clsim etc. placed child where and by whom it No further It to any adoption, child will be adopted der order of a Court of Harris County, Texas, consent of the SuperlatetMesrPt Rowan County, North Carolina, the contemplated adoption YOU wish to know if the consent of such superintendent alone

the mother a resident of North &aroIina

to the Superintendent IQwtB Csrolinar, of’Pub* bj an “Parent ‘8 Burrender Affidavit that the released all olalm to tihe child,

further: “I do ht+re,by grant the authsrZti$ tQ Place

by the ,,oSI”,“g$ further notice to me. adopting parents, to any estate The Superintendent accepted that she

of said minor# the child ana in a foster The it home in North Carolina. ,ls now in Texas. How it got to Texas, or la not stated, consent has been given by the mother

is being kept is now contemplated t,hat th@ in Harris County, Texa6, ‘0111- The of PublLc Welfare of te has been obtained

in IEiarris Ccuntg. “aonsent” uader Art. 46a-c6) Is suSSicLent

. . Hon. John Ii. Winters, Page 3, V+7

The cases are uniform that consent is necessary

jurisdiotion to the Court’s Pearce v. Harris, 1943, he 62 -(the sectlon in this supplement) ; 1 Am, Sur. 639; 642 ?Adopt;iori of Children, Sections in an Udoptlon proceeding. Sup, re-wrttten

134 S.W. (2d) 859; Tex. Sur.,

on Adoption bein 36 and 40) + The T&x&! case moat nearly in point la @hat of Davis v. Sears, 35 S .W. 99 (1931). unmarried mother, old, gave her child with authority for the child, with people of might or might not adopt the beby. rights Hope Cottage with Davis ther consent of the mother or court proceedings valving father thereafter tribute8 nothing intereat the natural mother and father brought suit age&at of the the adopting parents child. It it w&s of the ahild, would be to the beat held that the adopting parents were entitled keep the child. Appea 1s , the judgment of the trial versed and rendered Sears v. Ilsvla, 19 S.W. (26) Judge Funderburk sustained ing parents acquired no rights the c421d by the writing which gave the child over fer placing te t&a institution In &t home and adop- reads: tion. In that case, 8(l in 1925, when her baby was a -week to the Hope Cottage of Callea,

for that to secure a home institution

its selection, who She waived ST1 The i&ant was plaoed by the fur- to the child.

an8 wife, ~$0, Without

in- The natural They had con*

the mother, adopted thm ahtld. the metksr,

s&rrled to its support and evidenced n,o After “about two years in the child.

to recover possession court Upon a finding by the trial

that interest

to Upon appeal the Court of Civil court was re-

to in favor of the natural psrents*

that the adopt- the contention to the custody of The opinion

“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, suob *greewea rep0 all actmelrt of said stat&r. la the light self, when read implies pose aforesaid, of an agreement lib It doer not purport any one. Rather , it

of ne more binding effect Ghan to, the e0- it* its pur-

prim tie atitute ef the irrvalidltf th# one ve have here, to be a transfer to is ia terma a power Hon. John B. Winters, Page 4, V-57

attempting to authorize Hope of attorney, Cottage Association todg of the child it sad who my hove no ry kvo pFeriaurly decl8red. @a&l w&l&t ef intentlea.

the cua- to some unknown peraon to transfer

to adopt lutoatiota The Judge concluded, saying, “Such situations can of par- always be avoided by procuring a legal ental authority piration abandonment period was two years transfer or by making an adoption after of a three year period abandonment. ” changed by statute

the ex- (The to later Upon further appeal (19311, the Supreme Court, act- ing through holding judgment of the trial ting pnrenta. grounds of the beat Interest tho was o the best Interest tained the time the Supreme Court acted child was five years old) e Concerning given by the mother to the Hope Cottage, however, the Court said: evidenced her act of relinquishment autherizlng an authority Davis v. Sears, 35 s.w, the Commlsslon of Appeals, reversed the

of the Court of Civil Appeals, and affirmed the to the adop- on the That court

court giving custody The decision was based solely

of the child. showed conclusively t that the evidence that it be re- (BY it of the child that

In the custody of the adopting parents. in this case,

the the consent. “The instrument by which the mother

is an one to adopt the child. (2aS 99. in no sense

m The above case was decided upon an old statute which provided who is to be so adopted w * * transfer tive parents. mhe in part: in this Sec- tion, no adopt Ion sha1.I be permitted except with the written (Acts 1931, 4ibra bg. lent tat the “a’rloptlro of tko AmYrat ho gira~ to th e l eptia. Rn 8tqtrto amsnded In 1937 but the vortiu sentence was not cbagebd. the Law today. that “the parent or parents of a child by Instrument

in writing * * to the adop- -- the decision that statute was amended tom read, specified their parental authority A few months after Avis case,

“Except as otherwise consent of the llvlng parents of the child.” p. 300, tlh. 77.1 The require-

t8s CoRueRt et tbo parat pare& m vas altted, k (iirmetly) to

the requirewnt boi~g t&t the writtom ommomt vas ayim

o? tkt The 1937 hadmeat partlamlar

la r ’ * * * the m&h##r Left the ok114 wit’h the 3t a Vlqcents Hospital ecute& a surrecu$er ef the child pital 0 The caly couent tlon ?%e writing signed by the motheP, authorU3;1n& fhe hos- pital 1 for adopt ion p s was nat a consent mde thl@ m,*tLeuUr Itis Me etatute.“ * * *, and had ex-

to the hos- attached to the petl- is that of the hospital. to plaae the ah114 in a good family in

proceeding a,nd Qld sot sat- Similarly the uase 0s %a Rw H&&P, 1Q 8, Is; t@, 620 (HcCc 1940)) a mot&ea Bsdl givea her the Childrents Home Society with the agreement that the %oclety the child a legal adopt ion by suorh pbraan OF persane my be chosen by the Soclatf. the ahild sent to the adopt ion. infant ob worth Ciiirolina, child Ino., fer to

night obtain

as The Society did place The Nat-1 mother dLd not con- for adoption.

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 for that purpose. cient the adoption proceeding Children’s Home Society and not that of the mother. * *. The consent of the least be in Sbir contemplation must et Its most and this proposed adoption, essential of the adop- - the Identity feature t ive parents. in the caao of abandon- it ment, looks first the natural parents adoptive parents the duties and burdens of custody, * * *.‘I and tuition (the consent) as insuffi-

in Tim’ consent noted Is the consent of the of North Carolina,

Inc., includes Except Is not without reeson that society to the concern and Sorealgnt in selection

of the child for into whose hands they surrender

training, After Borth Carolina, ed to read as follows the above holding of the Supreme Court of

the statute in lsorth Carolina was amend-

: “Provided, the child hea in writing to a duly Superintendent end has in writing child by any person or persona by said agency or officer, a sufficient for chapter, and no further * * * to a speciSic + * *-” al. 281, p” 411) that when the parent * * * of the child

surrendered child-placing or the of Public Welfare of the County to adoption OS the to be designated agency, licensed consented

this shall be deemed consent the purposes of this consent of the parent

adoption shell be necessary. (Public Laws of North Caroline 1941, While the consent given by the mother in this part i- cular case would probably have been sufficient adoption it Is not sufficient of this statute their difference, ly providing the persona or agencies named above, no further The Texas statute, was required. ental to the adoption Is reached upon the consideration in the Court of Civil Appeal’s opinion set out herein in &via v, Sears, and the requirement of the present for an

in north Caroline

circumstances, uader similar under the Texea law. A comparison with the Texas statute will denowtrate

- the North Carolina plein- - statute that once parent81 consent was given to

conseat however, requires par- consent Itself. This conclusion

of the language used

Joha H. Winters, Page 7, Y-57 Hon.

that ” * * tao adoptkon shall be permitted ex- statute cept with the written a child. the situation parent, but is the consent of the BuperiatoR@@t OS Public Welfare of Rowan Cwnty,

consent of he

ti~tka~a~~~~~ % is not the consent OS the * + *n The consent Inquired about

IVwth CarolZ$k&. supp&t~md by the TC- that where ccBn#imt ei the This eosclusloa fwt&w of tha Texas statute is quiremnt the w&per o a cR$ld, adoption 9

OS an %autatu,tien the parental is used for temieat

rights OS the natural

w eats t Y? ot or vfded, howavw,

that in 8u@,,01eea sdap

only a ted 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 prr*ntrR to the

op oenraat 0r Glae mto;nl requiremat

(11 This ffirrt rar*yr;isa ti to aover lureat the eltuat 3.00 where U&VI W&ant w (a) voluntarily for tuo yew&, owe end muohed~ of othm@,

8 brvo abondmerd and derrwt@d a OiUil (b) EMU h&v* lo

la thd it ha60 Qob t a) cad f sot be arorrur~ ted owt rhrll Suoh oonmot the grrental vba ri*ts &vr beaa taml by order of the Juvenlltr Cobwt OF obkr In ruab inabum, OS compotrat tho co~oo~at ir to 80 qivsn bt t&o Srt+rrlatra- dent of an inabltaUl68 m Iat0 whore care the ohild haa Woo eatruUt.~d~ Th* Prreaa*l

s jurfsdlotivn.

irditibbal

- . Eon. John H. Winters, Page 8, V-57

rights have not been terminated by a Court O 122, S.W. (261, 687; and Matthews v, Whittle, in your c8se v. Brooks, 143, Tex.

(see De Witt (Tex. Clv. App.), 149 S.W. (26) 601.) Your question is answered that the Court in this In- stance does not have authority tion natural parent q to preoeed with the adop- from the

in oontrovarsy for lack of proper consent

Ths coPseat of the mrried mother given to the Superintendent County, North Carolina, option, intendeat suff’icient the Texas statutes, Texas o ure to support, by order of the Juvenile Court or other Court of competetit prent ent of Public Welfare of Rowan for ad-

to place a child coupled with the cmnaant of such I?luper-

to the particular adoption, 19 not oonaent undelr Article 4&, Bloc. 6 of in

to authorZte aa adoption In the absence of abandonsleet and fail-

or the removal of ~renti31 rights jurisdiction, consent of the natural of a child to the portlcular adopting par- is required under the above statute.

Very truly yours,

C. P, Atkinson AmistaOt APFTWVBD PgEl, 2’7, 19&’ JROtacntnarj