# Strobel v. Garrison > Oregon Supreme Court · October 22, 1969 · 255 Or. 16 URL: https://www.frixlaw.com/law-library/cases/9792344 ## Case - **Full name:** STROBEL, Respondent, v. GARRISON Et Al, Appellants - **Court:** Oregon Supreme Court - **Decided:** October 22, 1969 - **Citations:** 255 Or. 16; 459 P.2d 1001; 1969 Ore. LEXIS 579 - **Precedential status:** Published - **Opinion:** Dissent by Sloan - **Judges:** O'Connell, Perry, Sloan, Tongue - **Cited by:** 17 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9792344 ## Opinion text SLOAN, J., dissenting.- The trial court decided that Dugger et ux v. Lauless, 1959, 216 Or 188 , 338 P2d 660 , compelled him to permit plaintiff to summarily'withdraw her surrender of her child for purposes of adoption. That is all the trial court decided and it is the only question on appeal. It is unnecessary to decide whether or not the waiver of appearance was valid. If the consent is good, the adoption may be accomplished without a waiver. The waiver only relates to the right of the consenting parent to appear in court or to the filing and granting of a petition for adoption within the six month period. A waiver, unlike the consent, is not critical to the ultimate decree. Dugger et ux v. Lauless, supra, was a non-agency case, holding that a consenting parent could withdraw-consent at any time prior to the decree of adoption. It is necessary to decide here if the same rule should apply to a consent obtained by a child-caring agency. A review of the historical background of the legislative purpose and policy of the agencies, together with substantial and respected authority relating to the subject, demonstrates that these consents must *24 have validity. They should not be revocable except by a showing of fraud on the part of the agency. The majority, by an unnecessarily rigid construction of the statute, virtually emasculates the legislative policy in respect to the participation of these agencies in the adoption process and the authority granted to them. The potential harm to the agencies is not difficult to foretell and it is unwarranted. The legislative policy is not difficult to find. In 1919, by Oregon Laws 1919, ch 405, the legislature granted a quasi-official status to qualifying private child-caring agencies such as Waverly. It then imposed on these agencies substantially all of the parens patriae responsibility'- of the state for the care of the state’s unwanted children. By Oregon Laws 1959, ch 429, the legislature extended to the State Public Welfare Commission “the same authority as a private child-caring agency.” With the exception of this more recent grant of the same responsibilities and duties to the State Public Welfare Commission, the private child-caring agencies have continued to carry this state’s major burden as parent to unwanted children. In this instance our concern is directed at one of the more important of these functions; the authority vested in the agencies to exercise the state’s judgment in receiving a valid consent for the adoption of a child. It is of more than academic importance to know that Oregon was one of the first states to adopt a statutory procedure for the adoption of children. Clarke, Social Legislation (2d ed) 316, 1957. These early statutes (ours is found at Title IY, Deady’s Code) represented a complete break in the ancient conception that adoption was for the benefit of pro *25 viding heirs for childless people. Onr statute, largely unchanged, along with those later adopted in other states, adopted the policy that adoption is a process of “selecting fit parents for children, not finding children for parents.” Katz, Promotion of Values in the Adoption of Children, 1964, 4 Journal of Family Law, 7 at p 8. Other authorities agree that the genesis and evolution of our adoption laws is related to an increasing concern for the welfare of the child. See iluard, Law of Adoption, Ancient and Modern, 1956, 9 Vanderbilt L Rev 743, and the extensive bibliography that Professor Iluard has compiled. This includes, of course, the initial determination by the agency, Waverly, in this instance, that the surrender of the child provides the best hope for the child’s future and that the mother’s surrender of the child, in the situation, as here, involving an unwed mother, is understandingly made. The legislative assembly’s long continuation, unchanged, of the 1919 statute (ORS 418.270) is persuasively indicative of legislative satisfaction that the agencies have used this power Avith restraint and judgment. This belief in the legislative intent and policy can also be read into Oregon LaAvs 1967, ch 375. That chapter is an amendment to ORS 418.275, Avhieh had provided that a child-caring agency shall be the guardian of persons of all dependent and delinquent children committed to it by a permanent order of an appropriate court. The 1967 amendment specified that the agencies shall also be the guardians of the person of each child surrendered to it as provided by ORS 418.270. The Act also reiterated that Avhen the “agency deems such action proper * * * it may *26 consent in loco parentis to the legal adoption of such children.” It seems clear to me that the legislature has recognized that the consent to adopt must have finality for otherwise the use and purpose of the agencies will be seriously impaired. These considerations have been authoritatively expressed elsewhere. Professor Katz, for example, in Promotion of Values in the Adoption of Children, supra, 4 Journal of Family Law, at pp 10, 11 says: “Involvement by the government through institutions, such a public child welfare agencies or by private institutions through private agencies, is justified at the placement stage because of the community’s proper concern for the child’s well-being as well as that of the natural and adoptive parents. It is at this point that the community’s concern is most meaningful. The court-ordered social investigation that occurs in many states after the child has been in the adoptive parents’ home for anywhere from six months to a year might be too late to be healthy for the child or fair to his parents. Agency placement at the beginning of the adoption process can, in the long run, lessen the likelihood of a child’s being shifted from one home to another and then to a third. It can prevent hardships and disappointments that would result if a court determined that a child ought to be removed from a home in which the prospective adoptive parents, after having the child in their home for a relatively long period of time, had become fond of him. It can provide the most adequate protection for all the parties. * * *. Many agencies find that unless the child’s status is clearly ascertainable when they obtain the child, their area of functioning is uncertain. They also find that the unmarried mother who has decided to give up her child for adoption wants to be sure of the child’s well-being as well as her own re *27 sponsibilities or freedom from them. The belief in the field is that early voluntary termination helps toward clarity and ease of planning for the child’s life. i:‘ * Similar considerations are to be found in decisions by the Supreme Courts of Michigan and Texas. Each case is particularly persuasive because each court was concerned with prior opinions, like Dugger et ux v. Lauless, supra, which had held that in non-agencv cases, the consent could be withdrawn at any time prior to a decree of adoption. In Gonzales v. Toma, 1951, 330 Mich 35, at 38, 39 , 46 NW2d 453 , the court distinguished its previous decisions by the following: “Plaintiff also urges that, if the release was valid, it was within her power to revoke it at any time before conclusion of the adoption proceedings. As authority she cites In re White, 300 Mich 378 ( 138 ALR 1034 ). In that case the parents had not released the child to a licensed placement agency, and consent of the parents to the adoption was, therefore, required by statute. This Court held that the consent so given by the parents could be withdrawn at any time before the adoption had become final and absolute. In the instant case plaintiff’s consent to adoption is not required under the statute, but only the consent of the society to which she released the child. The White-Case is, therefore, not in point. The requirement of the statute that the probate judge explain to the mother of a child born out of wedlock that by execution of the release she voluntarily terminates permanently her rights to the child, and the provision that consent to adoption of such child shall be filed by the mother, unless she shall have released the child to a licensed placement agency, in which case the consent of such agency only is required, are eloquent of a legislative intent that the release shall terminate the parental rights per *28 manently, beyond the power of the parent to revoke.” The Michigan statute placed the responsibility for the validity of the surrender on the probate court. Onr legislature, as previously emphasized, has placed this confidence in the child-caring agencies. In the Texas case, Catholic Charities of Diocese of Galveston v. Harper, 1960, 337 SW2d 111 , the court was confronted with legislation much like our own. A somewhat recently enacted statute had granted to child-placing agencies in Texas similar authority in respect to surrenders as that found in ORS 418.270. The facts in the Texas case as reported in the cited Texas decision are identical to those in the instant ease, with the exception that the mother of the children was a widow at the time the surrender was executed. Later she married and sought to withdraw the surrender and consent. And, as in the instant ease, her reason was simply a change of mind. The court held that the legislative policy expressed in the statute to secure protection to children placed for adoption and to give reliability to the process, did not permit an unfettered right to the natural mother to withdraw her consent. The court reasoned that the unquestioned legislative policy justified distinguishing its earlier decision that had held, like Dugger et ux v. Lauless, supra, that a consent could be withdraivn at any time prior to a decree of adoption. The Texas court said: “We hold that where the parents have surrendered their child to the custody of an agency licensed by the State Department of Public Welfare to place children for adoption and have given their written consent that such agency may place *29 the child for adoption, that consent is subject to revocation only by proof of fraud, misrepresentation, overreaching and the like.” 337 SW2d at 114, 115. That expresses the obvious legislative intent of this state as well. It is said that the delay of six months required by subsection (3) of OKS 418.270 in presenting an adoption petition to the court is intended to give the surrendering parent that long to change her mind. This argument is also answered to my satisfaction by the Texas court: “Even after placement, preceded by a careful and personal investigation of the character, environment, health, financial responsibility and other qualifications of the prospective adoptive parents, the child is to live in their home for a period of six months before adoption may be granted except in cases of emergency. Art. 46a, § 3. Naturally the purpose of this provision is to allow a reasonable time for an adjustment of the relations, to be sure that the child is suited to the home and that the home is suited to the needs of the child. * ° 337 SW2d at 114. In the instant case the trial court specifically found that there was no evidence of overreaching or fraud on the part of Waverly’s personnel and that Vickie had fully understood the documents she had executed and was fully conscious of their impact. For that reason we should hold that the decree should be reversed and the petition dismissed. Perry, Chief Justice, joins in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9792344. Public record. Not legal advice.