THE L%-ORNEY GENERAL 

OF TEXAS 

PRICE DANIEL 

ATTORNEY GENERAL 

February 

Hon. John H. Winters 

Execut lve Dlreator 

State Department of 

Public Welfare 

Austin, Texas 

Dear Sir: 

lie have your rei@eSt 

lowing situations 

27, 1947 

Opinion v-57 

lb: Sussialeacy of parental consent Ser 

aQeption under Artic&e 466, Sestien 

6, of thLw Toxal!s 

statute, tc place 

the ahlld for adoptma. 

fcr an oplulua in the fol- 

. The child in quest ien was born out of wedlock 

in North Carolina on February 12, 1945 %#MWafter 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 further consent of the mother or court proceedings invalving 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 reversed and rendered in favor of the natural psrents* 

Sears v. Ilsvla, 19 S.W. (26) 159. (1929). Judge 

Funderburk sustained the contention that the adopting 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 &t home and adoption. The opinion reads: 

. . 

“An agreement respecting the relinqaishment 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 purpose 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 cuatodg of the child to some unknown peraon 

who my hove no lutoatiota to adopt it sad 

ry kvo pFeriaurly decl8red. @a&l w&l&t ef 

intentlea. * * *’ 

The Judge concluded, saying, “Such situations can 

always be avoided by procuring a legal transfer of parental authority or by making an adoption after the expiration of a three year period abandonment. ” (The 

abandonment period was later changed by statute to 

two years .) 

Upon further appeal (19311, the Supreme Court, acting 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 adopting pnrenta. The decision was based solely on the 

grounds of the beat Interest of the child. That court 

tho 

7 

t that the evidence showed conclusively that it 

was o the best Interest of the child that it be retained 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 adoptive parents. * * ” -- A few months after the decision 

mhe Avis case, that statute was amended tom read, 

in part: “Except as otherwise specified in this Section, 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 requirelent 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 at~ o the lep tia . R n 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 execute& a surrecu$er ef the child to the hospital 0 The caly couent attached to the petltlon is that of the hospital. ?%e writing 

signed by the motheP, authorU3;1n& fhe hospital to plaae the ah114 in a good family 

1 for adopt ion p s was nat a consent mde in 

thl@ m,*tLeuUr proceeding a,nd Qld sot satItis 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 consent 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 insufficient 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 adopt ive parents. Except in the caao of abandonment, 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 amended 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 icular 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 pleinly providing that once parent81 consent was given to 

the persona or agencies named above, no further conseat 

was required. The Texas statute, however, requires parental 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 except 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 TCquiremnt of tha Texas statute that where ccBn#imt ei 

the w&per 

9 

temieat OS an %autatu,tien is used for the 

adoption o a cR$ld, the parental rights OS the natural 

w 

eats 

t 

Y? ot or 

vfded, howavw, that in 8u@,,01eea sdap 

ted 

of the h6ln6 4f%Nw*** 

only a 

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&VI W&ant w lureat 8 brvo 

(a) voluntarily abondmerd and derrwt@d a OiUil 

for tuo yew&, (b) EMU h&v* lo 

owe end muohed~ of othm@, cad f 

t 

a) 

it la thd 

ha60 Qob 

(2) Suoh oonmot rhrll sot be arorrur~ 

vba the grrental ri*ts &vr beaa taml 

s 

ted 

by order of the Juvenlltr Cobwt OF obkr owt 

OS compotrat jurfsdlotivn. In ruab inabum, 

tho co~oo~at ir to 80 qivsn bt t&o Srt+rrlatradent 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 Instance does not have authority to preoeed with the adoption 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 adoption, coupled with the cmnaant of such I?luperintendeat 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 failure 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 parent is required under the above statute. 

Very truly yours, 

ATTORNNY GEN!SRAL OF TEXAS 

JROtacntnarj 

C. P, Atkinson 

AmistaOt 

APFTWVBD PgEl, 2’7, 19&’