### GENERAL THE L%-ORNEY

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 questien 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 doht+re,bygrant to the said Superintendent the authsrZti$ tQ Place mychild * * * in a foster homenelected 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 makeno 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 nowin Texas. Howit got to Texas, or where and by whomit is being kept la not stated, Nofurther consent has been given by the mother to any adoption, It is nowcontemplated 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 RowanCounty, North Carolina, has been obtained te the contemplated adoption in IEiarris Ccuntg. YOU wish to knowif 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 onAdoption bein re-wrttten in this supplement) ; 1Am,Sur. 639; 642 ?Adopt;iori of Children, Sections 36and 40)+
TheT&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, whenher baby wasa-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 thmahtld. The natural father thereafter s&rrled the metksr, Theyhad con* tribute8 nothing to its support and evidenced n,o intereat in the child. After “about twoyears the natural mother and father brought suit age&at the adopting parents to recover possession of the child. Upona 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. Uponappeal to the Court of Civil Appea1s

, the judgment of the trial court was reversed and rendered in favor of the natural psrents* Sears v. Ilsvla, 19S.W. (26) 

### 159.(1929).Judge Funderburk sustained the contention that the adopting parents acquired no rights to the custody of the 

### c421dby the writing which gave the child over te t&a institution fer placing In &thomeand adoption. The opinion reads: . .

“Anagreement respecting the relinqaishment bya parent ef the custody of 8. child, which does not eont,emplete edoption of the .chlld by a partloular P~)CSQQ, is,
wethink, of ne more binding effect Ghan rep0 all 

### suob *greewea prim to, the e0- actmelrt of said stat&r. tie atitute it* self, whenread 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 powerHon. John B. Winters, Page 4, V-57

of attorney, attempting to authorize Hope Cottage Association to transfer the cuatodg of the child to some unknownperaon who my hove no lutoatiota to adopt it sad ry kvo pFeriaurly decl8red. @a&lw&l&t ef intentlea. * * *’
TheJudge concluded, saying, “Such situations can always be avoided by procuring a legal transfer of parental authority or by makingan adoption after the expiration of a three year period abandonment. ” (The abandonment period was later changed by statute to two years .) Uponfurther 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 tho7 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.
Theabove case was decided uponan old statute which provided that “the parent or parents of a child whois to be so adopted w by Instrument in writing * * transfer their parental authority * * to the adoptive parents. * * ” -- Afew monthsafter the decision mhe Avis case, that statute wasamended tom read, in part: “Except as otherwise specified in this Section, noadoptIon sha1.I be permitted except with the written consent of the llvlng parents of the child.” (Acts 1931, 4ibrabg. p. 300, tlh. 77.1 The requirelent tat 

### t8s CoRueRtet tbo parat k (iirmetly) to the “a’rloptlro pare& mvas altted, the requirewnt 

### of tko 

### 1931AmYrat 

### boi~g t&t the writtom 

### ommomt ho gira~ tothe l eptia.

Rn 8tqtrto vas ayim amsnded In 1937 but the vortiu o? tkt partlamlar sentence was not cbagebd. The 1937hadmeat la the Lawtoday.

r’ * * * the m&h##rLeft the ok114 wit’h the 3taVlqcents 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. ?%ewriting signed by the motheP, authorU3;1n&fhe hospital to **plaae** the ah114 in a good family 1 for adoptionp

swas nat a consent mde in thl@ m,*tLeuUr proceeding a,ndQld sot satItis Me etatute.“ Similarly the uase 0s %aRwH&&P, 1Q8, Is; t@, 620 (HcCc 1940)) a mot&eaBsdlgivea her infant child to the Childrents HomeSociety ob worth Ciiirolina, Ino., with the agreement that the %oclety night obtain fer the child a legal adoption by suorh pbraan OF persane as my be chosen by the Soclatf. The Society did place the ahild for adoption. The Nat-1 mother dLdnot consent to the adoption. The Su9~e%wCourt af NorthHon. John H. Winters, Page 6, V-57

Carolina (from which the instant case arose) said:

‘Weregard It (the consent) as insufficient for that purpose. Tim’consent noted in the adoption proceeding Is the consent of the Children’s HomeSociety of North Carolina, Inc., and not that of the mother. * *. The consent mustet least be in Sbir contemplation of the proposed adoption, and this includes Its most essential feature - the Identity of the adoptive 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 wasamended to read as follows :

“Provided, that whenthe 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 OSthe 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 Lawsof North Caroline 1941, al. 281, p” 411)
While the consent given by the mother in this particular case would probably have been sufficient for an adoption in north Caroline uader similar circumstances, it Is not sufficient under the Texea law. Acomparison 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 namedabove, no further conseat
was required. TheTexas statute, however, requires parental consent to the adoption Itself. This conclusion Is reached uponthe 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 ” * * taoadoptkon 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 OSthe parent, but is the consent of the BuperiatoR@@t OS Public Welfare of RowanCwnty, IVwth CarolZ$k&.

This eosclusloa is fwt&w supp&t~mdby the TCquiremnt of tha Texas statute that where ccBn#imtei the w&per

9 temieat OSan %autatu,tien is used for the adoption o a cR$ld, the parental rights OSthe naturalw

eats t Y? ot or vfded, howavw, that in 8u@,,01eea sdap

ted of the h6ln64f%Nw*** only a

e of the 

### ahtldhasbesa tran8- fsrrsd by a Juvsalb @alHi or 

### other Qourt eS competent 

### jwir$liott6ua

ArtIale 46a, SW. 6, mtkor two rxcoptkoa8 to the requiremat op oenraat 

## 0rGlaemto;nl prr*ntrR

(11 Thisffirrt rar*yr;isa ti to aover the eltuat 3.00where U&VI 

## W&ant

w lureat 8brvo (a) voluntarily abondmerd and derrwt@d 

### a OiUil for tuo yew&, (b) EMU h&v* lo
owe end muohed~of othm@, cad ft 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 OScompotrat jurfsdlotivn. In ruab inabum, tho co~oo~atir 

### to80 qivsn bt 

### t&oSrt+rrlatradent of an inabltaUl68 m irditibbal Iat0 whore
care the ohild haa Woo eatruUt.~d~ Th* Prreaa*l- .



### Eon. JohnH. Winters, Page 8, V-57

rights have not been terminated in your c8se bya CourtO (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, 19not suff ’icient oonaent undelrArticle 4&, Bloc. 6 of the Texas statutes, to authorZte aa adoption in Texaso 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&’