THE   L%-ORNEY            GENERAL
                                OF   TEXAS

    PRICE  DANIEL
    ATTORNEYGENERAL


                              February 27,     1947

           Hon.  John H. Winters         Opinion v-57
           Execut lve Dlreator
           State Department of           lb:   Sussialeacy   of par-
            Public Welfare                     ental consent Ser
           Austin, Texas                       aQeption under Ar-
                                               tic&e 466, Sestien
                                               6, of thLwToxal!s
                                               statute,   tc place
                                               the ahlld for adop-
           Dear     Sir:                       tma.
                 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 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    fur-
..   ther consent of the mother or court proceedings          in-
     valving 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 re-
     versed and rendered in favor of the natural psrents*
     Sears v. Ilsvla, 19 S.W. (26) 159. (1929). Judge
     Funderburk sustained the contention       that the adopt-
     ing 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 &thome and adop-
     tion.    The opinion reads:
                  “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, 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 pur-
           pose 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 cua-
     todg of the child to some unknown peraon
     who my hove no lutoatiota     to adopt it sad
     ry kvo pFeriaurly decl8red. @a&l w&l&tef
     intentlea.   * * *’
       The Judge concluded, saying,   “Such situations    can
always be avoided by procuring a legal transfer        of par-
ental authority   or by making an adoption after the ex-
piration   of a three year period abandonment. ” (The
abandonment period was later    changed by statute     to
two years   .)

      Upon further appeal (19311, the Supreme Court, act-
ing 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 adop-
ting pnrenta.    The decision was based solely    on the
grounds of the beat Interest     of the child.   That court
tho    t that  the evidence showed conclusively    that it
was 7 o the best Interest    of the child that it be re-
tained 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 adop-
tive parents.     * * ” A few months after the decision
mhe      Avis    case, that statute was amended tomread,
in part:      “Except as otherwise specified    in this Sec-
tion, 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 require-
lent 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 ato
           ~ th e
                lep tia .Rn         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 ex-
       ecute& a surrecu$er ef the child to the hos-
       pital 0 The caly couent attached to the petl-
       tlon is that of the hospital.      ?%e writing
       signed by the motheP, authorU3;1n& fhe hos-
       pital to plaae the ah114 in a good family
        1for adopt ion ps was nat a consent mde in
       thl@ m,*tLeuUr     proceeding a,nd Qld sot sat-
       Itis 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 con-
sent    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 insuffi-
     cient 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 adop-
     t ive parents.    Except in the caao of abandon-
     ment, 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 amend-
ed 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 i-
cular 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    plein-
ly providing that once parent81 consent was given to
the persona or agencies named above, no further conseat
was required.     The Texas statute,  however, requires par-
ental 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 ex-
    cept 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$k&.
          This eosclusloa   is fwt&w   supp&t~md by the TC-
    quiremnt   of tha Texas statute that where ccBn#imt ei
    the w&per temieat     OS an %autatu,tien is used for the
    adoption o9 a cR$ld, the parental rights OS the natural
                                                                   w




           eats
            t
           Y? or
           ot
           vfded,   howavw,that in 8u@,,01eea sdap
                          ted only a
                          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   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&VIW&antw lureat    8 brvo
           (a) voluntarily   abondmerd and derrwt@d a OiUil
           for tuo yew&, (b) EMU h&v* lo t it la thd
           owe end muohed~ of othm@, cad f a) ha60 Qob




                  (2)  Suoh oonmot rhrll sot be arorrur~
           vba the grrental ri*ts     &vr beaa taml      ted
           by order of the Juvenlltr Cobwt OF obkr s owt
           OS compotrat jurfsdlotivn.    In ruab inabum,
           tho co~oo~at ir to 80 qivsn bt t&o Srt+rrlatra-
           dent 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 In-
stance does not have authority  to preoeed with the adop-
tion 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 ad-
     option, coupled with the cmnaant of such I?luper-
     intendeat 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 fail-
     ure 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 par-
     ent is required under the above statute.
                                     Very truly   yours,
                                ATTORNNY
                                       GEN!SRAL
                                              OF TEXAS




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