Original proceeding in mandamus.
Kathryn V. Kelty, Assistant Attorney General, Salem, argued the cause for relators. With her on the brief was Lee Johnson, Attorney General, Salem.
C. S. Emmons, Albany, argued the cause for respondent. With him on the brief were Emmons, Kyle, Kropp & Kryger, Albany.
The relators, representing the Children's Services Division of the Department of Human Resources, seek a writ of mandamus to compel defendant, as circuit judge, to dismiss a pending adoption proceeding on the ground that the Children's Services Division has not given its consent to the adoption of the child.
The child was born on October 1, 1967. On October 4, 1967, the mother executed a release and surrender of the child to the State Public Welfare Commission (predecessor of the Children's Services Division) for the purpose of adoption and at the same time she executed a certificate of waiver and consent to the adoption of the child. The child was illegitimate and consequently it was necessary to have only the consent of the mother.
Shortly after the child was surrendered to the Public Welfare Commission, it placed him in the custody of Clyde and Ruth Barnes, husband and wife. In August, 1971, the Children's Services Division, as successor to the Public Welfare Commission, took the boy from the Barnes home and placed him in the custody of another family. The child had never been placed in the custody of the Barneses or the other family for the purpose of adoption.
Thereafter, Mr. and Mrs. Barnes filed a petition for adoption. The Children's Services Division moved to dismiss the petition on the ground that the division did not consent to the adoption and that without such consent the court lacked jurisdiction to enter a decree of adoption. Shortly after the division filed its motion to dismiss, the Barneses filed a consent to their adoption of the child, executed by the mother, purporting also to withdraw the release and consent executed by her on October 4, 1967.
The trial court denied the motion to dismiss, whereupon the Children's Services Division brought this mandamus proceeding.
The case turns on the construction of ORS 418.270, which provides in part as follows:
"(4) Parents or legal guardians of children whom they have by release or surrender agreement given into the guardianship of incorporated child-caring organizations for the purpose of adoption may, concurrently or subsequently and without any adoption proceeding having been initiated, agree that the release or surrender shall become irrevocable as soon as the child is placed by the agency in the physical custody of a person or persons for the purpose of adoption by them, and waive their right to personal appearance in court in matters of adoption of such children, by a duly signed and attested certificate. From and after such physical placement for adoption such certificate of irrevocability and waiver and the release or surrender may not be revoked by the parent or guardian unless fraud or duress is affirmatively proved.
"(5) No agreement to release or surrender a child for adoption, or other agreement or waiver of rights having the same effect, executed before March 24, 1971, in connection with the surrender ...