(concurring) — The majority concludes that there is a duty to disclose medical and other information under RCW 26.33.350 and .380 when the status of “prospective adopting parent” arises, and formulates a three-part test to determine when one becomes a “prospective adopting parent.” The majority’s test is inconsistent with the relevant statutes and fails to carry out legislative intent. Accordingly, while I agree that the McKinneys’ negligence action must fail in light of the jury’s finding as to proximate causation, I cannot concur in the majority’s analysis.
RCW 26.33.350(1) and RCW 26.33.380(1) require that a complete medical report and a family background and family social history report shall be transmitted to “the prospective adopting parent prior to placement . . . .” The “placement” involved plainly is placement for adoption, as that is the concern of RCW 26.33. The second section of RCW 26.33.350, for example, underscores the fact that placement for adoption is the key to understanding the statutory duty set forth, because it explains that the required information includes that which “needs to be known by the adoptive parent to facilitate proper health care for the child or that will assist the adoptive parent in maximizing the developmental potential of the child.” RCW 26.33.350(2). The information which must be disclosed must be known by the adoptive parents in order to care for the adopted child.
*409The majority properly recognizes that placement for foster purposes does not trigger the disclosure obligations under RCW 26.33.350 and .380; rather, adoptive placement is referenced in both statutes. Majority at 401. However, the majority then focuses solely on when a person becomes a prospective adoptive parent rather than on when adoptive placement occurs.
The statutes do not say that disclosure must be made when the status of prospective adoptive parent arises. The statutes say that disclosure must be made “prior to placement.” Thus, while the disclosure must be made to a prospective adoptive parent, the point in time when disclosure must be made is not determined by when one becomes a prospective adoptive parent, but rather by when placement for adoption occurs. This is a crucial distinction, because the Legislature has mandated that placement for adoption cannot occur until a preplacement report has been filed with the court.
Rather than the majority’s test which is directed at the wrong question, the court should hold the duty to disclose must be satisfied by the time the child is placed for adoption. This standard necessarily requires that certain conditions be met.
First, the statutes are absolutely clear that “a child shall not be placed with prospective adoptive parents until a preplacement report has been filed with the court.” RCW 26.33.180 (emphasis added). Thus, no duty to disclose can arise unless a preplacement report has been prepared. The purpose of this requirement is obvious from the statute’s description of the information which must be provided in the report:
The preplacement report shall be a written document setting forth all relevant information relating to the fitness of the person requesting the report as an adoptive parent. The report shall be based on a study which shall include an investigation of the home environment, family life, health, facilities, and resources of the person requesting the report .... The report shall include a recommendation as to the fitness of the person requesting the report to be an adoptive parent.
*410RCW 26.33.190(2).16 The Legislature clearly intended that no placement for adoption is to be made absent a home study providing the necessary information to assess the fitness of the person(s) wishing to adopt to do so. The information in the report is vital in a decision whether to make an adoptive placement with the person(s) requesting the report.
Second, the child must be eligible for adoptive placement. State statutes generally contemplate two ways in which a child may become available for adoption. A birth parent may voluntarily relinquish a child and give consent to adoption, RCW 26.33.080 through .090, or parental rights may be involuntarily terminated under RCW 26.33 or RCW 13.34. RCW 26.33.090(4) provides that if a court approves a petition for relinquishment, “it shall award custody of the child to the department, agency, or prospective adoptive parent, who shall be appointed legal guardian.” RCW 26.33.090(5) states that “[a]n order of relinquishment to an agency or the department shall include an order authorizing the agency to place the child with a prospective adoptive parent.” The court also may enter a temporary order giving custody of the child to the prospective adoptive parent if a preplacement report has been filed (except if the child is an Indian child). RCW 26.33.090(1).
RCW 13.34.210 provides that when a court enters an order of termination of parental rights, and there is no remaining parent having parental rights, custody of the child is placed in the department or a licensed child-placing agency “for the purpose of placing the child for adoption, or in the absence thereof in a licensed foster home, or take other suitable measures for the care and welfare of the child.” The statute also states that “[t]he custodian shall have authority to consent to the adoption of the child . . . .’’Id.
Thus, either through relinquishment proceedings or *411through termination of parental rights (or both, for example, where a birth mother relinquishes but the birth father does not, and instead his rights are terminated in accord with statutory standards), the child must be eligible for adoptive placement before placement can be made.
Finally, the child must actually be placed for adoption. Although the statutorily required disclosures must be made by the time placement for adoption occurs (“prior to placement”), it necessarily follows that no duty arises, and no breach of that duty can be found, if a placement for adoption never actually occurs. Nor can breach of the statutory duty be found if the required disclosure of information is made any time prior to placement for adoption.
The majority, as noted, correctly concludes that foster care placement does not give rise to a duty to disclose information under RCW 26.33.350 and .380. The statutes simply do not pertain to foster care placement. When a foster adopt situation exists, then, the issue will be when placement for foster care purposes changes to placement for adoption. Until that change occurs, a person with whom a child has been placed for foster care has no assurance that an opportunity to adopt the child will occur. While in some instances this point in time may be indisputable, it is also possible that a fact question as to when placement for adoption occurs may require resolution by a trier of fact. There must be acknowledgment in some form on the part of the prospective adoptive parents and the department or agency that placement is for adoption purposes. However, this acknowledgment need not be in the form of a formal application and a formal acceptance, as the majority requires in its test for prospective adoptive parent status. The majority’s standard fails to account for the fact that procedures followed by agencies or individuals effectuating private placements may not be the same as those of the department. Further, the requirement of a “formal” acceptance places too much control of potential liability for negligence in the hands of the department or the agency.
When the emphasis is placed on adoptive placement in *412accord with the statutes, the difficulties the majority encounters in deciding when one becomes a “prospective adoptive parent” do not arise. By the time adoptive placement occurs, clearly, one has become a prospective adoptive parent.17
The majority concludes, however, that filing of a preplacement report is not a prerequisite to disclosure under RCW 26.33.350 and .380. First, the majority’s conclusion is inconsistent with the statutes which provide that disclosure must be made by the time of adoptive placement, and adoptive placement cannot occur without the filing of a preplacement report following a home study.
Second, the majority’s reason for rejecting the requirement of a preplacement report does not withstand scrutiny. The majority says such a requirement implies that “only the ultimately successful adoptive parents are entitled to disclosure” and this is not consistent with the statutes. Majority at 404. However, placement for adoption does not mean that adoption will occur. Nothing prevents a person with whom a child has been placed for adoption from deciding after placement that he or she does not wish to carry out plans to adopt. The department or private agency involved may determine that adoption is not, after all, appropriate in the circumstances. See In re Dependency of G.C.B., 73 Wn. App. 708, 719-21, 870 P.2d 1037 (1994) (and cases cited therein). In addition, RCW 26.33.200(1) requires that when a petition for adoption is filed the court shall order a postplacement report made “to determine the nature and adequacy of the placement and to determine if the placement is in the best interest of the child.” This statute plainly contemplates that a determination may be made that adoption is not in the best interest of the child, and *413thus the petition for adoption should not be approved. Placement for adoption does not assure that adoption will in fact occur.
Although the majority’s test for determining when disclosure must be made under RCW 26.33.350 and .380 is inconsistent with the statutes and the legislative intent they embody; the majority’s result is correct in light of the jury’s finding on proximate causation. No duty to disclose arose in this case before April 1990, when the preplacement report was filed,18 because before that time the placement with the McKinneys could not have been an adoptive placement as a matter of law in light of RCW 26.33.180. The jury, however, was effectively instructed that disclosure had to be made no later than March 21, 1989. Since no breach of the duty to disclose information could occur until after the preplacement report was filed, the jury’s determination on proximate causation under the instructions given necessarily forecloses the McKinneys’ negligence claim.
I concur in the result reached by the majority.
Dolliver, Guy, and Alexander, JJ., concur with Madsen, J.
Under RCW 26.33.190(1), “[a]ny person may at any time request an agency, the department, an individual approved by the court, or a qualified salaried court employee to prepare a preplacement report.”
The Legislature has not always been consistent in its use of the terms “adoptive parent” and “prospective adoptive parent.” For example, in RCWA 74.13.100 both terms are used in addressing fees for adoptive services. However, the Legislature has indicated that at the time of placement for adoption, one is a “prospective adoptive parent.” RCWA 74.13.103 states that “[w]hen a child proposed for adoption is placed with a prospective adoptive parent the department may charge the parent a fee . . . (Emphasis added.)
In responding to the argument that “prospective adoptive parent” status is not achieved until a preplacement report is filed, the McKinneys claim that the filing of the report was overdue. Because they have not briefed as an issue any alleged delay in filing, the court should decline to address what action might be available to compel completion and filing of a preplacement report.