PR v. Shannon

GOLDEN, Justice,

dissenting, in which THOMAS, J. joins.

I dissent, and I also join in the dissenting opinion of Justice Thomas.

I would reverse the district court’s decision since I believe that W.S. l-22-109(d) (1977), the irrevocability provision, does not apply where, as here, no petition of adoption has been filed or is reasonably likely to be filed in the future.

When a petition for adoption is filed and an adoption is in the offing, the irrevocability provision promotes the public policy of the adoptive child’s complete integration into the new adoptive family. As expressed in Smith v. Welfare Department of City and County of Denver, 144 Colo. 103, 355 P.2d 317, 320 (1960), “policy dictates that persons assuming the role and responsibilities of adoptive parents be as*1117sured that in doing so they are not adopting a lawsuit in the bargain.” This court clearly spoke of this policy when it said:

[Adoption] affords in so many instances a future in every respect which a child may not otherwise enjoy. It fills a void for those not blessed as natural parents and those others who also have the capability and overwhelming desire to care for and raise the helpless. They, too, must not be deprived when they take a lawful, sincere, caring, and good faith course, especially when they have been committed to and are willing to assume or have assumed parental responsibilities.
The legislature has recognized irrevocable consent as a meaningful device through which such a commitment may be made secure. This is a matter of public policy which is the business of the legislature.

In re Adoption of MM, 652 P.2d 974, 978 (Wyo.1982).

In this case no petition for adoption has been filed, and at oral argument the court was told that no petition for adoption of these children will ever likely be filed. Consequently, the public policy supporting the application of the irrevocability provision does not come into play.1 There is no new family into which the relinquished children will be integrated, there are no adoptive parents to be assured, and there is no commitment to be made secure. It is axiomatic that when the reason for the rule ceases to exist, the rule ceases to exist.

In 2 H. Clark, The Law of Domestic Relations in the United States, § 2.15, at 613-14 (2d ed. 1987), appears the following statement: “If the children do not appear to be adoptable, such a relinquishment might condemn them to years of foster homes, possibly shifting from one foster home to another a fate which hardly seems preferable to a more stable life with their natural [parent].” I fear Clark’s words are cruelly prophetic for P.R.’s children.

I have an additional reason for believing that the irrevocability provision does not apply to the facts of this case. We recently observed that:

Termination of parental rights is accomplished in Wyoming either by a proceeding pursuant to the termination statutes or, in the case of an adoption proceeding, by the entry of a final decree of adoption subsequent to a validly executed relinquishment of custody and consent to adoption. See Wyo.Stat. § 1-22-114 (1977) (entry of final decree of adoption ends parental rights of former parent).

State of Wyoming, ex rel. TRL, a minor v. RLP and DLL, 772 P.2d 1054, 1057-58 (1989). There, this court refused to recognize a natural father’s attempted voluntary relinquishment and consent to adoption, agreed to by the natural mother and approved by the district court. In particular, we found that there had been a failure to appoint a disinterested guardian ad litem for the child and to otherwise accomplish the termination proceeding in accordance with the statutorily established procedures. Id., at 1057. In agreeing with the state’s characterization of the natural father’s consent to adoption as a sham, and after concluding that the termination proceeding was not saved by styling it as a voluntary relinquishment of custody and consent to adoption in accordance with W.S. 1-22-109, we stated forcefully:

It is clear, however, that adoption was never contemplated in this case. As argued by the State in the proceeding below, the mother has no plans for marriage and hence no plans for an adoption of the child by a stepfather. We can only conclude that the attempt by these parents to posture this case as an adoption case is merely an artifice designed to detour attention from the fact that they bargained away the fundamental rights of the child in a proceeding in which the child’s best interests, if they were considered, were given short shrift.

Id., at 1058.

That passage applies here with full force. D-PASS’s attempt to posture this case as *1118an adoption case is an artifice designed to deter attention from D-PASS’s apparently successful effort of extinguishing the fundamental liberty interests2 of the children and the natural mother to be with each other as a family unit without a court of law ever considering whether the children’s condemnation to years of foster homes is in their best interests. Unlike the parental rights termination proceeding which requires the court’s express determination of the best interests of the child, and unlike the true adoption proceeding, which also requires that express determination, D-PASS’s “Irrevocable voluntary relinquishment and consent” procedure establishes a third statutory device, hitherto unknown to the law, by which the fundamental liberty interests of the natural child and natural parent are extinguished by agency fiat without a determination by a factfinding court of law of what placement is in the best interests of the child. In my judgment the legislature never intended this “irrevocable voluntary relinquishment and custody” scheme.

Being faithful to this court’s past pronouncements on the subject, I would strictly construe the adoption statutes, particularly W.S. l-22-109(d), containing the irre-vocability provision. Adoption of MM, 652 P.2d at 979. The title of W.S. 1-22-109 is “Consent to Adoption,” and the language of the statute provides that the written relinquishment and consent shall be filed with the petition to adopt. In Matter of Adoption of REA, 702 P.2d 1259, 1264-65 (Wyo.1985), this court said: “Terminating parental rights by operation of law under § 1-22-110 is always in connection with an adoption. Terminating parental rights under §§ 14-2-309 through 14-2-318 may be for purposes other than the possibility of an adoption.” (Emphasis added.) We noted earlier, in our quotation from RLP, that under § 1-22-114, only entry of the final decree of adoption ends the parental rights of the former natural parent. I would apply the concept that we must look to the statutory scheme as an integrated plan. I would give primacy to the basic principles permeating the law of adoption: We are dealing with fundamental liberty interests and the best interests of children. As a result of the foregoing analysis, I would conclude that the irrevocability provision does not apply to the facts of this case, and the natural mother revoked her relinquishment and consent as she had a right to do.

I would vacate the order of the district court and remand for that court’s entry of an order immediately returning these children to their mother.

. "If a statute is to make sense, it must be read in the light of some assumed purpose. A statute merely declaring a rule, with no purpose or objective, is nonsense." K. Llewellyn, The Common Law Tradition 374 (1960).

. DS and RS v. Department of Public Assistance and Social Services, 607 P.2d 911, 918 (Wyo. 1980).