Parent and Child Rights and Relationships

ORS 109.321
Consent to adoption


(1)

Except as provided in ORS 109.323 (Consent when custody of child has been awarded in divorce proceedings) to 109.329 (Adoption of person 18 years of age or older or legally married), consent in writing to the adoption of a minor child pursuant to a petition filed under ORS 109.309 (Petition for adoption) is required to be given by the following:

(a)

The parents of the child, or the survivor of them.

(b)

The guardian of the child, if the child has no living parent.

(c)

The next of kin in this state, if the child has no living parent and no guardian.

(d)

Some suitable person appointed by the court to act in the proceeding as next friend of the child to give or withhold consent, if the child has no living parent and no guardian or next of kin qualified to consent.

(2)

(a) A person who gives consent to adoption under subsection (1) of this section may agree concurrently or subsequently to the giving of such consent that the consent shall be or become irrevocable, and may waive such person’s right to a personal appearance in court, by a duly signed and attested certificate. The certificate of irrevocability and waiver shall be in effect when the following are completed:

(A)

The child is placed for the purpose of adoption in the physical custody of the person or persons to whom the consent is given;

(B)

The person or persons to whom consent for adoption is given have filed a petition to adopt the child in a court of competent jurisdiction;

(C)

The court has entered an order appointing the petitioner or some other suitable person as guardian of the child pursuant to ORS 109.335 (Appointment of guardian pending further adoption proceedings);

(D)

The Department of Human Services, an Oregon licensed adoption agency or an attorney who is representing the adoptive parents has filed either a department or an Oregon licensed adoption agency home study with the court approving the petitioner or petitioners as potential adoptive parents or the department has notified the court that the filing of such study has been waived;

(E)

Information about the child’s social, medical and genetic history required in ORS 109.342 (Medical history of child and biological parents required) has been provided to an attorney or the department or an Oregon licensed adoption agency by the person giving consent to the adoption; and

(F)

The person signing the certificate of irrevocability and waiver has been given an explanation by an attorney who represents the person and who does not also represent the adoptive family, by the department or by an Oregon licensed adoption agency of the consequences of signing the certificate.

(b)

Upon the fulfillment of the conditions in paragraph (a) of this subsection, the consent for adoption may not be revoked unless fraud or duress is proved with respect to any material fact.

(3)

Consent to the adoption of an Indian child as defined in the Indian Child Welfare Act (25 U.S.C. 1901 et seq.) shall not be valid unless the requirements of the Indian Child Welfare Act are met. In accordance with the Indian Child Welfare Act, a certificate of irrevocability is not valid for the adoption of an Indian child.

(4)

As used in this section, “parent” means a person whose parentage has been established pursuant to ORS 109.065 (Establishing parentage). [Formerly 109.312; 2015 c.511 §10; 2017 c.651 §32]

(formerly 109.312)

Notes of Decisions

The payment of money by adoptive parents to the natural parent vitiates any consent which might have been given. Franklin v. Biggs, 14 Or App 450, 513 P2d 1216 (1973), Sup Ct review denied

The natural mother's withdrawal of her consent before entry of the adoption decree requires disallowance of a petition for adoption. Small v. Andrews, 20 Or App 6, 530 P2d 540 (1975)

Neither language of this section nor legislative history indicate this section is exclusive way to create irrevocable consent and mother could be estopped from revoking consent. Aultman v. McCracken, 104 Or App 266, 799 P2d 1148 (1990)

Once adoption proceeding has been instituted, parent can withdraw consent only by providing notice to court. Stubbs v. Weathersby, 320 Or 620, 892 P2d 991 (1995)

Court may not obviate consent requirement by finding that parent engaged in conduct that would permit termination of parental rights. Michels v. Hodges, 146 Or App 128, 931 P2d 827 (1997), aff'd 326 Or 538, 956 P2d 184 (1998)

Whether natural parent is party to adoption depends on whether parent either had opportunity to appear in adoption proceeding or waived appearance by properly finalized certificate of waiver. McCulley v. Bone, 160 Or App 24, 979 P2d 779 (1999)

Atty. Gen. Opinions

Surrogate mother's promise in surrogacy contract to consent to adoption of yet-unconceived child by biological father and his wife not judicially enforceable, (1989) Vol 46, p 221

§§ 109.310 to 109.360

Atty. Gen. Opinions

Change of name in public records, (1977) Vol 38, p 945

Chapter 109

Law Review Citations

12 WLJ 569-589 (1976)


Source

Last accessed
Jun. 26, 2021