Introduction

A question of burning concern to all adoptive parents and one which is asked of every adoption practitioner is can the birth parents withdraw their consent to the adoption or, in the alternative, at what point does the consent to adoption become irrevocable? Courts have recognized:

[T]here is splendor in adoption of children in appropriate cases. It 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 who 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.

In Re Adoption of MM, 652 P.2d 974, 978 (Wyo. 1982). This issue becomes more difficult to resolve in interstate adoptions when the laws of the sending and receiving states differ. This Article will provide insight into the resolution of the choice of laws issue. The Article concludes with a practical solution to make more certain the outcome in a conflicts of law situation if a birth parent attempts to revoke a consent to adoption.

Discussion

In analyzing a conflict of laws question, the court engages in a two-step analysis. The first determination must be whether or not the court even has jurisdiction over the controversy. If that issue is resolved in the affirmative, then the court must decide whether to apply its own law or the law of the other jurisdiction.__________

The general rule in determining whether or not a court has jurisdiction is set forth in the Restatement 2d, Conflict of Law, § 78:

A state has power to exercise judicial jurisdiction to grant an adoption if

(a) it is the state of domicile of either the adopted child or the adoptive parent, and

(b) the adoptive parents and either the adopted child or the person having legal custody of the child are subject to its personal jurisdiction.

Once this determination is made in favor of a finding of jurisdiction, the next question is how to resolve the choice of laws issue. The general rule is "A court applies its own local law in determining whether to grant an adoption." Restatement 2d, Conflict of Law, § 289. However, that does not necessarily mean that the court will apply its own local law in determining whether or not a consent to adoption may be revoked. In order to make that determination, the court will consider several factors.

Those factors include the following:

1. Place of birth of the child.
2. Place where consent was signed
3. Birth mother's place of residence.
4. Place of residence of the child, presumably this will be the same as place of residence of the adoptive parents.
5. The situs of the court.
6. The intentions or expectations of the parties regarding which law will govern.

From a review of the cases, it does not appear that any one of these factors, alone, will be determinative except in those cases in which the parties intend or expect that the law of a particular jurisdiction will apply. In those situations, if the laws of the intended jurisdiction have, in fact, been complied with, it is reasonably safe to assume that the court will follow the party's expectations.

In Matter of the Appeal in Pima County Juvenile Action, 577 P.2d 723 (Ariz.App. 1977), the adoptive parents and birth parents all resided in Arkansas at the time the birth parents signed consents to the adoption. The Arkansas attorney, who prepared the documents, explained the procedure for adoption under Arkansas law and how the adoption would be meaningless under Arkansas law prior to the entry of an interlocutory order. The parties intended that the case would be filed in an Arkansas court. However, after the adoptive parents received custody of the child, they moved to Iowa and then to Arizona. It was not until they arrived in Arizona that they filed their petition for adoption.

The birth mother sought to withdraw her consent to the adoption. Under Arkansas law, she had a right to do so, but did not have that right under Arizona law.

Although the case was pending in Arizona and the child and the adoptive parents resided in Arizona, the Arizona court refused to apply Arizona law primarily because the parties intended that Arkansas law would govern the adoption. The Court held:

Adoption being a status, its creation and existence is governed by the law of the forum creating such status. 1 Conflicts of Law, Restatement 2nd, § 78. Here, there is no doubt the parties intended that the adoption occur in the court of Sebastian County, Arkansas, Ft. Smith district. The documents stated that the interlocutory and final order would be entered by such court and that the consent was being given in accordance with existing laws in effect in Arkansas. Mr. Harris, in his deposition, testified that he informed the parties of the effects of the consent under Arkansas law and explained the Arkansas procedure to them. We cannot see any reason to apply Arizona law in this case.

Pima at 724-725 (emphasis added).

In another, similar case decided in Pennsylvania, the birth mother resided in Pennsylvania, the child was born in Pennsylvania, and the adoptive parents filed a report of their intention to adopt the child in Pennsylvania, even though they resided in the Connecticut. After the adoptive parents had received custody of the child and returned to Connecticut, the birth mother sought to revoke her consent to the adoption. Under then current Pennsylvania law, a consent to adoption could be withdrawn at any time prior to the entry of a final decree of adoption. The adoptive parents argued that the trial court in Pennsylvania should have applied Connecticut law. The basis of their argument was as follows:

'[W]here custody of a child has been surrendered to prospective adoptive parents with the present intention of terminating parental rights of the natural parents, the law of the state in which the child resides with the adoptive parents [Connecticut] should be the law governing adoption and custody of the child.'

K.N. v. Cades, 432 A.2d 1010, 1014 (Pa.Super. 1981)(quoting appellant's brief).
The Court affirmed the trial court decision to apply Pennsylvania law generally for the reason that the parties intended that Pennsylvania law would control and that the adoptive parents, particularly chose Pennsylvania as the forum to hear the adoption. The Court specifically held:

In any event, we see no reason to apply the law of another jurisdiction in deciding the custody and adoption of a child born in Pennsylvania to a Pennsylvania mother, when the adoptive parents chose to avail themselves of the law of Pennsylvania by filing a report of their intention to adopt the child with the lower court and when the original expectations of the parties were that specific provisions of Pennsylvania law would apply.

Id. at 1014 (emphasis added)(A footnote to this holding was that the intermediaries, as well as the adoptive parents, on separate occasions informed the birth mother that she would have six months to change her mind and obtain return of the child, in accordance with Pennsylvania law.)

Given the holdings in Pima and K.N., it seems fairly clear that if the parties have an intention or an expectation that certain laws would govern the adoption, the court will probably apply the law of the intended jurisdiction.

However, the courts are not willing to go so far as to give credence to the intention of the parties if the parties fail to follow the laws of the jurisdiction of their choice. In the case of Sullivan, 407 So. 2d 559 (Ala. 1981), the Supreme Court of Alabama reversed the lower court which upheld the trial court. The facts of the case were that a birth mother in Indiana, consented in Indiana to the adoption of her child by persons who resided in Alabama. The adoptive parents returned to Alabama to file their petition for adoption and the birth mother sought to withdraw her consent. The Court of Appeals in Alabama, in the decision which was reversed by Sullivan, upheld the trial court in applying Alabama law. The Court of Appeals based its decision generally on the following:

All of the events surrounding appellant's execution of the consent to adoption occurred in Indiana and the consent was, in fact, given in Indiana. However, the validity of a consent to an adoption is generally determined by reference either to the laws of the state in which the adoption proceedings are commenced or the laws of that state in which, according to the consent form such proceedings will be initiated or by which the form indicates that its validity will be judicially determined.

Hanlon v. Mooney, 407 So. 2d 554, 557 (Ala.Civ.App. 1981) (citations omitted); reversed on other grounds by Sullivan, supra.
The Supreme Court of Alabama in reversing the decision in Hanlon did not take issue with the foregoing statement of law, but rather held:

'Adoption is strictly statutory . . . . Being unknown at common law, it cannot be achieved by contract . . . . Adoption is not merely an arrangement between the natural and the adoptive parents, but a status created by the state acting as parens patriae, the sovereign parent. Because the exercise of sovereign power involved in adoption curtails the fundamental parental rights of the natural parent, the adoption statutes must be closely adhered to.'

Sullivan at 563 (quoting with approval Davis v. Turner, 337 So. 2d 355, 360-361 (Ala.Civ.App. 1976) (citations omitted).

Because the Supreme Court of Alabama found that the laws of neither Indiana nor Alabama had been complied with, the Court had no alternative but to return the child to the birth mother.

Accordingly, while the court will generally follow the intention of the parties with respect to the governing law, the parties must follow the law which they choose to apply.

In the absence of an expression of the parties' intention as to the governing law, the determination of which law will control is based upon which state has the most intimate or significant contacts with the adoption. In making this determination, the courts will consider the factors above listed.

The Supreme Court of Wyoming in Adoption of MM, supra, affirmed the lower court which had upheld the trial court in applying Wyoming law to an interstate adoption involving a child born to a woman in New York who then resided in New York, by residents of Wyoming, in a case in which the adoption was filed in Wyoming. Within a week of the birth mother's consenting to the adoption in New York, she sought to withdraw her consent. The adoptive parents refused to return the child to her and filed their petition for adoption in Wyoming. After delays caused by effecting service upon the birth father, the trial court in Wyoming ultimately granted the adoption. The birth mother appealed. The birth mother wanted New York law to apply because under the then current New York law, she had thirty days from the time that she gave her consent to argue that it would be in the best interests of the child that her consent be withdrawn. Under then existing Wyoming law, the consent to adoption could only be revoked upon a showing of fraud or duress.

The birth mother pressed her position based on a theory of contract law. According to the birth mother's assertions, in essence what occurred was a contract between the adoptive parents and her for the adoption of her child. According to her way of thinking, she agreed to place the child with the adoptive parents in return for the adoptive parents' agreeing to pay her medical bills. Because all of the elements of the contract -- offer, acceptance, and consideration -- took place in New York State, the birth mother asserted that the laws of New York should govern the revocability of her consent.

The Supreme Court of Wyoming refused to apply contract law in an adoption. The Court held: "A child is not in any sense of the word like a horse, a cow or chattel. . . . A child is not sold." Id. at 979. The analysis of the Court was to first determine whether or not both states had a significant interest in the outcome of the adoption. Once finding that, in fact, both New York and Wyoming did have a significant interest, the Supreme Court of Wyoming then turned to the issue of conflict of laws. Id. at 980. The Court held:

[S]ince the child is domiciled in the State of Wyoming and the action was brought in Wyoming, that is the state which has the greatest interest in and the most intimate contact with her welfare, founded upon genuine humanitarian considerations, and should properly apply its law.

Id. at 981 (emphasis added).

An interesting footnote to this Wyoming decision is that the Wyoming Supreme Court also held that the Interstate Compact for the Placement of Children, which was not followed, was not applicable to a private adoption. The holding of the Court with respect to the inapplicability of the Compact was as follows:

There is no provision in the adoption laws requiring compliance with the Compact before a decree of adoption can be sought or entered. We just simply cannot find nexus between the circumstances here and the Compact. There is no legislative intent present which makes the Compact pari materia with the statutory law of adoption. Such intent is necessary. . . . It is our view that the Compact is applicable only to those engaged in the governmental or private service of placing children for care. Intent must be ascertained whenever possible from the language of the statute. . . .

We hold the Compact inapplicable.

Id. at 981 (emphasis added)(citations omitted).

The Wyoming Supreme Court in determining that Wyoming law applied relied heavily upon two factors: that the child was domiciled in Wyoming and that the action was brought in Wyoming. The Court specifically held: "New York, as the domicile of the mother and the place of birth of the child, has an interest in this adoption matter . . .", but found that those factors were not as significant as the connection that Wyoming had with the case.
Id. at 980.

Again, a court must engage in a balancing test. No single factor, other than the intention of the parties, will control the Court's resolution of this issue. In Adoption of MM, supra, the Supreme Court of Wyoming found that the domicile of the child was a factor that was very important in resolving the issue in favor of applying Wyoming law; however, the Court in K.N. held that the single fact that the adoptive parents took the child to their home in Connecticut did not outweigh the other contacts with the State of Pennsylvania. K.N. at 1014.

The Supreme Court of Pennsylvania in Adoption of Hunter, 218 A.2d 764 (Pa. 1966) refused to apply West Virginia law even though the child was born in West Virginia and a consent to adoption was signed in West Virginia, when all of the other events taking place with regard to the adoption occurred in the State of Pennsylvania. The Court held:

Pennsylvania, by reason of the subject matter of the dispute and the status of the parties as domiciliaries of this Commonwealth, has an overriding and continuing interest in the resolution of the issue in contention. That interest and the policies of this Commonwealth with respect thereto may not be thwarted or bypassed by reference to the law of West Virginia.

Id. at 767 (citations omitted).

Conclusion

Because the intentions or expectations of the parties with respect to the law governing an adoption will generally be the most significant factor that a court will consider in determining which law to apply, good practice would dictate that the consent documents clearly state which law will govern the validity and revocability of a consent.

As a suggestion, the following language might be included in the consent document:

The birth parent submits to the jurisdiction of State "X" and acknowledges and agrees that all matters relating to the adoption of the child, including, but not limited to, the revocability or irrevocability of this consent shall be determined in accordance with the laws of State "X".

However, before including such language in a consent document, the attorneys in the sending and receiving states should consult their own adoption statutes to be sure that there is no law in either state which settles the choice of law question. If, by statute, a state has already decided this issue, the courts would probably not allow the expressed intention of the parties to overrule the statutory scheme just as the courts will not give credence to the agreement of the parties if the parties fail to follow the laws of the intended jurisdiction.