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Anderson v. Pima County Dept. of Public Welfare

Supreme Court of Arizona

June 21, 1954

ANDERSON et ux.
v.
PIMA COUNTY DEPARTMENT OF PUBLIC WELFARE et al.

[77 Ariz. 340] Morgan & Waag, Tucson, for appellants.

Ross F. Jones, Atty. Gen., Carl W. Divelbiss, Phoenix, of counsel, for appellees.

[77 Ariz. 341] PHELPS, Chief Justice.

This is an appeal from an order of the superior court of Pima County denying appellants' petition for the adoption of a minor child. For the protection of the child names and identifiable dates have been omitted.

The facts are that the minor child was born out of wedlock. The father never in any manner acknowledged the parentage of such child and nine days following its birth, its mother executed what purported to be a written relinquishment of the child to the Arizona Department of Public Welfare. In said relinquishment the mother consented to the adoption of said minor child by any person or persons deemed by 'said welfare agency' to be fit and proper as adoptive parents.

Insofar as we are here concerned the state department of public welfare is authorized by law under the provisions of section 70-108(c), 1953 Supp., A.C.A.1939, to:

Page 835

'Administer all child welfare activities, including importation of children; licensing and supervision of private and local public child-caring agencies and institutions; the care of dependent, neglected, and delinquent children in foster family homes, or in institutions, especially children placed for adoption.'

Section 70-101, 1952 Supp., A.C.A.1939 defines 'State Department' to mean: 'Arizona state department of public welfare.' A welfare agency is defined by the same section as follows:

"Child welfare agency' or 'agency' means any agency or institution maintained by a municipality, county, person, firm, corporation, association, or organization to receive dependent, neglected, delinquent, or mentally or physically handicapped children for care and maintenance or for placement in a family home or any institution that provides care for unmarried mothers and their children'.

Section 70-511, 1952 Supp., A.C.A.1939, authorizes a child welfare agency, if so authorized in its license issued by the state department of public welfare to place a child in a family home for care or for adoption; and section 70-512, 1952 Supp., A.C.A.1939, provides that:

'Whenever a child welfare agency licensed to place children for adoption has the permanent care, custody, and guardianship of a child, and the rights of the parents of the child have been terminated by order of a court or by a legally executed relinquishment of parental rights, the child welfare agency may give legal consent to the adoption of the child. The parents or the surviving parent of a child, or the mother of a child born out of wedlock, may relinquish the child to a child welfare agency licensed to place children for adoption by a written statement [77 Ariz. 342] signed before two (2) witnesses and acknowledged before a representative of the child welfare agency. No such relinquishment shall be valid unless a copy be approved by and filed with the state department of public welfare. Except in proceedings for adoption, or except as provided in this section, a parent shall not voluntarily assign nor otherwise transfer to another his rights and duties with respect to the permanent care, custody, and control of his child under sixteen (16) years of age.' (Emphasis supplied.)

It will be seen from the above quotations that the state department of public welfare is not 'a welfare agency' as defined by the above statute. It is therefore under the law unauthorized to accept a relinquishment of a minor child to it. In fact, under the provisions of section 70-512, supra, it is prohibited from so doing. Neither is the 'state department' authorized under the law to give its consent to the adoption of any minor child in the state. That authority under the provisions of section 70-512, supra, is vested in duly licensed child welfare agencies to whom permanent care, custody and guardianship of a child and the rights of the parents of the child have been terminated by order of a court of by a legally executed relinquishment of parental rights to such child welfare agency. The attempted relinquishment to the state department of public welfare was and is void.

It appears, by inference, from the record that the baby was verbally turned over by its mother to the Department of Public Welfare on the date of its birth. The department on the same day placed the child with appellants for care promising to pay them therefor the sum which was subsequently paid. The child remained with appellants for two and one-half years, when it was removed from appellants' home for reasons unknown to them.

Thereafter appellants filed their petition in the superior court of Pima County seeking the adoption of said minor child. The court duly noticed the cause for hearing for February 16, 1953, in accordance with the provisions of section 27-204, 1952 Supp., A.C.A. 1939. The time for hearing was continued many times for reasons undisclosed in the record until May 11, 1953, when at the request of the ...


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