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rjenkins

Consent of Incapacitated Person to Relinquishment (WA)?

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Location is in Washington, King County. I'm a paralegal researching on atty's behalf. We represent Client, the full guardian of the person and estate for her daughter, IP (age mid-20s, ruled mentally incapacitated).

 

Background: IP gave birth approx. 2 years ago and was deemed incompetent to parent by DSHS; IP's rights were (involuntarily) terminated based on that incompetence and that child was placed with guardians. IP has recently given birth again and Baby is currently going through dependency. Adoptive parents (APs) now have a lawyer. IP wants to consent to the adoption/termination of her parental rights BUT cannot legally consent. Client is in full support of the adoption and would be happy to either consent for IP or confirm IP's consent. We believe Client cannot consent on behalf of IP because relinquishment of parental rights involves constitutional rights. There's a dependency hearing in which APs' lawyer hopes to get and confirm IP's consent.

 

Question: Who can give Client the authority to consent on IP's behalf in this case? Can the judge in juvenile/dependency court just give her permission to consent? (We're thinking no.) If not, then do we need to bring a Petition for Instructions to guardianship court to allow Client to consent to relinquishment of IP's parental rights? Would it be simpler to just let DSHS terminate based on incompetence to parent?

 

Any resources or case law are very much appreciated. Statutes just say that a consent to adoption can be challenged/revoked if birth parent was mentally incompetent at time of consent, without reference to how to obtain consent if birth parent is mentally incompetent. I couldn't find any relevant case law, other than the guardianship classics re: sterilization and amputation (in re Hayes, in re K.M., in re Ingram), which basically mandate drawn-out court process involving adversarial GAL and court order in guardianship court. We are very much trying to avoid that, especially since EVERYBODY involved wants this adoption to happen.

 

Thanks!

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17 minutes ago, rjenkins said:

 

18 minutes ago, rjenkins said:

We believe Client cannot consent on behalf of IP because relinquishment of parental rights involves constitutional rights. 

 

What constitution enumerates any such rights?  The federal courts defer entirely to state courts in matters of domestic relations.  So they're not federal rights.  Maybe Washington state constitution?

l

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Seriously?

 

An attorney sends his paralegal to the internet to get legal advice from strangers?

 

The client should run like hell from that loser and seek legal assistance from an adoption specialist who knows what he is doing.

 

Or doesn't he know that you've gone to strangers on the internet for advice? If that's the case and I was your boss I'd fire you in a heartbeat.

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30 minutes ago, RetiredinVA said:

What constitution enumerates any such rights?  The federal courts defer entirely to state courts in matters of domestic relations.  So they're not federal rights.  Maybe Washington state constitution?

l

Great question - I was parroting something my lawyer says and not something I have personal knowledge of. Cursory research seems to indicate there's significant disagreement about whether parental rights are constitutional. On the one hand, there's an argument that parenting is a right protected by the Due Process Clause of the Fourteenth Amendment. On the other hand, it looks like Troxel v. Granville (2000) significantly muddied the waters. Like I said, though, very cursory research.

 

Fact of the matter - I don't know. I should amend my post to reflect that we believe it would be unwise for Client to consent on IP's behalf without court order because of the sticky nature of parental rights. But again, if you can point me to any case law or statute on the matter, that'd be helpful.

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I won't state it quite the same way as "adjusterjack," the the sentiment is more or less the same:

 

To the best of my knowledge, no one from Washington follows these boards with any regularity.  Of the persons who respond here regularly, some are attorneys and some are not.  Without question, no attorney familiar with the area of law about which you are asking and who is admitted to practice in Washington follows these boards regularly.

 

Many paralegals are very skilled in legal research.  I don't know if you're one of them, but your attorney or you needs to be doing actual legal research to try and figure this out.  Soliciting information from anonymous strangers on the internet isn't going to be productive.

 

 

58 minutes ago, rjenkins said:

On the one hand, there's an argument that parenting is a right protected by the Due Process Clause of the Fourteenth Amendment. On the other hand, it looks like Troxel v. Granville (2000) significantly muddied the waters. Like I said, though, very cursory research.

 

It's more than an argument.  The right to parent one's children free of governmental interference is well-established under the substantive due process clause of the 14th Amendment to the U.S. Constitution (and, if I recall correctly from the extensive work I did in connection with the Troxel case while I was in lawsuit, the Washington Constitution affords a similar right).  However, Troxel was a case about third-party/non-parent visitation and has nothing to do with the situation about which you have asked (although you could reasonably cite the case for the existence of the fundamental right).

 

 

58 minutes ago, rjenkins said:

we believe it would be unwise for Client to consent on IP's behalf without court order

 

Then your attorney should so advise his/her client.

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