,    .




            THE    ATTORNEY           GENERAL
                        OFTEXAS




Mr~.John B. Winters,              Opfnion Ro. WW-94
Executive Director
Department of Public Welfare      RezCan a natural parent
Austin, 14, Texas.                   delegate to a third
                                     party the power to
                                     place a child for
                                     adoption where such
                                     third party is not
                                     licensed by the State
                                     forthis activity and
                                     if such third party
                                     does place a child for
                                     adoption has he violated
                                     the provfsions of Article
                                     695c, Section 8(a), Sub-
                                     section 2(b), Vernon's
                                     Texas Civil Statutes,
Dear Sir:                            requiring a license?
        Your request for an opinion dated March 20, 1957,
concerns whether or not a natural mother and/or natural
father can delegate to a third person by power of attornev or
otherwise the authority to place a child for adoption when
said third person does not have a license to place children
and whether or not this would be a valid parental release and
whether it would violate the law relative to child-placing
agents.   In this connection you have mafnly presented two
questions:
         (1) Can a natural mother and/or natural father
             delegate to a third person, who has no
             license to place children, the authority to
             place the child for adoption and to give
             legal parental release to the adoptive parents?
         (2) In view of Artfcle 46a-Set.  6, Vernon's Texas
             Civil Statutes and Article 695c, Section 8a,
             Vernon's Texas Civil Statutes, can a natural
             mother and/or father give a Power of Attorney
             to a third person authorizing said third per-
             son to place the baby for adoption and give
             consent to its adoption?    If said third per-
             son, who holds the Power of Attorney is not
Mr. John Ii.Winters,     wee   2         ww 94


            licensed to place babies, then does the act
            of placing the baby when the mother has given
            said party Power of Attorney to do so constl-
            stute a violation of the licensing law?
         To answer these questions we must examine our statutes
on adoption.    They are exclusfve and no authority exfsts to
act except as contained therein.    Reeves v. Ellis, 257 S.W.2d
876 (Tex. Clv. App. 1953, reh. den. error ref., N.R.E.) Also
;z;: Hickman v. Smith, 238 S.W.2d 838, (Tex. Civ. App., 1951,
     d . error ref.), Bogd v. Wilson, 258 S.W.2d,223(Tex.Civ8
APP:, !?;53 reh. den. error ref.)
        Article 46~1, Section 6 of Vernon's Annotated Texas
Civil Statutes reads in part as follows:
            nExcept as otherwise provided in this section,
        no adoption shall be permitted except with the
        writttn consent of the living parents of the chfld.
        0 D .
            'In the case of a child placed by its parents
        in a child-placfng agency, or institution licensed
        by the State Department of Public Welfare to place
        children for adoption, it shall be sufficient for
        the living parents to consent in writing that such
        agency or Institution place such child for adoptfon,
        and no further,,consentshall be required by such
        living parent.
        A Power of Attorney to a third person by parents to
place a child for adoption would not comply with this statute
except as specifically provided for a licensed child-placing
agency.
        Article 695c, Section 8(a), Subsection 2(b), Vernon's
Texas Civil Statutes, reads:
            "Child-Placing Facility.    Every person,
        association, institution, or corporation, whether
        operating for profit or without profit, who shall
        conduct or manage a child-placing agency, who shall
        place an child or children who are under the age of
        sixteen s 16) years, whether occasionally or other-
        wise, away from his own home OP relative's home,
        shall obtain from the State Department of Public
        Welfare a license to operate as a child-placing
        agency, which license shall be fn full force and
        effect until suspended or revoked by the Department
.    .




Mr. John H. Wfnters,       page 3          WIJ 94


         of Publfc Welfare as hereinafter provided,
         except that nothing In this Act shall prohibit
         a natural parent from placing his own child or
         prohibit a grandparent, uncle, aunt, legal
         guardian, brother or sister, having attained
         their majority, from placing a child under the
         age of sixteen (16) years in the home of rela-
         tives or fn a licensed institutfon, agency, or
         facility coming within the purview of this Act.”
        The followin language is contained fn the case of
Williams v D Liles, 2t5 S.W.2d 551 (Tex,Cfv.App. 1952):
             “Under 46a Section 6, R.C.S.- Art o 46a,
         Sec. 6, It fs provided, with certain exceptions
         . 0 . that no adoption shall be permitted ex-
         cept wi,ththe written consent of the living
         parents of the child.   When the statutory ex-
         ceptions are not applicable consent of the
         living parents or parent Is prerequisite to a
         judgment of adoption.”
This case also cites Fitts v. Carpenter, 124 S.W.2d 420,
(Tex. Civ. App. 1939, rehearing denied), which states:
             %hen statutory exceptions are not ap-
         plicable, consent of livfng parent to adoptfon
         proceeding fs prerequisite to a judgment of
         adoption bfnding upon the parent.”
        Bm                  248 S,W.2d 1015 reversed on other
grounds, 250 SoW.2d 587,   (Tex. Civ, App. 1952) states:
             “‘Apetition was Insufficient under R.S.
         Art, 46a, Sec. la when it failed to specify
         which statutory exception to the necessity
         for consent of t$e mother was not applicable
         and relied upon.
        Further, In Jones v. Willson, 285 S.W.2d 877, (Tex,
Civ. App. 1955, err. ref. n.r.e.), this language Is contained:
             “R.S. Art. 46a,   Sec. 6, whfch permits
         adoption of a child   without the consent of
         fts mother is to be   strictly construed in
         favor of mother and   child.’
        We, therefore, find that under the statute certafn
acts on the part of the parents or conditions obviate the
Mr. John H, Winters,     page 4          ww 94


neoeeslty for the consent, however, these are set out specl-
fioally and the exletence thepeoi’ must be set out in the
petition for adoption and must be clearly shown to exist,
These exceptions cannot be enlarged  upon and must be followed
where parental consent Is not to be relied on.    It is speci-
fically provlded In Article 46a, Sec. 6 that It is sufficient
for living parents to give consent to a licensed institution
for child-placing so that they may take and use such authority
to place sald child for adoption.    It is to be noted, how-
ever, that said statute reads:
             “A child placing agency OP fnstitution
        licensed by the State Department of Public
        Welfare to place children ,for adoption.”
This is the only statutory provision giving to a third party
consent and power to act in place of a parent.
        The provisions of Article 695c, Section 8a, Subsec-
tion 2(b), Vernon’s Texas Civil Statutes set out the requfre-
ments pertafning to licenses for child-placing agencfes . The
provisions therein must be complied with for one to be duly
authorized to act under Article 46a, Section 6, Revised Civil
Statutes and states with or without profit.   However9 it does
state ‘who shall conduct or manage a chFld-placing agency*,
Therefore, for one to be required to comply with the statute
concerning a license, he must be engaged in this type of
activity.
        The express provisions of Article 46(a), Section 6,
require the written consent of the llvfng parent OP parents
where an exception is not clearly applicable.   Any consent
given by a third party other than a licensed child-placing
agency who has first obtained the parents’ consent would not
fulfill the requirements of the statute.
        An individual not engaged in the child-placing business
would not be authorized to sign a consent to adoption in place
of the parents.
        One who operates as a chfld-placing agent as contem-
plated by Article 695c, Section 88, Subsection 2(b), Vernon’s
Texas Civil Statutes, and does not obtain a license as re-
quired therein clearly violates the provisions thereof D Further-
more, Article 46a, Section 6, which permits a child-placing
agency to give consent after having obtained permission from
the parent or parents is requfred to be “licensed” and is,
therefore, unauthorized to act without a license. Article
46a states specifically to whom a parent may delegate authority
Mr.   John H. Winters,    page 5            ww 94


to place a child and it is our opinion that this authority
cannot be delegated to one to whom the statute does not
authorize.
                             SUMMARY
             Parents may only delegate the right to
             place a child for adoption to a licensed
             child-placing agency as defined by statute
             and such an agency fs the only one by
             statute permitted to give consent to adop-
             tion in place of the parents.   One opera-
             tfng as a child-placing agency as defined
             by statute who does not comply with the
             provisions for license, violates the
             statute and is without authority to act.
                                   Yours very truly,
                                   WILL WIISON
                                   Attorney General



                                   BY
JLS:zt:rh                               Assistant
APPROVED:
OPINION COMMITTEES
H. Grady Chandler,
           Chairman
Edwin P. Rorner
John Reeves
Joe G, Rollins
F. C.(Jack) Goodman
REVIEWED FOR THE ATTORNEY GENERAL
By:   Geo. P. Blackburn
