 Filed:  December 9, 1999


IN THE SUPREME COURT OF THE STATE OF OREGON
In the Matter of Aja Juan Hayes,

a Minor Child.


KARENE McCULLEY and EUGENE

FORTE,

	Petitioners on Review,


	v.



LOLITA BONE,

	Respondent on Review.


(CC 970304; CA A100393; SC S46484)
	On review from the Court of Appeals.*		


	Argued and submitted November 5, 1999.


	John Chally, of Bouneff & Chally, Portland, argued the cause
for petitioners on review.  With him on the briefs were Sandra L.
Hodgson, of Bouneff & Chally, and I. Franklin Hunsaker, of
Bullivant Houser Bailey, Portland.


	Ellen Mendoza, of Legal Aid Services of Oregon, Oregon City,
argued the cause and filed the brief for respondent on review.	


	Before Gillette, Presiding Justice, and Van Hoomissen,
Durham, Kulongoski, Leeson, and Riggs, Justices.**


	MEMORANDUM OPINION


	The petition for review is dismissed as improvidently
allowed.


	Riggs, J., dissented and filed an opinion in which Leeson,
J., joined.



	*Appeal from Clackamas County Circuit Court.

	 160 Or App 24, 979 P2d 779 (1999).


    **Carson, C.J., did not participate in the consideration or
decision of this case.	


	RIGGS, J., dissenting.

	I respectfully dissent from the court's decision to
dismiss this case because review was improvidently allowed.  

	In this case, it is undisputed that the requirements of
ORS 109.312, which sets out the procedure by which a consent to
adoption is made irrevocable, were not satisfied because the
birth mother did not receive independent legal advice when she
signed the certificate of irrevocability and waiver.  I voted to
review this case because I believed that it presented an
opportunity to consider the application of the best interests of
the child test in the context of an adoption revocation
proceeding. 

	I agree that this case, following briefing and
argument, does not present an appropriate vehicle for reaching
the best interests of the child issue in the context of the
requirements of ORS 109.312.  That issue will have to wait for
another day.

	Nevertheless, I would consider whether the birth mother
is estopped from withdrawing her consent.  In Stubbs v.
Weathersby, 320 Or 620, 892 P2d 991 (1995), we questioned, but
did not decide, whether estoppel applies where there is a failure
to make consent irrevocable under ORS 109.312.  Id. at 634.  In
Aultman v. McCracken, 104 Or App 266, 799 P2d 1148 (1990),
decided after the legislative enactment of ORS 109.312(2), the
Court of Appeals, in a concurring opinion, acknowledged, in
dicta, that, under some circumstances a parent may be estopped
from revoking consent under common-law principles of estoppel. 
Id. at 269-70 (Newman, J., specially concurring).  

	Under these circumstances, an extended discussion of
the facts would not benefit the bench or bar.  Suffice to say
that the birth mother here allowed over seven months to elapse
between signing the consent to adoption and filing of her
revocation.  During much of that time she was in contact with 
petitioners and the Arkansas lawyer handling the adoption.  She
never told petitioners or the lawyer, either before or after the
placement of the child with petitioners, that she had changed her
mind regarding the adoption, even though she had.  As a result,
the placement occurred and the bonding process between the child
and petitioners began and, as the trial court found, fully
matured.  In my view, if common-law principles of estoppel are
applicable in the context of the statutory requirements of ORS
109.312 -- an issue the appellate courts of Oregon have not yet
decided -- then these facts strongly support petitioners'
position.

	Finally, given the length of time that the child has
resided with petitioners and the trial court's findings of
bonding between the child and petitioners, petitioners may decide
to seek relief following this dismissal pursuant to ORS 109.119
(definition of and rights of psychological parent). I
nevertheless would remand this case to the trial court with
instructions to consider the applicability of ORS 109.119,
without the necessity of a separate petition.

	For these reasons, I respectfully dissent.

	Leeson, J., joins in this dissent.


