CONSENT Before entering a decree of adoption, the court must determine that the natural parents of the child consented to the adoption or that the parents' consent is not necessary by virtue of a statutory exception to the general requirement for consent. ORS 109.312 (1); Eder v. West, 312 Or. 244, 260, 821 P.2d 400 (1991). We therefore begin by examining whether Mother consented to the adoption of Child by the Stubbses.
The second stage is an independent determination as to whether it is in the best interests of the child to approve the adoption." Eder v. West , 312 Or. 244, 261, 821 P.2d 400 (1991). Mother does not dispute the trial court's decision to proceed to the second stage without her consent.
Petitioners and the dissent contend that, although ORS 109.312(1) does not expressly mention grounds for termination of parental rights under ORS 419B.504 or ORS 419B.506 as additional exceptions to the consent requirement, we may effectively read such an additional exception into the statute. As authority for that proposition, petitioners and the dissent rely on dictum from three Supreme Court cases: Simons v. Smith, 229 Or. 277, 366 P.2d 875 (1961), Moody v. Voorhies, 257 Or. 105, 475 P.2d 579 (1970), and Eder v. West, 312 Or. 244, 821 P.2d 400 (1991). We acknowledge that there is dictum in at least the Eder decision to support petitioners' and the dissent's position.
As noted, father appealed to the Court of Appeals, which reversed. The adoptive parents then petitioned this court for review, contending that the Court of Appeals erred in failing to follow this court's precedents, viz., Eder v. West, 312 Or. 244, 821 P.2d 400 (1991); Moody v. Voorhies, 257 Or. 105, 475 P.2d 579 (1970); and Simons et ux v. Smith, 229 Or. 277, 366 P.2d 875 (1961), which, they assert, allow the pleading and proving of grounds for termination under ORS chapter 419B to operate as a jurisdictional substitute for the alternatives to a parent's consent permitted under ORS chapter 109. In its decision below, the Court of Appeals acknowledged the existence of wording in those cases that supported the adoptive parents' position, but labeled that wording dictum (and "incorrect dictum at that"), Michels, 146 Or App at 132, and refused to follow it. Michels, 146 Or App at 134.
The second stage is an independent determination as to whether it is in the best interests of the child to approve the adoption." Eder v. West, 312 Or. 244, 261, 821 P.2d 400 (1991). Mother does not dispute the trial court's decision to proceed to the second stage without her consent.
As the Supreme Court has interpreted "willful neglect," in the context or ORS 109.324, we ask whether, during the year preceding the filing of the petition for adoption, the "nonconsenting parent willfully fail[ed] to manifest substantial expressions of concern which show that the parent has a deliberate, intentional, and good faith interest in maintaining a parent-child relationship[.]" Eder v. West , 312 Or. 244, 266, 821 P.2d 400 (1991) (emphasis added). Eder defined "incidental" to mean "occurring merely by chance or without intention or calculation; being likely to ensue as a chance or minor consequence; not receiving much consideration.
We review the facts de novo to determine whether petitioners have established, by clear and convincing evidence, a ground for dispensing with mother's consent. Eder v. West, 312 Or. 244, 260, 266, 266 n 25, 821 P.2d 400 (1991). Mother gave birth to child in 1991.
We review the record in a contested stepparent adoption proceeding de novo to determine whether the parents who petitioned to adopt a child have established, by clear and convincing evidence, a ground for dispensing with the nonpetitioning parent's consent to the adoption. Eder v. West, 312 Or 244, 246, 266, 821 P2d 400 (1991). We reverse.
As we understand the import of the trial court's explanation in light of its findings, it exercised its discretion under ORS 109.324(1) to not dispense with the need for father's consent even though it found that father had not maintained contact with child without just cause for the year immediately preceding the filing of the petition for adoption. As we said in our former opinion, we review the facts of the case de novo under ORS 19.415 and in light of the legal principles expressed in Eder v. West, 312 Or 244, 260 n. 25, 821 P2d 400 (1991). To determine whether father's consent is not required in this case, we review the evidence anew in light of the guidance provided by ORS 109.324(2) and (3) to determine whether the ultimate findings required by ORS 109.324(1) are satisfied. Then, if necessary, we exercise our discretion to determine if father's consent is required.
The question on appeal is whether father has wilfully deserted child within the meaning of ORS 109.324 under the circumstances of this case. We review de novo, ORS 19.415(3) (2001), in light of the legal principles expressed in Eder v. West, 312 Or 244, 260, 266 n 25, 821 P2d 400 (1991), and affirm. The petition for adoption was filed on March 31, 2003.