Adoption of Alexander S.

• Decision Date: 17 March 1988
• Docket Number: No. S000300,S000300
• Citation: 44 Cal.3d 857,750 P.2d 778,245 Cal.Rptr. 1
• Court: California Supreme Court
• Parties: , 750 P.2d 778 ADOPTION OF ALEXANDER S., a Minor. MARK H. et al., Plaintiffs and Respondents, v. TUDOR G. et al., Defendants and Appellants.

Page 1

245 Cal.Rptr. 1

44 Cal.3d 857, 750 P.2d 778

ADOPTION OF ALEXANDER S., a Minor.

MARK H. et al., Plaintiffs and Respondents, v. TUDOR G. et al., Defendants and Appellants.

No. S000300.

Supreme Court of California.

March 17, 1988.

As Modified on Denial of Rehearing May 5, 1988.

Jack B. Burstein, Smith & Burstein, Vallejo, William K. Coblentz, Coblentz, Cahen, McCabe & Breyer, Jerome B. Falk, Jr., Howard, Rice, Nemerovski, Canady, Robertson & Falk, San Francisco, Christian R. Van Deusen, Santa Ana, for plaintiffs and respondents.

Bernard N. Wolf, Dowgialo & Wolf, San Francisco, for defendants and appellants.

John K. Van de Kamp, Atty. Gen., John Davidson, Winifred Y. Smith, San Francisco, for Dept. of Social Services.

PANELLI, Justice.

The issue presented is whether the Court of Appeal had jurisdiction to address claims arising from a petition to withdraw consent to adoption. The trial court had denied the natural mother's petition to withdraw consent and no appeal from that judgment was brought within the limitations period of the California Rules of Court. Thus, the judgment denying the petition to withdraw consent became final. Upon the natural mother's timely appeal of a subsequent judgment, the Court of Appeal admitted that it did not have jurisdiction to reach the claims determined by the final judgment denying the petition to withdraw consent. Nevertheless, the court treated the appeal as if it were a petition for habeas corpus in order to reach the belated claims.

We conclude that the Court of Appeal did not have jurisdiction to address the claims determined by the final judgment and that it was error for the court to have reached those claims.

Moreover, we hold that habeas corpus may not be used to collaterally attack a final nonmodifiable judgment in an adoption-related action where the trial court had jurisdiction to render the final judgment.

FACTS

Nicoleta S. immigrated to the United States from Romania in December of 1983. She was four and one-half months pregnant when she arrived in this country. The natural father of her child, Tudor G., remained in Romania. Nicoleta and Tudor were not married.

Shortly after her arrival in San Francisco, Nicoleta informed a representative at the Catholic Foundation for Immigration and Resettlement that she was considering placing her baby for adoption. The representative referred Nicoleta to a local attorney, Philip Adams, who specializes in private adoptions. Adams introduced Nicoleta to Mark and Loraine H. (hereafter Mr. and Mrs. H.), who were interested in adopting Nicoleta's child. Nicoleta and Mr. and Mrs. H. consented in writing, pursuant to Civil Code section 225m, ¹ to joint representation by Adams. Nicoleta verbally agreed to allow Mr. and Mrs. H. to adopt her child in exchange for payment of Nicoleta's medical and living expenses.

Nicoleta gave birth to a son, Alexander S., on April 17, 1984. She signed a consent form allowing Mr. and Mrs. H. to take Alexander to their home from the hospital. Mr. & Mrs. H. have raised Alexander since birth. Alexander is now three and one-half years old.

On April 19, 1984, Mr. and Mrs. H. filed a petition for independent adoption. The Department of Social Services assigned Annamaria Dienes, a social worker, to the case pursuant to section 226.6. Dienes met with Nicoleta on three occasions to explain adoption procedures and the legal consequences of consent. Dienes told Nicoleta that her consent would be necessary to effectuate the adoption and that withdrawal of consent is extremely difficult once consent is given. Dienes also informed Nicoleta of the alternatives to adoption. For example, she explained that Nicoleta could receive financial assistance and child care if she were to keep the child. Nicoleta said she understood. ² After weighing the alternatives for approximately two months, Nicoleta decided that she did not have the financial resources to raise the child and repay Mr. and Mrs. H. She signed the consent to adoption on June 22, 1984.

One month later, however, Nicoleta notified Dienes that she wanted to withdraw her consent. Nicoleta explained that she had finally found a permanent job. Moreover, she had contacted Tudor G., the natural father in Romania, who was opposed to the adoption. Dienes instructed Nicoleta to notify the court. Nicoleta then called Attorney Adams and notified him of her decision to withdraw consent. Adams informed her that her decision created a conflict of interest and withdrew as joint attorney. Nicoleta and Mr. and Mrs. H. each retained new counsel, who represented them in the trial of the issues involved here.

Nicoleta initiated several actions in the adoption proceeding brought by Mr. and Mrs. H. On October 9, 1984, Nicoleta moved the court for an order establishing visitation. Two days later she filed a petition to withdraw her consent to adoption pursuant to section 226a. ³ She also filed a Responding to Nicoleta's petition to withdraw consent, the Department of Social Services filed a report in compliance with section 226a. The report stated that withdrawal of consent was justified. However, the report did not recommend a specific disposition concerning placement of the child, concluding that Alexander would have a suitable home with either Mr. and Mrs. H. or Nicoleta.

section 7006 petition to declare the existence of a father-child relationship between Tudor G. and Alexander.

A five-day trial commenced on November 8, 1984. The trial was limited to the resolution of the motion for visitation and the petition for withdrawal of consent. The trial judge agreed to postpone trial of the petition for establishment of a father-child relationship so that Tudor would have an opportunity to come to the United States and be heard in the matter.

At the conclusion of the November trial, the trial judge ruled that in order for the petition to be granted under section 226a, two requirements must be satisfied. First, withdrawal of consent must be reasonable under the circumstances, and second, withdrawal must be in the best interests of the child. Addressing the first requirement, the court acknowledged that Adams and Mr. and Mrs. H. made several telephone calls to Nicoleta in an attempt to discover when she planned to sign the consent form. Nevertheless, the trial court expressly found that Nicoleta's consent was knowing, voluntary, and not the result of coercion, duress, or undue influence. As a result, the court found no basis for the consent to be rescinded. Moreover, the court determined that Nicoleta was given ample time to make her decision and weigh her alternatives. Despite these findings, the trial court concluded that Nicoleta's decision to seek withdrawal of consent would be reasonable because she had been unable to contact the natural father in Romania prior to her consent and her decision may have been affected by the stress of her recent immigration. This finding satisfied the first requirement of section 226a.

Turning to the second requirement, however, the court found that withdrawal of consent would not be in Alexander's best interest. The court found that Mr. and Mrs. H. could provide Alexander with a more stable environment. Moreover, after listening to expert testimony the court determined that Alexander had already bonded to Mr. and Mrs. H. and that he might suffer emotionally if he were separated from them. The court therefore concluded that since the second requirement of section 226a was not established, the petition to withdraw consent should be denied. The court also denied the motion for visitation.

The order denying visitation and the judgment denying the petition to withdraw consent were both entered on January 3, 1985. Notice of entry of the judgment denying the petition to withdraw consent was mailed to Nicoleta by counsel for Mr. and Mrs. H. on January 30, 1985. The judgment was appealable pursuant to section 226a. However, neither Nicoleta nor her attorney filed a notice of appeal within the 60-day period prescribed in rule 2(a) of the California Rules of Court. ⁴ The judgment denying Nicoleta's petition to withdraw consent became final on April 1, 1985.

Tudor was ultimately unable to leave Romania and the hearing on the section 7006 petition went forward without him. The Nicoleta filed a timely notice of appeal from the judgment denying her petition to declare a father-child relationship. The notice of appeal made no mention of the judgment denying her petition to withdraw consent. However, in her brief on appeal, Nicoleta added her belated claims from the judgment denying withdrawal of consent to her timely appeal of the denial of the father-child relationship.

court filed its judgment on Nicoleta's petition to establish a father-child relationship on April 26, 1985. The court held that although Tudor was the natural father, he was not the "presumed" father within the meaning of section 7004. The court terminated Tudor's custody rights and determined that only Nicoleta's [44 Cal.3d 863] consent was required for the adoption. Notice of entry of this judgment was filed on April 30, 1985.

The Court of Appeal affirmed the denial of the petition to establish a father-child relationship. The court then correctly recognized and frankly admitted that it did not have appellate jurisdiction to reach Nicoleta's claims regarding the denial of her petition to withdraw consent. ⁵ Nevertheless, the court, on its own initiative and without notice to the parties, chose to treat Nicoleta's belated appeal as a petition for writ of habeas corpus. The court's sole support for its unorthodox decision was a conclusory statement that "[h]abeas corpus is an appropriate remedy for obtaining custody of a child." ⁶

Although the issue had not been raised by the parties, the Court of Appeal held that Nicoleta had been denied effective assistance of counsel at the time she gave her consent. In making this determination, the Court of Appeal disregar...