Adoption of Kay C.

• Decision Date: 18 March 1991
• Docket Number: No. H006084,H006084
• Court: California Court of Appeals Court of Appeals
• Parties: , 1 NDLR P 270 ADOPTION OF KAY C., a Minor, CHRISTOPHER C., et al., Petitioners and Respondents, v. KAY C., Objector and Appellant; DEPARTMENT OF SOCIAL SERVICES, Real Party In Interest and Respondent.

Page 907

278 Cal.Rptr. 907

228 Cal.App.3d 741, 1 NDLR P 270

ADOPTION OF KAY C., a Minor,

CHRISTOPHER C., et al., Petitioners and Respondents, v. KAY C., Objector and Appellant;

DEPARTMENT OF SOCIAL SERVICES, Real Party In Interest and Respondent.

No. H006084.

Court of Appeal, Sixth District, California.

March 18, 1991.

Review Denied June 20, 1991.

Leo Himmelsbach, Dist. Atty., Penelope Blake and Kenneth Rosenblatt, Deputy Dist. Attys., for objector and appellant.

Marer, Marer & Schuck, Gerald Z. Marer, Alan G. Marer and John F. Schuck, III, Palo Alto, Lynne R. Snyder, Los Gatos, for petitioners and respondents.

No appearance for real party in interest and respondent.

AGLIANO, Presiding Justice.

Civil Code section 227b authorizes the superior court to set aside a decree of adoption within five years of its entry where the adopted child manifests a developmental disability or mental illness as a result of conditions which existed prior to the adoption and of which the adoptive parents had neither knowledge nor notice. The disability or illness must also be of such nature that the child is considered unadoptable. ¹ Kay C., a 15-year-old minor, appeals from an order setting aside her adoption by respondents Christopher and Patricia C. She contends Civil Code section 227b ² is unconstitutional as violative of due process and equal protection. For the reasons cited, we conclude section 227b violates neither the due process nor the equal protection clauses of the state and federal Constitutions and affirm the order.

Factual Background

We recite the facts to provide a backdrop to the constitutional issues. In 1981, appellant, then six years old, was placed in a foster home due to the inability of her natural parents to care for her. On December 14, 1983, her natural parents relinquished their parental rights.

In 1984, the Department of Social Services recommended that appellant be placed for adoption. Dr. Henry Massie, who was appointed by the court to conduct an independent evaluation, recommended that appellant remain with her foster parents with whom she had a secure relationship. Appellant asked to remain with her foster parents. Dr. Albert DeRanieri, appellant's therapist, disagreed, stating she was ready for adoption. The Children's Home Society of California, an organization licensed by the State of California to place children in homes for adoption, placed her in respondents' home on October 13, 1984.

Respondents anticipated the child might experience difficulty in adjusting to a new environment and that she might require therapy. They were not willing, however, to adopt a child with severe emotional problems, specifically a psychotic or violent child. Respondents requested all available information about appellant, but they were not given Dr. Massie's report. Nor did the social worker inform respondents of her doubts that the adoption would be successful.

In February 1985, appellant began therapy with Paula Jacobsen, a licensed clinical social worker, because appellant was engaging in disruptive behavior. Jacobsen diagnosed appellant as a child with borderline personality disorder whose psychological defenses were projection, denial, and splitting. She concluded that appellant was able to respond to reasonable and appropriate guidance from respondents, but, characteristic of the borderline disorder, her behavior would be cyclical. Respondents were not specifically informed of appellant's disorder prior to the adoption. On November 14, 1985, the court issued the decree of adoption.

Following the adoption, appellant's cyclical behavior continued. However, her disruptive conduct became more pronounced; she became increasingly violent and destructive. After one such incident in March 1986, appellant accused Mr. C. of child abuse and threatened to call the police. When Mrs. C. attempted to stop her, appellant accused her of choking her and ran from the home. Later, the police informed respondents that appellant had accused them of abusing her. Appellant was placed at a children's shelter, but when she became more hysterical and disoriented, she was transferred to Monte Villa Hospital for psychiatric evaluation.

The psychiatric admission evaluation, dated April 2, 1987, stated appellant "was clearly psychotic and exhibited a lot of paranoid/delusional thinking and some thought disorder features." About a week later, a psychological evaluation was completed. The report stated "[t]he most conservative diagnosis was an atypical psychosis with paranoid features. Her inability to deal with lack of structure suggests an incipient borderline personality."

In June 1987, appellant was transferred to Palomares Group Home, a residential placement for emotionally disturbed children. Between March and September 1987, respondents participated in family therapy and made efforts at reunification. However, their efforts failed. On July 15, 1988, respondents filed a petition to set aside the adoption.

Appellant remained at Palomares Group Home until January 31, 1989. She was subsequently admitted twice for psychiatric hospitalizations at Ross General Hospital. The diagnoses were schizophreniform disorder, chronic undifferentiated schizophrenia, major depression, and schizoaffective disorder, depressive type.

The trial court found under section 227b that: (1) appellant had a serious mental illness resulting from conditions existing prior to her adoption; (2) respondents had no knowledge or notice of the condition prior to the adoption; (3) appellant was unadoptable; and (4) it was in appellant's best interest that the petition be granted.

Discussion

I. Substantive Due Process

Appellant first contends that the decree of adoption granted by the court created a family relationship between her and her adoptive parents; that the relationship so created is a fundamental liberty interest and is therefore constitutionally invulnerable to termination on the basis of the factors mentioned in section 227b.

The Fourteenth Amendment of the federal Constitution provides that no state shall deprive any person of life, liberty, or property without due process of law. The California Constitution provides a similar guarantee. (Art. I, § 7.) "[D]ue process of law has come since the end of the nineteenth century to be applied to the field of substantive rights in the form of the proposition that the legislature, as well as the judiciary, is forbidden to act arbitrarily in contravention of the fundamental principles of liberty and justice that lie at the base of all civil and political institutions of the United States." (13 Cal.Jur.3d, § 293, p. 731.)

We will assume for purposes of this appeal that the instant case involves state action. Here a state court, pursuant to state statute, nullified an adoptive family relationship created by state statute. (See Reitman v. Mulkey (1967) 387 U.S. 369, 381-387, 87 S.Ct. 1627, 1634-1637, 18 L.Ed.2d 830; Shelley v. Kraemer (1948) 334 U.S. 1, 20, 68 S.Ct. 836, 845, 92 L.Ed. 1161.)

In analyzing a substantive due process claim, we first examine the nature of the interest at issue to determine whether it is a "fundamental right" protected by the Fourteenth Amendment. (See Moore v. East Cleveland (1977) 431 U.S. 494, 499, 97 S.Ct. 1932, 1935, 52 L.Ed.2d 531.) Where there is a fundamental right, we must next determine whether the state has significantly infringed upon this right. (See Harris v. McRae (1980) 448 U.S. 297, 314-315, 100 S.Ct. 2671, 2686-2687, 65 L.Ed.2d 784.) If so, we then consider whether an important state interest justifies the infringement. (See Zablocki v. Redhail (1978) 434 U.S. 374, 388, 98 S.Ct. 673, 682, 54 L.Ed.2d 618.)

In recent years, the Supreme Court has found various rights to be fundamental and thus within the protection of the Due Process Clause. (E.g., O'Connor v. Donaldson (1975) 422 U.S. 563, 565-577, 95 S.Ct. 2486, 2488-2495, 45 L.Ed.2d 396 (the right of the mentally ill to be free of confinement without treatment) and Roe v. Wade (1973) 410 U.S. 113, 153, 93 S.Ct. 705, 727, 35 L.Ed.2d 147 (a woman's right of choice regarding the termination of pregnancy).) Relevant to family relationships is the court's statement in Moore v. East Cleveland, supra, 431 U.S. 494, 499, 97 S.Ct. 1932, 1935, " '[t]his Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.' [Citation.]"

A natural parent has a liberty interest in the family unit. (See Moore v. East Cleveland, supra, 431 U.S. 494, 499, 97 S.Ct. 1932, 1935; In re Carmaleta B. (1978) 21 Cal.3d 482, 489, 146 Cal.Rptr. 623, 579 P.2d 514.) As the court stated in In re David B. (1979) 91 Cal.App.3d 184, 192, 154 Cal.Rptr. 63, "[a] parent's interest in the care, custody and companionship of a child is a 'liberty' to be ranked among 'the most basic of civil rights.' [Citations.]"

Courts have also recognized that natural children have a fundamental, independent right in belonging to a family unit. (See Smith v. City of Fontana (9th Cir.1987) 818 F.2d 1411 (children who brought an action for the wrongful death of their father deemed to have a cognizable liberty interest in their familial relationship); Duchesne v. Sugarman (2d Cir.1977) 566 F.2d 817, 825 (the right to maintain the family relationship involves the "interest of the parent in the 'companionship, care, custody and management of his or her children' [citation omitted], and of the children in not being dislocated from the 'emotional attachments that derive from the intimacy of daily association' with the parent...."))

In Smith v. Organization of Foster Families (1977) 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (OFFER ), the court considered whether foster parents enjoyed a constitutionally protected interest in the integrity of the family unit as against New York procedures for removal of foster children from the foster home....