Adoption of Zachariah K.

• Decision Date: 19 May 1992
• Docket Number: No. B057270,B057270
• Citation: 6 Cal.App.4th 1025,8 Cal.Rptr.2d 423
• Court: California Court of Appeals Court of Appeals
• Parties: ADOPTION OF ZACHARIAH K., A Minor. MICHELLE S., Plaintiff and Respondent, v. CRAIG M. et al., Appellants. Civ.

Page 423

8 Cal.Rptr.2d 423

6 Cal.App.4th 1025

ADOPTION OF ZACHARIAH K., A Minor.

MICHELLE S., Plaintiff and Respondent, v. CRAIG M. et al., Appellants.

Civ. No. B057270.

Court of Appeal, Second District, Division 6, California.

May 19, 1992.

Jane A. Gorman, Santa Ana, for appellants.

No appearance for respondent.

STEVEN J. STONE, Presiding Justice.

Subject matter jurisdiction for a proceeding to withdraw consent to adoption by a birth mother, pursuant to former Civil Code section 226a, is governed by the Uniform Child Custody Jurisdiction Act and the Federal Parental Kidnapping Prevention Act. The trial court erred in exercising jurisdiction or, at the very least, in having failed to stay proceedings to communicate with the court in Oregon to ascertain whether Oregon declined to exercise jurisdiction. We reverse the order granting withdrawal of consent, dismissing the petition for adoption, and restoring custody of the child to the natural mother.

FACTS

October 7, 1990, Michelle S. gave birth to a baby boy in Ventura, California. Immediately after his birth, Michelle placed him with appellants Craig M. and Georgene M., an Oregon couple, through arrangements made by Michelle's pastor. After consulting with an attorney, Michelle signed consent to adoption, release and surrender of parental rights, and authorization for appellants to become the child's guardians pending entry of an adoption decree, all on forms to be filed in the Oregon Circuit Court.

Michelle also signed an Interstate Compact on Placement Of Children (ICPC) request (Civ.Code, § 265 et seq.) for supervisory services in Oregon. ¹ The request was signed by the California Compact administrator October 14, 1990 as the sending state and by the Oregon Compact administrator for the receiving state several days later. Appellants returned to Oregon with the child and obtained an order appointing them as guardians of the child December 4, 1990. They also filed a petition for adoption in the Oregon Circuit Court for Multnomah County.

January 3, 1991, Michelle filed a petition to withdraw consent to adoption, pursuant to former section 226a. ² The petition alleged that: (1) she had been counseled during her pregnancy by the Youth Pastor of her church, Karl Mason, to place her baby for adoption and that he contacted appellants in Oregon; (2) appellants took the baby in less than 27 hours after birth; (3) she was pressured by Pastor Mason to consent to the adoption and that she was jeopardizing his friendship with appellants if she did not do so; (4) she notified her attorney within three days that she wanted to have her baby back; (5) she never had objective counsel from someone not close to the prospective adoptive parents; (6) the natural father never consented to the adoption; and (7) she and the natural father plan to work together to provide a good home for the child if the court grants her request to withdraw her consent. She requested immediate custody of the child.

Appellants obtained a California attorney who specially appeared in opposition to California jurisdiction based on the pending adoption in the Oregon court and a valid Oregon order awarding them custody of the child. Appellants further alleged that the natural mother had signed all the appropriate documents for an adoption under the laws of Oregon and, since no California adoption or consent to adoption is pending before the California court, there is no consent to withdraw. They further argued that Oregon is the appropriate forum for litigation of the issues of the custody of the minor under the provisions of both the Uniform Child Custody Jurisdiction Act (UCCJA) and the Federal Parental Kidnapping Prevention Act (PKPA).

The court initially ordered the hearing continued to January 24, 1991 with an order that "Counsel for adopting parents is to find the [Oregon] Judge's name and phone number for next week's hearing, and if he will be available for a phone conversation." Appellants filed a Request for Telephonic Conference, under section 5155, paragraph (3), requesting that the California trial court confer with the Oregon court on January 28, 1991 to determine the appropriate forum for litigation of the Petition to Withdraw Consent to the adoption of Zachariah K.

On the day set for hearing, Michelle's counsel filed a brief in support of California jurisdiction, claiming that this matter was not a custody proceeding and thus was not subject to the provisions of the UCCJA, and that the provisions of the ICPC conferred absolute jurisdiction on California "to the exclusion of the UCCJA."

The trial court agreed with appellants that the Oregon guardianship was "an order effecting [sic ] custody;" that under the UCCJA Oregon had the power and the jurisdiction to render the order; that "under the UCCJA rules California should not exercise [jurisdiction] unless Oregon concedes it;" that "withdrawal of a consent is not a custody issue;" and that the consent given by Michelle was "clearly a California consent." However, the court refused to confer with the Oregon court because "the UCCJA issues do not apply." The court then set the hearing for February 8, 1991 and ordered the State Department of Social Services to prepare the necessary report.

Appellants filed a writ of mandate with this Court of Appeal February 5, 1991 based on the court's jurisdictional findings and requested a stay of proceedings pending the completion of the Oregon adoption. We denied the writ petition. February 8, 1991 the Multnomah County, Oregon Circuit Court granted appellants' Petition for Adoption. A certified copy of that decree was lodged with the California court on February 15, 1991.

March 5, 1991, the Department of Social Services filed a supplemental report stating that it "is presenting this report under protest. It is our belief that we should not be involved in a case that is clearly an Oregon adoption matter." The report nevertheless recommended that the court find that the consent was not taken in accordance with California law, that undue influence was exerted over the natural mother, and that the minor was removed from California prior to ICPC approval. No discussion or recommendations were made concerning the child's best interests. The officer who prepared the report also indicated that one of the reasons the investigation usually carried out under California procedures for independent adoptions was not undertaken was because the ICPC agency closed its file when appellants obtained the Oregon guardianship order.

At the March 5, 1991 hearing, counsel for the State Department of Social Services noted that appellants claimed, contrary to Michelle's allegation, that they did not leave California prior to ICPC approval. Appellants' counsel argued that Michelle had no standing to bring the petition to withdraw consent to adoption because her legal relationship with the child, under sections 228 and 229 ended when the Oregon adoption was granted, and that order rendered this proceeding moot. Furthermore, the order of adoption was properly lodged with the California Court pursuant to section 5164 and the California court had no power to modify it, under section 5163. Again, appellants' attorney argued that the case comes within the purview of the UCCJA since Michelle's petition on its face seeks custody of the child.

The court reiterated its earlier finding that the case did not fall within the UCCJA and that even if it did, California at least had "current jurisdiction and could exercise it." The court stated that it had not been advised that the Oregon proceeding was "coming close to termination" and that California law must be applied to determine the validity of the consent. The court allowed Michelle to withdraw her consent to adoption, ruled that the Oregon adoption petition be dismissed, and ordered custody of the child restored to Michelle.

DISCUSSION

1. Petition to Withdraw Consent to Adoption by Birth Parent Governed by the UCCJA and the PKPA.

Former section 226a provides that "Once given, consent of the natural parents to the adoption of the child by the person or persons to whose adoption of the child the consent was given, may not be withdrawn except with court approval. Request for such approval may be made by motion, or a natural parent seeking to withdraw such consent may file with the clerk of the superior court where the petition is pending, a petition for approval of withdrawal thereof, without the necessity of payment of any fee for the filing of such petition.... [p] The State Department of Social Services or the licensed county adoption agency shall, prior to the hearing of the motion or petition for withdrawal, file a full report with the court and shall appear at the hearing to represent the interests of the child. [p] ... If the court finds that withdrawal of the consent to adoption is reasonable in view of all the circumstances, and that withdrawal of the consent will be for the best interests of the child, the court shall approve the withdrawal of the consent; otherwise the court shall withhold its approval." Consideration of the best interests of the child is to include an assessment of the child's age, the extent of bonding with the prospective adoptive parents as well as with the natural or birth parent or the potential therefor, and the ability of the natural or birth parent to provide adequate and proper care and guidance to the child. (Ibid.) If the court approves the withdrawal of consent, the adoption proceedings are to be dismissed. (Ibid.) (Present section 224.64 maintains these stated requirements with only minor changes, such as substitution of the term "birth parent" for "natural parent.")

The stated purposes of the UCCJA are to avoid jurisdictional competition and conflict, promote interstate cooperation, litigate custody where child and family have closest connections, discourage continuing conflict over custody, deter abductions and unilateral...