Cheryl E., In re

• Decision Date: 02 November 1984
• Docket Number: B-003231
• Citation: 161 Cal.App.3d 587,207 Cal.Rptr. 728
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of CHERYL E., a Minor. COUNTY OF VENTURA PUBLIC SOCIAL SERVICES AGENCY, Petitioner and Respondent. EDWIN EARL E., Respondent and Appellant, v. EVELINA E., Plaintiff and Respondent, v. COUNTY OF VENTURA PUBLIC SOCIAL SERVICES AGENCY, et al., Defendants and Appellants. Civ. 68879,

Page 728

207 Cal.Rptr. 728

161 Cal.App.3d 587

In the Matter of CHERYL E., a Minor.

COUNTY OF VENTURA PUBLIC SOCIAL SERVICES AGENCY, Petitioner and Respondent.

EDWIN EARL E., Respondent and Appellant, v. EVELINA E., Plaintiff and Respondent, v. COUNTY OF VENTURA PUBLIC SOCIAL SERVICES AGENCY, et al., Defendants and Appellants.

Civ. 68879, B-003231.

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

Nov. 2, 1984.

[161 Cal.App.3d 593] Mary K. Jones, Glendale, under appointment by the Court of Appeal, for respondent and appellant Edwin E.

Dorothy L. Schechter, County Counsel, and Mary C. Ward, Asst. County Counsel, Ventura, for County of Ventura Public Social Services Agency.

Channel Counties Legal Services Ass'n, Maxine R. Benmour and M. Carmen Ramirez, for plaintiff and respondent Evelina E.

Andrew M. Wolf, Ventura, as amicus curiae on behalf of minor Cheryl E.

STONE, Presiding Justice.

The instant case involves two appeals consolidated on this court's motion. Edwin E. (EDWIN) appeals from a judgment terminating his rights to custody and control of his biological child, Cheryl E. (CHERYL). (Civ.Code § 232.) County of Ventura (COUNTY), Public Social Services Agency (PSSA), and Adoption Worker (AW) appeal from a judgment that Evelina E.'s (EVELINA) relinquishment of CHERYL for adoption be rescinded for fraud and undue influence. We granted leave for CHERYL's court-appointed trial counsel to file an amicus curiae brief in the appeal from the judgment of rescission. (2d Civ. B-003231.)

We affirm the judgment of rescission in case B-003231 and reverse the judgment terminating EDWIN's parental rights in case 2d Civ. 68879.

FACTS

EVELINA

At the time of trial on EVELINA's civil action for relinquishment based upon fraud, she was 41 years old, had been married 21 years, had eight children (including CHERYL), had never worked outside the home, had a ninth grade education, and had been receiving aid to dependent children for 10 years.

In March 1981, approximately one month prior to CHERYL's birth, EVELINA discovered In April 1981, EVELINA discussed with PSSA the possibility of allowing her baby to be adopted. On April 15, 1981, she met with AW, explained that she and her six children were about to be evicted, that her husband had a girlfriend and that EVELINA did not know where her family would go or what they would do following eviction. When AW informed her that she would need to visit EVELINA's home, EVELINA indicated that she should telephone before coming.

that she and her family were facing eviction from their home in Simi Valley.

On April 21, 1981, without notice to or permission from EVELINA, AW sent a letter to the hospital indicating that EVELINA was considering relinquishing her baby to PSSA for adoption and that PSSA would take responsibility for the child upon its discharge from the hospital. In said letter, AW further indicated that PSSA's address should be used on the birth certificate and that PSSA had requested that the doctor circumcise the baby if a boy.

On April 22, 1981, AW went to EVELINA's home without the requested prior notice and met five of her children. She noted that all the children had blue eyes and fair hair and told EVELINA there would be no problem placing the baby.

On April 24, 1981, a marshal evicted EVELINA and her family. She knew since early morning that the birth of her child was imminent and sat on a mattress in the front yard from 3 p.m. until 8 p.m. when she was finally taken to the hospital where CHERYL was born early the next morning. She testified that her pregnancy had been the worst she had experienced, her blood pressure was elevated, and she was extremely anxious concerning her family's welfare.

That same day AW came to the hospital and informed EVELINA that she had to sign forms which would allow CHERYL to receive medical care and allow PSSA to remove her from the hospital. The document was an "under care" agreement for two weeks temporary placement until May 7 while EVELINA decided whether to relinquish her child for adoption, a deviation from the usual one month's interval. Although EDWIN was at the hospital, AW chose not to meet with him. EVELINA signed the "under care" agreement and pursuant thereto PSSA placed CHERYL in foster care.

Following her release from the hospital, EVELINA, still unwell from the difficult pregnancy and birth, lived with her mother under difficult and crowded circumstances. During this time AW wrote EVELINA requesting her to make an appointment with her. When EVELINA missed the first appointment, AW wrote again suggesting alternate dates including AW's day off. AW testified that if the under care agreement expired without the mother's signing a relinquishment, AW was supposed to turn the case over to PSSA for instigation of dependency proceedings.

On May 12, 1981, at AW's suggestion EVELINA and two daughters met with AW in AW's car in the PSSA parking lot at approximately 5 p.m. EVELINA and her daughters testified that AW informed EVELINA that without EDWIN's signature the relinquishment was invalid, that if she signed it PSSA would have more "clout" against her husband and that she would be able to have CHERYL returned to her within one year if she so desired, but if she did not sign, PSSA might have to give the baby to EDWIN and his girlfriend. EVELINA was very much against such a placement.

EVELINA testified that AW told her it was unnecessary to read the document since it contained everything they discussed and that AW seemed in a hurry to conclude the meeting. The daughters corroborated this testimony. The daughters, 16 and 18 years of age, signed as witnesses. AW also had EVELINA sign another "under care" agreement backdated to May 7, 1981, so that the County would be reimbursed for funds expended upon CHERYL's case between May 7 and May 12.

During the course of the meetings between AW and EVELINA, the only service After the May 12 meeting with AW, EVELINA and her daughters left her mother's house and moved to Long Beach where they lived with EDWIN in a camper shell in a wrecking yard containing cars and car parts. AW wrote EVELINA two letters during this period informing her of CHERYL's progress. EVELINA attempted to contact AW by telephone several times but could not reach her. In September 1981, the juvenile court granted PSSA's petition declaring CHERYL a dependent child. (Welf. & Inst.Code, § 300, subd. (a).) In October 1981, CHERYL was placed with the pre-adoptive foster parents, with whom CHERYL continues to reside.

AW offered EVELINA was "adoption counseling and taking the child under care" even though EVELINA had informed AW that her husband would not consent to adoption.

In January 1982, AW advised EVELINA by letter that PSSA would soon file to terminate EDWIN's rights if PSSA did not hear from him. AW had mailed two letters to EDWIN July 1, one certified, asking him to sign a relinquishment but had received no response.

On February 17, 1982, ten months after CHERYL's birth, EVELINA wrote to AW asking what her rights were regarding CHERYL and reiterated that EDWIN did not want to relinquish the baby. AW responded by letter that EVELINA had given up her rights to CHERYL, that CHERYL had been in foster care for over six months with no contact from EDWIN and that PSSA intended to file a petition alleging his abandonment of the child. AW'S letter stated also that PSSA did not want to rescind EVELINA'S relinquishment as it felt adoption was in CHERYL'S best interests. EVELINA called AW to request rescission of her relinquishment, and was sent forms to fill out and did so.

On April 13, 1982, AW and her supervisor met with EVELINA who informed them of her improved living conditions and her desire to care for CHERYL. She also told them her husband never received the letters regarding CHERYL. AW and her supervisor informed EVELINA that CHERYL would not be returned to her because they concluded CHERYL had bonded to her foster pre-adoptive parents with whom she had lived five months. EVELINA filed the instant lawsuit November 24, 1982.

The trial court found that EVELINA had relinquished her child for adoption as a result of fraud and undue influence; that AW either specifically advised her that she had one year in which to change her mind or "selected words which would have given a reasonable person of plaintiff's background the belief, understanding and knowledge that plaintiff had a year in which to change her mind"; that AW'S misrepresentations were wilful and material and EVELINA changed her position in reliance thereon; that EVELINA relinquished her child for adoption as a result of undue influence; that she made one communication voluntarily on April 15, 1981, and the others were initiated by AW; that AW was in a dominant position, decided at the first meeting the baby should be adopted and took every step necessary and possible to accomplish the adoption; and that EVELINA was not given every opportunity to make her own decision without inducement from someone else.

The trial court granted EVELINA's petition to rescind the relinquishment.

EDWIN

The evidence adduced at the trial on PSSA'S petition to terminate his parental rights (a separate proceeding held prior to EVELINA'S action to rescind the relinquishment) indicated that EDWIN had not responded to any letters or notices sent to his address in Wilmington, near Long Beach. Two certified letters were returned unclaimed, and one marked "refused". He testified that he never received them. EVELINA testified she had destroyed the letters sent by regular mail and took the "pink slips" from the registered letters and concealed their existence from EDWIN. EDWIN testified that she told him she had signed a relinquishment and due to his prior experience in which his out-of-wedlock child was adopted, he thought he had The trial court found that the minor child had been relinquished by her mother and abandoned by her father, and accordingly...