E.G. v. A.G.(In re B.C.)

• Decision Date: 19 May 2011
• Docket Number: No. E051664.,E051664.
• Citation: 195 Cal.App.4th 913,2011 Daily Journal D.A.R. 7254,11 Cal. Daily Op. Serv. 6061,125 Cal.Rptr.3d 727
• Court: California Court of Appeals
• Parties: ADOPTION OF B.C., JR., a Minor. E.G. et al., Plaintiffs and Respondents, v. A.G., Defendant and Appellant.

195 Cal.App.4th 913

125 Cal.Rptr.3d 727

11 Cal. Daily Op. Serv. 6061

2011 Daily Journal D.A.R. 7254

ADOPTION OF B.C., JR., a Minor.E.G. et al., Plaintiffs and Respondents,

v.A.G., Defendant and Appellant.

No. E051664.

Court of Appeal, Fourth District, Division 2, California.

May 19, 2011.

Certified for Partial Publication.^*

Law Offices of Miles & Hatcher and Cornell L. Hatcher, Rancho Cucamonga, for Defendant and Appellant.

Torrence L. Howell, Upland, for Plaintiffs and Respondents.

Kamala D. Harris, Attorney General, Douglas M. Press, Assistant Attorney General, and Richard T. Waldow and Gregory M. Cribbs, Deputy Attorneys General, for California Department of Social Services as amicus curiae on behalf of Plaintiffs and Respondents.

OPINION

RICHLI, Acting P.J.

A.G. (the mother) gave birth to a son (the child). When the child was two, he was adopted—supposedly with the mother's written consent—by the mother's mother, E.G. (the grandmother), and her husband, B.C., Sr. (the stepgrandfather). They renamed him B.C., Jr.

When the child was five and a half, the mother filed a motion to set aside the adoption. She alleged extrinsic fraud, in that she had been told that what she was consenting to was a temporary guardianship, not an adoption. The trial court denied the motion as time-barred under Family Code section 9102. The mother appeals.

We will hold that Family Code section 9102 applies to any action or proceeding to set aside an adoption order on any grounds, including, as in this case, extrinsic fraud. We will further hold that Family Code section 9102 does not violate due process, even when applied to a claim that an adoption order is void due to lack of notice and lack of consent, at least under the circumstances of this case. Accordingly, we will affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

The child was born in August 2003. In January 2004, the grandmother filed an application to adopt him. In November 2004, the application was amended so as to add the stepgrandfather as copetitioner. In April 2005, the mother signed a written consent to the adoption. The California Department of Social Services (the Department) recommended that the petition be granted. In November 2005, the trial court granted the petition.

In May 2010—four years and six months after the entry of the adoption order—the mother filed a motion to set aside the adoption order based on fraud. The grandmother and stepgrandfather (collectively the grandparents), along with the Department, opposed the motion.

The declarations in support of and in opposition to the motion were in sharp factual conflict.

According to the mother, she suffered from severe depression after the child was born; she needed the grandparents' help to care for the child. They told her that they needed to set up a temporary guardianship, for such purposes as the child's health care. She admitted signing the written consent to adoption, but she testified that she thought it was a consent to a temporary guardianship. The social worker who presented it to her did not tell her what it was, did not give her a copy, and did not advise her of her rights in connection with adoption. (See Fam.Code, §§ 8801.3, subd. (b)(1), 8801.5.) When she asked the grandparents for copies of the guardianship documents, they “absolutely refused” to give them to her.

The mother “continued to have a very loving mother-son relationship” with the child. She saw him daily and had visitation with him almost every weekend. It was only after the grandmother filed a request for a temporary restraining order against her (which was denied) that the mother obtained counsel, who discovered that there had actually been an adoption. The mother also claimed that the grandmother had abused her—physically, verbally, and, on one occasion, sexually—when she was growing up.

The grandparents flatly denied the mother's testimony, calling it “full of lies.” They denied telling her that they were seeking a temporary guardianship. Rather, they testified, they told her that they were seeking to adopt the child; she told them, “[D]o whatever you want....” She “participated in, and was fully aware throughout the adoption process that [they] were adopting [the child].”

In October 2009, according to the grandparents, there had been an incident in which the mother “was physical[ly] and verbally abusive to all family members” in the child's presence. That was when they sought a restraining order, which was denied for procedural reasons.

The grandparents and the Department (respondents) argued that the motion was untimely under Family Code section 9102, which provides:

“(a) An action or proceeding of any kind to vacate, set aside, or otherwise nullify an order of adoption on any ground, except fraud, shall be commenced within one year after entry of the order.

“(b) An action or proceeding of any kind to vacate, set aside, or nullify an order of adoption, based on fraud, shall be commenced within three years after entry of the order.”

In response, the mother argued that Family Code section 9102 did not apply to a proceeding based on extrinsic fraud and/or lack of due process.

The trial court ruled that the motion was time-barred under Family Code section 9102.

I

FAMILY CODE SECTION 9102 APPLIES TO A PROCEEDING TO SET ASIDE AN ADOPTION BASED ON EXTRINSIC FRAUD

“ ‘The basic rules of statutory construction are well established. “When construing a statute, a court seeks to determine and give effect to the intent of the enacting legislative body.” [Citation.] “ ‘We first examine the words themselves because the statutory language is generally the most reliable indicator of legislative intent. [Citation.] The words of the statute should be given their ordinary and usual meaning and should be construed in their statutory context.’ [Citation.] If the plain, commonsense meaning of a statute's words is unambiguous, the plain meaning controls.” [Citation.] But if the statutory language may reasonably be given more than one interpretation, “ ‘ “courts may consider various extrinsic aids, including the purpose of the statute, the evils to be remedied, the legislative history, public policy, and the statutory scheme encompassing the statute.” ’ ” ' [Citations.]” ( Catlin v. Superior Court (2011) 51 Cal.4th 300, 304, 120 Cal.Rptr.3d 135, 245 P.3d 860.)

“We independently review questions of statutory construction. [Citation.]” ( Pineda v. Williams–Sonoma Stores, Inc. (2011) 51 Cal.4th 524, 529, 120 Cal.Rptr.3d 531, 246 P.3d 612.)

The mother moved to set aside the adoption order based on extrinsic fraud. “Extrinsic fraud” refers to “circumstances in which ‘the aggrieved party [has been] deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense.’ [Citation.]” ( Moore v. Conliffe (1994) 7 Cal.4th 634, 643, fn. 5, 29 Cal.Rptr.2d 152, 871 P.2d 204.)

Family Code section 9102, subdivision (b) fixes a three-year limitations period for setting aside an adoption order “based on fraud.” Respondents argue that “fraud” includes extrinsic fraud; thus, based on what would seem to be the plain meaning of the statute, the mother's claim is barred.

County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 113 Cal.Rptr.3d 147, however, held that a similar statute of limitations did not apply to a claim based on extrinsic fraud. There, the defendant moved to set aside a default judgment for child support. ( Id. at p. 1222, 113 Cal.Rptr.3d 147.) The trial court found that the judgment had been based on a false proof of service and that this constituted extrinsic fraud. Nevertheless, it ruled that relief was barred by Family Code section 3691, which sets a limitations period for challenging a support judgment based on either actual fraud or lack of notice. ( County of San Diego v. Gorham, supra, at p. 1224, 113 Cal.Rptr.3d 147.)

The appellate court reversed. It explained: “[E]ven where relief is no longer available under statutory provisions, a trial court generally retains the inherent power to vacate a default judgment or order on equitable grounds where a party establishesthat the judgment or order was void for lack of due process [citation] or resulted from extrinsic fraud or mistake [citation].” ( County of San Diego v. Gorham, supra, 186 Cal.App.4th at p. 1228, 113 Cal.Rptr.3d 147.) “[W]e decline to interpret Family Code section 3691 as preempting a trial court's traditional or inherent equitable power to set aside a child support order or judgment like the one in this case.... The legislative history regarding Family Code section 3691 reveals it was enacted ... with the purpose of expanding, not limiting, avenues of relief from child support orders obtained by default judgments for obligors who have not received notice of the order.... [Citation.] ... [T]o construe Family Code section 3691 as foreclosing a party from seeking equity where ... ‘jurisdiction’ ... has been obtained by a false proof of service, which essentially perpetrates a fraud on the court would, we believe, be unfair, against the above intent of the Legislature, and a violation of fundamental due process.” ( Id. at p. 1232, 113 Cal.Rptr.3d 147.)

Under Gorham, the meaning of Family Code section 9102 is not necessarily plain. We therefore look to its legislative history. As originally enacted in 1992, it provided:

“(a) An action or proceeding of any kind to vacate, set aside, or otherwise nullify an order of adoption on the ground of any defect or irregularity of procedure in the adoption proceeding shall be commenced within three years after entry of the order.

“(b) An action or proceeding of any kind to vacate, set aside, or otherwise nullify an order of adoption on any ground other than a defect or irregularity of procedure shall be commenced within five years after entry of the order.” (Former Fam.Code, § 9102, Stats.1992, ch. 162, § 10, p. 711.)

It was substantively identical to its immediate...