Laws' Adoption, In re
| Decision Date | 16 March 1962 |
| Citation | 20 Cal.Rptr. 64,201 Cal.App.2d 494 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In the Matter of the ADOPTION OF Baby Boy LAWS, a minor. Murray HOLLAND and Harriet Leona Holland, Petitioners and Appellants, v. Harry L. CHALLIS, Intervenor and Respondent, Los Angeles County Bureau of Adoptions, Objector and Respondent. Civ. 25953. |
David Keene Leavitt, Beverly Hills, for appellants.
Center & Thomasian, George V. Hall, Redondo Beach, and Owen A. Silverman, Inglewood, for intervenor and respondent, for purposes of oral argument only.
Harold W. Kennedy, County Counsel, Jean L. Waller and Irvin Taplin, Jr., Deputy County Counsel, Los Angeles, for objector and respondent, for purposes of oral argument only.
Does the subsequent marriage of the natural parents of an illegitimate child have the effect of depriving the court of jurisdiction to proceed with an adoption previously consented to by the mother, without obtaining the consent of the father? This is the question raised in this proceeding by appellant petitioners who appeal from an order dismissing their petition to adopt Baby Boy Laws.
The mother of Baby Boy Laws lived with intervenor from May 1959 to May 20, 1960, although she was still married to Robert L. Laws by whom she had a previous child. This child was also living with her. It was during this period that Baby Boy Laws was conceived. On May 20, 1960, the natural mother and intervenor ceased living together. Subsequently, on June 10, 1960, the natural mother obtained a final decree of divorce from husband Laws. Baby Boy Laws was born on August 25, 1960.
Prior to the child's birth the natural mother learned of petitioners and afterwards placed her child with them for adoption. She allegedly told the child's father that Baby Boy Laws had died. The child has been with the petitioners since birth, and they filed their petition for adoption on September 15, 1960, approximately two weeks after the child entered their home upon its release from the hospital. On October 18, 1960, the natural mother was interviewed by an adoption worker of the Los Angeles County Bureau of Adoptions (herein referred to as the 'bureau') and there freely and willingly signed a consent to the child's adoption by the petitioners on the form prescribed by the State Department of Social Welfare.
On October 27, 1960, the natural father was married but separated from that wife in December of 1960, and on February 6, 1961, this marriage was annulled. After separating from that wife he commenced living again with the mother of Baby Boy Laws.
The natural father alleges that in March of 1961 he first learned the child was alive and had been placed for adoption. On April 27, 1961, he and the child's mother were married. On May 1, 1961, a little over eight months after the child's birth and six months after the mother's consent to the adoption, the natural parents appeared at the bureau, revealed their marriage and demanded the child. The father stated he had not consented to the child's adoption and did not wish to do so. On May 5 the bureau filed a report recommending that appellant's petiton for adoption be denied because 'The natural father, who claims joint custody of minor, has not and does not wish to consent to the adoption of the minor by the petitioners.' The bureau reported to the court that 'According to a recent report from the child's doctor, the minor is in good health and appears to be developing normally,' and that petitioners 'appear to have a stable marriage and to be able to offer the minor both emotional and financial security.'
On May 18, 1961, the natural mother filed a petition for withdrawal of consent to adoption followed by an amended petition on June 23, 1961. On June 29 the natural father filed a motion to dismiss the adoption. Both matters were set for hearing on the same day. By agreement of counsel the hearing was confined to the natural father's motion; time for notice of the motion was waived; and all the allegations of the natural father's declaration in support thereof were deemed controverted, except that of the paternity of the child and of the subsequent marriage of the natural parents. The latter were admitted for the purpose of the hearing only. At the conclusion of the hearing the court expressed its belief that it had no jurisdiction to grant an adoption without the natural father's consent but indicated that if it could legally have done so it would have denied the motion to dismiss. The court indicated it felt it had no power to look into '* * * what is the best interests of the child at this time. * * * ' On July 13, 1961, the court entered its order granting the natural father's motion to dismiss the petition for adoption from which the petitioners appeal. The child remains with the appellants pending appeal.
Under California law a legitimate child cannot be adopted without the consent of its parents, if living, nor an illegitimate child without the consent of its mother, if living. (Civ.Code, § 224.) Thus, at the time the mother gave her consent to the adoption of Baby Boy Laws by the petitioners only her consent was necessary and the court had full jurisdiction to proceed. Subsequently thereto the natural parents married, thereby legitimating the child since the child born before wedlock becomes legitimate by the subsequent marriage of its parents. (Civ.Code, § 215.) Had the adoption proceeding been completed in the meantime, certainly the subsequent marriage of the natural parents of the child could not have the effect of nullifying the proceedings. If such were not the rule, then there would be no finality to a decree of adoption. What effect, if any, then, should the subsequent marriage of the natural parents have upon a previously commenced adoption proceeding?
In Lavell v. Adoption Institute, 185 Cal.App.2d 557, 8 Cal.Rptr. 367 the court ruled that the legitimation of a child under Civil Code section 230 may be accomplished prior to its birth. In that case the parents separated in California without the prior knowledge of the father and just eight days before the birth of the child. The child was placed by the mother in the care of an adoption agency and she relinquished the child for adoption as a single woman. Thereafter the child was placed in the hands of prospective adopting parents. The child's father made a diligent search for the mother and finally located her after the mother and an older child of the parties had returned to Michigan. The father then commenced an action to recover the custody of both children. He also filed an affidavit acknowledging their paternity pursuant to the statutes of Michigan which had the effect of legitimating the children under the Michigan law.
When the father learned of the whereabouts of the second child he returned to California and made a demand upon the adoption agency for the return of the child. Upon its refusal to deliver the child he commenced an action which resulted in a judgment declaring he was entitled to the custody of the child. The adoption agency appealed from this decision. The principal question before the court on the appeal was whether or not the legitimation of a child under Civil Code section 230 could be accomplished prior to its birth. The agency took the position that the requirements of that section could not be complied with until after the birth of the child. This section provides that the father of an illegitimate child may legitimate it '* * * by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, * * *' Under Civil Code section 29 an unborn child is to be deemed an existing person so far as may be necessary for its interests in the event of its subsequent birth. The court held the unborn child of unwed parents, under the provisions of this section, is to be deemed an existing person for the purpose of adoption and that such child is capable of being received into the family of the father. The court pointed out the evidence showed the father had provided a home for the child's mother and supported her until their separation shortly before the birth of the child. The father did not deny parenthood, nor did he treat the child in any way other than as a legitimate child; he did not neglect the child or fail in any duty towards it. The court therefore sustained the trial court, holding in effect that the child had been legitimated prior to its birth and therefore the consent of the mother to the adoption of the child, given after its birth, was insufficient.
The facts in the case before us are clearly to be distinguished from those in the Lavell case (Lavell v. Adoption Institute, supra, 185 Cal.App.2d 557, 8 Cal.Rptr. 367) since there can be no contention that any efforts were made by the afther in this case to legitimate the child either prior to its birth or subsequent thereto until the marriage of the natural parents of the child some eight months after the child's birth and six months after the natural mother's consent to the adoption. For this court to hold that the natural parents of a child, previously placed for adoption and relinquished by written consent of the mother, could, by their subsequent marriage, thereby deprive the court of its power to proceed with the adoption would be to open the door to practices which could conceivably discourage adopting parents from opening their hearts and homes to unwanted children and also subject them to the possibility of becoming the prey of designing persons.
It is the cardinal rule of adoption proceedings that the court consider what is for the best interests of the child. (Adoption of Barnett, 54 Cal.2d 370, 377, 6 Cal.Rptr. 562, 354 P.2d 18.) Certainly the subjsequent marriage of the natural parents of a child is a...
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