San Diego County Dept. of Pub. Welfare v. Superior Court

• Decision Date: 03 May 1972
• Citation: 496 P.2d 453,101 Cal.Rptr. 541,7 Cal.3d 1
• Court: California Supreme Court
• Parties: , 496 P.2d 453 SAN DIEGO COUNTY DEPARTMENT OF PUBLIC WELFARE, Petitioner, v. The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; Jessie S. et al., Real Parties in Interest. In re Homer E. DETRICH, as Director, etc., on behalf of Baby M. on Habeas Corpus. L.A. 29951. In Bank

Page 541

101 Cal.Rptr. 541

7 Cal.3d 1, 496 P.2d 453

SAN DIEGO COUNTY DEPARTMENT OF PUBLIC WELFARE, Petitioner, v. The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;

Jessie S. et al., Real Parties in Interest.

In re Homer E. DETRICH, as Director, etc., on behalf of Baby M. on Habeas Corpus.

L.A. 29951.

Supreme Court of California,

In Bank.

May 3, 1972.

Robert G. Berrey, County Counsel, and Lloyd M. Harmon, Jr., Deputy County Counsel, for petitioner.

No appearance for respondent.

Richard F. Gerry, Casey, McClenahan & Fraley and Thomas W. Hauser, San Diego, for real parties in interest.

BURKE, Justice.

The San Diego County Department of Public Welfare, a licensed adoption agency (hereinafter Department) petitions for a writ of mandate/prohibition directing the San Diego Superior Court, respondent, (1) to set aside its orders granting letters of guardianship to Jessie S. and to enter orders denying the guardianship petition, (2) to set aside its order denying Department's motion for summary judgment in the Matter of Petition of Philip S. and Jessie S. (hereinafter Real Parties in Interest), adopting parents and real parties in interest, and enter orders granting summary judgment, and (3) that the care and custody of Baby Girl M. be delivered to Department.

We issued an alternative writ of prohibition directing respondent court to refrain from taking any further action upon the guardianship and adoption petitions of the Real Parties in Interest and to enter the orders prayed for in Department's petition, or to show cause why it had not done so and why a peremptory writ should not be issued.

A return to the writ was filed by the Real Parties in Interest. After consideration of the issues presented by the unusual factual circumstances of this case, we have concluded that the order of respondent court upon the guadianship petition is to remain in effect while the Real Parties in Interest's petition for adoption is heard and that the alternative writ be discharged allowing respondent court to proceed with its determination as to what would be in the best interest of the child involved.

Baby Girl M. was born to Barbara J. M. on June 14, 1970. Mrs. M. was separated from her husband at the time of the child's conception. Prior to the birth of the baby, Mrs. M. had arranged through her physician to place the child for adoption with Real Parties in Interest. On June 17, 1970, three days after the child was born, Mrs. M. signed an 'Infant Release Report' which authorized the hospital to release the baby to the Real Parties in Interest for purposes of adoption. The consent form states that 'This consent is for the release of my child from the hospital only and does not constitute a consent or relinquishment of my child for adoption.'

Thereafter, the Real Parties in Interest took the child into their home in San Diego where she has resided ever since. In addition to providing support and regular medical care to the child, the Real Parties in Interest have taken her to an orthopedist for the correction of a slight birth defect in her leg. Treatment was still in progress at the time of the hearing on the guardianship petition. The Real Parties in Interest also paid for Mrs. M's natal care.

As a preliminary step to adoption proceedings on October 7, 1970, the Superior Court awarded sole custody of the child to the natural mother stating that the relationship of parent and child does not exist between the child and her presumptive father, Ronald M. The legal expenses for this proceeding were also paid by the Real Parties in Interest.

On October 29, 1970, the Real Parties in Interest filed a petition for the adoption of Baby Girl M. Gloria D. Austin, an adoption worker, was assigned by Department to accept Mrs. M.'s consent to the adoption and prepare a report as required by Civil Code section 226.2. ¹ Mrs. Austin's first contact with the natural mother, Mrs. M., was by telephone. In her testimony relative to this conversation, Mrs. M. asserted the social worker asked her whether she was 'aware that these people with whom you have relinquished your child are 48 and 62 years old.' ² This information was not solicited by Mrs. M. Thereafter, the social worker visited Mrs. M. at her home and told her that she had the right to sign the consent, or to refuse and then to relinquish the child to the Department in which case, within a period of two months, the child would be placed with adoptive parents younger than the Real Parties in Interest.

On February 2, 1971, seven and a half months after the birth of the child, Mrs. M. signed a 'Refusal to Consent' to the adoption of her child by the Real Parties in Interest. On February 5, Mrs. Austin, the social worker, submitted her report to the court recommending that the petition for adoption be denied on the basis of this refusal. Jessie S. thereupon filed her petition for guardianship of Baby Girl M. On February 17, 1971, with knowledge of the pending guardianship matter, Department obtained Mrs. M.'s consent to relinquish the child for adoptive placement pursuant to Civil Code section 224m, ³ with the social worker signing the document as a witness.

A hearing on the petition for guardianship was held before respondent court on March 12, 1971. Department objected to the guardianship on the grounds that the baby had been relinquished to it for placement. The probation report before the court indicates that 'the child has received excellent care from (the RPI) during the first eight months of her life,' but recommends that the petition be denied on the basis of the Real Parties in Interest's ages and the natural mother's desire that the child be raised by a younger couple.

The natural mother testified at the hearing that she had had no objection to the adoption prior to her contact with Mrs. Austin, the social worker, but that she became uncertain about the Real Parties in Interest's ages after speaking with Mrs. Austin. She stated that she wanted the baby placed in a home with younger parents and that her only objection to the Real Parties in Interest was their ages. Mrs. M. also testified that since the time she had given the child to the Real Parties in Interest at the hospital she had never desired to take the child back and raise the baby herself.

The social worker testified that she had no rule of thumb that persons over the age of 38 are not proper persons to be considered as adoptive parents but that she felt that 'a parent should be able to live long enough to rear a child to adulthood' which she defined as being 18 to 21 years. She stated that whether a person with a life expectancy of 33.8 years is fit to become an adoptive parent would depend upon the circumstances. Mrs. Austin also testified that she approached the case from the beginning with a point of view that the adoption was an 'irregular placement' because it was arranged by Mrs. M.'s attending physician.

Mary Jane Redwine, chief of Department's adoption services section, testified that they had more requests to adopt preschool-age children than they could possibly fulfill and that although the agency no longer follows a rule of thumb that no person above the age of 38 is fit to adopt a young child, 'it would be extremely rare, all things taken together, that we would look favorably upon an older couple for a new-born infant.'

At the close of the hearing, the trial court announced its oral decision that the guardianship petition would be granted. In its formal findings of fact and conclusions of law, signed on June 28, 1971, the court found that Jessie S. and her husband 'are fit and proper persons to have care, custody and control of said minor'; 'That said minor was born with a birth defect, which the petitioner and her husband have caused to be treated by proper medical personnel'; that the social worker, 'Mrs. Austin contacted the natural mother and suggested to her that the petitioner and her husband were too old to adopt this child and induced said natural mother to refuse to consent to the adoption'; that the relinquishment signed by Mrs. M. was obtained by Department in an attempt to defeat the guardianship petition and 'is of no force and effect because it was obtained during the pendency of the within proceedings'; that 'The natural mother of said minor abandoned said minor on or about June 14, 1970' and that 'The natural mother of said minor at the time of the birth of the child did not wish to keep the child, at no time in the interim has desired to have the child returned to her, and does not now wish to have the child returned to her care, custody and control'; and that 'It is doubtful that the minor child herein, if relinquished to the San Diego County Department of Public Welfare, would be placed within a reasonable period of time by them in a home of the same character and quality as the home of the petitioner herein.'

The trial court concluded as a matter of law that Jessie S. was a fit and proper person to have the care, custody and control of the child, that it was abandoned by its mother, that no valid relinquishment had been given by the natural mother prior to the filing of the guardianship petition, and that the granting of the petition 'is in the best interest of the minor child.'

In the adoption proceeding, pending in a different department of the respondent court, Department filed a motion for summary judgment on April 19, 1971. The grounds asserted in support of the motion were that respondent court no longer had jurisdiction to consider Real Parties in Interest's adoption petition by virtue of the fact that the child had been relinquished to Department by her natural mother and that the natural mother had refused to consent to the adoption by Real Parties in Interest. After a hearing, the motion was denied.

Department thereafter filed a petition for an alternative writ of mandate/prohibition and a Petition for Habeas Corpus in the Court of Appeal for the ...