Walter v. August, 18998
| Court | California Court of Appeals |
| Writing for the Court | DUNIWAY; BRAY, P. J., and TOBRINER |
| Citation | 83 A.L.R.2d 941,8 Cal.Rptr. 778,186 Cal.App.2d 395 |
| Parties | , 83 A.L.R.2d 941 George R. WALTER, Jr., and Patricia Walter, his wife, Plaintiffs and Respondents, v. Frank AUGUST and Ruth August, his wife, Defendants and Appellants. |
| Docket Number | No. 18998,18998 |
| Decision Date | 16 November 1960 |
Page 778
v.
Frank AUGUST and Ruth August, his wife, Defendants and Appellants.
Page 779
[186 Cal.App.2d 396] Charles L. Hemmings, Martinez, for appellants.
Harry M. Gross, Oakland, for respondents.
DUNIWAY, Justice.
Appeal from a judgment setting aside a decree of adoption. We conclude that the judgment must be reversed.
On June 10, 1953, Mr. and Mrs. August, the defendants who are appealing in this matter, filed in the superior court, Contra Costa County, a petition to have the child, who was then living with them, declared free of the custody and control of his parents, Mr. and Mrs. Walter, the successful plaintiffs below. Welf. & Inst.Code, § 701, subd. (a). The petition alleged the names of the parents, and that the petitioners [186 Cal.App.2d 397] had no information as to their whereabouts, but did not contain the statements required by Welfare and Institutions Code, section 722, as to the name and residence of a relative residing within the state, nor were such allegations supplied by any affidavit. No notice or citation was served upon or mailed to anyone (cf. Welf. & Inst.Code, §§ 777, 779), but a copy of the citation was published pursuant to section 778 of that code. The petition was granted on August 17, 1953.
Also on June 10, 1953, the appellants petitioned to adopt the child. The decree of adoption was granted on November 10, 1953. Over five years later, on December 10, 1958, the respondent natural parents filed the present action, in which they sought to set aside the decree of adoption on grounds of fraud. In an amended answer, the appellants pleaded that the action was barred by the provisions of Civil Code, section 227d.
The court found that the adoption decree was void because the child was not abandoned, the plaintiffs had not failed to provide for him, and they had not consented to the adoption; that proper notice of the petition to declare the child free of their custody was not given, and the decree in that matter was likewise void, because defendants knew that the child had a maternal grandmother living in Contra Costa County, and knew her address, but did not give her the required notice or have the citation served upon her, and that the mother of plaintiff husband resided with defendants during the adoption proceedings. There is evidence sufficient to sustain these findings.
The court refused to find that the allegations in the petition to have the child declared free of the custody of his parents, to the effect that the whereabouts of the latter was unknown to the petitioners (appellants here), were false, and the citation addressed to the parents was duly published. The defect, if any, in the giving of notice in that proceeding, lies in the failure to state the name and address of a relative, and the failure to make service upon such a relative. It would seem at least doubtful that this defect would render the decree entered upon that petition subject to attack by the parents on that ground. However, we do not decide that question because we have concluded that the parents cannot now attack the decree of adoptions, even if the other decree, as to custody, is subject to attack by them.
Under Civil Code, section 224, the adoption decree would be voidable at the instance of the respondent parents if they [186 Cal.App.2d 398] were not lawfully deprived of the child's custody, since it is admitted that they had no notice of, and never consented to, the adoption. In re De Leon, 70 Cal.App. 1, 232 P.738; Estate of Smith, 86 Cal.App.2d 456, 195 P.2d 842; 2 Armstrong, California Family Law, 1953 Ed., 1219. We use the word 'voidable,' rather than 'void,' intentionally. An adoption proceeding is one quasi in rem, and creates a status. Estate of Smith, supra, 86 Cal.App.2d 456, 468, 195 P.2d 842; Adoption of Barnett, Cal., 6 Cal.Rptr. 562. The adoption court, in the case before us, clearly...
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...merely voidable. See, e.g., In re Estate of Neuwirth, 155 N.J.Super. 410, 420, 382 A.2d 972 (Cty.Ct.1978); see also Walter v. August, 186 Cal.App.2d 395, 398, 8 Cal.Rptr. 778, 779 (1960) (applying the same rule under California law); cf. In re Adoption of Child by I.T. and K.T., 164 N.J.Sup......
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...attaches with the initial manifestation of consent and remains in spite of attempted repudiation of consent, Walter v. August, 186 Cal.App.2d 395, 8 Cal.Rptr. 778 (1960). This latter line of cases likens adoption to an in rem proceeding, analogous to divorce. The natural parent's initial co......
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