IN RE: BABY BOY B.

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Court of Appeal, Fourth District, Division 3, California.

IN RE: BABY BOY B., a Minor. BRADLEY B., et al., Petitioners and Respondents, v. DRUCILLA B., Objector and Appellant.

No. G008916.

Decided: May 18, 1990

Steven D. Schatz, under appointment by the Court of Appeal, for objector and appellant. Van Deusen, Youmans and Walmsley, Inc. and Robert R. Walmsley, for petitioners and respondents. Stephen S. Buckley, under appointment by the Court of Appeal, for minor.

OPINION

The lower court entered a judgment terminating objector and appellant Drucilla B.'s parental rights over Baby Boy B. (minor) and ordering minor free for adoption.  (Civ.Code, § 232 et seq.)   Thereafter, the court denied appellant's motion to set aside default.   Appellant and minor attack the judgment and post-judgment order on several grounds.

Respondents have moved to dismiss the appeal because it was not timely filed.   Appellant and minor oppose the motion and also request this court deem the appeal timely under the doctrine of constructive filing.   By order of this court, the motions were set to be argued at the hearing on the merits of the appeal.

FACTS

Appellant gave birth to minor December 2, 1988.   On December 5, appellant and respondents executed a document entitled “Health Facility Minor Release Report” which authorized the hospital to release physical custody of minor to respondents for the purpose of adoption planning.

The release contained appellant's home address.   Respondents listed their attorney's office address and business telephone number as their place of residence and telephone number.   The document also contains what appears to be respondent Kathleen B.'s driver's license and social security identification numbers.   The release specified appellant retained all parental rights to minor's custody and control and could reclaim the child at any time prior to signing a consent for adoption.

A petition for independent adoption was filed by respondents December 8.  (In the Matter of the Adoption Petition of Bradley B., et al.  (Super Ct. Orange County, 1988, No. AD–50790).)   On December 27, appellant contacted the California Department of Social Services (DSS) stating she had changed her mind about the adoption and wanted to reclaim minor.   DSS told appellant she would have to sign a department form refusing to give consent to the adoption.   Appellant appeared at the DSS's Los Angeles District Office January 4, 1989, and executed the document.

In June 1989, respondents filed the petition to declare minor free from parental custody and control.   The petition in part alleged appellant had not communicated with nor provided support for minor since December 5, 1988, the date she gave custody to respondents.

A hearing on the petition was set for August 15.   Prior to this hearing, a probation officer prepared and submitted an extensive report on the matter.   The report summarized statements received from the parties and others, and listed several issues the probation officer felt needed to be resolved by the court.

The primary question considered was whether appellant intentionally abandoned minor, or whether respondents and others had prevented her from communicating with or supporting him.   Respondents' attorney admitted a DSS social worker told him appellant wanted the minor returned to her and that he had spoken with appellant by telephone several times.   He claimed that, initially appellant was unsure about the adoption, but later said she wanted to go through with it.   Counsel stated he directed appellant to contact DSS.

Respondents' attorney also admitted receiving a letter from appellant in July 1989 demanding he return the minor, referring to “bribes,” and requesting a meeting.   He claimed to have sent appellant a letter in response denying any knowledge regarding the alleged “bribes,” and citing her prior indecision.

The DSS social worker involved with this case told the probation officer that when appellant contacted the DSS she consistently expressed a desire to reclaim minor.   Both the probation officer's report and a preliminary report prepared by DSS noted appellant complained she did not have respondents' home address or phone number.

Respondents told the probation officer they had no direct contact with appellant after December 5, 1988, but admitted she had contacted their attorney “on an ‘almost monthly basis.’ ”   They were also aware appellant refused to consent to the adoption, and in January 1989 requested a photograph of minor.   A mutual friend contacted them the same month requesting appellant be allowed to visit the child.   Respondents said they referred the friend to their attorney.

Appellant denied willfully abandoning minor, asserting respondents and their attorney had prevented her from having contact with the child.   She claimed to have told the attorney in a January 1989 telephone conversation that she wanted to reclaim minor.   Counsel neither agreed to return minor nor refused to do so, but asked appellant whether she could afford the child.   Over the next few months, appellant said she contacted respondents' attorney several times and requested respondents' home address and telephone number and made it very clear she wanted the child returned to her.   Appellant admitted that on one occasion she agreed to consent to the adoption, but quickly changed her mind.   She told the probation officer the parties' mutual friend refused to disclose respondents' home address or telephone number, and without knowing in what city they lived, appellant was unable to use directory assistance.

Appellant sent two letters to DSS in March 1989 stating minor had not been returned to her, and respondents' attorney kept putting her off about it.   On March 17, the social worker sent appellant a letter explaining that, since she placed minor with respondents, it was her obligation to take steps to recover the child.   The letter listed several courses of action appellant could take, including contacting both respondents and their attorney and making arrangements for transfer of the child, obtaining legal representation, and contacting the court and informing it of her request.   A DSS report filed with the court prior to the hearing stated that during a June 26 telephone conversation, appellant admitted to the social worker she had not followed through on the steps outlined in the March 17 letter.   Appellant told the probation officer it was her understanding that if respondents' attorney returned the child further legal action would be unnecessary.

A second issue considered by the report was, assuming the petition was not sustained, should the minor be immediately returned to appellant.   The report noted appellant had four older children.   The first child was born out of wedlock.   Appellant's husband, Arthur B., was the father of the other three children.

Appellant admitted having been seriously injured in a 1984 automobile accident.   The accident placed appellant in a coma for some time and left her with a speech impediment.   Appellant claimed she separated from Arthur in the fall of 1987 after the oldest child reported she had been sexually molested by him.   As a result of the charge, the four older children were placed in foster homes.   However, Arthur was never prosecuted, apparently because the police felt the evidence was insufficient.

When appellant gave birth to minor, she declined to identify the child's father.   Subsequently, appellant admitted it was Arthur.   Appellant said she initially refused to provide this information because she feared it would adversely affect her effort to recover custody of the older children.   She claimed to be unaware of Arthur's present whereabouts.

At the time of the hearing on respondents' petition, appellant was not present.   The trial judge noted appellant had been properly served with notice of the hearing, and that he had read and considered both the probation officer's and DSS reports.   Respondent Kathleen B. testified she and her husband had custody of minor for more than six months during which time appellant did not communicate with or provide support for the child.   Minor had grown fond of and attached to them.

The court rendered judgment for respondents finding appellant had abandoned minor, and it would not be in his best interest to be returned to her.   The court stated that, if appellant wanted to pursue reclaiming the minor, “she would have to do something other than just ask” for him to be returned.   Pending completion of the adoption proceedings, the court appointed respondents to be minor's guardians.

Approximately two hours after the court rendered judgment, appellant appeared.   The trial judge determined that appellant was indigent and appointed counsel to represent her.   The court informed appellant of its prior ruling, but cautioned the decision was not yet final and suggested she could challenge it by either filing a motion for a new trial or taking an appeal.

Judgment on respondents' petition was entered August 25.   Counsel for respondents served notice of the judgment's entry on DSS and his clients August 28.  (Code Civ.Proc., § 664.5, subd. (a).)

The attorney appointed to represent appellant filed a motion to set aside default under Code of Civil Procedure section 473 on September 13.   Appellant submitted a supporting declaration stating she had to rely on public transportation to reach the courthouse and miscalculated the amount of time it would take to do so.   A hearing on it was held October 3.   The court ruled a motion under section 473 was appropriate in this case, but denied it because appellant had been given adequate notice of the original hearing and failed to establish grounds for relief.

On November 13, appellant's appointed counsel filed a notice of appeal “from the judgment ․ entered October 3, 1989.”

DISCUSSION

1. Timeliness of the appeal.

Initially, we consider the parties' motions relating to the timeliness of the appeal.   Citing rules 2(a) and 3(b) of the California Rules of Court, respondents move to dismiss the appeal arguing appellant did not file her notice of appeal within 60 days after judgment was entered (August 29), or within 30 days after the lower court denied her post-judgment motion to set aside the default (October 3).   Appellant and minor request this court deem the appeal timely by applying the doctrine of constructive filing.   They contend grounds exist excusing appellant's failure to timely file the notice of appeal.

a. The appeal is timely.

 The first question presented is whether the appeal was timely filed.   To answer it, we must decide what rule governs the time for filing appellant's notice of appeal.

Rule 39(a) of the California Rules of Court states in part:  “The rules governing appeals from the superior court in criminal cases are applicable to all appeals from the juvenile court and any appeal in an action under Civil Code section 232, except ․ where the application of a particular rule would be clearly impracticable or inappropriate.”   Under rule 31(a), an appeal in a criminal case must be filed “within 60 days after the rendition of the judgment.”   In contrast, when appellant filed her appeal, rule 2(a) required the notice of appeal in a civil action to be filed “within 60 days after the date of mailing notice of entry of judgment by the clerk of the court ․, or within 60 days after the date of service of written notice of entry of judgment by any party upon the party filing the notice of appeal, or within 180 days after the date of entry of the judgment, whichever is earliest, ․” 1

In In re A.M. (1989) 216 Cal.App.3d 319, 264 Cal.Rptr. 666, the court dismissed an untimely appeal from a judgment in an action under Civil Code section 232.   In so ruling, the court determined the appeal was untimely by applying rule 2(a) which governs civil appeals.  “Pursuant to rule 2(a) of the California Rules of Court ․, as pertinent here, a notice of appeal must be filed within 60 days after the date of service of written notice of entry of judgment.”  (Id. 216 Cal.App.3d at p. 321, 264 Cal.Rptr. 666.)   Although not expressly discussed, it appears the court concluded rule 31(a)' s stricter time requirements would be either “impracticable or inappropriate.”  (Cal.Rules of Court, rule 39(a).)

We agree with this conclusion.   Ordinarily, the pronouncement of judgment in a criminal matter must be done in the defendant's presence.  (In re Levi (1952) 39 Cal.2d 41, 45, 244 P.2d 403;  6 Witkin & Epstein, California Criminal Law (2d ed. 1989) Judgment and Attack in Trial Court, § 3098, p. 3820.)   However, no such requirement exists in 232 proceedings.   Often, as in this case, the trial judge renders judgment and directs one of the parties to prepare a formal judgment for his or her signature.   After the judgment has been approved and signed, it is entered by the clerk without the parties being present.   Notice of the judgment's entry is given either by a party to the action or by the clerk.  (Code Civ.Proc., § 664.5.)   Therefore, we conclude In re A.M., supra, 216 Cal.App.3d 319, 264 Cal.Rptr. 666, properly applied rule 2(a) to determine the timeliness of the appeal.

 Respondents contend that under rule 2(a) appellant's notice of appeal was not timely filed.   We disagree.   The clerk did not mail notice of entry of judgment to the parties.   Respondents' attorney did serve a notice of entry of judgment, but only on his own clients and DSS.   He failed to serve it on appellant.  Rule 2(a) requires the party serving the notice of entry of judgment to serve it “upon the party filing the notice of appeal” to invoke the 60–day time requirement.   Since respondents did not serve the notice on appellant, she had 180 days from August 25, the date judgment was entered, to file her notice of appeal.   She filed the appeal November 13, eighty days after the judgment's entry.   Thus, under rule 2(a) the appeal is timely.

b. The constructive filing doctrine applies.

 Even assuming rule 31(a) applies, we conclude this appeal presents an appropriate case for employing the doctrine of constructive filing.   Generally, the timely filing of a notice of appeal is mandatory and jurisdictional in both civil and criminal cases.  (Estate of Hanley (1943) 23 Cal.2d 120, 122–123, 142 P.2d 423;  People v. Lewis (1933) 219 Cal. 410, 413, 27 P.2d 73.)   However, in criminal appeals a defendant may be entitled to relief from a failure to timely file the notice under certain limited circumstances.  (In re Benoit (1973) 10 Cal.3d 72, 81–84, 85–88, 109 Cal.Rptr. 785, 514 P.2d 97;  People v. Acosta (1969) 71 Cal.2d 683, 687, 78 Cal.Rptr. 864, 456 P.2d 136;  People v. Slobodion (1947) 30 Cal.2d 362, 366–368, 181 P.2d 868.)  “The doctrine of ‘constructive filing’ permits, under very limited and unusual circumstances, an appeal to be prosecuted even though it was not filed within the normally jurisdictional 60–day time limit.   This ameliorative doctrine springs from the recognition that delayed filings should be permitted where ‘slavish adherence to such deadlines ․ [would] violate[ ] more basic justice’ [citation], and where the cause of the delayed filing was not principally attributable to the fault of the appellants.  [Citation.]”  (People v. Snyder (1990) 218 Cal.App.3d 480, 491–492, 266 Cal.Rptr. 915.)

In People v. Martin (1963) 60 Cal.2d 615, 35 Cal.Rptr. 769, 387 P.2d 585, the Supreme Court applied the doctrine where the trial judge misled the defendant into delaying his appeal by permitting him to make a motion for new trial after judgment had been entered.  (Id. at pp. 618–619, 35 Cal.Rptr. 769, 387 P.2d 585.)   The rule has also been applied where a criminal defendant reasonably relied on his or her attorney to file the notice, but counsel failed to timely do so.  (People v. Tucker (1964) 61 Cal.2d 828, 831–832, 40 Cal.Rptr. 609, 395 P.2d 449;  People v. Casillas (1964) 61 Cal.2d 344, 346, 38 Cal.Rptr. 721, 392 P.2d 521;  In re Hernandez (1974) 40 Cal.App.3d 893, 895, 115 Cal.Rptr. 495;  People v. Serrano (1973) 33 Cal.App.3d 331, 336, 109 Cal.Rptr. 30.)

Here, both of the foregoing circumstances existed.   The lower court's comments to appellant and its consideration of her court-appointed attorney's 473 motion on its merits misled appellant and her counsel and resulted in a delay in taking an appeal from the judgment.

 While the facts of this case present a classic example of excusable neglect, and denial of the motion would constitute an abuse of discretion if section 473 applied, we cannot rely on it.  Civil Code section 238 provides:  “Any order and judgment of the court declaring a minor person free from the custody and control of any parent or parents under the provisions of this chapter shall be conclusive and binding upon such minor person, upon such parent or parents and upon all other persons who have been served with citation by publication or otherwise as provided in this chapter.   After making such order and judgment, the court shall have no power to set aside, change, or modify it, but nothing in this section shall be construed to limit the right to appeal from such order and judgment.”   Thus, section 238 precluded the lower court from even considering whether to grant relief under section 473.  (In re Manuel J. (1984) 150 Cal.App.3d 513, 521, 197 Cal.Rptr. 777.   See also In re Angela R. (1989) 212 Cal.App.3d 257, 273, fn. 9, 260 Cal.Rptr. 612.   Cf. In re Olivia A. (1986) 181 Cal.App.3d 237, 242–243, 226 Cal.Rptr. 382, [order setting aside a 232 judgment upheld where it was obtained through fraud and without proper service on an indispensable party.] )   Had the trial judge not made misleading comments to appellant and counsel and dealt with the 473 motion in a proper manner, appellant still could have timely appealed from the judgment.  (People v. Martin, supra, 60 Cal.2d at p. 619, 35 Cal.Rptr. 769, 387 P.2d 585.)

 Appellant's court-appointed attorney also failed to provide her with the effective assistance of counsel in the lower court.  “Ineffective assistance of counsel presents a cognizable claim of error on appeal from proceedings to terminate parental rights, since an indigent's due process right to counsel in such proceedings would otherwise be a hollow right.”   (Adoption of Michael D. (1989) 209 Cal.App.3d 122, 135, 256 Cal.Rptr. 884.   See also In re Christina P. (1985) 175 Cal.App.3d 115, 128–129, 220 Cal.Rptr. 525;  In re R.S. (1985) 167 Cal.App.3d 946, 968–969, 213 Cal.Rptr. 690.)

The standard for determining whether an attorney has rendered effective assistance of counsel in a 232 proceeding is the same as in criminal matters.   “The traditional test for ineffective assistance is two-part:  1) whether trial counsel failed to act in a manner expected of reasonably competent attorneys acting as diligent advocates;  and 2) whether such failure deprived the defendant of a potentially meritorious defense, or whether it is reasonably probable that a determination more favorable to the defendant would have resulted but for counsel's failings [citation.]”  (Adoption of Michael D., supra, 209 Cal.App.3d at p. 136, 256 Cal.Rptr. 884.)

Appellant's attorney filed an ineffectual motion under circumstances where it was apparent the lower court could not legally grant the relief sought.   Furthermore, counsel was apparently unaware of when judgment had been rendered or the time requirements for taking an appeal from it.   The notice of appeal erroneously refers to the October 3 order denying the 473 motion as a judgment.   He also missed the deadline for filing an appeal from the August 15 judgment by almost one month.

A further reason for applying the constructive filing doctrine under these circumstances is the interests of minor who is the focal point of the entire case.   As we discuss more fully in Part 3, infra, the lower court erred by failing to appoint counsel to represent minor at trial.   He remained unrepresented until December 4, 1989, when, after the appeal was filed, this Court appointed counsel for him.   If the appeal is dismissed, minor's right to have his interests considered will be forever lost.

We recognize In re A.M., supra, 216 Cal.App.3d 319, 264 Cal.Rptr. 666, reached a contrary conclusion.   There it was held that while rule 39(a) made the criminal appellate rules applicable to 232 proceedings, use of the constructive filing doctrine “in such cases ‘would be clearly impracticable or inappropriate.’  ․”  (Id. at p. 322, 264 Cal.Rptr. 666.)   But we find A.M. distinguishable for several reasons.

First, on its facts, the case involved only a one-day delay in filing the appeal.   The parent's attorney was aware of the filing deadline, but had difficulty contacting her to sign the notice of appeal.   Here, appellant's counsel reflected a complete lack of understanding of both 232 proceedings in general and the procedural background of this case.   He was unaware of when judgment was entered, the limited remedies available for challenging a judgment in a 232 proceeding, and the time requirements for taking an appeal in an action of this nature.

Second, in A.M. the trial court did not mislead the parties regarding their post-judgment remedies.   Here, the trial judge told appellant she could seek relief by a motion for new trial.   Thereafter, he considered her attorney's 473 motion on its merits, never mentioning the fact section 238 barred the relief sought.

 We agree with A.M.'s statement that, in adoption proceedings, there is a “special need for finality.”  (In re A.M., supra, 216 Cal.App.3d at p. 322, 264 Cal.Rptr. 666.)   Generally, an appellate court should not grant relief from a failure to timely file the notice of appeal in a 232 proceeding.   But in cases such as this one where there has been an egregious failure to protect an indigent parent's appellate rights by both the court and her appointed counsel, we conclude the constructive filing doctrine should apply.

Respondents rely on Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 125 Cal.Rptr. 757, 542 P.2d 1349, pointing out it expressly disapproved In re Morrow (1970) 9 Cal.App.3d 39, 88 Cal.Rptr. 142, which permitted an untimely appeal in a 232 proceeding to be heard on its merits.   (Hollister Convalescent Hosp., Inc. v. Rico, supra, 15 Cal.3d at pp. 672–674, 125 Cal.Rptr. 757, 542 P.2d 1349.)   We find this argument to be without merit.   First, as discussed above, the Judicial Council subsequently amended rule 39(a) to place 232 proceedings under the scope of the rules governing criminal appeals, thereby undermining Hollister's application in this type of action.

 Second, since Hollister, courts have recognized the fundamental nature of the parent-child relationship, and have applied principles of law previously employed only in criminal cases to proceedings commenced under Civil Code section 232.   While before Hollister, California afforded indigent parents the right to counsel by statute (Civ.Code, § 237.5), subsequently the United States Supreme Court held that, under certain circumstances, a federal constitutional due process right to appointment of counsel exists in such proceedings.  (Lassiter v. Department of Social Services (1981) 452 U.S. 18, 31–32, 101 S.Ct. 2153, 2161–2162, 68 L.Ed.2d 640.)   The right to the effective assistance of counsel applies in 232 proceedings, and the standards employed to determine whether a parent has been adequately represented are the same as in criminal matters.   (Adoption of Michael D., supra, 209 Cal.App.3d 122, 135–136, 256 Cal.Rptr. 884.)   A petition to terminate the parent-child relationship under section 232 must be established by the heightened standard of clear and convincing evidence.  (In re Angelia P. (1981) 28 Cal.3d 908, 915–922, 171 Cal.Rptr. 637, 623 P.2d 198.)   On appeal, a parent is also entitled to have the appellate court conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071.   (In re Joyleaf W. (1984) 150 Cal.App.3d 865, 869, 198 Cal.Rptr. 114.)

Furthermore, unlike Morrow, we do not hold respondents are estopped to challenge the timeliness of the appeal.   Rather, applying well settled rules established by the Supreme Court, we conclude that even if rule 31(a) applies, the appeal should be deemed timely under the constructive filing doctrine.

Therefore, respondents' motion to dismiss the appeal is denied, and appellant and minor's requests to deem the appeal timely are granted.2

2. Sufficiency of the evidence.

Appellant challenges the sufficiency of the evidence to support the lower court's judgment, arguing she continuously, though unsuccessfully, attempted to reclaim minor.   Therefore, the evidence does not support a finding she intended to abandon him.

 To declare a minor free from parental custody and control, a trial court must find one of the grounds specified in section 232 exists by clear and convincing evidence.  (Civ.Code, § 232, subd. (c);  In re Angelia P. (1981) 28 Cal.3d 908, 919, 171 Cal.Rptr. 637, 623 P.2d 198.)   However, the standard applied by an appellate court when considering an attack on the sufficiency of the evidence to support the trial court's judgment is the substantial evidence rule.  (In re Matthew S. (1988) 201 Cal.App.3d 315, 321, 247 Cal.Rptr. 100;  In re Nalani C. (1988) 199 Cal.App.3d 1017, 1022–1023, 245 Cal.Rptr. 264;  In re Brittany H. (1988) 198 Cal.App.3d 533, 549, 243 Cal.Rptr. 763.)

 We must review the whole record in the light most favorable to the lower court's judgment to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the grounds for terminating a parent's rights based on clear and convincing evidence.  (In re Angelia P., supra, 28 Cal.3d at p. 924, 171 Cal.Rptr. 637, 623 P.2d 198;  In re Matthew S., supra, 201 Cal.App.3d at p. 321, 247 Cal.Rptr. 100.)   Under this standard, “we do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.  [Citations.]”  (In re Matthew S., supra, 201 Cal.App.3d at p. 321, 247 Cal.Rptr. 100.)

 The lower court found appellant abandoned minor.  (Civ.Code, § 232, subd. (a)(1).)   Abandonment requires proof of an actual desertion of the child with an intention to sever the parental relation and all of its concomitant obligations.  (Matter of Cozza (1912) 163 Cal. 514, 528, 126 P. 161;  Guardianship of Snowball (1909) 156 Cal. 240, 243, 104 P. 444;  In re Brittany H., supra, 198 Cal.App.3d at p. 549, 243 Cal.Rptr. 763.)   Proof of both abandonment and the intent to abandon are questions of fact to be decided by the trial court.  (In re Brittany H., supra, 198 Cal.App.3d at pp. 549–550, 243 Cal.Rptr. 763;  In re Gano (1958) 160 Cal.App.2d 700, 705, 325 P.2d 485.)

A case factually analogous to this appeal is Guardianship of Rutherford (1961) 188 Cal.App.2d 202, 10 Cal.Rptr. 270.   In Rutherford, a woman gave birth to a child out of wedlock.   Prior to the minor's birth, the mother met with the Schafers and their attorney, and discussed the possibility of an independent adoption.   Counsel advised the mother that any adoption would not become final until she consented to it in writing.   When the child was born, the mother vacillated over whether to keep the child.   Nonetheless, she released the child to the Schafers.   Over the next six months, the mother continued to vacillate between keeping the child and consenting to an adoption.   Finally, she refused to consent to the adoption.   The Schafers instituted a guardianship proceeding alleging the mother had abandoned the child.   The trial court entered judgment for them.

The appellate court reversed concluding the evidence did not support a finding of abandonment:  “It should be noted that either, an offer to permit the adoption of a child [citations];  making arrangements for placement [citation];  mere acquiescence in support by others [citations];  or failure to pay for maintenance when no demand therefor has been made [citations], or no ability to provide is shown [citations], by itself, does not prove an intent to abandon.   Moreover, acts of a temporary nature are not sufficient upon which to base a finding of a permanent abandonment.  [Citations.]  [¶] We do not mean to imply that a mother may not abandon her child during the course of a proposed adoption;  that her conduct may not be such as would constitute an abandonment merely because such a proceeding is pending․   However, when the acts and declarations of the mother which are relied upon to establish an abandonment, in truth, are made in contemplation of a proposed adoption to which the mother, in the exercise of her legal right, eventually refuses to consent, no desertion or intention to abandon is proven.   To hold otherwise would frustrate the underlying policy of the adoption statute which decrees that the relationship between the natural mother and her child should not be terminated through an adoption proceeding unless and until the mother has indicated her consent thereto in writing.  [Citation.]”  (Id. at p. 208, 10 Cal.Rptr. 270.)

 Here, the evidence before the lower court was even less persuasive.   Appellant admittedly released minor to respondents solely for the purpose of adoption planning.   She decided to refuse to consent to the adoption within one month after giving birth.   When in contact with DSS, appellant consistently asserted she wanted to reclaim her child.

Respondents concede appellant was in monthly contact with their attorney.   Counsel claimed that appellant was unsure about whether to proceed with the adoption.   If so, then her comments were in contemplation of a proposed adoption.   Under Rutherford, this evidence is insufficient to establish abandonment.

It is also uncontradicted that appellant never had respondents' address or their phone number.   Thus, she could not directly contact them or the child.   Furthermore, any direct attempt to contact respondents would have been futile.   When a mutual friend attempted to set up a visit between appellant and minor, respondents deferred the request to their attorney.

Throughout this period, respondents and their counsel were admittedly aware that appellant had signed a refusal to consent to the adoption and wished to reclaim her child.   Their inaction in light of that knowledge was inexcusable.   Respondents' counsel had an obligation to advise his clients to return the child.

Our conclusion is supported by the recent decision in Rogers v. Platt (1988) 199 Cal.App.3d 1204, 245 Cal.Rptr. 532, where, as here, the birth mother temporarily released her newborn son to a couple for adoption planning, then changed her mind and sought to reclaim the child.   There the defendants took the child from California to their District of Columbia home two days after his birth.   The issue was whether, under the federal Parental Kidnapping Prevention Act of 1980 (28 U.S.C. § 1738A), California had jurisdiction over a child custody dispute between the parties.

The Court of Appeal affirmed an order denying defendants' motion to quash service, rejecting the contention they constituted persons “acting as a parent” under the act.  (28 U.S.C. § 1738A(b)(6).)   It held one could not acquire that status unless he or she had a colorable claim to a right to custody.  (Rogers v. Platt, supra, 199 Cal.App.3d at pp. 1212–1213, 245 Cal.Rptr. 532.)

After summarizing the means by which a colorable claim could arise, the court stated:  “In the circumstances of this case it is clear that prior to the commencement of litigation the defendants at no time had a colorable right to custody.   Pursuant to our law to which defendants submitted to obtain temporary custody of the child, and pursuant to their agreement with plaintiff, the defendants obtained only the right to temporary physical custody.   Plaintiff expressly did not relinquish her parental rights and she retained the right to custody and control of the child.   Defendants' temporary physical custody was permissive, but their retention of the child became unlawful when they refused to return the child upon plaintiff's request․”  (Rogers v. Platt, supra, 199 Cal.App.3d at p. 1213, 245 Cal.Rptr. 532.)

Here, respondents obtained only temporary physical custody of minor when appellant executed the release form.   They knew she subsequently signed a refusal to consent to the adoption.   A January 13 report by a DSS caseworker indicates respondents were aware appellant wanted to reclaim minor.   In addition, their attorney admitted receiving a letter from appellant in July 1989 demanding minor be returned to her.

 The record reflects the lower court believed appellant had requested return of the child, but that was insufficient to overcome a finding of abandonment.   We disagree.  Civil Code section 226b states, in part:  “In any adoption proceeding in which the parent has refused to give the required consent ․ the court shall order at the hearing the child restored to the care and custody of the natural parent.” 3

Appellant refused to consent to the adoption.   Furthermore, the very document that gave respondents possession of minor clearly specified appellant retained the right to both custody and control of the child until such time as she agreed to the adoption in writing.   The latter event never occurred.

Respondents rely on In re Brittany H., supra, 198 Cal.App.3d 533, 243 Cal.Rptr. 763, arguing it is “almost exactly on point, factually, with the case at bar.”   This assertion is incorrect.   In Brittany H. the evidence established the birth mother sought to recover the child solely for the purpose of placing her in another adoptive home.  (Id. at pp. 550–551, 243 Cal.Rptr. 763.)   Here, appellant sought to reclaim minor so that she could raise him.

 We are similarly outraged by DSS's conduct in this matter.   While it is true appellant placed minor with respondents, she informed DSS of her desire to reclaim the child and that respondents' attorney had impeded her efforts to do so.   In light of this knowledge, DSS had an obligation to inquire of respondents and their attorney what was the cause of the failure to return minor.   The record leads us to conclude the inaction of DSS and respondents' attorney was caused by a belief minor would be better off with respondents than with appellant.   That decision was not theirs to make.

Our decision will undoubtedly cause heartache and sorrow for respondents, with whom we sympathize.4  Furthermore, we recognize it will be especially difficult for the child.   The blame for this unfortunate situation lies squarely with DSS and respondents' attorney.   Our message to DSS and any attorney who considers it good practice to stonewall the rightful return of a child is loud and clear.   This court will not permit governmental agencies and others who participate in adoption proceedings to “play God.”   Each time an attorney or anyone else ignores the laws regulating adoptions and tries to manipulate the system to prevent the proper return of a child to his or her parent we will intervene.

3. Failure to appoint counsel for minor.

Next, both appellant and minor contend the lower court committed reversible error by failing to appoint counsel to represent minor at the 232 hearing.   They argue the record fails to affirmatively establish minor's interests were otherwise protected in the lower court, and failure to appoint counsel was prejudicial.   We agree.

 Civil Code section 237.5, subdivision (a), provides that at the beginning of the hearing on a 232 petition, “[t]he court shall consider whether the interests of the minor require the appointment of counsel.   If the court finds that the interests of the minor do require such protection, the court shall appoint counsel to represent the minor․”   In In re Richard E. (1978) 21 Cal.3d 349, 146 Cal.Rptr. 604, 579 P.2d 495, the Supreme Court held:  “[I]n absence of a showing on the issue of the need for independent counsel for a minor, failure to appoint constitutes error.   However, this is not to say a court must always exercise its discretion in favor of appointing counsel.   The court possesses broad discretion in determining need for counsel, and exercise of discretion will not be disturbed on appeal except for manifest abuse․   The rule we adopt of course requires counsel be appointed at the commencement of proceedings absent an immediate showing upon which the court can exercise its discretion against making an appointment.”  (Id. at pp. 354–355, 146 Cal.Rptr. 604, 579 P.2d 495.   See also Adoption of Michael D., supra, 209 Cal.App.3d 122, 134–135, 256 Cal.Rptr. 884;  In re Melicia L. (1988) 207 Cal.App.3d 51, 54, 254 Cal.Rptr. 541.)

The probation and DSS reports, which the lower court stated it had read and considered, reflected a serious question existed regarding what occurred after appellant released minor to respondents.   Appellant had consistently demanded return of the child when contacted by DSS.   Respondents and their attorney admitted being aware of appellant's change of mind respecting the adoption and her desire to reclaim minor.   Their attorney was in monthly contact with appellant.   The probation officer's report noted these conflicts in the statements given to her and concluded a judicial resolution of the matter was necessary.

The probation report also noted that, in the event the court denied the petition, an issue existed respecting who should receive custody of minor.   The probation officer recognized that even if the court found appellant had not abandoned minor, it may be inappropriate to immediately return the child to her.   With all the questions raised, the lower court should have immediately recognized that the interests of the minor demanded appointment of counsel.   Under these circumstances, we conclude the lower court abused its discretion by failing to appoint counsel to represent minor.

 Furthermore, this error was prejudicial.   The evidence contained in the reports before the lower court did not clearly establish appellant had abandoned her child.   There was strong evidence respondents were unlawfully withholding the child from her.  “Parenting is a fundamental right, and accordingly, is disturbed only in extreme cases of persons acting in a fashion incompatible with parenthood.”  (In re Carmaleta B. (1978) 21 Cal.3d 482, 489, 146 Cal.Rptr. 623, 579 P.2d 514.)   Therefore, we conclude the failure to appoint counsel for minor constituted a miscarriage of justice.  (In re Richard E., supra, 21 Cal.3d at p. 355, 146 Cal.Rptr. 604, 579 P.2d 495.)

DISPOSITION

The judgment is reversed and the matter remanded to the lower court with directions to enter a judgment denying respondents' petition and, pursuant to Civil Code section 226b, order minor returned to appellant's custody forthwith.

FOOTNOTES

1.   Effective January 1, 1990, the Judicial Council amended rule 2(a) to eliminate potential confusion about what constitutes a notice of entry of judgment.   The amendment did not change the time requirements for filing an appeal.

2.   Respondents also cite Adoption of Alexander S. (1988) 44 Cal.3d 857, 245 Cal.Rptr. 1, 750 P.2d 778.   There the Supreme Court held “[i]t is well settled that ‘habeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment․’ ”  (Id. at p. 865, 245 Cal.Rptr. 1, 750 P.2d 778.)   Nonetheless, we note the Court also stated “there is authority allowing a natural parent lacking physical custody to bring an original action in habeas corpus where his or her consent to an adoption was required but not obtained․”  (Id. at p. 867, 245 Cal.Rptr. 1, 750 P.2d 778.)

3.   In this regard, we cite with approval the following statement from this court's recent decision in In re Baby Boy M. (1990) 221 Cal.App.3d 475, 272 Cal.Rptr. 27:  “Once [the birth parents] signed the [Refusal to Give Consent to Adoption] form, no court hearing was necessary to secure their child.   A hearing on the [adopting parents'] petitions was a separate matter, but the baby should have been returned to the birth mother pending the court's resolution of those matters.”  (Id. at p. 483, 272 Cal.Rptr. at pp. 31–32.)

4.   If respondents have good reason to question minor's living conditions and the possibility of abuse by the father if the minor is returned to appellant's custody, they have a remedy.   They should report the facts and their concerns to DSS and request an investigation.

MOORE, Associate Justice.

SONENSHINE, Acting P.J., and WALLIN, J., concur.