Adoption of HALEY A., a Minor. MARK A. et al., Plaintiffs and Respondents, v. ELIZABETH L., Defendant and Appellant.
Elizabeth L. appeals from a judgment terminating her parental rights to Haley A. on grounds of abandonment. She contends that the trial court erred in finding she abandoned the child; that she did not receive effective assistance of counsel from the attorney who represented both appellant and the adoptive parents; that the adoptive parents are estopped from raising a claim of abandonment because of the attorney's failure to advise appellant of her rights; and that the adoptive parents may not claim it to be in the child's best interests to remain with them due to the passage of time.
We shall find that appellant, who never irrevocably consented to the adoption of her child by others, complied with all of the legal requirements to recover custody and that the finding below that she abandoned the child was erroneous. Accordingly, we shall direct that Haley be returned to appellant.
Our opinion addresses not simply the legal arguments initially raised by the parties, but the constitutional contentions first raised by respondents in their petition for rehearing. We reject these constitutional arguments because they rest on inapposite authority and are unjustifiably indifferent to the well established constitutional rights of a natural mother. If judicially adopted, respondents' legal and constitutional theories would open the door to uncertainty and inconsistency in an area of the law in which the predictability and uniformity that bright lines can achieve have particular value. Subordinating legal rules to equitable considerations in cases such as this—which is, in effect, what respondents would have us do—would not only undermine any legislative scheme designed to protect the rights of natural mothers but could provide prospective adoptive parents an incentive to resist the return of a child to its natural mother in the hope this might alter the equities in their favor. Such a result would not be productive of justice.
STATEMENT OF THE CASE AND FACTS
In December 1993, appellant learned she was seven and a half months pregnant. Appellant was 28 years old, unmarried and two classes short of an associate degree. She lived with her parents in Ridgecrest, California (near Death Valley) and had worked at the store they owned for fourteen years. She and the baby's father, Alex Q., sought information about adoption and appellant began to visit an adoptions counselor, Paulette Solberg, who she continued to see after the baby was born.
Solberg referred appellant and Alex to attorney Marc Widelock. Widelock explained the adoption process to appellant, told her she would have six months after the child was placed to make up her mind about the adoption, and told her if she did not consent to the adoption and did not get the baby back, the court would terminate her rights to the child. Widelock showed appellant a book containing information about prospective adoptive parents; appellant met with and chose respondents, Mark and Stacy A., who live in Martinez. She did not express to respondents any hesitation about placing the child with them for adoption. According to Stacy A., appellant did not tell respondents anyone was forcing her to place her child for adoption and told them “she wasn't a mother-like person, that if a baby cried or whatever, she really didn't have anything to do with them.” On January 19, 1994, appellant and respondents signed a consent to representation of multiple parties by which they agreed to have Widelock represent them.
Appellant testified that her parents pressured her into placing the baby for adoption by threatening to cut her off from the family and make her life difficult.1 As related in the probation officer's report prepared for the trial in this case, a hospital worker who had known appellant's family from other contacts before the adoption described appellant's parents as “walking the straight and narrow” and being “from an older generation where pregnancy is not acceptable outside of marriage” and “ ‘very cold people.’ ” As also related in the probation officer's report, appellant's therapist stated that for appellant, “Emancipation was not allowed. [Appellant] had to obey her parents or be against them.” The probation officer concluded that appellant was “a confused woman whose emancipation from her parents was considerably delayed.” Appellant testified that she believed she told respondents of her parents' threats and told Widelock that her parents were forcing her to place her child for adoption.
Alex, who at the time of the birth was on probation for having made death threats against appellant, testified that he wanted to keep the baby and offered to assist appellant with insurance to cover the child and a place to live, but agreed to the adoption because appellant's mother had threatened to have him arrested if he did not go along with it. Appellant knew that Alex wanted to keep the child, that she would have his support if she did so, and that he had a good job.
Haley was born on February 23, 1994.2 At the hospital, appellant filled out the birth certificate with the name respondents had chosen for the baby, including their last name. On February 24, appellant signed a “Declaration of Intention by Birth Mother; Medical Treatment Authorization Form” by which she authorized respondents to “take possession of the baby for purposes of adoption.” Among other things, this form stated that appellant wished to proceed with the adoption, understood that if she did not wish to consent to the adoption she could sign a Refusal to Consent Form or write to the court or Department of Social Services (Department), understood that she was under no compulsion or pressure to choose respondents as the adoptive parents and understood that by signing the form she was not forfeiting or waiving any of her rights to the child. Appellant understood that if she did not want to consent to the adoption she could sign a refusal to consent.
On February 25, Haley was released to respondents. On that date, appellant signed a Department of Social Services “Health Facility Minor Release Report” (form AD 22). This form contained a box captioned, “Important Notice,” which stated the law governing agency and independent adoptions and provided, “If you place a child for adoption, but do not relinquish, consent or reclaim your child within six months, the court may find that you have abandoned the child and terminate all of your parental rights regarding the child even though you have not signed a relinquishment or consent.” Stacy A. testified that appellant expressed no hesitation about respondents taking the baby when they were at the hospital.
On March 10, Widelock filed a petition for adoption on behalf of respondents.3 Appellant testified that in March she thought about changing her mind about the adoption and Alex encouraged her to do so; Robin testified that they discussed what appellant needed to do to reclaim the baby. Appellant wrote a letter to Widelock expressing her displeasure with the way respondents had treated her at the hospital and the way the case was being handled. Appellant testified that she did not reclaim the child at this point because she was “under the control and constraints of [her] family.” 4 Adoptions case worker Linda Salazar testified that when she spoke with appellant in mid-March, appellant did not express any hesitation about the adoption. In late March, Salazar told appellant that if she did not sign the consent within six months, respondents could initiate an abandonment action; appellant again expressed no concern about the adoption.
In April, appellant spoke with Department social worker Diane Villalon and said she was not ready to sign a consent because respondents had not yet paid all her medical bills. Appellant did not say she was thinking of reclaiming the child in that conversation or when she again spoke with Villalon on May 3.
In May, appellant told respondents she would sign the consent after they paid all her medical bills. According to the probation officer's report, Villalon concluded after appellant repeatedly put off signing the consent papers that appellant did not want to sign but did not know how to say no. Also according to the report, Villalon contacted Widelock's office and said, “You're not going to get a consent from her.” Salazar contacted appellant after being told by Villalon that appellant was not going to sign the consent because of unpaid hospital bills and was told, “I want everybody to get off my back about signing the consent and I want to do it. When I'm ready to sign it, I will contact Diane.”
On June 30, appellant and Alex sent Widelock a proposed agreement for contact between them and Haley after the adoption; at this time, appellant was planning for respondents to adopt the baby. On July 25, Widelock sent appellant and Alex a revised agreement, informed them a Department social worker would be in their area on August 10, and asked them to contact him to arrange to have the consents signed. Appellant never signed the agreement; she testified that she was “pretty sure” she wanted the child back and also did not feel respondents would honor the agreement. Appellant did not call and did not meet with the social worker.
Appellant testified that she decided in early August that she wanted to reclaim Haley but did not call respondents because of continued threats from her parents. Appellant arranged to move out of her parents house and eventually did so in the last few days of August. According to appellant, she contacted the social services office in Ridgecrest around August 18, said she wanted the child back and was told to contact her social worker in Oakland.
In an August 22 letter, Salazar informed appellant that if she did not want her child adopted it was “extremely important” to notify Salazar immediately and that respondents could pursue an action to terminate appellant's parental rights if she did not provide care and support for the child for a six month period.
On August 25, appellant called Salazar and said she wanted to reclaim her child.5 Appellant had never previously expressed this desire. Salazar told appellant she needed to write to the court and to sign a refusal to consent form. Salazar called respondents and left a message that appellant wanted to reclaim the baby.
On August 25, after receiving the message from Salazar that appellant sought the return of her child, respondents called appellant. They suggested mediation and appellant said they needed to talk to Alex about it. Respondents were unable to reach Alex, called appellant back and she said she would talk to them at another time. Appellant did not say she wanted Haley returned to her care in either of these calls, or at anytime after August 25. Appellant testified that she told respondents she wanted Haley back more than once on August 25; she conceded that she had never told either respondents or Widelock prior to August 25 that she wanted Haley returned to her.
Appellant testified that during the period between Haley's birth and August 25, she discussed wanting to get the baby back with the hospital social worker many times and was told she needed to reclaim the baby within six months. She had not visited Haley during this period. She acknowledged that respondents had offered to have her visit and had offered to buy her a train ticket to do so. A date had been set for a visit in June but appellant did not go because she could not afford the trip. Appellant had never sent respondents money for Haley's support and had sent her as gifts a cloth rattle and a dress. Appellant had sent rolls of film for respondents to use on pictures of Haley to send appellant, and coupons for baby products.
Stacy A. testified that after Haley's birth she and appellant were in contact by telephone, mostly her calling to see how appellant was doing. On three occasions, appellant called respondents without them having left messages for her first; each call lasted one minute. According to Stacy, the calls with appellant were mainly devoted to discussion of appellant's plans and problems with her parents and with Alex; appellant never brought Haley up and never asked to have Haley put to the phone, but Stacy volunteered information about the baby. Appellant testified that she asked after Haley in these calls. In a call on July 7, Stacy told appellant she was getting scared appellant was going to take Haley back and appellant said if she was going to do this she would have done so already. Appellant never told respondents that her parents had forced her to place Haley for adoption; she told them of problems with her parents but the problems were regarding appellant's relationship with Alex and employment by her parents.
After August 25, respondents spoke to Alex every few weeks. At first, Alex said he did not know anything that was going on; in another call, when asked if he thought appellant wanted to go through with the adoption, he said the last time he had spoken to appellant “she was cool with everything.”
Appellant testified that she spoke with social worker Diane Villalon on August 26 to schedule an appointment to sign the refusal to consent form and that Villalon, who was primarily based in Fresno, was not able to get to appellant's area for several weeks but told appellant the time lag would not be held against her. Appellant wrote a letter to the court, dated August 26 and received August 31, stating that she would not sign relinquishment papers and wanted the child returned to her.
On September 15, respondents filed a substitution of attorneys, replacing Widelock with attorney Jane Gorman. On the same day, they filed a Petition for Freedom from Parental Control (Fam.Code, § 7822) 6 alleging that appellant had abandoned the child on or about February 23, 1994, and had not since attempted to communicate with or support the child.
On September 22, appellant signed the Department's “Refusal to Give Consent to Adoption” form. On October 3, she filed a substitution of attorneys replacing herself in pro per with attorney Irwin Borof 7 and filed a “Petition for Writ of Habeas Corpus for Return of the Child and Other Relief.” Also on the same date, Alex filed a “Petition to Withdraw Consent to Adoption.” Respondents requested that the status quo be maintained or that the court issue temporary letters of guardianship until after trial.
On October 7, the Department of Social Services recommended that the Petition for Adoption be denied because appellant had not consented to the adoption. On October 25, the court consolidated all pending issues and continued the matter until December 8. Also on October 25, after appellant's deposition, appellant and Alex visited Haley at respondents' home. Appellant did not attempt to hold, touch or play with Haley. On December 19, the probation officer filed a report recommending that respondents be granted temporary guardianship until the legal matters were resolved.
After another continuance, trial was conducted on December 22 solely on the issue of whether appellant had abandoned the child within the meaning of section 7822, and the matter was taken under submission on that date. On December 23, the court filed its decision concluding by clear and convincing evidence that appellant had abandoned the child and denying appellant's petition for writ of habeas corpus. To assist the court in determining the best interests of the child, the court appointed Dr. Boyd to conduct psychological examinations of respondents and appellant and ordered a home study of appellant.
The “best interests” portion of the trial was conducted on May 26, 1995. Dr. Boyd, who had evaluated respondents, appellant and Alex, testified that it would be in Haley's best interest to remain with respondents. During the four hours Boyd spent with appellant, he felt she demonstrated a lack of interest in Haley. He also felt appellant's unawareness of her pregnancy until seven and a half months showed her “use of denial was over used and pathological.” This denial left Boyd concerned that appellant would not be aware of changes happening as she raised a child. In his report, Boyd concluded that appellant's ambivalence about being a mother was so profound that it would “perniciously interfere” with her ability to care for Haley. Boyd was also concerned about Alex's past alcoholism and threats against appellant. Boyd found respondents' home the more stable, supportive and nurturing, having no record of violence, threats of violence, alcoholism or chaos.
Psychologist Marlene Becking evaluated the relationship between respondents and Haley. She found respondents nurturing, playful and “tuned into” Haley. They were Haley's psychological parents and Haley was very attached to them. If Haley was removed from respondents, Becking would anticipate her becoming more fearful and anxious as a short term effect. She would not recommend any movement for Haley unless it was clear the home she was being moved to was superior to respondents'.
On May 31, the court filed its decision finding by clear and convincing evidence that the best interests of the child would be served by termination of appellant's parental rights. Respondents were appointed temporary guardians of the child pending the hearing on their adoption petition, which could not be held until after exhaustion of appellant's appellate rights. The court ordered monthly visitation with the birth parents.
Judgment was filed on July 6 and notice of entry of judgment was filed and served on July 14, 1995. Appellant filed a timely notice of appeal on July 24, 1995.
Appellant contends the trial court erred in finding she abandoned her child within the meaning of section 7822. Section 7822 provides that a proceeding to declare a child under the age of 18 years free from the custody and control of either or both parents “may be brought where the child ․ has been left by both parents or the sole parent in the care and custody of another for a period of six months ․ without any provision for the child's support, or without communication from the parent or parents, with the intent on the part of the parent or parents to abandon the child.” (§ 7822, subd. (a).) Section 7822, subdivision (b), states that the “failure to provide identification, failure to provide support, or failure to communicate is presumptive evidence of the intent to abandon. If the parent or parents have made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent or parents.”
Section 7822, subdivision (d), which deals directly with adoptions, provides: “If the parent has placed the child for adoption and has not refused to give the required consent to adoption, evidence of the adoptive placement shall not in itself preclude the court from finding an intent on the part of that parent to abandon the child. If the parent has placed the child for adoption and has refused to give the required consent to adoption but has not taken reasonable action to obtain custody of the child, evidence of the adoptive placement shall not in itself preclude the court from finding an intent on the part of that parent to abandon the child.” This provision was added to the predecessor to section 7822, Civil Code section 232, in 1991 by Senate Bill 735.
Appellant contends that because she refused to consent to Haley's adoption within six months of the child's placement with respondents and requested the child be returned to her, she could not be found to have abandoned the child within the meaning of section 7822. This position is based on In re Timothy W. (1990) 223 Cal.App.3d 437, 441, 272 Cal.Rptr. 906, which held that where a birth mother in an independent adoption refuses to consent to the adoption within a reasonable time, with six months always being a reasonable time, the child must be returned to the birth mother without any consideration of the best interests of the child. Timothy W. explained that in independent adoptions, a child could be released to prospective adoptive parents before the birth mother formally consented to the adoption, with the birth mother executing a form AD 22 that gave the adoptive parents temporary physical custody but expressly did not constitute a consent to the adoption. (223 Cal.App.3d at p. 445, 272 Cal.Rptr. 906.) If a birth mother who executed an AD 22 changed her mind, she could execute an AD 20 “Refusal to Consent to Adoption” form. (Ibid.) In that case, former Civil Code section 226b (now Family Code section 8804) provided, “ ‘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.’ ” (Timothy W., supra, 223 Cal.App.3d at p. 445, 272 Cal.Rptr. 906.) 8 Timothy W. concluded, “A birth parent's execution of an AD 20 form tolls the six months for purposes of an abandonment under Civil Code section 232, subdivision (a)(1) [now section 7822]. It is an unequivocal demand for return of the child.” (Ibid.)
Timothy W. explained that the adoptions statutes then in effect did not specify a period of time within which a birth mother was required to conclusively decide about adoption, but that a “de facto six-month cutoff period” had been created because legal abandonment by the birth parent could not be established in fewer than six months. (Id. at p. 446, 272 Cal.Rptr. 906.) 9 The court stated, “But a birth parent's conduct ‘in contemplation of a proposed adoption [cannot establish] desertion or [an] intention to abandon․ 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.’ ” (Ibid., quoting Guardianship of Rutherford (1961) 188 Cal.App.2d 202, 208, 10 Cal.Rptr. 270.) The court went on to state that even after six months, mandatory return to the birth parent would be the general rule. (Ibid.)
In response to Timothy W., In re Baby Boy M. (1990) 221 Cal.App.3d 475, 272 Cal.Rptr. 27, and another case issued by the same court but subsequently depublished, subdivision (d) was added to the abandonment statute. Appellant contends that this amendment does not change the rule that if a birth mother refuses consent to an adoption within six months of the child's placement with the adoptive family, the child must be returned immediately. We agree.
According to the author of the Senate Bill 735, by which subdivision (d) was added to the abandonment statute, as reflected in the Assembly Committee on Judiciary report for the hearing of July 17, 1991, “this bill addresses an ambiguity in current law resulting from several California Appellate cases decided last year by the Fourth District Court of Appeal. The author states that due to the precedent set by these cases, it is unclear whether a court may consider an abandonment motion in order to finalize an adoption, when the minor child has been in the adoptive home for 6 months or more, and the birth parent has neither approved nor objected to the adoption. [¶] The current status of the law allows a situation, argues the author, where a birth parent places her child for adoption and disappears before signing the consent to adopt or a refusal of consent to adopt, she can show up years later and demand return of the child, and the child must be returned to her.” 10
The situation described in this report, which pertains to birth parents who have not refused to give the required consent, is addressed by the first sentence of subdivision (d) of section 7822. That was not, however, the situation in Timothy W. or In re Baby Boy M., in which the birth parents signed refusal to consent forms within the six month period but the adoptive parents refused to honor the change of heart. It is also not the factual circumstance of the present case since, as will be explained, appellant did refuse consent to the adoption within the six month period. It is the second sentence of subdivision (d) of section 7822, dealing with the situation of a birth parent who has refused to consent to an adoption, with which we are here concerned.
The second sentence of subdivision (d) of section 7822 provides that where a parent has placed a child for adoption and has refused to consent but not taken reasonable action to regain custody, “evidence of the adoptive placement shall not in itself preclude the court from finding an intent on the part of that parent to abandon the child.” If read as overruling the immediate return rule of Timothy W. and Baby Boy M., this provision would allow an adoptive parent to wait after learning of the birth parent's refusal to consent in order to see whether the birth parent would follow through with action to regain custody of the child. This would, however, create a conflict between section 7822, subdivision (d), and section 8804, subdivision (c) [requiring a court to return custody of a child to a natural parent who refuses to consent to an adoption]. On the other hand, adherence to the automatic return rule might appear to rob the “reasonable action” language of section 7822, subdivision (d), of meaning, as adoptive parents would be required to return a child upon the birth parent's refusal to consent to the adoption, without waiting to see whether the birth parent would in fact follow through with action to obtain custody.
The legislative history does not illuminate the legislative intent behind the second sentence of subdivision (d) of section 7822. Although the legislative materials do reflect consideration of the rule of automatic return of the child to a natural parent who has refused consent to an adoption within six months, the matter was considered in the context of a proposed amendment to the predecessor to section 8804, subdivision (c), which would have required the court to conduct a best interests of the child inquiry before ordering return of the child. (Senate Committee on Judiciary report on SB 735, April 23, 1991.) This provision was not enacted.
While the legislative history makes clear that the language of section (d) of the abandonment statute was adopted in response to Timothy W. and the related cases, it does not follow that this statute was intended to overrule the holding of those cases that a child must be immediately returned to a natural parent who refuses to consent to an adoption within six months. Rather, the amendment appears to have been a direct response to language in those cases suggesting that a birth parent who has placed a child for adoption cannot be found to have abandoned the child. (See, Timothy W., supra, 223 Cal.App.3d at p. 446, 272 Cal.Rptr. 906 [stating that return to the birth parent will be the general rule even when more than six months has passed].) Although this was not in fact the law,11 the legislative report quoted above indicates that the concern behind the amendment to the abandonment statute was to make it clear that abandonment could be found despite a pending adoption proceeding. In this context, the second sentence of subdivision (d) may be viewed as simply reinforcing the point by stating that even a refusal to consent to an adoption will not preclude finding abandonment if the refusal was not followed by reasonable action to obtain custody.
Section 7822, subdivision (d), can be reconciled with section 8804, subdivision (c), which requires restoration of the child to a birth parent who has timely refused to give consent, and is therefore at the center of this case, by interpreting each statute as operating in a different context. The abandonment statute that was amended in response to Timothy W. and the related cases does not purport to delineate adoptive parents' rights or responsibilities vis-à-vis natural parents; it governs the determination of a birth parent's intent with respect to his or her child by retrospectively considering that parent's actions. On the other hand, the requirement of section 8804, subdivision (c), that custody be returned to a natural parent who refuses to consent to an adoption, contemporaneously gives force to the adoption statutes that require consent by the natural parent before an adoption may take place. If the Legislature had intended to alter the rule that a birth parent who refuses to consent to an adoption within six months is entitled to return of the child, it could have done so directly; instead, as discussed above, the legislative history shows that amendments to the predecessor to section 8804, subdivision (c), which would have qualified the birth parents' right to return of the child by an inquiry into the best interests of the child, were considered and rejected.12 By amending the abandonment statute, the Legislature was attempting to avoid the problem of an adoption being thwarted by a birth parent's disappearance. Thus, when a child is not returned to the refusing birth parent—for example, when the birth parent is unavailable or otherwise unwilling to take custody—section 7822, subdivision (d), may come into play. The rule of Timothy W. and section 8804, subdivision (c), does not rob section 7822, subdivision (d), of meaning in its proper context. We conclude that Timothy W. was not overruled on this point by the amendment to the abandonment statute.13
In their petition for rehearing, respondents assert that any conflict between section 8804, subdivision (c), and section 7822 must be resolved in favor of section 7822. This assertion is based on the pronouncements of legislative intent found in sections 7800 and 7801. Section 7800 provides: “The purpose of this part is to serve the welfare and best interest of a child by providing the stability and security of an adoptive home when those conditions are otherwise missing from the child's life.” Section 7801 provides: “This part shall be liberally construed to serve and protect the interests and welfare of the child.”
We have interpreted sections 7822 and 8804 so as to avoid conflict between the two statutes. Respondents' contention, however, rests upon the assumption that a child's interest in stability and security depends upon continuation of an adoptive placement even when a birth parent refuses to consent to the adoption within the time he or she is allowed by statute to do so. Section 7822 does not permit a finding of abandonment unless, among other things, the birth parent has had an intent to abandon for a minimum of six months. As will be explained in the following sections of this opinion, this requirement cannot be met when a birth parent affirmatively refuses to consent to the adoption within the six month period and follows that refusal with reasonable action to obtain custody. It is at this early stage in the proceedings, that is, in the period within six months, that the rule of section 8804, subdivision (c), applies. That a birth parent has not maintained custody of a child for a period of time short of that determined by the Legislature to be the minimum to constitute abandonment does not mean the parent cannot provide a stable home upon regaining custody of the child. During the six month period, the legislative intent to promote the child's interests in a stable placement cannot be read to rob the birth parent of the right to reclaim the child.
Appellant's additional suggestion that the purpose of the amendment to section 7822 was to give a birth mother who refused to consent to an adoption an additional six months within which to reclaim her child is not persuasive. Appellant relies upon a statement in the Senate Committee on Judiciary report for the hearing of May 28, 1991, that the proposed amendment would allow a court to find abandonment “if a parent has signed a refusal to consent to the adoption but subsequently has left the child in the care of the adoptive parent without efforts to gain custody of the child for a period of 180 days.” The statute as adopted, however, does not include this time provision: Taken together, subdivisions (a) and (d) of section 7822 provide that abandonment may be found where a child has been left in the care and custody of another “for a period of six months ․ without any provision for the child's support, or without communication from the parent or parents, with the intent on the part of the parent or parents to abandon the child” and that placement of a child for adoption and refusal to consent to the adoption, without reasonable efforts to regain custody, do not preclude finding intent to abandon. Nothing in the language of the statute provides that a natural parent may wait an additional six months after expressing non-consent to an adoption before attempting to regain custody of the child. A court is not empowered to add provisions to a statute. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 827, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)
In the present case, the trial court concluded that although appellant refused to consent to the adoption, she did so one day after expiration of six months from release of the child to respondents. As appellant urges, this conclusion was erroneous. Haley was released to respondents on February 25, 1994. Civil Code section 10 and Code of Civil Procedure section 12 provide in identical terms: “The time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last day is a holiday, and then it is also excluded.” Accordingly, in calculating six months from the date of release, February 25, the court should have begun the count with February 26, making August 25 the last day within the six month period. (Wixted v. Fletcher (1961) 192 Cal.App.2d 706, 707, 13 Cal.Rptr. 734; City of Pleasanton v. Bryant (1965) 63 Cal.2d 643, 646, 47 Cal.Rptr. 807, 408 P.2d 135; Ziganto v. Taylor (1961) 198 Cal.App.2d 603, 607–610, 18 Cal.Rptr. 229.)
Respondent argues that the provisions of Civil Code section 10 and Code of Civil Procedure section 12 apply only to time periods counted in days. This contention is not borne out by the cases. (See, e.g., Wixted v. Fletcher, supra, 192 Cal.App.2d at p. 707, 13 Cal.Rptr. 734 [applying rule to computation of one year statute of limitations]; Mox, Inc. v. Leventhal (1928) 89 Cal.App. 253, 257, 264 P. 562 [statute intended to create uniform rule for computing time “applies to the computation of time to be taken into account in days, months or years”].)
Relying upon Kelly v. State Personnel Board (1939) 31 Cal.App.2d 443, 88 P.2d 264, respondents argue that the trial court correctly determined appellant's non-consent to the adoption was expressed one day after expiration of the six month period. In Kelly, an eight month probationary period for a civil service employee began to run when a constitutional amendment became effective on December 20, 1934; the employee was dismissed on August 19, but no reasons for the dismissal were given. The court concluded that the probationary period ended at midnight on August 19, 1935, and that since no reasons for the dismissal had been given within the period, the employment became permanent. Kelly did not discuss its method of calculation or cite Code of Civil Procedure section 12 or Civil Code section 10. Under those statutes, it would appear that the eight month period ended on August 20, the calculation beginning with December 21 rather than December 20. Given the case's lack of discussion of the statutes in question here, Kelly does not persuade us that the plain language of the computation statutes should not be followed.
Respondents also rely on Overby v. Overby (1957) 154 Cal.App.2d 813, 317 P.2d 91. That case involved the validity of a final decree of divorce entered on September 10, 1949; in order for the final decree to be valid, one year had to have expired after entry of the interlocutory decree. The interlocutory decree had been entered on September 10, 1948. Noting that a year is defined by statute as 365 days (Gov.Code, § 6803) and stating that it was following the rule of Civil Code section 10 and Code of Civil Procedure section 12, Overby concluded that the final decree was valid because September 10, 1949, was the 365th day after September 10, 1948. The court noted that it was the duty of courts to validate rather than destroy marriage and that by common understanding, “[a]s to birthdays, it is the universal custom to consider that a year has expired from one birthday to another, that is, a year would have expired between the two September 10ths.” (154 Cal.App.2d at p. 817, 317 P.2d 91.)
Overby followed a calculation method described in Cosgriff v. Election Commissioners (1907) 151 Cal. 407, 91 P. 98. In Cosgriff certain documents were required to be filed “not less than 20 days before the day of election.” The certificate in question was filed on October 17 and the election held on November 6. The court excluded November 6 as the first day of the period and counted 20 days backward, finding October 17 to be the 20th day. Since the certificate was required to be filed “not less than 20 days” before the election, this filing on the 20th day was held valid. This approach is true to the provisions of the computation of time statutes. In our view, however, Overby erroneously applied this method of calculation to a situation it did not fit. The final decree in Overby had to be filed after expiration of a year from the interlocutory decree. Using September 11, 1948, as the starting point (pursuant to the computation of time statutes), we agree with Overby that September 10, 1949, was the 365th day. Since the final decree had to be entered after expiration of a year, however, filing on the 365th day would appear to be one day early.
We take a similar view of In re Halamuda (1948) 85 Cal.App.2d 219, 192 P.2d 781, upon which respondents also rely. In that case, a child was declared a ward of the court on February 26, 1946, and a petition to terminate his parent's parental rights was filed on February 26, 1947. The law allowed the termination petition to be filed where a child had been a ward “for the period of one year continuously” prior to the filing of the petition. Like Overby, Halamuda followed the Cosgriff calculation method and concluded that filing on the 365th day was timely. Again, however, if the year is counted beginning with February 27, 1946, February 26, 1948, would be within the year and the petition would appear to have been filed one day prematurely.
We are not able to reconcile Overby and Halamuda with the language of the Civil Code section 10 and Code of Civil Procedure section 12, the computation of time statutes those cases purport to apply. According to the plain language of the computation of time statutes, appellant asserted her non-consent to the adoption on the last day of the six month period beginning with February 25.14
In their petition for rehearing, respondents urge that appellant did not really “refuse” to consent to the adoption on August 25 because she did not sign the department's form on that date but only told the social worker verbally that she was refusing consent. As respondents acknowledge, the statutes in effect at the time Haley was placed with respondents did not require a birth parent to refuse consent to an adoption in writing. Nor was appellant told she had to refuse consent to the adoption in writing on or before August 25. Although the “Declaration of Intent” appellant signed on February 24, 1994, stated that she understood if she did not wish to consent to the adoption she could “sign a Refusal to Consent Form or write a letter to the Court or Department of Social Services,” this form did not specify a time within which the written refusal had to be completed. The Department's “Health Facility Minor Release Report” appellant signed on February 25, 1995, informed appellant that the court could terminate her parental rights if she did not “relinquish, consent or reclaim” her child within six months, but did not explain what particular steps were required to be taken in order to reclaim the child. When appellant spoke with the social worker on August 25, she was told to write to the court and call a different social worker to arrange to sign a refusal to consent; she was not told the form needed to be signed, or the letter written, that very day.15
Moreover, respondents ignore the trial court's specific finding that appellant “did indeed refuse to give the required consent to adoption, within the meaning of [section 7822] ․” This finding was made despite appellant's refusal being a verbal one, and despite respondents' testimony regarding their conversation with appellant on the evening of August 25. To the extent respondents' petition for rehearing urges substantial evidence does not support the trial court's finding that appellant refused to give consent to the adoption on August 25—a point not previously raised on this appeal—the argument is plainly without merit.
After erroneously concluding that appellant refused to consent to the adoption after expiration of six months, the trial court went on to state that if it had found appellant timely refused to give consent it “would also find she did not take reasonable action to take custody of the child.” The court explained, “All of her actions in that regard were taken after the filing of the adoption petition. As detailed below, she not only took no action to get her child but had no contact with her child during the 6–month period.” The court thus concluded that despite her refusal to consent to the adoption, appellant could be found to have abandoned Haley under section 7822, subdivision (d).
The significance of appellant's refusal to consent to the adoption and actions to regain custody of Haley is in what they demonstrate about appellant's intent. Intent to abandon is a question of fact. (In re B.J.B. (1986) 185 Cal.App.3d 1201, 1212, 230 Cal.Rptr. 332.) The trial court's decision was required to be based upon clear and convincing evidence. (§ 7821.) We review to determine whether the record discloses substantial evidence to support the trial court's conclusions based on clear and convincing evidence. (In re Angelia P. (1981) 28 Cal.3d 908, 924, 171 Cal.Rptr. 637, 623 P.2d 198; In re B.J.B., supra, 185 Cal.App.3d at p. 1212, 230 Cal.Rptr. 332.)
The second sentence of the trial court's explanation for its determination that appellant failed to take reasonable action to obtain custody of the child—that appellant took no action to regain custody and had no contact with the child during the six month period—is irrelevant if appellant did in fact refuse to consent to the adoption within the six month period and then took reasonable action to regain custody of the child. In order to prove abandonment, section 7822 requires that the child be left by the parent in the care of others for six months with the intent to abandon. The intent to abandon must be present throughout the entire statutory period. (In re Daniel M. (1993) 16 Cal.App.4th 878, 882–883, 20 Cal.Rptr.2d 291 [abandonment statute requires intent to sever parent-child relationship during statutory period, not necessarily intent to sever relationship permanently]; In re Brittany H. (1988) 198 Cal.App.3d 533, 550, 243 Cal.Rptr. 763.) Under subdivision (d) of section 7822, if a parent who has placed a child for adoption requests return of the child but does not follow the request with reasonable action to gain custody of the child, the expression of non-consent—even though occurring within six months of the child's placement—does not preclude finding the parent intended to abandon the child. Conversely, if the natural parent refuses to consent to the adoption within the six month period—even on the last day of the period—and then does take reasonable action to regain custody, that parent may not be found to have had an intent to abandon for the entire statutory period. To hold that a parent must act sooner than the last day of the six month period would in effect shorten the period provided by statute. Expression of non-consent to an adoption on the last day of the six month period, coupled with reasonable action to regain custody of the child, negates any inference that the natural parent intended to abandon the child during the entire statutory period. Stated differently, while lack of support and communication with a child during the six month period creates a presumption of intent to abandon (§ 7822, subd. (b)), the presumption is necessarily rebutted by proof that the parent refused to consent to the adoption within the period and then took reasonable action to regain custody of the child.16
The trial court's only other comment in explanation of its conclusion that appellant's efforts to regain custody of Haley were not reasonable was that “all of her actions in that regard were taken after the filing of the adoption petition.” We assume from the context of the court's statement that it was in fact referring to filing of the petition to terminate appellant's parental rights under section 7822, filed on September 15, 1994; the adoption petition had been filed on March 10, shortly after Haley was born. That the parties' sequence of actions suggests appellant acted reactively, however, cannot in and of itself demonstrate that her actions were unreasonable. For example, if the adoptive parents had filed their abandonment action the day after appellant said she was refusing to go along with the adoption and appellant the following day filed a habeas petition seeking return of the child, it could hardly be said appellant had not taken reasonable action to regain custody of the child. In fact, shortly after informing the Department that she was not going to consent to the adoption, appellant wrote a letter to the court expressing her non-consent and stating her desire to have Haley returned to her. True, it was then four weeks before appellant actually signed the Department's refusal to consent form. There is nothing in the record, however, to suggest appellant had been told this form must be signed within any particular time frame. The release form appellant had signed in the hospital stated, “If you place a child for adoption, but do not relinquish, consent or reclaim your child within six months, the court may find that you have abandoned the child and terminate all of your parental rights regarding the child even though you have not signed a relinquishment or consent.” The form did not explain specific steps that had to be taken in order to reclaim the child. According to Salazar's testimony, when appellant called her on August 25, Salazar told appellant she needed to write to the court and “call Villalon to sign a refusal to consent.” There was no indication Salazar gave appellant a deadline within which the form needed to be signed. According to the probation report, Villalon reported that she and appellant had scheduling conflicts that delayed their appointment for appellant to sign the refusal to consent form.
Appellant filed her petition for writ of habeas corpus on October 3, some five and a half weeks after expressing her non-consent to the adoption on August 25. She testified that she had to contact 17 attorneys before finding one willing to take her case. Whatever weight is accorded that testimony—and we recognize the trial court expressly found appellant to be lacking in credibility—the record demonstrates that she did indeed secure new representation. Plainly, it required some time for appellant to find counsel and for counsel to file the petition on her behalf. The facts presented here, where appellant followed her verbal refusal to consent with a letter to the court, as directed by the social worker, signing of the Department's refusal to consent form and securing counsel and filing a petition for writ of habeas corpus within five and a half weeks, do not justify the trial court's conclusion that appellant did not take reasonable action to regain custody.
The trial court's finding that appellant intended to abandon her child is not supported by substantial evidence: The facts of this case demonstrate that at least by the last day still within the six months, appellant did not have an intent to abandon Haley. On the contrary, appellant asserted her refusal to consent to the adoption before expiration of the six month period provided in section 7822, and followed this refusal to consent with reasonable action to recover custody of the child.
Respondents urge that even if the trial court erred in granting the abandonment petition, custody must remain with them. This argument is based on language in Adoption of Kelsey S., supra, 1 Cal.4th 816, 851, 4 Cal.Rptr.2d 615, 823 P.2d 1216, which respondents characterize as overruling the holding of Timothy W., supra, that when consent to an adoption is refused, custody of the child must be returned to the natural parent without inquiry into the best interests of the child. (223 Cal.App.3d at p. 448, 272 Cal.Rptr. 906.) Kelsey S. concerned a natural father who was allegedly prevented by the mother from receiving the child into his home and thereby qualifying as a “presumed father” with rights to refuse consent to the adoption. Kelsey S. held the governing statutes unconstitutional to the extent they allowed a natural mother to unilaterally preclude a child's biological father from becoming a presumed father and remanded for necessary factual determinations bearing on whether the father had a right to withhold consent to the adoption. In so doing, the court stated, “We emphasize that the sole question before us is whether petitioner has a right to withhold his consent to the adoption of his biological child. We decide no issue as to the custody of the child․ Even if petitioner has a right to withhold his consent (and chooses to prevent the adoption), there will remain the question of the child's custody. That question is not before us, and we express no view on it.” (1 Cal.4th at p. 851, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)
Respondents rely on Kelsey S. for the proposition that “the right to withhold consent to an adoption does not mean a biological parent automatically obtains custody of a child.” Indeed, Kelsey S. was cited as authority for such a position in the case of a natural parent attempting to withdraw consent to an agency adoption. (In re Bridget R. (1996) 41 Cal.App.4th 1483, 1519, 49 Cal.Rptr.2d 507.) The quoted language in Kelsey S., however, is clearly dicta; the Supreme Court expressly declined to address the issue. Accordingly, we cannot view this language as reflecting a considered decision to overturn the statutory rule that a child must be returned to a birth parent who refuses to consent to an independent adoption within the prescribed period.
Respondents also rely upon In re Jasmon O. (1994) 8 Cal.4th 398, 419, 33 Cal.Rptr.2d 85, 878 P.2d 1297, which held in the context of dependency proceedings to terminate a father's parental rights that a parent's right to maintain the parent-child bond could be abridged when necessary to protect the welfare of the child. The child was ordered returned to her father after almost three years in a foster home due to the parents' inability to care for the child. After proceedings on a motion for modification based upon the child's severe adverse reaction during the transition period, new orders were entered terminating the father's parental rights. Affirming this decision, the Supreme Court stated, “[W]e are of the opinion that when a child has been placed in foster care because of parental neglect or incapacity, after an extended period of foster care, it is within the court's discretion to decide that a child's interest in stability has come to outweigh the natural parent's interest in the care, custody and companionship of the child.” (Id., at p. 419, 33 Cal.Rptr.2d 85, 878 P.2d 1297.) The language in Jasmon O. that supports respondents' position here arose in the specific context of dependency proceedings stemming from the parents' initial unfitness to care for a dependent child in foster care. It does not follow that the same principles apply when a fit mother who has placed her child for adoption changes her mind before expiration of the period required to find abandonment but the adoptive parents refuse to honor that change. Indeed, the Jasmon O. court expressly limited the reach of its opinion, stating, “Nor is this opinion intended to affect proceedings outside the dependency setting, as for example, in family law custody disputes.” (Id., at p. 422, 33 Cal.Rptr.2d 85, 878 P.2d 1297.) 17
Respondents additionally rely upon In re Bridget R., supra, 41 Cal.App.4th 1483, 49 Cal.Rptr.2d 507, to argue that a custody hearing is required in this case even if the trial court erred in terminating appellant's parental rights. In In re Bridget R., the natural parents voluntarily relinquished their twin daughters to an agency for adoption, the father concealing his American Indian ancestry in order to expedite the adoption. Later, the father sought to rescind his relinquishment in reliance upon provisions of the Indian Child Welfare Act (ICWA). The trial court invalidated the relinquishment and ordered the children returned to the father's extended family. This decision was reversed and the matter remanded for determination of factual issues that would control the decision whether the ICWA applied to the case and, if it did and the natural parents' rights were not validly terminated under the ICWA, for a custody determination in which the adoptive parents would have the burden of proving detriment to the children would result from a change of custody. This custody hearing was to be conducted within the context of the pending petition for guardianship the adoptive parents had filed in anticipation of the possibility application of the ICWA would preclude adoption of the twins.
Among other things, Bridget R. held that a provision in the ICWA calling for return of a child to the natural parent in the event of a withdrawal of the parent's consent to adoption did not preclude a custody hearing to determine whether a change of custody would result in detriment to the twins. The court stated, “The reach of section 1913 is limited by the twins' interest in having a stable and secure home which, as we have already concluded, is an interest of constitutional dimension (25 U.S.C. § 1913). Inasmuch as an individual's interests in matters of family life are ‘compelling and are ranked among the most basic of civil rights' (Quilloin v. Walcott  434 U.S. [246,] 255 [98 S.Ct. 549, 554–55, 54 L.Ed.2d 511, 519–520]), and inasmuch as children ‘are not simply chattels belonging to the parent,’ but have fundamental, constitutionally protected interests of their own, including ‘the fundamental right to ․ have a placement that is stable [and] permanent’ (In re Jasmon O., supra, 8 Cal.4th at p. 419 [33 Cal.Rptr.2d 85, 878 P.2d 1297]), we believe it would constitute a violation of the due process clause of the Fifth and Fourteenth Amendments to remove a child from a stable placement, based upon statutory violations which occurred in making the placement, without a hearing to determine whether the child would suffer harm if removed from that placement. (Stanley v. Illinois  405 U.S.  649 [92 S.Ct. 1208, 1211–12, 31 L.Ed.2d 551, 557–558].) Such a constitutional mandate cannot be avoided by reliance on the statutory provisions of ICWA.” (In re Bridget R., supra, 41 Cal.App.4th at p. 1517, 49 Cal.Rptr.2d 507.)
Bridget R. expressly declined to interpret the statutes and case law relevant to the present case: “The California authorities cited are inapposite. Family Code sections 8804 and 8815 are part of the statutory scheme governing independent adoptions and have no application outside of that scheme. For the same reason, In re Timothy W., supra, has no application to this case.” (41 Cal.App.4th at p. 1516, 49 Cal.Rptr.2d 507.) In re Bridget R. differs from the present case in that there, but for the application of the ICWA, the natural parents had voluntarily terminated their parental rights by filing valid and final relinquishments with the Department of Social Services to facilitate agency adoption.18 The significance of this difference is that because of the birth parents' voluntary relinquishment for the purpose of providing a stable home to the children, Bridget R. was able to conclude that the parents' constitutional rights to their children had been subordinated to the children's constitutional rights to maintenance of their relationship with their de facto family. (In re Bridget R., supra, 41 Cal.App.4th at p. 1506, 49 Cal.Rptr.2d 507.) In the present case, appellant never unqualifiedly consented to the adoption but refused consent within six months of Haley's placement with respondents, as the legislative scheme governing independent adoptions allowed her to do. Accordingly, unlike the situation in Bridget R., we confront a case in which appellant has a fundamental constitutional right to raise her own child. Stanley v. Illinois (1972) 405 U.S. 645, 651, 92 S.Ct. 1208, 1212–13, 31 L.Ed.2d 551 [“The rights to conceive and to raise one's children have been deemed ‘essential,’ Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626–27, 67 L.Ed. 1042 (1923), ‘basic civil rights of man,’ Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942), and ‘(r)ights far more precious ․ than property rights,’ May v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221 (1953).”]; Santosky v. Kramer (1982) 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 [“freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment.”] In re Marilyn H. (1993) 5 Cal.4th 295, 306, 19 Cal.Rptr.2d 544, 851 P.2d 826 [“A parent's interest in the companionship, care, custody and management of his children is a compelling one, ranked among the most basic of civil rights.”] As both the United States Supreme Court and our own Supreme Court have recognized, “The child has a genetic bond with its natural parents that is unique among all relationships the child will have throughout its life. ‘The intangible fibers that connect parent and child have infinite variety. They are woven throughout the fabric of our society, providing it with strength, beauty, and flexibility.’ ” (Adoption of Kelsey S., supra, 1 Cal.4th at p. 848, 4 Cal.Rptr.2d 615, 823 P.2d 1216, quoting Lehr v. Robertson (1983) 463 U.S. 248, 256, 103 S.Ct. 2985, 2990–91, 77 L.Ed.2d 614.)
To hold that the child's constitutional right to a stable and secure home necessarily outweighs the mother's constitutional right to raise her own child when the child has lived for a considerable period of time with a prospective adoptive family would effectively render it impossible for the Legislature to enact any statutory scheme guaranteeing a natural mother the right to change her mind about whether she wishes to place her child for adoption: Prospective adoptive parents would have only to resist returning the child long enough, and no matter how quickly the birth mother asserted her refusal to consent to the adoption, she might lose the battle to obtain custody. In this case, appellant did no less than the Legislature allowed her: She refused consent to the adoption within six months of the child's placement with respondents. Had the question of Haley's custody been properly determined at that point in time, there could be no plausible argument that any constitutional right of the child required continuing her custody with respondents. It is only due to respondents' decision to litigate the issue, and the trial court's erroneous decision, that Haley faces the prospect of separation from the only family she has known for more than two and a half years. Appellant, however, is not responsible for this situation. Her constitutional and statutory rights should not be defeated by respondents' decision to resist returning Haley to appellant upon her timely refusal to go along with the adoption and the delay occasioned by proceedings to review the trial court's incorrect decision that she abandoned the child.19
Respondents point to cases from other jurisdictions which have held that even when a natural parent is found to have had a right to refuse consent to an adoption, custody of the child must be determined by consideration of the child's best interests, including the child's relationship with the adoptive parents. (Matter of Adoption of J.J.B. (1995) 119 N.M. 638, 894 P.2d 994, 1008–1009, cert. den. by Bookert v. Roth (1995) 516 U.S. 860, 116 S.Ct. 168, 133 L.Ed.2d 110; Matter of Custody of C.C.R.S. (Colo.1995) 892 P.2d 246, 257–258, cert. den. by C.R.S. v. T.A.M. (1995) 516 U.S. 837, 116 S.Ct. 118, 133 L.Ed.2d 69; Sorentino v. Family Children's Soc. of Elizabeth (1976) 72 N.J. 127 [367 A.2d 1168, 1170–1171]; Lemley v. Barr (1986) 176 W.Va. 378, 343 S.E.2d 101.) This authority does not convince us that a custody hearing can or must be ordered in this case.
Matter of Adoption of J.J.B., supra, 119 N.M. 638, 894 P.2d 994, in holding that a custody hearing was required where a child had improperly been placed with the prospective adoptive parents despite the father's immediate protest and request for custody, discussed the fact that New Mexico statutes required a best interests of the child custody determination whenever the requirements for an adoption had not been met, including when a natural parent had not consented to the adoption. (894 P.2d at p. 1009.) 20 Our adoption statutes are very different. Under the version of section 8815 in effect at times relevant to these proceedings, a birth mother who had consented to an adoption could revoke that consent only with court approval, upon consideration of the child's best interest, including the child's age, extent of bonding with the adoptive parents and with the birth parent or parents and ability of the birth parent or parents to adequately care for and guide the child. Section 8804, subdivision (c), governing cases such as the one before us in which the birth parent has refused to give consent, does not similarly allow for any consideration of the best interests of the child but simply directs return of the child to the birth parent. In fact, as previously discussed, the original version of Senate Bill 735, by which the amendments to the abandonment statute were enacted, contained a provision amending the predecessor to section 8804, subdivision (c), to require the court to consider the best interests of the child before ordering return to the natural parent upon that parent's refusal to consent to an adoption. This provision was dropped during the amendments to the bill and not enacted as part of the final legislation. Thus it is clear that our Legislature did not intend to qualify the rule requiring return of a child to a natural parent who refuses to consent to an adoption by requiring a best interests of the child determination. “The rejection of a specific provision contained in an act as originally introduced is ‘most persuasive’ that the act should not be interpreted to include what was left out.” (Wilson v. City of Laguna Beach (1992) 6 Cal.App.4th 543, 555, 7 Cal.Rptr.2d 848.) The Legislature's intention to preclude a best interests evaluation as a condition to the return of a child to a birth parent who has timely refused to consent is most powerfully demonstrated by the adoption, subsequent to trial in this case, of the present version of section 8815. That statute not only requires immediate return of the child to a refusing birth parent but declares that concerns that the birth parent may be unfit or present a danger of harm to the child “shall not be a basis for failure to immediately return the child.”
Custody of C.C.R.S., supra, 892 P.2d 246, concerned a natural mother in Colorado who sought to regain custody of her child some six months after placement with the prospective adoptive parents. The petition for relinquishment, the document by which the mother purported to give up her parental rights, was subsequently held to be unenforceable and invalid. The prospective adoptive parents sought to retain custody of the child not through adoption proceedings but through a petition for custody that allowed the court to determine custody between a parent and nonparent according to the best interests of the child. No termination of the mother's parental rights was involved. The proceeding at issue in C.C.R.S. was thus akin to a guardianship proceeding under California law. (See, Prob.Code, § 1514.) This is not such a proceeding.
Sorentino v. Family Children's Soc. of Elizabeth, supra, 72 N.J. 127, 367 A.2d 1168 and Lemley v. Barr, supra, 176 W.Va. 378, 343 S.E.2d 101, both involved adoptions that failed because the birth mothers' consents had been obtained by duress and were invalid. These cases ordered custody hearings based on the court's responsibility, as parens patriae, to protect the child from harm (Sorentino v. Family Children's Soc. of Elizabeth, supra, 367 A.2d at p. 1171) or a determination to place the child's “equitable rights” above the mother's legal rights. (Lemley v. Barr, supra, 343 S.E.2d at p. 109.) Like the constitutional argument discussed above, these approaches have the effect of destroying the Legislature's power to allow a natural mother a grace period in determining whether to place her child for adoption.
In contrast to the cases respondents rely upon, the Supreme Court of Illinois held that a biological father whose parental rights had been terminated improperly had an automatic right to custody of his child despite the child's having lived with the adoptive parents for three years. (In re Doe (1994) 159 Ill.2d 347, 202 Ill.Dec. 535, 638 N.E.2d 181, cert. den. by Doe v. Kirchner (1994) 513 U.S. 994, 115 S.Ct. 499, 130 L.Ed.2d 408.) Noting the unfortunate fact that the child was three years old, In re Doe placed the blame on the natural mother, who in that case had prevented the father from knowing of the child's birth, and on the adoptive parents who kept the child and pursued litigation despite knowledge of the father's position. (202 Ill.Dec. at p. 536, 638 N.E.2d at p. 182.) The court stated that the adoption laws were “designed to protect natural parents in their preemptive rights to their own children wholly apart from any consideration of the so-called best interests of the child. If it were otherwise, few parents would be secure in the custody of their own children. If best interests of the child were a sufficient qualification to determine child custody, anyone with superior income, intelligence, education, etc., might challenge and deprive the parents of their right to their own children. The law is otherwise and was not complied with in this case.” (Id., at p. 182–183.)
Respondents argue in their petition for rehearing that our conclusion Haley must be returned to appellant without a further custody determination violates her constitutional right to equal protection of the law. They contend that similarly situated children are treated differently, those placed in adoptive homes through agency adoptions receiving a custody hearing when the adoption fails and those placed through independent adoptions not receiving such a hearing. Where fundamental constitutional rights are concerned, disparate treatment of similarly situated classes may be justified only by a compelling state interest. (Plyler v. Doe (1982) 457 U.S. 202, 216–217, 102 S.Ct. 2382 2394–95, 72 L.Ed.2d 786.)
As we have stated, this case involves competing constitutional interests, the child's interest in a stable placement and appellant's interest in raising her child, both of which have been viewed as fundamental. In the statutory scheme governing independent adoptions, the Legislature has determined that a birth mother should have a period of time within which to decide whether to permanently give up her child. The state's interest in protecting the relationship between a natural mother and her child is certainly compelling. Children who may appear to be similarly situated are treated differently under our laws in other contexts due to the different conduct of their parents; in light of the parental difference, the children cannot be considered similarly situated. Consider, for example, two children placed in foster homes through dependency proceedings occasioned by abuse or neglect on the part of their parents, with foster parents wishing to adopt them. One child, whose parent fails at reunification efforts, will remain in the foster home and be adopted; the other, whose parent manages to overcome the problems that led to the dependency, may be returned to the parent after as long as 18 months, at the sacrifice of the stability that child would have achieved by remaining with the foster parents. This result, compelled by the state interest in protection of parents' rights to raise their children, surely does not offend the equal protection rights of the children involved. Here, where there is no suggestion appellant is an unfit parent and where all adult parties to this litigation knew that the initial placement of Haley with respondents was not necessarily permanent, the result can be no different. The child of a natural mother who has not fully relinquished her parental rights is not similarly situated to the child of a natural parent or parents who have done so.
Respondents also suggest Haley's equal protection rights would be violated by the rationale we adopt because it renders placement of a child sought to be reclaimed by a natural mother less stable than placement of a child sought to be reclaimed by a natural father. This argument derives from case law holding that before an unwed birth father can block an adoption, he must “promptly come[ ] forward and demonstrate[ ] a full commitment to his parental responsibilities ․ [,]” including the period during pregnancy. (Adoption of Kelsey S., supra, 1 Cal.4th at p. 849, 4 Cal.Rptr.2d 615, 823 P.2d 1216; Adoption of Michael H. (1995) 10 Cal.4th 1043, 1054–1058, 43 Cal.Rptr.2d 445, 898 P.2d 891.) Since a birth father must thus demonstrate a commitment to parental responsibilities both before and after a child's birth in order to be able to block an adoption by third parties while a birth mother may do nothing whatsoever in this regard and still have a right to block the adoption up to six months after the child's birth, the adoptive placement of a child is more at risk if the child is sought to be reclaimed by the mother.
The case law upon which respondents' argument is based establishes the situations in which a birth father who is not a “presumed” father under section 7611 21 has a constitutional right to block an adoption. The disparity in treatment derives not from our rationale but from the law's need to define the rights of natural fathers differently from those of natural mothers, whose relationship to a child is, for biological reasons, easier to establish. Our Supreme Court has concluded that the different treatment of unwed birth mothers and fathers is constitutionally permissible. (Adoption of Michael H., supra, 10 Cal.4th at pp. 1058–1060, 43 Cal.Rptr.2d 445, 898 P.2d 891.) Respondents' argument, based on the child's interest in a stable adoptive placement, would necessarily abrogate either that conclusion or the protection for birth parents' rights to raise their children afforded by the independent adoption scheme.
As explained above, our Legislature has determined that a natural mother should have a period of time within which to change her mind about the decision to place a child for adoption. The legislative scheme applicable to this case, as well as that currently in effect, unqualifiedly demands return of the child to a natural parent who refuses to consent to an adoption within the prescribed period. Legislative history reveals that attempts to require a best interests of the child determination before return of the child in this circumstance (as required when a natural parent attempts to revoke a consent previously given) were unsuccessful. Against this clearcut legislative scheme, as authority for requiring a custody hearing in the present case we have only the dicta in Kelsey S., supra, 1 Cal.4th at p. 851, 4 Cal.Rptr.2d 615, 823 P.2d 1216, which, as we have stated, does not reflect a considered determination on the issue by the Supreme Court. Obviously, that court may choose to qualify the rights of natural mothers under the legislative scheme. We do not consider ourselves empowered to do so.
When a birth mother changes her mind about an adoption within six months—before she can be found to have abandoned her child and her consent therefore dispensed with—removal of the child from the adoptive parents, while obviously devastating, does not pose as vexatious a situation as when the custodial uncertainty has been prolonged over a course of years. Thus, the concerns with a child's emotional attachment to the family he or she has known since birth and with security and stability in a child's life that have prompted courts to consider the child's interests paramount to the birth parents (see, In re Bridget R., supra, 41 Cal.App.4th 1483, 1503–1507, 49 Cal.Rptr.2d 507; Matter of Adoption of J.J.B., supra, 894 P.2d at pp. 1008–1011; Matter of Custody of C.C.R.S., supra, 892 P.2d at pp. 254–258; Sorentino v. Family Children's Soc. of Elizabeth, supra, 367 A.2d at pp. 1170–1171) are not at this stage compelling.
With the passage of time, concern for a child's security and stability necessarily take on increasing significance. The Legislature is thus to be commended for the amendments to the adoption statutes that took effect in 1995, which provide a short and clear time frame to govern birth parents' ability to change their minds about adoptions. Here, without benefit of those statutory changes, we have a mother who changed her mind within the period allowed by law but whose child was not returned to her. The ensuing litigation has consumed another two years during which this child has lived with the only parents she has known as such. Were this fact to determine the outcome of the case, however, we would not only condone the contravention of appellant's rights but encourage adoptive parents to refuse to honor legitimate demands for return of a child in the hope that sufficient time would pass to convince courts to retain the status quo. Indeed, introduction of an inquiry into the interests of the child before ordering a change in custody would inevitably result in adoptive parents' prevailing over natural parents as long as they could sufficiently prolong the litigation. It must be remembered that in an independent adoption, the adoptive parents take custody of the child knowing the birth mother has not irrevocably consented to the adoption. In the present case, Stacy A. signed the Health Facility Minor Release Report which made clear that it was not a consent or relinquishment for adoption and that appellant had six months within which to decide whether to go through with the adoption. Once appellant refused consent to the adoption within the six-month period, Haley's interest in a stable home depended on respondents returning her to appellant's custody; they are at least as much at fault as appellant for the instability in Haley's life that has resulted. We fully recognize that Haley is not responsible for any part of this situation and that it is she whose life will be profoundly affected. Reliance on this factor, however, can only go so far. While we in no way question respondents' motives in this case, their contention that the child's interest in stability must prevail over any other consideration, taken to its logical extreme, would suggest that even a child-snatcher who managed to keep the child long enough to form a strong bond with the child could argue the child's interest required continuation of the illegal custody. (See, Petition of Doe, supra, 202 Ill.Dec. 535, 638 N.E.2d at p. 188, opn. of Heiple, J., in support of denial of rehearing.)
While we recognize and deeply regret the havoc that, for at least a period of time, will be wreaked upon the life of a two and a half year old child as a result of this decision, the directive of section 8804 must be followed and the child returned to appellant. We are aware that section 8804, subdivision (c), contemplates a hearing at which the court must order the return of a child to a birth parent who has refused to consent to an adoption, and that no such hearing has occurred in this case. As the statute affords no basis upon which the trial court could fail to order return of the child, ordinarily we would find no occasion for a remand to rectify this situation. It should be self evident, however, that the trauma Haley will suffer as a result of this change of custody, while necessarily increased because of the length of time she has been in respondents' custody, would be exacerbated by too abrupt a transfer. We therefore direct the trial court to expeditiously develop a sensitive transition plan to ease, to the extent possible, this inevitably difficult custodial change.
In their petition for rehearing, respondents suggest that the best solution to the present case might be institution of a guardianship under which respondents could maintain physical custody of Haley but appellant's parental rights would not be terminated. Respondents were appointed Haley's temporary guardians pending resolution of the adoption proceedings as a consequence of the trial court's termination of appellant's parental rights. (§ 7893.) Because we find no abandonment, and therefore no basis upon which to terminate parental rights, the temporary guardianship must necessarily terminate. To our knowledge, no petition for longterm guardianship is pending in this case. The propriety of such a guardianship is not an issue before us, and we express no opinion on the matter.
The judgment is reversed and the matter remanded for proceedings consistent with this opinion.
1. Appellant testified that when she told her mother she was pregnant, her mother said she was going to kill Alex; that when she said to her mother, “I bet you wouldn't let me keep the child,” her mother replied, “You got that right, not in this house.” Appellant further testified her mother told her appellant was going to “ruin our business image” and was “ruining our family name,” and threatened that if appellant did not go along with the adoption she would “lose everything; your family, your job, tie up the savings account, out in the street, hard for you, we will want nothing to do with you.” Appellant testified that she was “terrified” and did not want to be put out on the street.
2. Appellant and her best friend, Robin Perez, testified that despite a promise to appellant not to contact respondents until appellant was ready, appellant's mother called respondents immediately upon the birth and told them to come to the hospital. Appellant testified that her mother said she did not care about the promise, that appellant was not the mother, she was not the grandmother and if appellant tried to change anything she would “suffer the effects.” Appellant's mother also tried to prevent her from having any contact with Alex. Appellant felt respondents were “pushy” and in a rush to leave the hospital; hospital staff members asked who respondents were because they were rude and asked why appellant was letting people pressure her.
3. On February 24, Alex signed a waiver of notice of adoption and a waiver of the right to file an action to declare the existence of the father child relationship. The court on March 22 granted Widelock's application for the adoption to proceed without obtaining a consent from Alex or terminating his rights.
4. According to appellant, when her mother overheard a conversation between appellant and Robin, her mother told her if she did not go through with the adoption “I will make you suffer like you never suffered before in your life.” Appellant's mother stopped talking to her and fired her from her job. Appellant's mother also told Robin appellant would be out on the street if she took the baby back.Appellant made approximately $150 to $200 a month from a mobile DJ company she owned. After being fired by her parents, she received about $81 a week from unemployment. In June, she began to work for the Navy Exchange at China Lake. In February, when Haley was born, appellant had about $900 in a money market fund and $400 in bank accounts.
5. Appellant testified that she attempted to call Salazar on August 23 and 24. The first call to the Department shown on appellant's telephone records was on August 25. Salazar testified that she did not receive any messages from appellant on August 23 or 24 and that to the best of her knowledge the telephone lines were working on those days.
6. All further statutory references will be to the Family Code unless otherwise specified.
7. Appellant stated in her declaration that she unsuccessfully sought representation from 17 attorneys before securing representation by Borof.
8. At the time of trial, section 8804, subdivision (c), provided, “If a birth parent has refused to give the required consent, or the reason or cause for the withdrawal of the petition [for adoption], or dismissal of the proceeding, is the withdrawal of the consent of the birth parent or parents, at the hearing the court shall order the child restored to the care and custody of the birth parent or parents.”
9. Under statutes operative January 1, 1995, if a birth parent signs an adoption placement agreement with specified contents, and takes no further action, the agreement becomes a permanent and irrevocable consent to the adoption on the 91st day after signing. (§§ 8801.3, subd. (c)(2); 8814.5, subd. (a)(3).) Before the revocable consent becomes permanent, if the birth parent requests return of the child, “the child shall immediately be returned to the birth parent․” (§ 8815.) These statutes were not in effect when Haley was born.The amendments operative on January 1, 1995, altered many of the adoption statutes. Unless otherwise specified, the discussion in this opinion will address the statutes in effect at the times relevant to this case without necessarily attempting to point out each instance in which present law (not applicable to the case before us) may be different.
10. “We may properly look to the legislative history of an enactment, including legislative committee reports and other legislative records, as an aid to ascertaining the Legislature's intent.” (In re Rottanak K. (1995) 37 Cal.App.4th 260, 267, 43 Cal.Rptr.2d 543.)
11. Timothy W. stated that “a birth parent's conduct ‘in contemplation of a proposed adoption [cannot establish] desertion or [an] intention to abandon․’ ” (223 Cal.App.3d at p. 446, 272 Cal.Rptr. 906.) The quote is from Guardianship of Rutherford, supra, 188 Cal.App.2d 202, 208, 10 Cal.Rptr. 270. That case listed a number of acts that, in the context of proposed adoption, would not support a finding of abandonment. It stated, however: “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. The contrary has been adjudicated. [Citations.]” (188 Cal.App.2d at p. 208, 10 Cal.Rptr. 270.) Baby Boy M., supra, contains this language from Rutherford as well as that quoted by Timothy W., 221 Cal.App.3d at p. 482, 272 Cal.Rptr. 27.
12. In this regard, the requirement of section 8804, subdivision (c), that “the court shall order the child restored to the care and custody of the birth parent or parents” when a birth parent refuses to consent to an adoption must be contrasted with the language of section 8804, subdivision (b). The latter provision allows a trial court to “retain jurisdiction over the child for the purpose of making any order for the child's custody that the court deems to be in the child's best interest” when the petitioners withdraw or dismiss an adoption petition. Though respondents rely on section 8804, subdivision (b), in their petition for rehearing, that provision clearly has no application to this case except for the significant contrast its language provides to the terms of the following subsection.
13. Indeed, subsequent amendments to the adoptions statutes bolster the conclusion that the Legislature did not intend to abrogate the rule that a child must be returned immediately to a birth parent who refuses consent to an adoption within six months. Effective January 1, 1995, a child is not considered to have been placed for adoption unless, among other things, the birth parent signs an adoption placement agreement including a statement that if the birth parent takes no further action, on the 91st day after signing the agreement becomes an irrevocable consent to the adoption. (§ 8801.3, subd. (c)(2).) If the birth parent chooses to sign a consent to the adoption, he or she has 90 days within which that consent may be revoked; upon the 91st day the consent becomes irrevocable. (§ 8814.5, subd. (a).) Once the revocable consent becomes permanent, it cannot be withdrawn. (§ 8815, subd. (a).) However, “[b]efore the time when the revocable consent becomes permanent as provided in Section 8814.5, the birth parent or parents may request return of the child. In such a case the child shall immediately be returned to the birth parent or parents so requesting.” (§ 8815, subd. (b) [emphasis added].) This provision for immediate return also applies in cases where a child has not been placed for adoption pursuant to section 8801.3 and the birth parent's consent must be signed in the presence of an agent of the department or a delegated county adoption agency. (§§ 8815, 8814, 8814.5.) Section 8815, subdivision (c), goes on to state that if the person or persons with whom the child has been placed have concerns that the birth parents are unfit or present a risk to the child, “That person's or those persons' only option is to report their concerns to the investigating adoption agency and the appropriate child welfare agency. These concerns shall not be a basis for failure to immediately return the child.” In the currently effective law, then, the Legislature has clearly and forcefully reaffirmed the rule of mandatory return to the nonconsenting parent articulated in Timothy W.
14. Respondents discuss three cases dealing with six month statutes of limitations for the purpose of urging they do not apply to the present case. Davis v. Thayer (1980) 113 Cal.App.3d 892, 170 Cal.Rptr. 328, held that for purposes of Code of Civil Procedure section 473, “six months” meant 182 days because in common usage, six months was the equivalent of a half year and, since Government Code section 6803 defined “half year” as “182 days.” Gonzales v. County of Los Angeles (1988) 199 Cal.App.3d 601, 245 Cal.Rptr. 112 and Marchuk v. Ralphs Grocery Co. (1990) 226 Cal.App.3d 1273, 276 Cal.Rptr. 627 held that “six months” meant the longer of six months or 182 days, attempting to harmonize Government Code section 6803 with Government Code section 6804, defining “month” as “calendar month.” Having concluded that appellant's expression of non-consent to the adoption was within six calendar months of February 25, 1994, we need not determine whether the longer 182 day time frame might also apply.
15. Respondents further assert that “in every section 7822 case which finds its genesis in an independent adoption placement the birth parent has ‘refused’ to consent to the adoption[,]” and that construing a verbal refusal as sufficient to trigger the automatic return rule of section 8804, subdivision (c), renders section 7822, subdivision (a), a nullity in independent adoptions. Respondents' initial assumption is incorrect. In every section 7822 proceeding involving an independent adoption, the birth parent has failed to consent to the adoption, but failure to consent is not the same thing as refusal to consent. Whether written or verbal, an affirmative refusal to consent to an adoption triggers the rule of section 8804, subdivision (c). Section 7822 remains a viable procedure for terminating the parental rights of birth parents who take no affirmative action to either consent or refuse consent to the adoption, as well those who do affirmatively refuse consent but then fail to take reasonable action to obtain custody of the child.
16. Respondents, in their petition for rehearing, take issue with this conclusion, stating that “to hold that a statement of refusal to consent on the last day of a six-month period requires a conclusion the birth-parent harbored an intent not to consent throughout the entire six-month period is not logical.” There is no requirement under section 7822 that a birth parent intend not to consent to the adoption for the entire six month period; rather, the prerequisite to termination of parental rights under this statute is that the birth parent intend to abandon the child for the entire six months. A birth parent's refusal to consent to the adoption on the last day of the six month period does not indicate the parent intended to so refuse for the preceding period of time but it does preclude finding the parent intended to abandon the child on that last day, and therefore precludes finding an intent to abandon for the entire statutory period.
17. In their petition for rehearing, respondents additionally note the Supreme Court's rejection in In re Zacharia D. (1993) 6 Cal.4th 435, 454, 24 Cal.Rptr.2d 751, 862 P.2d 751, of the proposition that a biological father has a presumptive right to custody whenever he comes forward, absent a finding of detriment. Zacharia D. held that a biological father who had not attained the status of a presumed father and attempted to obtain custody of his child after 18 months of reunification services for the mother in dependency proceedings was not entitled to either reunification services or custody of the child. Respondents point out that the proposition the father had a presumptive right to custody was rejected because it would “elevate[ ] the rights of a biological father above the child's interest in stability and permanency ․” (6 Cal.4th at p. 454, 24 Cal.Rptr.2d 751, 862 P.2d 751.) They fail to include the remainder of the Supreme Court's sentence, which concluded, “and defeat[ ] the Legislature's careful balance of interests reflected in the timeframe of the dependency laws.” As the latter portion of the sentence demonstrates, Zacharia D. was concerned with rights in the specific context of the dependency statutes. It is not authority for any broader principle regarding natural parents' rights in independent adoption proceedings.
18. Bridget R. also differs in that, because the custody determination was to be made in the context of guardianship proceedings, termination of the natural parents' rights would not be at stake.
19. In this connection, we take issue with the dictum in Bridget R. that a custody hearing is required “whenever an adoption is dismissed or denied, whatever the applicable law.” (41 Cal.App.4th at p. 1520, fn. 23, 49 Cal.Rptr.2d 507.) When a presumptively fit natural parent acts within the legislatively prescribed period to reclaim a child initially placed in an independent adoption, and that parent has never irrevocably consented to the adoption, he or she has a right to return of the child. (§ 8804, subd. (c).)
20. Matter of Adoption of J.J.B., supra, explained that the state followed a presumption that children's best interests were served by giving custody to natural parents. In remanding for a custody determination, the court directed consideration be given to evidence on two issues: unfitness on the part of the natural parent and ability of that parent to reestablish a healthy parent child relationship with the child.
21. A presumed father is one who, at specified times, was legally married to, or attempted to legally marry, the mother, or who “receive[d] the child into his home and openly [held] out the child as his natural child.” (§ 7611.)
KLINE, Presiding Justice.
HAERLE and LAMBDEN, JJ., concur.