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Court of Appeal, Fourth District, Division 1, California.

Sara JOHNSON, et al., Plaintiffs and Appellants, v. James Leo FALLON, Defendants and Respondents.

Civ. 24119.

Decided: February 24, 1982

Louis S. Franecke, San Francisco, for plaintiffs and appellants. Daniel J. Tobin, Knutson, Tobin, Meyer & Shannon, Le Mesa, for defendants and respondents.

Sara Johnson, Lisa Johnson, Stephen Johnson and Victor Johnson appeal after the trial court dismissed their action seeking to set aside an adoption and establish visitation rights in them upon sustaining a demurrer to their complaint without leave to amend.

The plaintiffs, residents of Brooklyn, New York, are the natural grandmother, sister, brother and uncle, respectively, of Katherine Clarke Fallon (whom the complaint names “Johnson”).

Katherine was born in 1970 and orphaned in 1976, at which time she was placed in the care and custody of James Fallon and his wife Mary, who were appointed as guardians on December 23, 1976.   Four years later, the Fallons obtained a decree of adoption of Katherine.

The complaint alleges the Fallons knowingly and fraudulently misled the superior court in the adoption proceeding to obtain jurisdiction to pursue a claim for visitation rights.   The Johnsons concede there is no basis for the fraud and their singular objective is to obtain visitation rights.   They do not seek to overturn the adoption.

A demurrer to the complaint was sustained without leave to amend and we are asked to decide if grandparents and similarly closely related blood relatives have standing to petition for visitation rights in an adoption proceeding.   If so, the plaintiffs should be allowed to amend.

Counsel for the plaintiffs outlined proposed allegations in addition to those already alleged.   He stated that before the adoption there had been continuous visitation from the plaintiffs who desire and are interested in maintaining the relationship with Katherine;  there had been numerous letters and telephone calls indicating a diminution of the relationship and allowance of visitation by the Fallons;  there had been indications Katherine desires to maintain a relationship with plaintiffs;  visitation was now being denied;  and it would be in the best interests of the child to establish visitation rights by these blood relatives.

At the outset, we note there are established rules of review of the propriety of a trial court's sustaining a demurrer without leave to amend.   Certain of these rules are:

“ ‘An order sustaining a demurrer without leave to amend “ordinarily constitutes an abuse of discretion, if there is a reasonable possibility that the defect can be cured by amendment.’  [Citation.]  Liberality in permitting amendment is the rule, not only where a complaint is defective as to form but also where it is deficient in substance, if a fair prior opportunity to correct the substantive defect has not been given.  [Citations.]'  [Citation.]  Of course, ‘ “the plaintiff has not had a fair opportunity ․ [to cure a substantive defect] ․ where the demurrer [is] sustained to [its] first complaint.”  [Citation.]’  [Citations.]”  (Larwin-Southern California, Inc. v. JGB Investment Co., 101 Cal.App.3d 626, 635, 162 Cal.Rptr. 52.)

Moreover, “ ‘the allegations of the complaint must be liberally construed with a view to attaining substantial justice among the parties.’ ”  (King v. Central Bank, 18 Cal.3d 840, 843, 135 Cal.Rptr. 771, 558 P.2d 857, quoting from Youngman v. Nevada Irrigation Dist., 70 Cal.2d 240, 244–245, 74 Cal.Rptr. 398, 449 P.2d 462.)   Consequently,

“[w]e consider the demurrer as admitting all material and issuable facts properly pleaded.  (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713 ․ 63 Cal.Rptr. 724, 433 P.2d 732.)   Although facts should be averred in ‘ordinary and concise language’ (Code Civ.Proc., § 426), precise form and language are not essential.  ‘[T]he rule is, that if upon a consideration of all the facts stated it appears that the plaintiff is entitled to any relief at the hands of the court against the defendants, the complaint will be held good, although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.’  (Matteson v. Wagoner (1905) 147 Cal. 739, 742 [82 P. 436].)”  (Scott v. City of Indian Wells, 6 Cal.3d 541, 549, 99 Cal.Rptr. 745, 492 P.2d 1137.)

Pursuant to representation of counsel at the trial court as well as here on appeal, we treat this case as one in which the sole relief sought is reasonable visitation.

 Our dominant concern is the best interests of the child, for in adoption proceedings the court is to be governed solely by the welfare of the child (Reeves v. Bailey, 53 Cal.App.3d 1019, 1022–1023, 126 Cal.Rptr. 51).   We take primary guidance in our approach to this case from the following dictum in Estate of Zook, 62 Cal.2d 492 (at pp. 494–495), 42 Cal.Rptr. 597, 399 P.2d 53: 1

“Unquestionably the substitution of adoptive for natural parents serves a great number of social objectives.   On the other hand the law should not and cannot ignore the fact that an adopted person may not in many respects be cut off from his natural family.   If affection and regard remains between members of a natural family, the law should not in the name of consistency undertake to thwart the expression of those feelings when the encouragement thereof does not hinder the adoptive relationships.”

Civil Code section 197.5 provides as follows:

“(a) If either the father or mother of an unmarried minor child is deceased, the children, parents, and the grandparents of such deceased person may be granted reasonable visitation rights to the minor child during its minority by the superior court upon a finding that such visitation rights would be in the best interests of the minor child.

“(b) In granting visitation rights to persons other than the parents of the decedent, the court shall consider the amount of personal contact between such persons and the minor child prior to the application for the order granting them visitation rights.

“(c) This section shall not apply if the child has been adopted by a person other than a stepparent or grandparent.   Any visitation rights granted pursuant to this section prior to the adoption of the child shall be automatically terminated upon such adoption.”

 Thus, in cases where, for example, a superior court has granted a grandparent reasonable visitation rights under Civil Code section 197.5 and there is a later adoption by one other than a stepparent or grandparent, the visitation rights so granted automatically terminate upon the adoption.   This effect of the section does not come about in the case at bar since the plaintiffs have not been “granted reasonable visitation rights ․ by the superior court” (subd. (a)) “prior to the adoption of the child” (subd. (c)).  It follows, the automatic termination of visitation provisions of Civil Code section 197.5 does not apply in this case.   Also, under the first sentence of subdivision (c), it is apparent Civil Code section 197.5 as a whole is inapplicable because the child, Katherine, has been adopted by a person other than a stepparent or grandparent.

In Roquemore v. Roquemore, 275 Cal.App.2d 912, 80 Cal.Rptr. 432, the court held the grandparents were entitled under Civil Code section 197.5 as it then read 2 to seek visitation rights notwithstanding an adoption by the child's stepfather after the natural father died and the mother remarried.   Roquemore quoted the Zook dictum, noted no statute precludes natural grandparents of an adopted child from seeking visitation rights, and concluded the code section permits the grandparents to maintain an action for visitation rights “on the basis of a question of fact as to whether such visitation rights would be in the best interests of the minor child and would not unduly hinder the adoptive relationship.”  (Id. at p. 917, 80 Cal.Rptr. 432.)

Similarly, in Reeves v. Bailey, supra, 53 Cal.App.3d 1019, 126 Cal.Rptr. 51, the court permitted an action for visitation by paternal grandparents after the child was adopted by the maternal grandparents.   The court in Reeves v. Bailey noted Civil Code section 4601, after speaking of parental visitation, provides that “[i]n the discretion of the court, reasonable visitation rights may be granted to any other person having an interest in the child.”   Citing In re B. G., 11 Cal.3d 679, 114 Cal.Rptr. 444, 523 P.2d 244, the court observed Civil Code section 4601 is not limited to dissolution proceedings, instead applying to other cases where the custody of a minor is at issue (53 Cal.App.3d 1019, at pp. 1024–1025, 126 Cal.Rptr. 51, fn. 6).   After discussing the cases and accepting the Roquemore reasoning, the court said:

“Adoption has not worked any major change in the child's living arrangements from what they were when visitation was granted.   If visitation is no longer in the child's best interest or would unduly hinder the adoptive relationship, this is a matter to be established in a proper proceeding in which all interested parties may participate.   No statutory provision automatically terminates visitation rights upon adoption, nor is there any controlling case authority to that effect.”  (Reeves v. Bailey, supra, 53 Cal.App.3d 1019, 1026, 126 Cal.Rptr. 51.)

 The same considerations and legal aspects attend the case before us.   It is apparent the fact of past visitation with its implications on the strength of the relationship between visitor and child is the crucial consideration in determining whether one may seek a court order of visitation.   Whether the visiting which occurred was officially sanctioned by a court order granting visitation is not important.

We note in this connection and with respect to the Reeves v. Bailey statement “[n]o statutory provision automatically terminates visitation rights upon adoption” (53 Cal.App.3d 1019, 1026, 126 Cal.Rptr. 51), that subdivision (c) of Civil Code section 197.5, by its terms, operates to automatically terminate only those visitation rights which have been granted by a superior court before the adoption.  Civil Code section 197.5 has no application at all to cases of adoption by persons other than stepparents or grandparents (subd. (c)).  It is apparent Civil Code section 197.5 does not terminate, or for that matter grant, visitation “rights.”   It merely authorizes a superior court order of visitation upon request of certain persons and under designated guidelines (subds. (a) and (b)), and provides for situations under which the section does not apply and rights of visitation granted by court orders pursuant to the section before an adoption will automatically terminate (subd. (c)).  Incidentally, no language of the section precludes petitioning anew for visitation after an automatic termination of the court-granted visitation rights has occurred.

 On the other hand, Civil Code section 4601 expressly authorizes courts to grant reasonable visitation to “any ․ person” having an interest in the child.   As we view this provision of Civil Code section 4601 and as observed in Reeves v. Bailey, supra, it applies notwithstanding an adoption has occurred which makes Civil Code section 197.5 inapplicable.

 In light of the allegations here concerning the family ties which existed between plaintiffs and Katherine for some time before the adoption, there was enough in the complaint to permit amendment for the purpose of positively setting forth the nature of those family ties as a basis for seeking visitation.   There was enough to permit amendment showing the respective plaintiffs have “an interest in the child” (Civ.Code, § 4601).   Leave should also have been granted, as requested, to permit deletion of the cause of action to set aside the adoption.   In a case such as this, where the child's welfare determination can properly be made only after a hearing, it is error to sustain a demurrer to the first complaint without leave to amend.   Plaintiffs should have been given an opportunity to modify and recast the allegations so as to show affirmatively the existence of a family relationship worthy of consideration for a court order of visitation.3  Any determination of the merits of granting visitation, of course, is to be based upon a weighing of the dual considerations of whether doing so is in the best interests of the child and would not unduly hinder the adoptive relationship (Roquemore v. Roquemore, supra, 275 Cal.App.2d 912, 917, 80 Cal.Rptr. 432).

The judgment of dismissal is reversed with directions to permit plaintiffs to file an amended complaint.


1.   Zook had to do with inheritance taxation of a bequest to grandchildren who had been adopted by their stepfather.

2.   Civil Code section 197.5 then contained only the substance of present subdivision (a) and it applied only to grandparents, not others.   The section had no statement of inapplicability or automatic termination as in subdivision (c) at present.   In its entirety, the section then read:“If either the father or the mother of an unmarried minor child is deceased, the parents of such deceased person may be granted reasonable visitation rights to the minor child during its minority by the superior court upon a finding that such visitation rights would be in the best interests of the minor child.”  (Stats.1967, ch. 276.)

3.   The allegations of failure to inform the court on certain matters are unnecessary in a case seeking only visitation.   Allegations of this sort, however, might have some bearing in an action to set aside an adoption (see Reeves v. Bailey, supra, 53 Cal.App.3d 1019, 1023, 126 Cal.Rptr. 51).

COLOGNE, Acting Presiding Justice.

WIENER and MILKES, JJ.*, concur.