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


No. 13429.

Decided: July 22, 1947

Schofield & Hanson, of San Francisco, for appellant. Jesse H. Miller and Joseph F. Leonard, both of San Francisco, for respondents.

In a consolidated hearing of a petition for writ of habeas corpus and a proceeding for adoption, the trial court denied the petition for the writ and granted a judgment and decree of adoption. Thereafter appellant moved to vacate the order for adoption on the ground that no findings of fact and conclusions of law were ever prepared or filed and also moved for a new trial. Both motions were denied. Appellant appeals from the judgment and decree of adoption and attempted to appeal from the order denying the motion to vacate and from the order denying the motion for a new trial. As neither of these orders is appealable, it is necessary to consider only the appeal from the judgment and decree of adoption. Moreover, as no pleadings similar to complaint and answer are necessary in adoption proceedings, no issues are joined and no findings of fact or conclusions of law are necessary. 24 Cal.Jur. 950.

There are two questions involved here. First, was the consent of the mother accepted by the State Department of Social Welfare? Secondly, under the circumstances of this case, can the mother withdraw her consent to the adoption?

Most of the facts are not disputed. On September 4, 1940, a boy child was born to appellant, who was then Mrs. Bertha West, the legal wife of Thomas West, from whom she had been separated for more than two years. Admittedly the child is not the child of West. Appellant had four legitimate children by West prior to the birth of this illegitimate child. The child was named Robert James Parker. Practically speaking, since his birth, Robert has never lived with or been cared for by his mother. For approximately the first three years of his life, Robert lived with and was cared for by various members of appellant's family. Appellant claims that this was necessary as she was required to work to support her other four children.

Immediately prior to April, 1943, Robert was living with a sister-in-law of appellant in San Francisco who took care of him in the daytime, but as she worked nights, she left the care of Robert in the night time with a blind woman. While appellant testified the child could not have been left in better hands, appellant's mother testified that the conditions under which Robert lived there were bad, and that on at least one occasion Robert was found to be sleeping in a chair on a table at night. About this time, appellant met her present husband, Anderson. They both lived in a home with another sister-in-law of appellant. Later appellant and Anderson moved to a home which they had purchased in the name of Mr. and Mrs. Anderson. Appellant stated to the State Department of Social Welfare (hereinafter for brevity referred to as the department) that she and Anderson were married in Yuma, Arizona, on January 18, 1941. (The marriage actually took place October 11, 1945. The alleged divorce from West never has been verified.) Appellant and Anderson were working at the shipyards, each earning about $80 per week. In April, 1943, Anderson and Paige, one of the adopting parents, were fellow employees at the shipyards, and were friendly. In one of their discussions, Paige told Anderson that Mrs. Paige was unable to bear children, and that they were anxious to adopt a child. Anderson told Paige about Robert, and on April 13th, Mr. and Mrs. Paige went to see Robert. They liked the child and the seemed to like them, so they took him home with them and have had him ever since. Mr. and Mrs. Anderson claim, and they are supported in this claim by appellant's mother, that the understanding was that he was to be taken for boarding only, while the Paiges claim that it was understood that the child was given them for adoption. The Paiges' version is supported by the actions of appellant thereafter. On October 10th, roughly six months after receiving the child, Mrs. Paige and Mrs. Anderson went to the office of an attorney for the purpose of arranging for adoption proceedings. Mrs. Paige claims that the delay was caused by the fact that Mrs. Anderson was working at the shipyards and did not desire to take time off for this purpose until she was forced to remain away from work because of an injury to her foot. At the attorney's office, Mrs. Anderson signed a consent to the adoption and arrangements were made for the attorney to commence the proceedings. Appellant now contends that the attorney and Mrs Paige practically coerced her into signing by threatening if she did not sign, to tell West about Robert and thereby possibly imperil her custody of the four West children. Both Mrs. Paige and the attorney deny this, and it is not consistent with appellant's later actions, including the fact that appellant signed a consent to adoption before an agent of the department. On October 11, 1943, the petition for adoption was filed. Appellant signed before a deputy county clerk on October 13th a document entitled ‘Consent to Adoption When One Natural Parent Gives Custody to Unrelated Husband and Wife’ in which she consented to the adoption of the child by the Paiges, ‘it being fully understood by me I am giving up all my right of custody, services and earnings of said child and that said child cannot be reclaimed by me.’ Just why this consent was signed does not appear, as it is a form to be used only in the case of a stepparent adoption. The evidence shows that after many interviews with workers of the department and after the department had satisfied itself that the child was a proper subject for adoption and that the proposed home was suitable for the child, and that the best interests of the child would be promoted by the proposed adoption, appellant on April 5, 1944, signed, in the presence of an agent of the department, her consent to the adoption, on a form prescribed by the department. This consent was in duplicate and reads:

‘I, the undersigned, being the mother of the above named minor child, and entitled to the sole custody of the said child, according to Section 226 of the Civil Code, do hereby give my full and free consent to the adoption of said by Virginia E. Paige and Edward Francis Paige, (names of petitioners) the petitioners herein, it being fully understood by me that I am giving up all my right of custody, services and earnings of said child and that said child can not be reclaimed by me.

‘In signing this consent I understand that it does not become final until it has been accepted by the State Department of Social Welfare after ascertaining that the best interests of the child will be promoted by the proposed adoption. u ‘Said child was born on February 4, 1943 Date in Modesto, California City and State

(Signed) Bertha Parker West, Anderson

Signature of Mother


Witness to Signature of Mother

Date April 5, 1944

Signed in the presence of

(Signed) Cornelia E. Phillips

Agent of the California State

Department of Social Welfare'

The department worker testified that she explained to appellant the effect of signing the consent, that appellant did not sign that day but came back another day and signed. Appellant had told the department that she had been divorced from West prior to the birth of the child. The consent was left with the department and sometime thereafter (the record does not disclose when) Mrs. Phillips, the department agent who acknowledged the consent, wrote the word ‘void’ across it because no record of any divorce from Mr. West could be verified nor any consent of the presumptive father obtained. For the same reason, the department on April 6, 1944, notified the court in the adoption proceeding that the department ‘is removing the case from its calendar until the legal status of the child and the right of the parents to give consent has been established. As soon as this has been done, the State Department of Social Welfare will complete the investigation and submit its report to the Court.’

Sometime thereafter appellant accompanied the attorney for the Paiges in the adoption proceedings to the chambers of Judge Foley, the then Presiding Juvenile Court Judge, and unsuccessfully attempted to persuade the judge to grant the adoption upon appellant's consent alone. Time went on. The Paiges in the meantime took care of the child, treated it as their own, and cured a speech defect of the child. Appellant showed no desire to see the child and at no time has ever reimbursed the Paiges for the care of the child. There is a dispute between the parties as to whether or not appellant ever offered to pay for the board and room of the child. This, and other conflicts, in view of the judgment, must be resolved against appellant. On May 9, 1945, the department filed in court its adoption report in which it stated: ‘Because of the inability of the State Department of Social Welfare to obtain the consent of the legal father, the investigation of the adoption petition has not been completed. The home [the Paige home] has been licensed as a boarding home for the care of the minor by the San Francisco Department of Public Health, and the minor will undoubtedly remain in this home where he appears to receive satisfactory care.’ Based solely upon this lack of consent of the presumptive father, the department then recommended that the petition for adoption by the Paiges be denied without prejudice.

Nothing further was done in the case until May 7, 1946, when appellant petitioned for a writ of habeas corpus to obtain the child. On May 23, 1946, appellant signed a purported withdrawal of her consent to the adoption. On May 27th the adoption proceeding and the habeas corpus proceeding were consolidated and heard together.

At the hearing, the affidavit of West was filed in which he stated that he was the legal husband of appellant at the time of the conception and birth of Robert; that he was not the father of the child and that he consented to the adoption of the child by the Paiges. Upon this affidavit, the court, by its judgment and decree, found that the child is an illegitimate child, requiring for adoption only the consent of the mother. It further found that such consent had been given and that the mother had no right to withdraw her consent, and granted the decree of adoption.

The court had before it a report of an investigation made by an investigator of the Juvenile Court which concluded that there was ‘no legal reason why this mother cannot have her child.’ (Emphasis added.) The home which appellant could give the child at the present time is adequate physically.

Was the mother's consent accepted by the department? The consent prepared by the department was conditional in form—‘It does not become final until it has been accepted by the State Department of Social Welfare after ascertaining that the best interests of the child will be promoted by the proposed adoption.’ (Emphasis added.) Miss Harris, the supervising social welfare agent of the department, testified that it was the practice of the department, followed in this case, to make the investigation before taking the consent of the mother.

Section 226, Civil Code, as it existed at the time of the filing of the petition for adoption and the signing of the consent by the mother, prescribed the duties of the department in adoption proceedings. Since that time this section has been amended. It is conceded that the questions involved here must be determined by, and our decision of the fact of acceptance is based upon, the provisions of that section as it then stood. ‘* * * the consent of the natural parent or parents for the adoption must be signed in the presence of an agent of the State Department of Social Welfare on a form prescribed by such department and filed with the clerk of the superior court, in the county of the petitioner's residence. * * * it shall be the duty of the Department of Social Welfare to ascertain whether the child is a proper subject for adoption and whether the proposed home is suitable for the child, prior to accepting the consent * * *’ (Emphasis added.) It is then made the duty of the department to submit to the court a full report of the facts disclosed by its inquiry with a recommendation regarding the granting of the petition, within 180 days, or such additional time as may be given by the court. If the department fails for 180 days, or in the time extended by the court, to accept the consent of the natural parent or parents to the adoption, a procedure is provided where either the natural or the adopting parent or parents, may appeal from such refusal to the court and after notice to the department, the department must, within 10 days, file a report of its findings and the reason for its failure or refusal to accept the consent of the natural parent. Then, the court may, if it deems the welfare of the child will be promoted by the adoption, allow the signing of the consent by the natural parent or parents in open court.

The facts of this case justify the conclusion that the department accepted the mother's consent at the time it was signed in the presence of the department's agent. The department had made its investigation, ascertained that the condition set forth in the consent that ‘the best interests of the child will be promoted by the proposed adoption’ had been met; also, as required by the code, ascertained that the child was a proper subject for adoption, and that the proposed home was suitable for the child, and then permitted the mother to sign the consent. At that time it was the practice of the department to follow that procedure. The parent was not permitted to sign before these matters had been ascertained. If the department found unfavorably on these matters, the parent was not permitted to sign the consent. Under the practice of the department, there can be no conclusion other than that, after the investigation and the determination of the facts required in the code and in the form of consent had been made, and the mother instructed to sign the consent, the acknowledgment of the signature by an agent of the department and the keeping of the signed consent constituted an acceptance of it.

It is contended that if the consent was accepted by the acknowledgment of the mother's signature and the keeping by the department of the consent, there was no reason for its conditional form. However, these forms are prepared to meet all contingencies. Take the case of a father in the armed forces during the war who was about to leave this country, and who wished to consent to the adoption of his child. By the time an investigation could be made, the father would be gone. In that case, the department would not enforce its rule requiring an investigation before taking the consent of the parent, but would permit the father to sign on the condition set forth in the consent that it was only to be final after the department had satisfied itself concerning the best interests of the child. There would be many situations arising where the department would deem it advisable to take the signed consent of a parent to be held awaiting the investigation. But here, everything had been done by the department, prior to the signing of the consent, that needed to be done by the department, and its physical acceptance of the signed consent under the circumstances constituted the acceptance referred to in the code.

The acceptance of the consent is separate and apart from the report which the department must make to the court. The consent may be accepted and yet the report may recommend against the adoption.

Under the procedure set forth in section 226, if the department refuses to accept the consent, either the parent or the petitioners may appeal to the court. In this case, this procedure did not apply for the reason that the department followed the procedure where it accepts the consent, but makes an adverse report to the court. Where the department refuses to accept the consent, it does not make a report to the court except where appeal is made and the court expressly directs the department to file a report giving its reasons for failing to accept the consent. An examination of the reports filed by the department in this case nowhere shows a refusal to accept the consent but merely a statement to the court that adoption should be denied because of the lack of the consent of the presumed father.

The very fact that the department deputy attempted to mark the consent ‘void’ indicates that the department had accepted it. If it had not been accepted there would be no reason to attempt to void it. All the department would have to do was to refuse to accept it. Once having accepted it, the department had no power to mark it ‘void.’ The consent of the mother is separate from that of the father of either a legitimate or illegitimate child. The mere fact that the other parent does not consent, does not void the consent already given. It merely prevents the court from granting the adoption in cases where the consent of the other parent is required. Here, the child being illegitimate, no consent other than that of its mother was required. Of course, the fact of illegitimacy could not be established by the mother or the department, but had to be determined by the court, and in a case of this kind, only after the presumed father had submitted to the jurisdiction of the court, as he did here.

It is true that the department supervisor testified that the consent was never accepted by the department. However, this was a conclusion not supported by the facts themselves. As heretofore shown the acts of the department constituted an acceptance.

The department had a rule of its own which provided that the consent of a parent could be withdrawn any time before the order of adoption was made. This rule, if a valid rule, is of no importance here, as there is no evidence that the rule was actually called to the mother's attention or that she signed the consent knowing of that rule.

Counsel for appellant, subsequent to argument, have submitted certain rules from the ‘Handbook on Adoption Law and Procedure’ issued by the department. They do not change the situation any. They are to the same effect as the code requirement, that the consent must not be accepted until after the determination by the department that the child is a proper subject for adoption and that the proposed home is suitable for the child. ‘Proper subject for adoption’ as used in section 226, Civil Code, refers to the adoptability of the child from a physical or mental standpoint, or perhaps even a racial standpoint. It does not mean that all the legal prerequisites must be met. A child may be a proper subject for adoption and yet cannot be adopted until the legal requirements have been satisfied. For example, the consent of one parent may have been obtained, and it may be necessary to bring an abandonment proceeding against the other parent whose consent cannot be obtained. The child, if physically and mentally fit, is a proper subject for adoption, even though the proceedings to declare it abandoned by the non-consenting parent may take considerable time. Here these matters were all determined by the department prior to the signing by the mother and the acceptance by the department.

While it is not necessary to decide here, a serious question arises as to whether or not, even assuming, as contended by appellant, that the consent never was accepted by the department, the mother, under the circumstances of this case, is not estopped, as hereinafter set forth, to withdraw even a conditional consent.

The consent having been accepted, the main question in the case follows. Can a parent withdraw a consent once given and accepted? Appellant relies principally upon the decision in Adoption of McDonnell, 77 Cal.App.2d 805, 176 P.2d 778. That case can be distinguished from the case at bar in this, that the facts here are such as to estop the mother from withdrawing her consent, while there the facts did not justify nor did the court consider the matter of estoppel. In that case it would have been as great a tragedy for the natural parents and the child had the parents not been permitted to withdraw their consent, as in this case it would be for the foster parents and the child if the natural mother were permitted to withdraw her consent. The McDonnell case quoted from In re Anonymous, 178 Misc. 142, 33 N.Y.S.2d 793, 799, a statement taken from Matter of Bistany, 239 N.Y. 19, 145 N.E. 70, 72: ‘The rights of the natural parent are paramount.’ [77 Cal.App.2d 805, 176 P.2d 783.] In re Anonymous, supra, 33 N.Y.S.2d at page 798, also quotes from Matter of Livingston, 151 App.Div. 1, 135 N.Y.S. 328, 332, as follows: ‘While the right of the natural parents to the custody of their children is not a proprietary right in the same sense as if the child were a chattel, and while it is accompanied by a corresponding duty which arises from the relation of parent and child, it has ever been regarded, even in primitive civilizations, as one of the highest of natural rights.’ This right, then, is accompanied by a corresponding duty, and when, as in our case, the parent so completely disregards that duty that, after three years neglect of her child she places it for adoption with foster parents who expend money, love and services on its care, the parent has lost its ‘paramount’ right to the child. Then, no longer is that right paramount, but the consideration of the best interests of the child becomes the paramount issue. The trend of the more recent authority is towards the proposition that the interests of the child in adoption proceedings must be given vital importance. Moreover, the foster parents are considered, under certain circumstances, to obtain a right to the child at least equal to that of a parent who deliberately has by his conduct placed the foster parents and the child in a position which cannot be changed without great injury to both the foster parents and the child. ‘* * * where a natural parent has freely and knowingly given the requisite consent to the adoption of his or her child, and the proposed adoptive parents have acted upon such consent by bringing adoption proceedings, and consent is ordinarily binding upon the natural parent and cannot be arbitrarily withdrawn so as to bar the court from decreeing the adoption, particularly where, in reliance upon such consent, the proposed adoptive parents have taken the child into their custody and care for a substantial period of time, and bonds of affection, in the nature of a ‘vested right,’ have been forged between them and the child.' 156 A.L.R. 1011. (Emphasis added.)

The child is now about seven years old. For the first three years of its life it was literally placed around from pillar to post. For no period of its life has it known its natural mother. For the past four years, for the first time in its life it has known a sense of security, and has had both a father and a mother. If it is returned to its natural mother it will be an illegitimate child with four legitimate siblings. If the adoption proceedings stand, the curse of the brand of illegitimacy will have been taken away. The situation in this respect is well stated in Re Adoption of a Minor, 79 U.S.App.D.C. 191, 144 F.2d 644, at page 649, 156 A.L.R. 1001, where the court says: ‘Gradually, we are coming to understand that our efforts must go far back into the lives of these children in order that they may be restored, so far as possible, to the influences of normal homes and family life. The disciplines, the affections, the achievements, and the sense of security and belonging, which are possible only with such a background, are of the essence in training for participation in modern life. Obviously, the problem and the need for remedial action is greater in the case of illegitimate children than of others. The child who, from its first awkward yeards, has been excluded from normal friendships and associations, who has known the disapproval of the unco guid, develops, first, a complex of fear and frustration, followed by resentment against the dominant group in organized society which permits such treatment. The illegitimate child is the visible evidence of transgression against religious and moral standards. Our forbears used to destroy inanimate objects which chanced to be agents of misadventure, or forfeit them as deodands. Similarly, these unfortunate offspring of romantic intemperance have been made whipping boys for vicarious repentance. As infants they have died in far greater proportion than their legitimate brothers and sisters; those who survived have worn the scarlet brand. It goes without saying that such people are more apt to become a burden upon organized society than cooperating members of it. The large percentage of illegitimate births in the general total is unknown to most people, and is startling in its potentialities.’

Even the mother recognized the child's handicap because she stated to Attorney Meadows that she desired the adoption ‘because the child was an illegitimate one and would never fit into any family home for that reason as he was different from the other children.’

To now wrench the child away from the people it knows as its parents, and at its age, to attempt to establish a new relationship of child with mother and stepfather would be a tragedy for the child, as well as for the foster parents. Certainly no court, having in mind the rights and best interests of all parties concerned—the natural mother, the foster parents, the child, and the state—could humanely hold that the mother's actions have not estopped her from withdrawing her consent and from claiming that she had not given to the foster parents and the child the ‘vested right’ which under the McDonnell case she would have, except for her actions. As stated in Re Adoption of a Minor, supra, 79 U.S.App.D.C. 191, 144 F.2d 644, 650, 156 A.L.R. 1001: ‘It is apparent that if in particular cases the unstable whims and fancies of natural mothers were permitted, first, to put in motion all the flow of parental love and expenditure of time, energy and money which is involved in adoption, and then, as casually, put the whole process in reverse, the major purpose of the statute would be largely defeated. Doctors of medicine and of divinity, potential adoptive parents and docial workers would be stymied in their rehabilitative efforts. A premium would, instead, be put upon the emotional instability which produces illegitimates; to say nothing of the possibilities for racketeering which such an interpretation of the law would put in reach of those who may be criminal in their tendencies as well as lacking in the qualities of parenthodd. The new law cannot prevent illegitimacy or remove its stigma, generally, but to the extent that it may secure desirable placement of even a few illegitimate children it may avoid some of its most dangerous results. But to do so it is necessary that such children and their adoptive parents be protected against possibilities of the kind suggested. Especially in the adoption of illegitimate children it is desirable that the break between infant and consenting mother be abrupt and final. The number of children who are housed in asylums or boarded out at the expense of the public is evidence enough of the problem and of the need. These are the considerations which must be kept in mind in interpreting and administering this law.’

In Lee v. Thomas, 297 Ky. 858, 181 S.W.2d 457, the court holds, as does the McDonnell case, that a parent has a superior right to his child, but then goes on to hold that that right may be lost by that parent in favor of foster parents whom the natural parent permits to change their position and to expend money on the child. The court calls attention to this fact (181 S.W.2d at page 460): ‘Here appellees, in reliance on appellant's written consent, not only took custody of the involved infant, but also devoted time and money in preparations for carrying out their duty as foster parents for 15 months without any objections cmmunicated to them by the mother of the infant.’ It also states (181 S.W.2d at page 460): ‘As a general proposition parents have the primary and superior right to the custody of their offspring above that of all others, but the declared law has injected into such cases a factor of almost equal dignity as that of the right of the parents, and which is the welfare of the child afforded by the superior advantages that adopting parents are about to and can furnish it and of which it would be deprived if it remained with its natural parents. But no opinion of any court so far as we are aware approves the right in anyone to take away from natural parents the custody of their children solely upon the ground that the adopting parent is better prepared to provide superior advantages to the child which the natural parent for wny cause might be unable to provide. But where that situation exists, and the parent has agreed that his or her child might be adopted and has executed such consent or offer in the manner pointed out by the statutory regulations of the particular jurisdiction which has been acted on by the proposed adopter, then such consent or agreement, in the absence of fraud or duress in its procurement, plus the vastly increased opportunities of the adopted child, creates a case where there is no alternative but to sustain the adoption applied for.’

In Re White's Adoption, 300 Mich. 378, 1 N.W.2d 579, at page 581, 138 A.L.R. 1034, cited in the McDonnell case (77 Cal.App.2d at p. 812, 176 P.2d at pages 782, 783), the court in holding similarly to the decision in the McDonnell case used the language [300 Mich. 378, 1 N.W.2d 581], ‘* * * no vested rights having intervened * * *.’ (Emphasis added.)

In Re Adoption of a Minor, supra, 79 U.S.C.App.D.C. 191, 144 F.2d 644 at page 648, 156 A.L.R. 1001, in discussing the adoption procedure provided by Congress for the District of Columbia, the court recognized the right of estoppel in a case of this kind, for it said that Congress ‘knew that well established principles of contract, waiver, and equitable estoppel would, ordinarily, prevent capricious and arbitrary evasion of a promise made, of consent given, of representations acted upon.’ (Emphasis added.)

It is true that in the McDonnell case, supra, the court considered all of the authorities we have hereinbefore cited. It called attention to both the so-called majority rule which, generally, gives the parent the right before final adoption to withdraw his consent, and the minority rule, which is the more modern, and to us, the more acceptable rule, that the consent cannot be withdrawn except in the discretion of the court. However, the court did not base its decision upon either rule but upon statutory construction. As before pointed out, the court was not considering the matter of estoppel, and there were no circumstances there which would have justified the court in applying the principles of estoppel.

The appeals from the order denying the motion to vacate, and from the order denying the motion for a new trial are dismissed; the judgment and decree appealed from are hereby affirmed.

BRAY, Justice.

PETERS, P. J., and OGDEN, Justice pro tem., concur.

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