IN RE: Adoption of PIOR.* (1954)

Petitioners, Ralph Bennett and Mary Bennett, his wife, petitioned the court, on September 5, 1951, to adopt Donna Lynn Pior, then aged four years. They alleged that the child's mother, Faye Pior, sister of petitioner Mary Bennett, was killed in an accident in April, 1951; that at that time Donald Pior, father of the child, was separated and divorced from his wife and living in New Mexico; and that he gave his consent to the adoption by petitioners. It appears that thereafter the matter was referred to the Fresno County Department of Public Welfare, a co-adoption agency, for the purpose of investigating and reporting, under the provisions of section 225m of the Civil Code, as it then existed. That agency then reported to the court that the minor's father refused to consent to such adoption by petitioners, and that the agency recommended denial of the petition.

The investigation showed that the minor, due to an injury suffered by the mother, was placed temporarily in petitioners' home when the child was about 18 months of age; that it remained there about five months and later was removed by the mother, and was again placed in petitioners' home about three years prior to the rendering of the report; that the mother lived in petitioners' home for a period of time; that the child saw her father when she was eight months old, but was not acquainted with him to any great extent; that following the mother's death the father wired petitioners consenting to their temporary custody until further arrangements could be made; that the father paid petitioners $25 per month for the minor's care, and that he paid a like sum to the mother following their separation and until her death.

The investigator reported that the minor's father was of Protestant faith, had completed a course of study at the University of New Mexico, and was then employed as a certified public accountant. The report showed the family background of petitioners and that they had three boys; that one son was then serving a prison term in San Quentin for armed robbery; that he was arrested at the age of 14 for truancy and petty theft; and that he had been a problem for the law-enforcing officers in Fresno for several years. The trial judge here, who had him under observation during his youth, stated in a report: ‘This boy * * * has not responded to kindness, reason, suggestion, or severity. He has shown meanness to those who would do him good, instability of temperament, and failure to respond to advice, command, or reason * * *. We recommend * * * close psychiatric observation * * * something serious may be developing * * * he may become a maniac sex slayer if his present thought trends continue.’

A probation officer's report shows another boy was involved with the law (including grand theft, petty theft and sodomy); and that a ‘dire lack of supervision of this boy's activities on the part of his parents * * * was indicated’.

A somewhat similar report was made in reference to the backgrond of the third son. The report indicated that both petitioners were employed at times and that their financial background and ability to provide for their children was in doubt, and that the references given by petitioners gave guarded recommendations of them. However, at the hearing, considerable evidence was taken on this subject and many witnesses (19) testified in favor of petitioners' stability and high qualifications to be the adoptive parents of the child. The investigator's report described the minor's father as a conscientious and deliberate thinking person, and at the time of his interview in February, 1952, he described his marriage to the minor's mother as a ‘mistake’ and stated he did not wish to make another mistake in reference to his child's future welfare, and requested the agency to make a thorough investigation of petitioners' own children and into their financial status; that after receiving the report above mentioned, he decided he did not wish the minor adopted by petitioners and that he signed a ‘refusal to consent to the adoption’; that he stated he was coming to California and remove the child from petitioners' home, which he subsequently did do.

The agency then reported that it recognized the strong emotional tie existing between the minor and the petitioners but believed the positive factors were outweighed by the negative factors, and accordingly determined that petitioners's home was not suitable and recommended the denial of the petition.

It appearing to the court that petitioners had not obtained a duly authenticated consent to adoption by the parent, as provided by section 226 of the Civil Code, it was about to deny the petition under the authority of Matter of Cozza, 163 Cal. 514, 522, 126 P. 161, when counsel for petitioners moved the court, and the court allowed him, to amend the petition to conform to the proof, reciting that the father had executed a relinquishment of the custody of the minor child to the adoption agency under the provisions of section 224m of the Civil Code, and accordingly requested the court to grant the adoption to petitioners, notwithstanding the negative report of the adoption agency.

The facts prompting this request are the claims of petitioners that the father of the minor child was wrongfully influenced by the report of the investigator to change his mind in permitting them to adopt his minor child; that accordingly he did sign a relinquishment for adoption to the licensed adoption agency, as provided by section 224m of the Civil Code, and accordingly the court was authorized to assume jurisdiction of the matter and should have granted the petition. No convincing evidence was produced so indicating.

The respondent Fresno County Department of Public Welfare claims that the father of the minor child voluntarily refused adoption consent to petitioners, but did sign and execute a relinquishment as indicated; that this relinquishment was held by it in its files, but there never was in fact ‘filed with the State Department of Social Welfare, a certified copy thereof’, as provided by section 224m, supra, and accordingly the relinquishment ‘had no effect whatsoever’.

The court signed findings reciting ‘that no legally binding consent to said adoption has been given either by the parent of said minor child or the Department of Social Welfare of the State of California or the Department of Public Welfare of the County of Fresno’, and accordingly the respondent was not authorized to consent to said adoption, and stated that the court was without jurisdiction to consider the remaining allegations of the petition. It then denied the petition.

It is petitioners' contention on this appeal that they cannot be deprived of their day in court by a failure on the part of the administrative officer to carry out the duties which were imposed upon him by law in filing a certified copy of the relinquishment with the State Department of Social Welfare, and accordingly equity presumes that as done which ought to have been done, and the mere technical failure on respondent's part to file such a copy would not affect the validity of the relinquishment.

The evidence in respect to the signing and the claimed conditional delivery of the relinquishment is confusing and indefinite. It appears from the testimony that the adoption agency sent a request to the New Mexico agency to investigate the attitude of the father in respect to the petition for adoption filed by petitioners; that a consultation was had with him and after reading a report on the matter he refused to sign such a consent; that he did, however, sign a relinquishment of the custody of the child to the respondent for placement in an adoption home but a certified copy thereof was not filed with the State Department of Social Welfare because Mr. Pior was ‘aware of the status of the relinquishment’ and ‘aware that he still has custody and would give and make every effort to prevent the consummation of this adoption by the Bennetts'. The court then said: ‘That phase of the matter may go out * * * if he wanted to prevent it, he should be here personally. We cannot accept his—we cannot accept his rejection of the adoption, from anyone, except himself * * *. As far as the court is concerned, no written consent provided by law has been filed with the court * * *. That poses the proposition of whether or not the Court could, if it wanted to, grant adoption * * *. As far as my feeling at the present time is concerned, I can't do it, but I am willing to listen to a discussion of it. Mr. Loomis: The record does show there has been a relinquishment filed with the welfare department. The Court: General relinquishment to the department. Yes. It is not clear whether the court intended to find that the relinquishment was conditionally delivered to respondent and remained subject to withdrawal by the father; whether it found it was ineffective because a certified copy was not filed with the State Department of Social Welfare; or whether, by reason of respondent's refusal to give consent, the court found it had no jurisdiction to act.

In the absence of other testimony or that of the father that the relinquishment was conditionally delivered, we do not believe that the evidence would support a finding of conditional delivery. Under the circumstances, we agree with appellants that respondent may not now take advantage of its failure to act in forwarding a certified copy of the relinquishment to the State Department of Social Welfare when the relinquishment had been duly executed, delivered and filed with the duly authorized official of the organization, licensed by the State Department of Social Welfare to find homes for children, as provided by section 224m of the Civil Code, and where the agency had assumed authority to act and had refused its consent to such adoption. Whether the father could take advantage of the claimed conditional delivery of the relinquishment is not the question here presented.

There is then posed the question directly presented in In re Adoption of Kitchens, 116 Cal.App.2d 254, 253 P.2d 690, and decided by this court, to the effect that the Superior Court may not grant a petition for adoption where a child has been relinquished to the State Department of Social Welfare or its licensed agent without the consent of the agency, in the absence of arbitrary or unreasonable refusal of the agency to give its consent. Appellants cite in support of their claim that the cited case should be overruled, some of the authorities therein discussed, as well as In re Adoption of D.S., 107 Cal.App.2d 211, 236 P.2d 821.

By appellants' pleadings they make no attempt to allege any arbitrary or unreasonable refusal of the agency to give its consent. No useful purpose would be served in further discussing and distinguishing the authorities relied upon.

Judgment affirmed.

GRIFFIN, Justice.

BARNARD, P. J., and MUSSELL, J., concur.