IN RE: the GUARDIANSHIP of the Person and Estate of Donald Bruce HENWOOD and Joel Arthur Henwood

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District Court of Appeal, First District, Division 2, California.

IN RE: the GUARDIANSHIP of the Person and Estate of Donald Bruce HENWOOD and Joel Arthur Henwood, Minors. Mary G. ALEXANDER, Petitioner and Appellant, v. George Donald HENWOOD and Alameda County Welfare Commission, Objectors and Respondents.*

Civ. 17362.

Decided: July 22, 1957

Fred B. Mellmann, Russell P. Studebaker, Oakland, for appellant. J. F. Coakley, Dist. Atty., Alameda County, R. Robert Hunter, Chief Asst. Dist. Atty., Richard J. Moore, Deputy Dist. Atty., Oakland, for respondent.

This is an appeal from an order dismissing a petition for the appointment of a guardian of the persons of two minor children, two boys, of the age of eight years and five years respectively. Appellant is the children's maternal grandmother. On the death of the children's mother, about a year prior to the institution of the guardianship proceeding, appellant undertook the rearing of the children. The children's father admittedly disliked appellant and also disapproved of the way she was rearing the children. His principal complaint was that she was too indulgent. The upshot of the matter was that the father relinquished the children for adoption to respondent, Alameda County Welfare Commission, a licensed adoption agency. That respondent thereupon assumed custody of the children. Appellant, in an endeavor to regain custody of the children, instituted the present guardianship proceedings. The trial court found that appellant was a fit person to have the custody of the children, but further found that, as a matter of law, by the express terms of Civil Code Section 224n, custody of the children was vested in respondent agency and therefore the court is precluded from determining the necessity or convenience of appointing a guardian.

The sole question presented for decision is, Does Section 224n of the Civil Code, which vests custody of a reliniquished child in the adoption agency to which the child is relinquished, preclude the superior court from appointing a guardian of the person of such child?

The first sentence of Probate Code Section 1440 reads: ‘When it appears necessary or convenient, the superior court of the county in which a minor resides or is temporarily domiciled, or in which a nonresident minor has estate, may appoint a guardian for his person and estate, or person or estate.’

The first sentence of 224m of the Civil Code reads: ‘The father or mother may relinquish a child to a licensed adoption agency for adoption by a written statement signed before two subscribing witnesses and acknowledged before an authorized official of an organization licensed by the State Department of Social Welfare to find homes for children and place children in homes for adoption.’

Section 224n provides: ‘The agency to which a child has been relinquished for adoption shall be responsible for the care of the child, and shall be entitled to the custody and control of the child at all times until a petition for adoption has been granted. Any placement for temporary care, or for adoption made by the agency, may be terminated at the discretion of the agency at any time prior to the granting of a petition for adoption. In the event of termination of any placement for temporary care or for adoption, the child shall be returned promptly to the physical custody of the agency.

‘No petition may be filed to adopt a child relinquished to a licensed adoption agency except by the prospective adoptive parents with whom the child has been placed for adoption by the adoption agency. If an agency refuses to consent to the adoption of a child by the person or persons with whom the agency placed the child for adoption, the superior court may nevertheless decree the adoption if it finds that the refusal to consent is not in the best interest of the child.’

All children deprived of parental custody are wards of the state in which they reside, and the state, as parens patriae, has continual concern with their welfare. 43 C.J.S. Infants § 4; 27 Am.Jur., Infants, § 101. Each of the three branches of government plays a part in protecting their welfare. The legislative branch generally concerns itself with the legal status and civil rights of children, as is exemplified by adoption statutes, statutes fixing the age of majority, electoral franchise statutes, marital statutes, and statutes governing the power to contract.

Traditionally, however, matters involving the custody of children lie within the province of the judicial branch of government. As the court in Helton v. Crawley, 241 Iowa 296, 41 N.W.2d 60, at page 71, observed in the course of an exhaustive review of the authorities on the subject: ‘The prerogative of the sovereign, whether king or state, in the protection of infants, has passed to the courts of chancery and equity for its exercise and dispensation.’ And this is necessarily so, for each child custody case carries with it its own individual circumstances and its own peculiar problems. This concept is recognized and respected in California. Barrett v. Barrett, 210 Cal. 559, 292 P. 622; Foy v. Foy, 23 Cal.App.2d 543, 73 P.2d 618. In Wilson v, Roach, 4 Cal. 362, the Supreme Court thus declared the depth of the roots of equity courts in the field of children's welfare: ‘The District Courts of this State have the same control over the persons of minors, as well as their estates, that the Courts of Chancery in England possess.

‘This jurisdiction is conferred by the Constitution, and cannot be divested by any legislative enactment.’ (The court was, of course, referring to the California Constitution of 1849. However Article VI, Section 6 of that Constitution conferred substantially the same powers on District Courts that Article VI, Section 5, of the Constitution of 1879 confers on superior courts.)

In People v. Convent of Sisters of Mercy in Brooklyn, 200 Misc. 115, 104 N.Y.S.2d 939, the facts were that a destitute child had been committed to the Convent, an authorized child welfare agency, and the Convent had in turn placed the child with foster parents. Subsequently, the Convent removed the child from the foster home for the purpose of arranging adoptive placement. The foster parents instituted habeas corpus proceedings to secure a return of custody of the child. The statutes there involved provided that the custody of a child not legally adopted and for whom no guardian had been appointed shall be vested in the agency, and that such agency may, in its discretion, remove the child from the home where placed. The court, in restoring custody to the foster parents, said (104 N.Y.S.2d at page 945): ‘These statutes, however, do not and cannot affect the equitable powers of the court to arrange for custody with a view to the best interests of the child. This power is inherent in the Supreme Court and may not be abrogated by statute.’ To the same effect are People v. Hagstotz, Sup., 117 N.Y.S.2d 818; People ex rel. Our Lady of Victory Infant Home v. Venniro, 126 Misc. 135, 212 N.Y.S. 741; and People ex rel. Converse v. Derrick, 146 Misc. 73, 261 N.Y.S. 447. Also see Lavigne v. Family & Children's Society of Elizabeth, 18 N.Y.Super. 559, 87 A.2d 739, 747.

Section 224m of the Civil Code in plain language empowers a parent to relinquish his child to an adoption agency by simply executing a written statement to that effect. Section 224n of the Civil Code in equally plain language vests the custody and control of such child in the adoption agency. Thus by these sections the Legislature has, in effect, wrested from superior courts their inherent power to hear and determine proceedings concerning the custody of minors and has placed such power, complete and uncontrolled, solely in the hands of the parent of the forsaken child. The constitutional powers of the court cannot thus be transgressed. We therefore conclude that Section 224n cannot operate to bar the superior court from hearing and deciding the question of what custodial arrangement will best serve the interests of the child. Of course, we do not mean to suggest that the superior court's jurisdiction in child custody proceedings forecloses the Legislature from declaring policy and setting up standards for the guidance of the courts in making awards of custody, as it has done, for instance, in Civil Code Section 138, which states the considerations that are to guide the court in awarding custody of minors in divorce actions, and in Section 1406 of the Probate Code, which states the preferences that are to guide the court in the appointment of general guardians of minors. What we are saying here is simply that the Legislature cannot validly adopt a statute the necessary effect of which is to deny to a child, or to a class of children, the right of access to the courts.

Comment should be made on two decisions cited by respondents. First, respondents cite Adoption of McDonnell, 77 Cal.App.2d 805, 176 P.2d 778. That case was decided prior to the enactment of Section 224n and therefore did not involve the problem here presented. It is of no assistance here.

Respondents next cite In re Santos' Estate, 185 Cal. 127, 195 P. 1055, which speaks of the advantages of adoption over guardianship. They then urge that the appointment of a guardian of the person of a relinquished child would virtually make impossible its adoption because Section 224n permits adoption of a relinquished child only by the persons with whom the child has been placed for adoption by the agency, a result that is incompatible with the salutary purposes of the adoption statutes. That adoption is usually preferable to guardianship is unquestionably true. However, this argument does not answer the question of the court's power to determine which status better suits the welfare of a child. The trial court, of course, can, and should, consider the extent to which the prospects of adoption might thus be lessened in determining what will best serve the interests of the child.

The judgment is reversed and the cause remanded with directions to the trial court to hear and decide upon its merits the issue of the necessity or convenience for the appointment of a guardian of the persons of the children here involved.

O'DONNELL, Justice pro tem.

DOOLING and DRAPER, JJ., concur.