IN RE: the ADOPTION of Michael Roy BARNETT

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

IN RE: the ADOPTION of Michael Roy BARNETT, a Minor. Lura Katherine DAVEY, Petitioner and Respondent, v. LOS ANGELES COUNTY BUREAU OF ADOPTIONS, Objector and Appellant.*

Civ. 23929.

Decided: December 30, 1959

L. H. Phillips, Sepulveda, for appellant and cross-respondent. Harold W. Kennedy, County Counsel, Jean Louise Waller, Deputy County Counsel, Los Angeles, for respondent and cross-appellant. Stanley Mosk, Atty. Gen., Richard L. Mayers, Deputy Atty. Gen., amicus curiae in support of respondent and cross-appellant.

An order for the adoption of a minor child by Lura Katherine Davey was entered November 6, 1958, on a peition originally signed and filed by Roy Charles Davey and Lura Katherine Davey, husband and wife. At the time of the trial also heard was a petition to have the minor declared free of parental control, which was granted, and a petition of the natural mother for the court's approval of withdrawal of her consent to the adoption, which was denied. Those appearing before the lower court were petitioner Lura Katherine Davey, the natural mother, and objector the Los Angeles County Bureau of Adoptions.

Motion for a new trial based on two grounds—the insufficiency of the evidence to justify the verdict and error in law occurring at the time of trial was filed by the objector. It is from the order granting this motion petitioner Davey appeals; and under Rule 3(a)(2), Rules on Appeal, the Los Angeles County Bureau of Adoptions cross-appeals from the order of adoption in petitioner's favor. Although the natural mother likewise cross-appealed under Rule 3(a)(2), she has neither filed briefs nor appeared in the proceeding before this court.

Inasmuch as the insufficiency of the evidence to justify the lower court's judgment is not before us we only briefly review the salient facts leading up to the hearing on the petitions. The minor was born in California on October 30, 1956, to a married woman who was them suing for divorce in Nebraska. She claimed one other than her husband as the child's father. A direct transfer of the child from the natural mother to petitioners, Roy Charles Davey and Lura Katherine Davey, then husband and wife, took place in this state five days after his birth; and on November 7, 1956, they signed and filed their petition for adoption. On November 19, 1956, the natural mother signed a consent to the child's adoption by Roy Charles Davey and Lura Katherine Davey, the petitioners, on a form approved by the State Department of Social Welfare, in the presence of one of its agents. After an investigation and pursuant to Section 226, Civil Code, the Los Angeles County Bureau filed its report with the court, recommending denial of the petition without prejudice because the presumptive father had not consented to the adoption. The Daveys thereafter petitioned the court to declare the child free from parental control. During the pendency of these proceedings petitioners Davey were divorced July 29, 1958, and Roy Charles Davey withdrew from the petition for adoption leaving Lura Katherine Davey the sole petitioner. Learning of the divorce, the natural mother on September 12, 1958, filed her petition for approval to withdraw consent, based upon changed conditions in her own home, her remarriage and their desire to raise the child; and the change in the Davey home—their separation and divorce. Inasmuch as Mr. Davey, no longer in the home, did not desire to proceed with the adoption and no adoptive father would be available to assist in raising the child; and there was not on file a consent to the adoption by Mrs. Davey alone and the natural mother desired to regain custody of her child, the Los Angeles County Bureau of Adoptions, on August 29, 1958, filed a supplemental report recommending denial of her petition and requesting that the petition of the natural mother for approval to withdraw her consent be granted, thereby becoming the objector in the lower court proceedings.

At the trial numerous witnesses gave conflicting evidence concerning the fitness of petitioner Davey and the identity of the natural father. On the issue of consent petitioner placed in evidence (Ex. 1) two letters directed to her by the natural mother then in Nebraska—the first, dated May 16, 1958, although reflecting her satisfaction with the child's placement, showed no knowledge that a separation of husband and wife existed in the Davey home; and the second, dated July 17, 1958, alluding to a letter received from Mrs. Davey advising her of the divorce and that the baby might be taken from her, reiterated the satisfaction of the natural mother with the child's placement with Mrs. Davey and expressed the hope that he could remain with her and not be ‘put in a home.’ With reference to this letter, the trial judge said ‘that was consent. It does not have to be formal.’

Appellant Davey predicates her primary contention that the lower court abused its discretion in ordering a new trial mainly upon the fact that the motion was heard and determined by a judge other than the one who originally heard the case, without reading the transcript of the evidence and examining any issue of fact. Her claim is without merit.

It is obvious from the statement of the judge in the lower court that he, not concerned with either the insufficiency of the evidence to justify the verdict or that the decision was against the law (Section 657, subd. 6, Code of Civ.Proc.), granted the motion for new trial on the only other ground specified in the motion—‘error in law, occurring at the trial’ (Section 657, subd. 7, Code of Civ.Proc.). In any event, since the court's order, general in form, does not specify insufficiency of the evidence to support the decision as the ground upon which the motion was granted, it must be conclusively presumed that it was not based on that ground (Section 657, Code of Civil Procedure; Roth v. Marston, 110 Cal.App.2d 249, 242 P.2d 375; Springer v. Sodestrom, 54 Cal.App.2d 704, 129 P.2d 499). Therefore, no matter arising out of the sufficiency of the evidence is before this court—the sole issue for our consideration is whether the trial court erred in law in treating the letter written July 17, 1958, by the natural mother in Nebraska as a consent sufficient to meet the requirements of California law, and in granting the order of adoption based thereon.

That the judge of the lower court did not read the evidence received at the trial does not in itself show an abuse of discretion in granting the new trial; for the record discloses he did not consider or determine the propriety of the trial court's decision on the facts but, on the contrary, based his determination on ‘purely a matter of law’ for which he had before him the official court file containing all papers showing the trial judge's ruling and the objections made thereto including the consent, exhibits (letters), reports of the objector, orders, and objections and points and authorities in support thereof (Annin v. Belridge Oil Employees Federal Credit Union, 119 Cal.App.2d Supp. 900, 260 P.2d 295).

Authorities, Code Sections and the extensive evidence quoted in her briefs relied upon by appellant for her argument that it was reversible error for the judge of the lower court to fail to review the evidence in his consideration of the motion, and that the minute order granting the same is a nullity because no formal written order was made or filed within ten days after the motion was granted, are not in point for they are predicated on action of the lower court granting a motion for new trial on the ground of insufficiency of the evidence to sustain the verdict or that it is against the law specified in subdivision 6, Section 657. In the instant case the lower court's order was based on its determination that the trial judge committed an error in law during the trial, under subdivision 7.

The contention raised by the objector, the Los Angeles County Bureau of Adoptions, on its cross-appeal from the order of adoption, if tenable, will likewise reflect the error in law which will sustain the lower court's order granting the motion for new trial. Thus, in concluding that there existed no valid consent of the natural mother to the adoption of the minor by Lura Katherine Davey, and that the trial court was without jurisdiction to enter the order of adoption, the order granting the motion for new trial must be affirmed.

In California the adoption proceeding is a creature of statute, the processes of which are zealously guarded and its rules strictly applied by our courts. The basis of that which recognizes by way of adoption the transfer of the natural right of parents to their children is found in their voluntary consent, which our Legislature has made absolutely essential to the validity of an order of adoption; indeed, so much so that without it, or its dispensation in enumerated exceptional cases, no jurisdiction is conferred upon the Superior Court to make such an order (In re Barents, 99 Cal.App.2d 748, 222 P.2d 488; Arnold v. Howell, 98 Cal.App.2d 202, 219 P.2d 854; Matter of Cozza, 163 Cal. 514, 126 P. 161). The authorities point up the importance which California courts have consistently attached to the necessity of maintaining great formality in the matter of consent. In keeping with its policy of protecting children who find themselves in the adoption process, from the very beginning of our legislation consent to adoption has carried with it a formality eliminating all oral or informal written expressions of consent, and our Legislature after extensive investigation and study has, on the basis of the formal executed consent, built a statutory framework designed to eliminate irregular and improper placement of children.

Section 224, Civil Code, provides that ‘a legitimate child cannot be adopted without the consent of its parents if living * * * nor an illegitimate child without the consent of its mother if living,’ and Section 226, Civil Code, in aprt provides that ‘(I)n all cases in which consent is required * * * the consent of the natural parent or parents to the adoption by the petitioners must be signed in the presence of an agent of the State Department of Social Welfare or a licensed County adoption agency on a form prescribed by such Department and filed with the clerk of the superior court in the county of petitioner's residence,’ modified by the further requirement in said Section that if the father or mother of a child be outside the state at the time of signing the consent it ‘may be signed before a notary or other person authorized to perform notarial acts.’ The statute thus requires the consent be in writing, in specially prescribed form in which the persons to whom the child is given are designated, executed before a state agent, or if out of the state, before a notary, and filed with the Clerk of the Court.

Following the rule of strict construction (In re Newman, 88 Cal.App. 186, 262 P. 1112; In re Hickson's Adoption, 40 Cal.App.2d 89, 104 P.2d 411; In re Christie, 98 Cal.App. 158, 276 P. 1045) that every intendment will be construed and all doubts will be resolved in favor of the claim of the natural parent, and if any statute relative to adoption is open to interpretation, it will be constured in support of the rights of the natural parent, we conclude from the provisions contained in Section 224 and 226 that the natural mother's formal consent to the adoption of her child by the two petitioners, husband and wife, does not constitute her consent to the adoption by the wife alone; and that an informal letter written by the natural mother in another state directed to the wife cannot provide the necessary consent in the absence of compliance with the statutory requirements of Section 226.

There is no conflict in the evidence relatiing to this issue; the question is whether, as a matter of law, the uncontradicted facts are sufficient to constitute the statutory consent necessary to give validity to the adoption order. Factually, the natural mother signed the proper consent to the adoption of her child by petitioners Roy Charles Davey and Lura Katherine Davey on November 19, 1956, in the presence of an agent of the Los Angeles County Bureau of Adoptions. Roy Charles Davey, called as a witness on behalf of the Los Angeles County Bureau of Adoptions, testified that subsequent to the filing of the petition he was divorced from Mrs. Davey, had no plan for recociliation, wanted no financial responsibility for the child, and did not desire to adopt him; and at that time (during the trial) withdrew from the petition for adoption. To supply the necessary consent for the adoption by the wife alone, the petitioner claimed first that the formal consent already executed was severable, at least for the purpose of conferring jurisdiction, and then, that the letter of July 29, 1958, corroborated that consent reflected in the formal document. But at no time did the natural mother ever sign another and separate consent to her son's adoption by Mrs. Davey alone, on any form prescribed by the State Department of Social Welfare, either in the presence of one of its agents, or before a notary, or other person authorized to perform notarial acts—instead, in direct derogation thereof, she filed her petition for the court's approval to withdraw any consent she may have heretofore given.

Following the long established policy of our courts in connection with adoption statutes, applying the rule of strict construction guided by interpretations of the State Department of Social Welfare set forth in Section 345 of its Manual of Policies and Procedures on Adoption in California recognized by judicial decree (In re Adoption of Parker, 31 Cal.2d 608, 191 P.2d 420; In re Barents, 99 Cal.App.2d 748, 222 P.2d 488), and finding practical support for such construction, we conclude that the rule of severability has no application to the document in question and the original formal consent to the adoption by both petitioners (specifying them by name as required under Section 226, Civil Code) does not constitute a valid consent to the adoption of the child by the sole petitioner, Lura Katherine Davey. Nor can the informal letter of July 29, 1958, written by the natural mother to her supply that consent. Therefore, when Roy Charles Davey withdrew from the petition for adoption, leaving Lura Katherine Davey the sole petitioner, the natural mother's formal consent to adoption by Roy Charles Davey and Lura Katherine Davey, which conferred on the trial court jurisdiction to make a specific order for the adoption of the minor by both petitioners, could not substitute for the necessary statutory consent to adoption by Lura Katherine Davey alone; and although retaining general jurisdiction to hear the matter and determine other issues it had assumed upon the filing of the petition, in the absence of consent to adoption by Lura Katherine Davey alone, the court was without that jurisdiction necessary to make a valid order for the adoption of the minor by her. Relative to the necessity of jurisdiction to make such an adoption order we refer to In re Barents, 99 Cal.App.2d 748, 322 P.2d 488; Arnold v. Howell, 98 Cal.App.2d 202, 219 P.2d 854; Matter of Cozza, 163 Cal. 514, 126 P. 161.

Section 345.2 of the Manual provides: ‘Regulations provide that the consent signed by a natural parent agreeing to the adopting of her child by a married couple may not be used in completing the adoption by one of them alone. The parent, if unwilling to have the child adopted by a single person, could properly upset the decree if she wanted to do so.’ As early as 1950 In re Barents, 99 Cal.App.2d 748, 222 P.2d 488, referred to the Manual as authority for rules to be followed in adoption cases in this state; and our Supreme Court, recognizing the value of administrative interpretations of regulations and statutes and discussing the Manual and its rule, stated in Re Adoption of Parker, 31 Cal.2d 608, at page 615, 191 P.2d at page 424: ‘* * * that administrative interpretations such as these will be accorded great respect by the courts and will be followed if not clearly erroneous. (Citations) * * *’ The Department's interpretation of the law relating to consent found in Section 345.2 of the Manual is not only ‘not clearly erroneous' but founded on practical considerations. Recognizing the emotional factors influencing the conduct of a natural mother relative to a child born under these or similar conditions, and the ease with which a person under such conditions may be subjected to duress of outside compulsion and imposed upon, we feel the Department rule justifies our consideration of its merit in the case at bar. At the outset, the law contemplates that one consenting to adoption, where no agency is involved, shall know the identity of the adopting parents, and her consent is directed to those particular persons (Opinion of the Attorney General, No. NS–4672, Dec. 30, 1942). This is entirely reasonable, for a natural mother may well be satisfied with conditions existing in a home in which both an adoptive mother and father will be present constituting a normal complete family, to care for her child, but be violently opposed to permitting one adoptive parent, without the presence and financial and other support of the other to raise him, and to a home lacking family unity. Consent under one set of circumstances is, thus, not necessarily consent under an entirely different one; and what a mother would be willing to do in one situation should not bind her if a change, over which she has no control, occurs to create another, unless she freely and voluntarily reaffirms that willingness in the proper way. The reasons behind the statutory requirement that a written consent in a prescribed form, specifically enumerating the names of the petitioners, be executed by the natural mother in the presence of an agent of the Department, are the same as these which require the same care and protection in a situation which makes further or new consent of the natural mother necessary. Interestingly enough the trial judge apparently recognized that the original formal consent was not a document that could safely be relied upon to supply the natural mother's consent to the adoption by Mrs. Davey after Mr. Davey withdrew from the petition; but realizing that the consent was required by law, he attempted to construe the letter to constitute the necessary consent to support the validity of the decree.

Appellant relies on Adoption of McDonald, 43 Cal.2d 447, 274 P.2d 860. We find this case to be of little assistance to her inasmuch as the consent there involved was that of a licensed adoption agency, not the natural mother, the considerations of which differ substantially. Furthermore, the discretion of the trial judge after findings are filed, recognized by the court in this case and in Re Adoption of Parker, 31 Cal.2d 608, 191 P.2d 420, to allow the signing of the consent by the natural parent in open court if he determines the welfare of the child to be promoted by adoption, or to grant the petition for adoption without consent given by the Department or agency, is in the first instance obviously predicated upon a willingness of the natural parent to sign the consent, which is here absent; and in the second, upon what is known as an ‘agency adoption’ which likewise does not here exist. Such discretion does not in any way dispense with the necessity for the free and voluntary consent of the natural mother. Reliance on language of the court that the trial judge may, after filing of findings and upon the refusal of a licensed adoption agency to consent, ‘grant the petition without such consent’ (Adoption of McDonald, 43 Cal.2d 447, 457, 274 P.2d 860, 866,) is misplaced, for we are here dealing with the consent of a natural parent.

That giving rise to the controversy herein is what has been frequently referred to as a ‘direct’ or ‘independent’ adoption, in which a child is placed by the natural parents or parent directly with the adopting parents without the assistance of a licensed adoption agency. The statutory law relating to this type of adoption is found in Sections 221 through 231, Civil Code. What is known as an ‘agency’ adoption is one in which an adoption agency licensed by the State Department of Social Welfare normally takes the child from the natural parents who have relinquished him to the agency, finds a home for him, places him for adoption, and joins in or is a party to the petition for adoption filed by the adoptive parents it chooses. The natural parents in such a situation are no longer involved after they have executed their relinquishment of the child to the agency. The unique protection afforded the natural mother in giving her consent is not recognized in the role played by the agency in giving its consent; the safeguards and aids attending agency adoption placements sometimes are almost totally absent in independent adoption placement; and the construction given adoption statutes and requirements relative to the conduct and activities of an agency is not always the same as that in the case of a natural parent.

Inasmuch as we have concluded that the trial court lacked jurisdiction to make the specific order for the adoption of the minor by the sole petitioner Lura Katherine Davey, any discussion relative to the welfare of the child we deem not pertinent at this time.

For the foregoing reasons the order granting the motion for new trial is affirmed and the two cross appeals from the judgment are and the same is each dismissed.

LILLIE, Justice.

FOURT, J., concurs. WOOD, Presiding Justice. I dissent