IN RE: the ADOPTIONS OF Frederick Elmer GRAHAM and Frank Laurence Graham

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

IN RE: the ADOPTIONS OF Frederick Elmer GRAHAM and Frank Laurence Graham, Minors. Frederick Elmer GRAHAM, Plaintiff in Intervention and Appellant, v. Loretta Moe SULSER; Frederick Elmer Graham and Frank Laurence Graham, Minors, Defendants in Intervention and Respondents, State Department of Social Welfare and Santa Clara County Welfare Department, Respondents.

IN RE: the ADOPTIONS OF Frederick Elmer GRAHAM and Frank Laurence Graham, Minors. Joseph MONIS and Ruth Monis, Petitioners and Appellants, v. STATE DEPARTMENT OF SOCIAL WELFARE and Santa Clara County Welfare Department, Respondents.*

Civ. 20218, 20219.

Decided: July 18, 1962

Johnson, Thorne, Speed & Bamford, H. Reed Searle, San Jose, for appellants. Stanley Mosk, Atty. Gen., Elizabeth Palmer, Deputy Atty. Gen., San Francisco, Joseph G. Schumb, Deputy County Counsel, Santa Clara County, San Jose, for respondent State Dept. of Welfare.

Two separate appeals arising from an adoption proceeding are here consolidated. The first of these appeals is by plaintiff in intervention, Frederick Graham, from a judgment declaring that he did not legitimate his two minor children, Fred and Frank Graham, in accordance with the requirements of Civil Code, section 230. The second appeal is by Joseph and Ruth Monis from a judgment dismissing their petition for adoption of Fred and Frank Graham.

There is no dispute as to the facts. The minor children involved, Fred and Frank Graham, were born in 1955 and 1956, respectively, and were the natural children of Loretta Moe Sulser and Frederick Graham, who lived and cohabited together from 1954 to 1958. Loretta had married John Moe in 1953, and left him shortly thereafter, taking up with Frederick Graham. The Moe marriage was terminated May 23, 1958, when Mr. Moe obtained an annulment. In 1937, Frederick Graham had married Jessie Rinella, who obtained an interlocutory decree of divorce in 1951. On October 26, 1960, the final decree was obtained by Jessie and entered nunc pro tunc as of June 2, 1952. In 1958, Loretta left Frederick and placed their two children in a licensed foster home. Frederick removed them from the home after approximately a month and took them to stay with his aunt. Seven months later, on March 23, 1959, Frederick took the children to the Santa Clara County Welfare Department, and requested that they be placed in a foster home. Thereafter, on March 15, 1960, Loretta Moe Sulser and John Moe signed relinquishments of the children to the County of Santa Clara for adoption. These documents were filed with the State Department of Social Welfare on March 17, 1960.

On April 1, 1960, Joseph and Ruth Monis, husband and wife, filed a petition for adoption of Fred and Frank Graham, alleging that both children were the legitimated natural children of Frederick Graham and Loretta Sulser. On June 8, 1960, the Santa Clara County Adoption Agency filed a petition praying that it be joined as a necessary party and that the Monises' petition for adoption be dismissed. As grounds for this relief, it alleged that the children had been relinquished to the county for adoption by their mother and their legal father (Loretta Moe Sulser and John Moe), and that this relinquishment was in full force and effect. Pursuant to stipulation of the parties, the court ordered the agency joined as a necessary party to the adoption proceedings.

Thereafter, on November 21, 1960, the State Department of Social Welfare, pursuant to Civil Code, section 226, filed its report recommending that the petition for adoption be denied because the children had been relinquished to a licensed adoption agency and were no longer free for adoption. The report further stated that the agency had found a suitable adoptive home for the children, and that their best interests would not be served by placement with the Monises. From this report, petitioners Monis duly filed their notice of appeal to the superior court.

Meanwhile, on June 24, 1960, a complaint in intervention was filed, with permission of the court, by Frederick Graham and John Moe. The complaint alleged that John Moe was married to Loretta Sulser at the time of the conception and birth of the two minor children, but that he was not the father of these children and had never accepted them into his home or in any way adopted them. It was further alleged that Frederick Graham was the natural father of the children and had received each of them into his family and publicly acknowledged them. Plaintiffs in intervention therefore prayed that the court (1) declare the nonexistence of the relation of parent and child between John Moe and the minors, Fred and Frank Graham; and (2) declare both children to be the legitimate children, from the time of their birth, of Frederick Graham. Plaintiffs alleged that a resolution of these questions was necessary in order for the adoption petition then pending to be heard and determined.

After a trial solely upon the issues raised by the complaint in intervention, the court found that John Moe was not the natural or adoptive father of the children; that Frederick Graham was their natural father, but that he had not legitimated them pursuant to Civil Code, section 230, because he had never received them into his home with the consent of his legal wife, Jessie Rinella Graham. The court therefore concluded that the relinquishments executed by Loretta and John Moe were valid, and that the Monises were not authorized, under Civil Code, section 224n, to petition for the adoption of Fred and Frank Graham. Judgment was entered declaring that Frederick Graham had not legitimated the children; the petition for adoption was dismissed.

Appellant Frederick Graham now contends that the court erred in finding that he did not ligitimate Fred and Frank. Appellant asserts that the evidence conclusively establishes that he publicly acknowledged both children, that he treated them as legitimate, and that he received them into the home that he shared with Loretta and the home he shared with his aunt. Under such circumstances, appellant argues that he must be deemed to have fulfilled the requirements of Civil Code, section 230. With this contention we agree.

In the case at bar, Jessie Rinella Graham obtained an interlocutory decree of divorce from the appellant in 1951, some years prior to the birth of Fred and Frank. As we have noted, in October 1960 she obtained the entry of a final decree of divorce which was entered nunc pro tunc as of June 2, 1952, under section 133 of the Civil Code. Said section, so far as pertinent, reads as follows: ‘Whenever either of the parties in a divorce action is, under the law, entitled to a final judgment, but by mistake, negligence or inadvertence the same has not been signed, filed and entered, if no appeal has been taken from the interlocutory judgment or motion made for a new trial to annual or set aside the judgment or for relief under Chapter 8, Title 6 of Part 2 of the Code of Civil Procedure, the court on the motion of either party thereto or upon its own motion, may cause a final judgment to be signed, dated, filed and entered therein granting the divorce as of the date when the same could have been given or made by the court if applied for. * * * Upon the filing of such final judgment, the parties to such action shall be deemed to have been restored to the status of single persons as of the date of fixed to such judgment * * *.’ (Emphasis ours.) It has been held that this section is to be liberally construed to effectuate its objects and is totally effective except that its operation may not destroy a vested right. (Ringel v. Superior Court (1942) 54 Cal.App.2d 34, 128 P.2d 558; Macedo v. Macedo (1938) 29 Cal.App.2d 387, 84 P.2d 552.)

We find no vested right in respondents in this case, hence under the statute, at the time each of these children was born, the status of Frederick Graham was that of a single man. Since the marriage between appellant and his wife no longer existed, appellant was clearly under no obligation to obtain her consent to the adoption of a blood stranger. To hold such consent a prerequisite to the adoption (or legitimation) of appellant's natural children would lead to an absurd result. The public policy of California favors legitimation. (In re Estate of Lund (1945) 26 Cal.2d 472, 481, 159 P.2d 643, 162 A.L.R. 606.) Although it might once have been argued that the stigma of bastardy serves to discourage meretricious relationships, the enactors of section 230 were clearly not in accord with such a philosophy. ‘The view of the common law has given way in large measure to the concept that the onus for the act of the parents cannot be visited justly upon the child and that placing responsibility for the support of the child upon the father equally with the mother, permitting it to become legitimated and to have a right to his name and to inheritance from him, will tend as well or better to deter the potential father than did the common-law doctrine of irresponsibility, and at the same time conform more closely to our present ideas of justice.’ (In re Estate of Lund, supra, at p. 480, 159 P.2d at p. 648.)

Disregarding that portion of Civil Code, section 230 which requires consent of the wife, respondents do not seriously contend that appellant failed to fulfill the other requirements of said section. Appellant testified that he had always told his friends and relatives that the children were his and that he had always introduced them as such. He stated that he had received the children into the home he shared with Loretta and that he had always treated them as his legitimate children. When appellant took the children to his aunt's home, he continued to acknowledge them as his own and to treat them as legitimate. Appellant's testimony to this effect was not only uncontradicted but was in part corroborated by his aunt, who stated that he had brought them to her home, and that he had acknowledged them in the presence of other people and ‘was always proud to mention the fact that they were his sons.’

Under such circumstances, we must conclude that appellant legitimated his two sons.

In support of their position, respondents rely upon Laugenour v. Fogg (1942) 48 Cal.App.2d 848, 120 P.2d 690, and Darwin v. Ganger (1959) 174 Cal.App.2d 63, 344 P.2d 353, and other cases of like import. However, as we have indicated, these decisions are not applicable in view of the factual situation we have before us. Further, respondents concede that if appellant had legitimated the children prior to March 17, 1960, the date of the filing of the relinquishments by the natural mother and her alleged husband with the State Department of Social Welfare, that the said relinquishments would not be final and binding, but that Frederick Graham's relinquishment or consent would be required before the children would be free for adoption. Since we have determined that such legitimation did take place prior to March 17, 1960, the declaratory judgment to the contrary is reversed, and the trial court is instructed to find in accordance with our determination.

In dismissing the Monises' petition for adoption, the court held that appellant had never legitimated his two sons because in its view he was a married man and had not obtained the consent of the person it considered was his legal wife, in accordance with Civil Code, section 230. Hence, the children could be relinquished for adoption without appellant's consent. The court made no attempt to determine the validity of a relinquishment in which the father of legitimated children had not joined. Accordingly, the judgment dismissing said petition for adoption is reversed, and the cause remanded for a determination of the effect of such a relinquishment and of the other issues raised by the petition.

SHOEMAKER, Justice.

KAUFMAN, P. J., and AGEE, J., concur.