MARK v. TUDOR (1987)

Tudor G. and Nicoleta S., the natural parents of Alexander S., appeal an order made in an adoption proceeding that Tudor is not a presumed father, and that his consent is not required for the adoption of Alexander by respondents Mark and Loraine H. Nicoleta also attempts to appeal from an order denying her petition to withdraw her consent to Alexander's adoption.

Nicoleta left Romania in August 1983 with a visa to visit East Germany.   She travelled from there through Europe to Italy and contacted the American Embassy in Rome where she sought, and was granted, refugee status and permission to enter the United States.   She immigrated to San Francisco, where she had a sponsor.   At the time of her arrival in San Francisco she was four and one-half months pregnant.   She was initially put in touch with the Catholic Foundation for Immigration and Resettlement.   A representative of the foundation in charge of job placement advised her it would be difficult to find work not only while she was pregnant, but also with a small child to care for.   The representative also advised her that she might encounter difficulties with the authorities because the child's father was not in the United States.   Nicoleta told the representative she was thinking of placing the child for adoption because she did not believe she would be able to support it.   The representative referred her to Mr. A., a local attorney specializing in adoptions.   She was not referred to any public assistance agencies.

Nicoleta first met attorney A. in mid-January 1984;  he told her that he would represent her and that if she wanted to give up the child for adoption, he knew several prospective parents.   He arranged for her to meet respondents, with whom he already had a professional relationship, having counselled them in connection with the adoption of their first child.   In exchange for their payment of her living expenses and medical care during pregnancy, Nicoleta verbally agreed to let respondents adopt her child.   Attorney A. obtained a written consent from Nicoleta in which she agreed that he could represent both her and respondents in the adoption proceeding.

Alexander was born by Cesarean section on April 17, 1984, and Nicoleta signed a release at the hospital permitting respondents to take him home.   Respondents filed a petition for independent adoption on April 19, 1984.   Annamaria Dienes, a clinical social worker with the California Department of Social Services (department), was assigned to the case.   When Dienes met with her, Nicoleta appeared to be suffering physical pain from the Cesarean section, and emotionally distressed.   Dienes advised Nicoleta that her consent was necessary for the adoption, and that once given it was difficult and complicated to withdraw.   She also explained that adoption would terminate Nicoleta's legal rights concerning her child.   Nicoleta wanted to keep her baby, but felt she was financially unable to do so.   Dienes told her of other sources of financial assistance for mothers and children, but did not advise her about the availability of child-care facilities.   Nicoleta did not believe at that time that it was possible for her to support herself and her baby, and also to repay respondents.   However, she remained unwilling to sign the consent to adoption.

Nicoleta told Dienes she wanted to see her baby, and arrangements were made for her to visit him at respondents' home three days later.   Respondents asked her why she had not signed the consent, and she told them she did not feel right about the adoption and needed more time to consider it.   Thereafter, Nicoleta met twice during June 1984 with Susan J., a volunteer worker with refugees who had befriended her during her pregnancy.   Ms. J. was also the former sister-in-law of respondent Loraine.   Ms. J. attempted to convince Nicoleta that consenting to the adoption would be in the best interests of her child, given her situation, and that she should not “give the parents the agony of waiting” for her consent.

Dienes met with Nicoleta again in mid-June and inquired about the father's identity.   However, because attorney A. had advised her not to reveal the father's name nor provide any significant information about him, Nicoleta did not reveal his name.   She did provide other information sought by Dienes.   During the period she was meeting with Dienes, attorney A. called Nicoleta frequently and at all hours, urging her to sign the consent.   He was also in constant contact with Dienes asking her to expedite the written consent, asking how often she had met Nicoleta, and inquiring why the consent was not yet signed.   Respondents also called Dienes frequently;  Dienes testified she received an “inordinate” number of calls from both respondents and attorney A. asking her to expedite the process.   Finally, respondents and an attorney who is not identified in the record contacted her supervisor and attempted to have Dienes removed from the case.¹  Apparently, the supervisor explained what Dienes had been telling them—that the department could not compel Nicoleta's consent.   Dienes was not removed from the case.

Shortly thereafter, Dienes was planning to leave on vacation.   She advised Nicoleta of the dates she would be away, so Nicoleta would know her availability in the event she decided to sign the consent.   On June 22, the last day prior to Dienes' vacation, Nicoleta signed the consent.   She was crying, and appeared to Dienes to be very upset, feeling that because of her financial circumstances she had no alternative.

In mid-July, after several fruitless attempts, Nicoleta managed to establish telephone contact with Tudor in Romania.   He was pleased to learn of the baby and did not want it adopted.   Due to Romanian law he was unable to send financial assistance to the United States, but he indicated his desire to marry Nicoleta and do what he could.²  At approximately the same time, Nicoleta obtained a permanent job by which she believed she could support herself and her child.   Upon her success at finding employment, and after speaking with Tudor, she decided to withdraw her consent.   On July 27 when Dienes returned from vacation, Nicoleta contacted her and was advised to contact the court concerning her decision.   Tudor applied for a visa in August, but was unsuccessful.

On August 6 Nicoleta told respondents she wanted to withdraw her consent.   They replied that they would fight her “with all possible means,” that they would fight any action by Tudor, and that they had a paternity problem with their previously adopted child, which they won.   On August 7 Nicoleta wrote to the clerk of the superior court advising that she wanted to withdraw her consent.   She also telephoned attorney A. and advised him of her decision.   He replied that he could no longer represent her;  he did not offer any legal advice, nor refer her to another attorney.

In mid-September Dienes had a telephone conversation with Tudor.   He wanted to know how to establish paternity, and was very definite about wanting the child returned to him and Nicoleta.   He also sent a telegram opposing the adoption.   On September 13, Nicoleta again wrote to the clerk of the superior court and asked for court appointed counsel.   She had done some independent research at the law library, and stated in her letter that she was unable to afford the fees which attorneys were asking;  she thought she was entitled to appointed counsel under Civil Code section 225m.³  The court records show no response to her request.⁴

Through her present counsel she filed, in respondents' adoption proceeding, a motion for visitation and a petition under Civil Code section 226a to withdraw her consent.⁵  She also joined with Tudor in a petition under Civil Code section 7006 to establish the existence of a father-child relationship.⁶  Tudor sent a notarized letter to the court, to Nicoleta and to the department admitting paternity, seeking to amend the birth certificate by naming him father, and objecting to the adoption.⁷

The department filed its report with the court recommending that Nicoleta be permitted to withdraw her consent.   The department noted that Nicoleta was overwhelmed with difficulties when she arrived in the United States;  she had not received proper counselling from the first agency she visited, and she was referred to an attorney who specialized in adoptions—primarily representing the adoptive parents in opposition to her interests.   The department felt that had Nicoleta received the proper social services when she first arrived, to relieve her of the substantial anxieties experienced by new immigrants, she would not have consented to the adoption.   It noted that after she became acclimated to this country, took her life in her own hands and obtained the support of the child's father, she attempted in a systematic, determined and sensitive manner to reclaim her child.   The department felt that Nicoleta's relationship with her child could be established without difficulty at that time.

The trial court found that Nicoleta's decision to withdraw her consent was reasonable and that she would be a good parent.   The trial court described her as a “fine” person, adding “I don't think you can help but admire her as a person.   I think quite clearly she is an intelligent, resourceful, decent person, and it is impossible not to have your heart go out to her.”   In fact, the trial court agreed with the department that Nicoleta would be a “very good parent” for the child.   However, it denied her petition to withdraw on the grounds that the best interests of the child were served by his remaining with respondents.   Its order was filed January 3, 1985.

Final determination on Tudor's petition was continued to allow him time to attempt to leave Romania and appear in court.   When he was unable to do so the trial court ultimately denied the petition to declare the existence of the father-child relationship.   In a judgment filed April 26, 1985, the court ruled that Tudor was the natural father, but not a “presumed father,” terminated his custodial rights, awarded custody of the child to respondents, and further ruled that only Nicoleta's consent was required for the adoption.

There is no dispute that Tudor is the natural father.   However, in adoption proceedings California distinguishes between “natural” fathers and “presumed” fathers.  (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 790–791, 218 Cal.Rptr. 39, 705 P.2d 362.)   Requirements for attaining status as a presumed father are set forth in Civil Code section 7004.⁸  Tudor does not meet the statutory requirements to qualify as a presumed father under Civil Code section 7004.   He contends, however, that Civil Code section 7017, subdivision (a)(1) precludes the adoption without his consent.   That statute provides:  “If a mother relinquishes for or consents to or proposes to relinquish for or consent to the adoption of a child who has ․ a father as to whom the child is a legitimate child ․ under the law of another jurisdiction, the father shall be given notice of the adoption proceeding and have the rights provided under Chapter 2 (commencing with Section 221) of Title 2 of Part 3 of Division 1 of the Civil Code․”

 The short answer to this contention is that Tudor has failed to establish that he is a legitimate father under the law of another jurisdiction.   Although he attempted to argue this at trial, his evidence fell far short of that required.   All he produced was a letter from an unidentified source purportedly connected in some fashion with the Romanian Embassy or Consulate.   On appeal he asks us to take judicial notice of Romanian law, and provides us with a copy of what he represents to be a 1958 French translation of the Romanian Family Code.   We are unable to conclude that he has established legitimacy under the law of another jurisdiction.   Consequently, the trial court's ruling that he failed to establish his status as a presumed father is correct.   The trial court also found it would be detrimental to award custody to Tudor.

 The problem with the remaining issues concerning Nicoleta's consent is that neither she nor the department, which represented the child below, filed a notice of appeal from the order of January 3, 1985 denying her petition.⁹  Absent a timely filing, we have no jurisdiction to consider her appeal.  (Code Civ.Proc., § 906;  Cal. Rules of Court, rules 2(a), 45(c), (e);  Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 125 Cal.Rptr. 757, 542 P.2d 1349.)

Orthodox principles of appellate review direct that we proceed no further at this juncture.   However, this case has profoundly disturbing aspects, since it appears that Nicoleta did not receive the professional services and assistance from her attorney to which she was entitled, and may have been entitled to rescind her consent.   In addition, although statutorily required, the child's interests were not represented.

Rescission returns the parties to their status quo ante, and prevents the adoption proceeding from going forward unless Nicoleta's rights are terminated in some other fashion.  Civil Code section 1689, subdivision (b) provides that rescission may occur “(1) If the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or obtained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party.”  Civil Code section 1575 states that, “Undue influence consists:  [¶] 1.   In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him;  ․ or, [¶] 3.   In taking a grossly oppressive and unfair advantage of another's necessities or distress.”

Nicoleta gave her written consent only after much urging from her attorney, who at that time was acting primarily in the interests of respondents, who also paid his fee.   In fact, to add to at least the image of impropriety, attorney A.'s fee arrangement with respondents provided that his fee would be reduced by 50 percent if the adoption was not completed.¹⁰  He did not counsel her nor aid her in any fashion after she expressed both her reluctance to consent, and a desire to keep her child.   To the contrary, he persisted together with respondents in attempting to expedite the consent, and failed to counsel or represent her when respondents were attempting to remove the social worker from the case and to force Nicoleta's consent.

 Civil Code section 225m permits an attorney to represent both the natural parents and the adopting parents in adoption proceedings if the attorney receives written consent from both clients.¹¹  The statute recognizes the obvious potential for a conflict of interest inherent in such situations.   However, the statute does not authorize continuing representation to the distinct advantage of one client over the other after an actual conflict arises.   It does not abrogate the fiduciary duty owed by an attorney to his client;  it anticipates representation.   Attorney A. ultimately recognized this fact when Nicoleta turned to him for help in the withdrawal of her consent, and he advised her he could no longer represent her.   However, as appellate counsel conceded during oral argument, it does not appear that attorney A. provided any representation to Nicoleta at any time during the proceedings after she expressed her unwillingness to consent to the adoption.

“ ‘The duty of a lawyer both to his client and to the legal system, is to represent his client zealously within the bounds of the law.’  [Citations.]  More particularly, the role of ․ attorney requires that counsel ‘serve as ․ counselor and advocate with courage, devotion and to the utmost of his or her learning and ability․’ [Citation.]”  (People v. McKenzie (1983) 34 Cal.3d 616, 631, 194 Cal.Rptr. 462, 668 P.2d 769;  emphasis omitted.)  “It is also an attorney's duty to protect his client in every possible way, and it is a violation of that duty for him to assume a position adverse or antagonistic to his client without the latter's free and intelligent consent given after full knowledge of all the facts and circumstances.   [Citation.]  By virtue of this rule an attorney is precluded from assuming any relation which would prevent him from devoting his entire energies to his client's interests.   Nor does it matter that the intention and motives of the attorney are honest.   The rule is designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties, or be led to an attempt to reconcile conflicting interests, rather than to enforce to their full extent the rights of the interest which he should alone represent.  [Citation.]” (Anderson v. Eaton (1930) 211 Cal. 113, 116, 293 P. 788;  see also People ex rel. Deukmejian v. Brown (1981) 29 Cal.3d 150, 159, 172 Cal.Rptr. 478, 624 P.2d 1206;  Goodman v. Kennedy (1976) 18 Cal.3d 335, 344, 134 Cal.Rptr. 375, 556 P.2d 737.)  “Lawyering may be deficient when conflict of interest deprives the client of undivided loyalty and effort.”  (Maxwell v. Superior Court (1982) 30 Cal.3d 606, 612, 180 Cal.Rptr. 177, 639 P.2d 248.)  “The relation between attorney and client is a fiduciary relation of the very highest character, and binds the attorney to most conscientious fidelity․”  (Cox v. Delmas (1893) 99 Cal. 104, 123, 33 P. 836;  accord Barbara A. v. John G. (1983) 145 Cal.App.3d 369, 383, 193 Cal.Rptr. 422.)

“An attorney who is called on to represent either party (parent or prospective parent) in an independent adoption can expect to do more work than an attorney involved in an agency or stepparent adoption.   In addition to explaining the nature of adoption and outlining the procedure, which counsel would ordinarily do in any case, the attorney involved in a direct adoption will often take on the role of counselor in the broadest sense.  [¶] When a client proposes to give up his or her child for adoption, counsel should try to discover the client's motive.   If the client really wants to keep the child but feels that it is a practical impossibility, counsel might suggest alternatives.   In particular, a client who feels financially unable to keep a child might be eligible for public assistance under various state and federal aid programs․”  (4 Markey, California Family Law (1986) § 72.03;  see also Lezin, Will Baby Make Three?  (1985) 5 Cal.Law. 29.)

Furthermore, Rule 2–111(A)(2) of the State Bar Rules of Professional Conduct provides that “a member of the State Bar shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.”   The record contains no facts from which it could be found or inferred that attorney A. made any effort to comply with Rule 2–111(A)(2).

 The private adoption does not provide the natural mother with the full panoply of social services and protections offered when adoption occurs through a licensed or state agency.  (See, e.g., Guardianship of Baby Boy M. (1977) 66 Cal.App.3d 254, 135 Cal.Rptr. 866.)   As a consequence, the natural mother participating in an independent adoption is in even more need of effective legal representation.   An attorney specializing in adoptions should be aware of and sensitive to such obligations.   We appreciate the service provided by intermediaries who bring potential adoptive parents and natural mothers together.   However, when attorneys attempt to undertake this function and represent both parties under the authority of Civil Code section 225m, they must function as attorneys toward their clients and not merely as baby brokers.

 Under any standards, Nicoleta did not receive representation of counsel at a time when she needed it most.   Following their initial meeting, attorney A.'s contact with Nicoleta was perfunctory.   After he discovered she was reconsidering the adoption and was unwilling to consent, his only activities appear to have been on behalf of his other clients, the proposed adoptive parents.   He did not refer Nicoleta to any public agency or counselor, he did not attempt to assist her in contacting the father, did not furnish her with any written information, nor in any fashion provide legal representation.   The trial court thoughtfully articulated its reasons for refusing rescission, but did not focus on attorney A.'s failure to act on behalf of his client during the critical period when she expressed her unwillingness to consent.   If Nicoleta was entitled to rescind her consent it is invalid and the adoption proceeding cannot proceed.   However, in all fairness to the trial judge, this focus was never presented.

Another serious problem involves the trial court's finding regarding the best interests of the child.   It focused on the fact that respondents were married and comprised a stable “family unit,” and that Nicoleta was unmarried, that Tudor may experience difficulty in coming to the United States, and they may be unable to marry.   As pointed out in Burchard v. Garay (1986) 42 Cal.3d 531, 229 Cal.Rptr. 800, 724 P.2d 486, “in an era when over 50 percent of mothers and almost 80 percent of divorced mothers work, the courts must not presume that a working [or single] mother is a less satisfactory parent or less fully committed to the care of her child.”  (Id., at p. 540, 229 Cal.Rptr. 800, 724 P.2d 486, fns. omitted.)

Although Burchard involved a custody dispute between natural parents, its principles with regard to single, working parents is equally applicable here, and this should not have been a factor in the court's decision.   In addition, the trial court considered psychiatric testimony which was of dubious value for several reasons:  (1) the testifying psychiatrist had neither interviewed Nicoleta nor seen her together with her child;  (2) he was never cross-examined by the attorney representing the child's interests, and (3) his testimony is overshadowed by the trial court's finding that Nicoleta would be a fine mother to her own child.

Unfortunately, as we previously noted, Nicoleta's trial attorney also failed her by neglecting to file a timely notice of appeal.   The child was not any better represented.   The attorney for the department who appeared on behalf of the child was not present in court during a substantial part of the proceedings, did not present any evidence, did not question any witnesses, filed no written points and authorities, and made no argument to the court.   In fact, the department's attorney responded to an inquiry from the court that she did not wish to cross-examine any witnesses.   In spite of the fact that the department recommended that Nicoleta be permitted to withdraw her consent, it also failed or decided not to appeal.

 The department was required to appear at the hearing to represent the interests of the child.  (Civ.Code, § 226a.)   As counsel for the department, the attorney who appeared below was charged with the obligation of providing effective representation to secure the child's interests.   We conclude the child's interests were not represented, particularly in light of the department's recommendation that Nicoleta be permitted to withdraw her consent.

 For all these reasons and because of the importance of the parent-child relationship, we deem it appropriate under these extraordinary circumstances to treat the belated appeal as a petition for habeas corpus.¹²  “The courts have long taken the position that the right to conceive and raise one's children have been deemed essential, basic civil rights of man and rights far more precious than property.  (Stanley v. Illinois (1972) 405 U.S. 645, 651 [31 L.Ed.2d 551, 558;  92 S.Ct. 1208, 1212].)”  (In re Jack H. (1980) 106 Cal.App.3d 257, 263, 165 Cal.Rptr. 656;  see also, Santosky v. Kramer (1982) 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599;  In re Carmaleta B. (1978) 21 Cal.3d 482, 489, 146 Cal.Rptr. 623, 579 P.2d 514.)

We are well aware of the emotional distress respondents and their family will suffer if they lose a child they hoped to adopt, and there will likely be little solace for them in the knowledge that the child will be with his natural mother or parents.   The plight of persons seeking to adopt children is well known.   It is a time consuming and often frustrating experience, and we do not wish to discourage or frustrate potential adoptions.   However, the rights of the natural parents and the child are equally, if not more so, deserving of concern and protection.

When we seek to permanently alter the parent-child relationship against the wishes of natural parents who have not been found unfit or even slightly wanting as parents, we are affecting “essential, basic civil rights.”  (In re Jack H., supra, 106 Cal.App.3d at p. 263, 165 Cal.Rptr. 656.)   Consequently, the legal safeguards established by the Legislature and the courts must be observed.  (See In re Cheryl E. (1984) 161 Cal.App.3d 587, 606, 207 Cal.Rptr. 728.)   The Legislature has required in Civil Code section 226a that the child's interests be separately represented in a hearing on a petition to withdraw consent to adoption.   Those interests are not represented by an attorney who is absent during a significant and substantial portion of the hearing.   Nor are they represented by an attorney who, although physically present in court, does not participate in the litigation.   The same fiduciary obligations imposed upon the mother's former attorney apply with equal force to the attorney representing the interests of the child.

 The record reveals that a young woman who was considered to have the potential as a good mother felt compelled, during a brief period of financial difficulty and adjustment to a new country, to consent to an adoption which she then thought would be best for her child.   Although technically represented by counsel during this period, she received no real legal assistance.   She acted promptly to rectify her mistake.   The child's interests were not represented, and the present record cannot support a finding that the child's best interests were served by the order denying the petition to withdraw consent.

The judgment of April 26, 1985, denying the natural father's petition, is affirmed.

The purported appeal from the order of January 3, 1985 is deemed to be a petition for writ of habeas corpus.   The petition for writ of habeas corpus is granted.   The superior court is hereby ordered to vacate its prior order of January 3, 1985, and to conduct further proceedings not inconsistent with this decision.   Any further proceedings shall insure the full and effective representation of the child's interests.

FOOTNOTES

1.   During oral argument respondents' appellate counsel advised us he was the attorney who attempted to have the social worker removed from the case.   He was apparently advising respondents during a portion of the period that attorney A. was purportedly representing both parties.

2.   In a subsequent proceeding the court found that Tudor attempted to send money to his attorney, but was prohibited from doing so by the Romanian government.

3.   Civil Code section 225m states, in relevant part:  “․ Upon the petition of any party, the court may appoint an attorney to represent the natural parent or parents of a child in negotiations or proceedings in connection with the child's adoption.”

4.   The record does not reveal why she received no response to her request for counsel, nor why her request was not approved.   It may not have been acted upon because no formal petition was filed.   However, she appeared to qualify for court appointed counsel at the time.   Appellant's brief advises that she obtained her attorney through a reduced fee panel of the San Francisco Bar Association.

5.   Civil Code section 226a states:  “Once given, consent of the natural parents to the adoption of the child by the person or persons to whose adoption of the child the consent was given, may not be withdrawn except with court approval.   Request for such approval may be made by motion, or a natural parent seeking to withdraw such consent may file with the clerk of the superior court where the petition is pending, a petition for approval of withdrawal thereof, without the necessity of payment of any fee for the filing of such petition.   The petition shall be in writing, and shall set forth the reasons for withdrawal of consent, but otherwise may be in any form.  [¶] The clerk of the court shall set the matter for hearing, and shall give notice thereof of the State Department of Social Services, to the persons to whose adoption of the child the consent was given, and to the natural parent or parents by certified mail to the address of each as shown in the proceeding, at least 10 days before the time set for hearing.  [¶] The State Department of Social Services or the licensed county adoption agency shall, prior to the hearing of the motion or petition for withdrawal, file a full report with the court and shall appear at the hearing to represent the interests of the child.  [¶] At the hearing, the parties may appear in person or with counsel.   The hearing shall be held in chambers, but the court reporter shall report the proceedings and his fee therefor shall be paid from the county treasury on order of the court.   If the court finds that withdrawal of the consent to adoption is reasonable in view of all the circumstances, and that withdrawal of the consent will be for the best interests of the child, the court shall approve the withdrawal of the consent;  otherwise the court shall withhold its approval.   If the court approves the withdrawal of consent, the adoption proceeding shall be dismissed.  [¶] Any order of the court granting or withholding approval of a withdrawal of a consent to an adoption may be appealed from in the same manner as an order of the juvenile court declaring any person to be a ward of the juvenile court.”

6.   Civil Code section 7006 states:  “(a) A child, the child's natural mother, or a man presumed to be the child's father under paragraph (1), (2), or (3) of subdivision (a) of Section 7004, may bring an action as follows:  [¶] (1) At any time for the purpose of declaring the existence of the father and child relationship presumed under paragraph (1), (2), or (3) of subdivision (a) of Section 7004.  [¶] (2) For the purpose of declaring the nonexistence of the father and child relationship presumed under paragraph (1), (2), or (3) of subdivision (a) of Section 7004 only if the action is brought within a reasonable time after obtaining knowledge of relevant facts.   After the presumption has been rebutted, paternity of the child by another man may be determined in the same action, if he has been made a party.  [¶] (b) Any interested party may bring an action at any time for the purpose of determining the existence or nonexistence of the father and child relationship presumed under paragraph (4) of subdivision (a) of Section 7004.  [¶] (c) An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under Section 7004 or whose presumed father is deceased may be brought by the child or personal representative of the child, the State Department of Social Services, the mother or the personal representative or a parent of the mother if the mother has died or is a minor, a man alleged or alleging himself to be the father, or the personal representative or a parent of the alleged father if the alleged father has died or is a minor.   Such an action shall be consolidated with a proceeding pursuant to subdivision (b) of Section 7017.   The parental rights of the alleged natural father shall be determined as set forth in subdivision (d) of Section 7017.  [¶] (d) Except as to cases coming within the provisions of Section 621 of the Evidence Code, a man not a presumed father may bring an action for the purpose of declaring that he is the natural father of a child having a presumed father under Section 7004, if the mother relinquishes for, consents to, or proposes to relinquish for or consent to, the adoption of the child.   Such an action shall be brought within 30 days after the man is served as prescribed in subdivision (f) of Section 7017 with a notice that he is or could be the father of the child or the birth of the child, whichever is later.   The commencement of the action shall suspend any pending proceeding in connection with the adoption of the child until a judgment in the action is final.  [¶] (e) Regardless of its terms, an agreement between an alleged or presumed father and the mother or child does not bar an action under this section.  [¶] (f) An action under this section may be brought before the birth of the child.  [¶] (g) The district attorney may also, at his or her discretion, bring an action under this section in any case in which the district attorney believes it to be appropriate.”

7.   The birth certificate originally listed no father, pursuant to the advice Nicoleta received from attorney A. not to reveal the natural father's identity.   It was amended, pursuant to Tudor's request, to name him as the father.

8.   Civil Code section 7004, subdivision (a) provides:  “A man is presumed to be the natural father of a child if he meets the conditions as set forth in Section 621 of the Evidence Code or in any of the following subdivisions:  [¶] (1) He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a decree of separation is entered by a court.  [¶] (2) Before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and, [¶] (i) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce;  or [¶] (ii) If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation.  [¶] (3) After the child's birth, he and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and [¶] (i) With his consent, he is named as the child's father on the child's birth certificate, or [¶] (ii) He is obligated to support the child under a written voluntary promise or by court order.  [¶] (4) He receives the child into his home and openly holds out the child as his natural child.”Evidence Code § 621 is not applicable to the instant proceeding.

9.   Such an order is appealable.  Civil Code section 226a states, in relevant part:  “․ Any order of the court ․ withholding approval of a withdrawal of a consent to an adoption may be appealed from in the same manner as an order of the juvenile court declaring any person to be a ward of the juvenile court.”  Welfare and Institutions Code section 800 provides that such an order of the juvenile court “may be appealed from in the same manner as any final judgment․”

10.   We do not imply that a contingent fee is improper when the attorney is not representing both parties.

11.   The relevant portion of Civil Code section 225m states:  “Nothwithstanding any other provision of law, it shall be unethical for an attorney to undertake the representation of both the prospective adopting parents and the natural parents of a child in any negotiations or proceedings in connection with an adoption unless a written consent is obtained from both parties․”

12.   Habeas corpus is an appropriate remedy for obtaining custody of a child.  (See 3 Witkin, Cal.Procedure (3d ed. 1985) Actions, § 21(c).)  Since legal custody remains with the natural parents until the adoption is granted (Guardianship of Baby Boy M., supra, 66 Cal.App.3d at pp. 266–267, 135 Cal.Rptr. 866), Nicoleta has standing to assert the rights of her child in light of the department's failure to act.

HANING, Associate Justice.

LOW, P.J., and ROUSE, J., concur.