In re DeLeon

This is an appeal from an order vacating and setting aside an order and judgment of the superior court of Solano County, made and entered in the matter of the adoption of Benetta DeLeon, an infant.

“1. That said decree of adoption was made in said above matter against the said Elizabeth Spurgeon, through her mistake, inadvertence, surprise and excusable neglect.

“2. That the court is and was without jurisdiction to hear, try or determine the matters or things set forth and contained in the petition for adoption in the above entitled matter, or to make or enter the said decree of adoption therein.

“3. That said decree of adoption is contrary to and in violation of article I, section XIII, of the Constitution of California, in that it deprives said Elizabeth Spurgeon of her property without due process of law.”

Upon the hearing of said motion the trial court made and entered its order setting aside and vacating the decree of adoption theretofore entered in the matter of said minor, and set the petition of the said Horace B. Blood and Alma E. Blood for the adoption of said minor down for further hearing. It is from this order that the petitioners for the adoption of said minor prosecute this appeal.

The appellants base their appeal entirely upon subdivision 2 of section 224 of the Civil Code, relating to the adoption of infants. That section provides that “a legitimate child cannot be adopted without the consent of its parents, if living,” and then provides that “consent is not necessary from a father or mother adjudged guilty of adultery or cruelty and for either cause divorced.” It will be noticed that nothing is said in this subdivision of section 224 about the consent of the person to ‘whom the child may be awarded when the divorce is 'granted upon either of the specified grounds. [1] Notwithstanding the fact that the divorce may be granted against a party on the grounds of his adultery or cruelty, the court having jurisdiction of the proceeding has both the

“The remaining question to be considered is whether the validity of the order of adoption is affected by the fact that it was made without the consent of the father of respondent, and without notice to him. As already stated the father of respondent had been divorced from the mother on the ground of his adultery, and such being the case, his consent to the order of adoption was rendered unnecessary by the express provisions of section 224 of the Civil Code then and now in force. The fact that the decree of divorce was made before the enactment of our Civil Code, and for an act of adultery committed in another state, did not make that section inapplicable to the proceeding taken by the deceased for the adoption of respondent, and to so hold is not to give any retroactive or extraterritorial effect to the provisions of that section. The section simply declares under what circumstances the consent of the natural parent shall not be required in a proceeding for the adoption of a child, and it was intended to furnish the rule in regard to that matter in all subsequent applications for adoption under the statute. It 5 „rgued, however, by counsel for appellants that it is not in the power of the state to deprive a parent of the natural right to his child for such a cause, without at least affording him an opportunity to appear and answer the charge in the proceeding which is taken for the purpose of severing his parental relations. Whatever force there might be in this position in a case where the natural father of an adopted child, was asserting his right to the custody of such child, or in an action brought by him to recover the value of its services from the adopted parent, it seems- to us that the question thus argued by counsel does not arise here. The

father of the respondent is dead; but, if he were alive, no rights of his would be impaired by giving force and effect to the contract of adoption, and permitting respondent to succeed to the estate of the deceased as the adopted child of the latter.”

The right of a natural parent to be heard in the adoption proceedings was not involved in the Williams case. The holding is, in effect, that, as the natural parent was not asserting any right to the care, custody, and control of the minor child involved, it did not lie within the power of anyone to assert such rights and privileges for the purpose of attacking collaterally the right of the minor to succeed to the estate of a deceased adoptive parent. In other words, the right of the parent was individual and could not be asserted by any other. In the case of Younger v. Younger, 106 Cal. 377 [ 39 Pac. 779 ], alleged to be determinative in this proceeding, we find the facts to be as follows: In February, 1891, Georgia A. Younger obtained a decree of divorce from her husband, Edward A. Younger, on the ground of extreme cruelty, the decree having been granted in the superior court of Santa Clara County, and was awarded the custody of their minor child, a son, Hyatt Tisdale Younger; that immediately after the entry of the decree of divorce in said action the mother, with her said son, took up her residence in the county of Yolo, and, on or about the thirty-first day of July, 1891, in a proceeding had in the superior court of the county of Yolo, based upon the consent of the mother and the petition of D. W. Hyatt, filed in said court, in conformity with the provisions of the Civil Code, an order of adoption was entered adjudging said Hyatt Tisdale Younger to be the duly adopted child of the said D. W. Hyatt. After these proceedings were taken and had, upon application by the natural father of said Hyatt Tisdale Younger, the superior court of the county of Santa Clara made an order modifying the decree of divorce theretofore entered in the said case of Younger v. Younger relating to the custody of the minor child in question, purporting to provide for the bringing of said minor child to Santa Clara during the month of July each year and allowing the father to retain the custody of said child during such period. The validity of this latter order was the question before the supreme

The adoption in this ease was had at a time when the award of the custody of the child involved, made at the time of the entry of the decree of divorce, was in full force and effect. The decree was entered against the father on the grounds of cruelty and gave to the mother the full power and control of disposition of the child, and this full control and power of disposition was subsisting, and in full force and effect, at the time she consented to the adoption of her infant son. Until the entry of the decree of adoption no modification of the order made under the provisions of section 138 had ever been made or petitioned for. At the time of the adoption the mother was the living person in whom the power of consent was vested, and having been duly and regularly exercised, the status of the child became inexorably fixed as the legal child of the adoptive parents and the superior court of Santa Clara County in the divorce proceeding thereafter had no jurisdiction to make any valid order pertaining to the custody of the child.

“There was no finding that the father was an unfit person to have possession and control of the child. The placing of the infant in charge of the mother was not such judicial deprivation of the custody of the child on account of the neglect of the father as is contemplated in section 224 of the Civil Code. Divorces are not granted for offenses against children and the bestowal of the custody of a minor in a divorce action is not, unless otherwise provided by statute, an adjudication of the fitness of the parent who is for the time denied the right to retain possession of the child. It is nothing more than the expression of the court’s belief that under the circumstances then existing, the welfare of the child would be best subserved by placing said child with one of the parents rather than the other. Upon the death of a mother to whom a child has been given by a decree of divorce, the father becomes entitled to the custody of the child. (Schammel v. Schammel, 105 Cal. 261 [ 38 Pac. 729 ]; Civ. Code, secs. 197 and 246; Code Civ. Proc., sec. 1751.) Prima

facie a parent is presumed competent and he is entitled to have the custody of his child unless found by the court to be incompetent. . (In re Campbell, 130 Cal. 383 [ 62 Pac. 613 ].)”

The case of Bell v. Krauss does not hear directly upon the interpretation of subdivision 2 of section 224 of the Civil Code, for the reason that the grounds of divorce in that case were different from those referred to in said subdivision, but the case does bear directly upon the rights of a surviving parent and upon the situation as presented when the parent to whom the custody of a minor child has been awarded is dead, prior to any disposition of the child by the parent to whom its custody may have been awarded, and prior to any change or modification in the order making the award. In the Matter of Cozza, 163 Cal. 514 [Ann. Cas. 1914A, 214, 126 Pac. 161 ], the question of notice to the guilty party awarded the custody of the minor child where the divorce was granted upon the ground of extreme cruelty came directly before the court for determination. In that case the father was granted a divorce from the mother on the ground of extreme cruelty, but the minor child of the marriage was awarded without any limitation to the mother. The divorce was granted in the state of Washington. Thereafter the mother came with the child involved in said action to the county of Santa Clara, in the state of California, where it appears the child was taken charge of by the superior court of said county, under and in accordance with the provisions of the Juvenile Court Law (Stats. 1915, p„ 1225). Thereafter such proceedings were taken and had that the superior court made an order of adoption whereby the child in this action was adopted. In the proceedings so talcen and had, no notice was given to the mother of said child. In making the order the court found as to the decree of divorce, as stated above, and as alleged in the petition for adoption and held that, as the. decree of divorce in the state of Washington was 'granted on the ground of cruelty toward her husband on the part of the mother of the child, her consent to the adoption of the child, under section 224 of the Civil Code, was unnecessary. In discussing the questions involved upon appeal, the court expressed its views as follows:

“The court found that, notwithstanding her primary right to her child and its custody, she had lost all right to object to being deprived of it under the adoption proceeding, or to insist that this could not be done by order of the court without her consent, by virtue of the decree of divorce, and, further, because, she had deserted and abandoned it within the meaning and intent of section 224 of the Civil Code.

“We are satisfied, however, that the court improperly construed the section as to the effect on consent of the decree as the terms of that decree stand, and that the evidence does not sustain the conclusion of the court that either the child had been deserted or had been abandoned by its mother within the meaning of said section 224, or deserted or abandoned at all so as to preclude the necessity for consent to its adoption.

“Discussing these matters separately, and, first, as to the effect of the decree of divorce on consent under the section. The trial court, reading this section literally, held that as the decree of the superior court in Washington between the parents of the child was granted to the husband for cruelty-on the part of the wife, her consent to the adoption of her child was, under the section, unnecessary, ignoring entirely the fact that, notwithstanding the decree was in favor of the husband, the custody of the children was, by the very terms of the decree, awarded absolutely to her; not a limited but an absolute one as far as the custody is concerned.

“Appellant here—the mother—contends that this is not the proper construction to be given to the section, and that if it is to be so construed it is, as far as it attempts to deprive her of the right to the custody of her children judicially awarded her by the decree of divorce without notice or her consent, unconstitutional, as depriving her of a vested right to her child without due process of law.

“There is no necessity for considering this constitutional objection, because we do not think the section is subject to the literal construction which the superior court placed upon it. Such a superficial interpretation is not permissible when the spirit of our laws and the particular purpose of the enactment of the section respecting consent and the power of courts in divorce proceedings over the custody of the children of the marriage are considered.

“In the latter proceeding the court has power and authority to make such orders as it may deem necessary and proper for the custody of the children of the marriage, without being constrained in any respect by the cause for which the divorce is granted, and may at any time vacate or modify such order. While section 224 provides generally that consent shall not be necessary to the adoption of children of the marriage from the parent against whom the decree is granted on the ground of cruelty, the section stops there. It does not assume to interfere with the orders of the court in divorce proceedings as to the custody of children.”

After further discussion of the case, the supreme court held that, even though the divorce had been granted to the husband on account of the extreme cruelty of the wife, the child having been awarded to her, notice of the proceeding to adopt the child in question was absolutely necessary, and the proceeding having been had without the giving of such notice and without her consent, the order of the trial court was reversed. In the instant case there are facts and circumstances disclosed by the record which differentiate it in some particulars from any of the eases which we have been considering. [8] The father, tó whom the custody of the child was awarded by the superior court, when the decree of divorce was granted him on the ground of the cruelty toward him of the mother of the child, was dead. Whatever rights concerning the child theretofore vested in him immediately ceased. Was the child thereupon ipso facto set at large as an abandoned child or as a wanderer upon the face of the earth to whom nobody had any legal rights t We think not. In 19 C. J. 349, the general rule in regard to such cases is thus stated:

“On the death of the parent to whom the custody of the child is awarded, the other parent ordinarily succeeds to the right of custody, although where the surviving parent is an unfit associate for the children, their custody will not be taken from respectable relatives of the deceased parent; but, in analogy to the rule as to the termination of alimony on the death of the husband, it has been held that, upon the death of either parent, the right of the other to the custody of a child under the decree ends, at least in the case of the decree which awarded the custody ‘during the joint’ lives of the

parents, the rights of the survivor in such cases thereafter being those of a surviving parent, governed by the common law and not by the decree. Neither parent can give away by will the custody of a child as against the survivor.”

In Schammel v. Schammel, 105 Cal. 258 [ 38 Pac. 729 ], it was held that, “Upon the death of the mother the father again became entitled to the custody of the child, and this right continued until a guardian of her person was appointed. In the Matter of Allen, 162 Cal. 625 [ 124 Pac. 237 ], the court had before it the question of the rights of a surviving parent, after the death of a parent to whom the minor child had been awarded in divorce proceedings, and it was there held that the award of the child to the mother did not absolutely end the father’s right to its control; it merely determined “that as between the husband and wife, the child should be placed in the custody of the latter until some other disposition should be made. It did not undertake to provide for the custody of the child after the mother’s death.” It was further held “upon the death of the parent to whom is awarded the custody of a minor child by the decree divorcing the parents, the other parent becomes entitled to the custody.” The cases involving this question are there set forth in full and clearly establish the rule which we are here stating, to wit, that a decree of divorce which simply awards the custody of a minor child either to an offending or unoffending parent, in legal effect, suspends and does not, in and of itself, absolutely terminate or end the natural and common-law right of a parent of a child, and that, upon the death of the parent to whom the child had been awarded, the surviving parent has a natural and common-law right to be heard as to the disposition to be made of the child after the death of the parent to whom the child has been awarded. [9] We may say that, irrespective of the terms or the wording of the decree awarding the custody of a minor child to one of the parents in a divorce proceeding, that decree, under the terms of section 138 of the Civil Code, may at any time during the minority of the child be either modified or entirely vacated. Hence, unless some other disposition has been made of the child under the provisions of section 224 of the Civil Code, no order of the court made, based upon said section 138, can be considered

In the Miller case, the ease of Younger. v. Younger, supra, is also considered and the fact pointed out, just as we have stated, that the status of the child had been changed during the time that there existed a living person actually capable of giving consent to such change, and, in that particular, differs from the case at bar. The question of concealment

Hart, J., and Finch, P. J., concurred.

A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 22, 1925.

All the Justices concurred.