Guardianship of Henwood

TRAYNOR, J.

In June, 1955, the mother of Donald Bruce Henwood and Joel Arthur Henwood died. In July, 1955, their father relinquished them for adoption to the Alameda County Welfare Commission, a licensed adoption agency. In October, 1955, their maternal grandmother, Mary G. Alexander, petitioned to be appointed their guardian. At that time the children were 8 and 5 years of age. The trial court found that Mrs. Alexander, aged 63, was a fit person to have the custody of the children and that their father had placed them for adoption believing that “it would be in the best interests of said minors that they be adopted by parents selected by the Commission, in order that they might have

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the benefit of a normal parental relationship.” It concluded that “by reason of the relinquishment of said minors and the fact that they are in the care, custody and control of a licensed County adoption agency, as a matter of law, this court is precluded from determining that it is either necessary or convenient that a guardian be appointed for either of said minors under the provisions of Sections 1405 and 1440 of the Probate Code.” Mrs. Alexander appeals.

She contends that the provisions of the Civil Code with respect to adoptions do not affect the court’s jurisdiction to appoint a guardian and that therefore the court erred in refusing to determine whether the best interests of the children established the necessity or convenience of her appointment and in dismissing her petition. Respondents contend, on the other hand, that by establishing a comprehensive scheme for the placement of children for adoption through licensed adoption agencies, the Legislature has necessarily precluded the appointment of a guardian once a child has been validly relinquished to an adoption agency.

Sections 1405 and 1440 of the Probate Code provide for the appointment of a guardian when necessary or convenient. The court is to be guided by “what appears to be for the best interest of the child in respect to its temporal and mental and moral welfare” (Prob. Code, § 1406), and the guardian has the care and custody of the ward (Prob. Code, § 1500) subject to the regulation and control of the court. (Prob. Code, §§ 1400,1512).

Section 224n of the Civil Code 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.