Brooks v. Hickson

WOOD, Acting P. J.

A petition was filed in the superior court on July 21, 1939, by Merle S. Brooks seeking to adopt William R. Hickson, his stepson, who was born November 22, 1933. Petitioner has appealed from an order of the court denying the petition.

The father of the minor child, Joseph Hickson, the respondent herein, was divorced from the mother of the child on

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December 29, 1937, the interlocutory decree having been entered on December 24, 1936. The custody of the minor child of the parties, William R. Hickson, was awarded to the mother and respondent was ordered to pay to her through the court trustee the sum of $10 per week for the support of the child. On January 14, 1938, respondent remarried and at all times since has been living with his second wife. On April 10, 1938, the mother of the child married the petitioner herein and at all times since they have been living together as husband and wife.

Petitioner bases his prayer for adoption upon the allegation that respondent “for a period of more than one year immediately preceding the filing of this petition wilfully failed to pay for the care, support and education of said minor child, he having the ability to do so ’ ’, and has filed herein the written consent of the mother of the child.

Petitioner relies upon section 224 of the Civil Code, which provides: “A legitimate child can not be adopted without the consent of its parents if living; provided, however, that after •the custody of any child has by any judicial decree been given to the mother, and the father for a period of one year shall wilfully fail to pay for the care, support and education of such child when able to do so, then the mother alone may consent to such adoption, but only after the father has been personally served with a copy of a citation requiring him to appear at the time and place set for the appearance in court under section 227 of this code. ...” Section 227 of the Civil Code provides in part: “The person or persons desiring to adopt a child, and the child proposed to be adopted, must appear before the court. The court must examine all persons appearing before it pursuant to this section, each separately, and if satisfied that the interests of the child will be promoted by the adoption . . . the court shall thereupon make an order awarding the custody of the child to the adopting parent or parents.”