Adoption of Smith

SALSMAN, J.

This is an appeal from an order of the superior court denying the petition of appellants Thomas Guy Smith and Sallie Marie Smith to adopt their grandchildren Thomas and Leslie Anne Smith.

The appellants are the paternal grandparents of the minor children they seek to adopt. Their son Thomas was married to Mozelle Smith in 1956. He divorced his wife on April 1, 1961 and obtained custody of their two children. Mozelle was given reasonable visitation rights. Since October 1959, with the exception of a brief period in 1962, the children have been in

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the actual physical custody of their grandparents, the appellants here, who have supported and cared for them since their parents were divorced.

Shortly after the divorce proceedings were begun, Mozelle left the State of California and went to Seattle, Washington. There she remarried. She also had a nervous breakdown and was hospitalized for some time. She testified she was not aware of what was happening in the divorce proceedings, and did not learn she was divorced until 1963 or 1964. She also said she did not know when her illness ended, that it was not like “. . .a broken leg that mends in six weeks. ’ ’

Mozelle and her second husband have children. There was also evidence of financial troubles, and her second marriage has not been wholly tranquil.

In 1962 Mozelle wrote a letter to appellants, expressing sorrow for the breakup of her marriage, for the trouble she had caused, and asking forgiveness for “. . . what I have done to you and my babies. ...”

There was no specific evidence of Mozelle’s contact with the children of her first marriage during the years 1964 and 1965. But in 1966 Mozelle telephoned appellants’ home about six times and inquired about her children. In the same year she also made a visit to San Francisco and took the children with her for a good part of one day. At Christmas she sent them presents and the children wrote to her. In 1967 likewise there was some communication between Mozelle and her children, although she did not visit them.

In July 1967 appellants filed a petition to adopt the children. Their father consented to the adoption. Mozelle refused to give her consent. At the hearing on the petition, appellants contended that Mozelle’s consent was unnecessary because, for more than one year after the custody of the children had been awarded to their father, she had faded to communicate with them. After hearing the evidence, however, the superior court found that Mozelle did not fail for a period of one year to communicate with her children “. . . when she was able to do so. ” We affirm the trial court’s order.