Adoption of Driscoll

California Court of Appeal Feb 17, 1969 No. Civ. No. 9381Published

Before: Brown (Gerald)

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Holding. The court held that in an independent adoption where the Department of Social Welfare recommends approval, the trial court lacks the statutory authority to deny the petition and commit the child to the agency for further placement. Instead, the court must either grant the petition or return the child to the natural parent, as the natural parent's consent is specific to the petitioners.

Issues

Whether a trial court abuses its discretion by denying an adoption petition based on the age and health of the petitioners.
Whether a trial court has the authority to commit a child to a welfare agency for further placement after denying an independent adoption petition where the agency recommended approval.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The advanced age of adoptive parents is a disadvantage to be considered in determining if the interest of the child would be promoted by the adoption.”

“The court may either grant the petition as recommended by the Department or return the child to his natural mother.”

“The Thompsons are entitled to an exercise of discretion by a court fully aware of its choice between these legal alternatives.”

269 Cal.App.2d 735 (1969) Adoption of BABY BOY DRISCOLL, a Minor. CHARLES H. THOMPSON et al., Plaintiffs and Appellants,

DEPARTMENT OF SOCIAL WELFARE, Defendant and Respondent.

Civ. No. 9381. California Court of Appeals. Fourth Dist., Div. One.

Feb. 17, 1969. Silverton & Silverton and Max Abrams for Plaintiffs and Appellants.

Thomas C. Lynch, Attorney General, and William L. Zessar, Deputy Attorney General, for Defendant and Respondent.

BROWN (Gerald), P. J.

Charles H. Thompson and Elizabeth S. Thompson appeal from a judgment denying their petition [736] to independently adopt the infant boy Driscoll and ordering the Orange County Welfare Department, as agent of the State Department of Social Welfare, to take custody of the child for further placement.

In December 1966 when he was a little over a month old, the boy, named Robert by the Thompsons, was released to them from the hospital of his birth. Robert has been with the Thompsons ever since, the trial court having stayed execution of its judgment pending appeal.

The Thompsons' adoption petition was filed February 16, 1967, when Mr. Thompson was aged 61 and Mrs. Thompson 58. Some difficulty followed concerning obtaining a consent to the adoption from Robert's natural mother. Respondent State Department of Social Welfare contends this court must resolve whether the natural mother's consent was free, voluntary and knowledgeable. The Department accepted the consent and the court below, by its ruling, necessarily ruled the consent was sufficient. This is so because the court did not return the child to his natural mother as would have been mandatory had the court found no consent. (Civ. Code, 226b.) While there are conflicting inferences, the court's finding the consent was sufficient is supported by substantial evidence and inferences reasonably drawn from that evidence.

On August 16, 1967, the State Department of Social Welfare filed its report stating it appeared to be to the best interests of Robert the adoption be completed. The Department, however, "reluctantly" recommended the petition be granted.

Adoption of Driscoll

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