Adoption of Easley

[823]

COUGHLIN, J.

Appellant is the mother of a two-year-old child adopted by respondents; refused to consent to the adoption; and appeals from the order granting such predicated upon a finding that, after custody of the child had been given to the father by judicial decree, the mother, for a period of one year, failed to communicate with the child when able to do so which, by virtue of section 224 of the Civil Code, obviated the necessity for obtaining her consent.

Section 224 of the Civil Code, in pertinent part, provides: “A legitimate child cannot be adopted without the consent of its parents if living; however, after the custody of any child has, by any judicial decree, been given to the father, and the mother for a period of one year fails to communicate with such child when able to do so, . . . then the parent to whom custody has been given alone may consent to such adoption, but only after the parent to whom custody has not been given has been personally served with a copy of a citation requiring . . . her to appear at the time and place set for the appearance in court under section 227 of this code.” Section 227 provides for a hearing upon the adoption petition.

Appellant contends the finding obviating the necessity for her consent is not supported by the evidence because there is no showing (1) when the judicial decree granting the father custody of the child was entered, nor (2) of a failure to communicate for the period prescribed by the statute.

Following the child’s birth he was placed with the father who in turn placed him with respondents under a boarding home arrangement. The mother obtained an interlocutory decree of divorce which awarded custody of the child to the father and of other children of the marriage to her. The date of entry of this decree is material to the finding of noncommunication for one year because the failure to communicate during that period must have occurred after custody of the child had been awarded to the father.

(Adoption of Thevenin,

189 Cal.App.2d 245, 251 [11 Cal.Rptr. 219].) The report of the county department of public welfare, filed in the proceeding pursuant to section 226.6 of the Civil Code, showed that the interlocutory decree “was granted June 19, 1963.” The information contained in this report properly was before the court for consideration in determining the adoption issues. (See