Almquist v. Garner

LANGDON, P. J.

This is an appeal by the defendants from a judgment declaring null and void an order of adoption of the superior court for the county of Los Angeles, by which the defendants adopted as their child Margaret Almquist, who was at that time of the age of about four years. The plaintiff is the mother of the child.

The child was adopted by the defendants in November, 1912. Five years later, in November, 1917, the present action was commenced to annul the order of adoption upon the grounds, (1) that the father did not consent to the adoption and no notice was given to him of the adoption proceedings, and (2) that fraud was practiced upon the mother to obtain her consent. The trial court found against the plaintiff on this latter allegation, but annulled the order upon its findings that the written consent of the father of the child had not been obtained, and that the child was not an abandoned child within the provisions of section 224 of the Civil Code as it existed at the time of the adoption proceedings; and that the father was never judicially deprived of the custody of the child.

Appellant urges that the facts do not support the finding that the child was not an abandoned child, and, further, that it is only the father himself who can avoid the order because of the want of notice to him of the proceedings by which he was deprived of the custody of his child, which proceedings were relied upon in the adoption proceedings, to make his consent unnecessary. The father is not a party to this action and appellant contends that as the written consent of the mother was obtained, and the court has

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found it was obtained without fraud, she cannot raise the questions growing out of the want of consent of the father of the child.

In the present case the mother testified that in 1912 she was getting twenty dollars a month from the county for her children. She was sick and it was necessary for her to go to a hospital. Her husband had deserted her and her three children, and she did not know where he was. It was at this time that she consented to the adoption of the child.

The record of the proceedings in the juvenile court relative to this child, prior to her attempted adoption by the defendants, was offered in evidence. From this it appears numerous orders were made from time to time declaring this child and her brother and sister dependent children because their father had deserted them, and their mother was an invalid and unable to support them, and providing for the payment by the county of certain sums for the support of these children. The Juvenile Court' Act [Stats. 1915, p. 1225], as it read at the time of the proceedings herein, enumerated the conditions under which a child might be found to be a “dependent child” within the meaning of the act. A child under the age of twenty-one years, whose father had abandoned his family, was declared to be a dependent child. This act provided for the filing of a petition in the juvenile court to have the child declared dependent. A citation was then issued to be served upon the parents, if residing within the county and their places of residence were known. The juvenile court, after having thus acquired jurisdiction, could make such order as was “meet in the premises” for the welfare of the dependent child, but could not deprive any parent of the custody of his child unless it. found the parent to be incapable, or to have failed or neglected to provide proper maintenance, training, and education for said child.