Bennett v. Department of Welfare

TRAYNOR, J. On September 5, 1951, Ralph and Mary Bennett filed a petition to adopt Donna Lynn Pior, a 4-year-old niece of Mary Bennett. The petition alleged that the child’s mother, sister of Mary Bennett, was killed in an accident in April, 1951, that the child’s father was divorced from his wife and was living in New Mexico, and that he had given his consent to the adoption. The matter was referred to the Department of Welfare of the County of Fresno, the licensed county adoption agency, for investigation and report. The agency submitted a detailed report setting forth the results of its investigation and the reasons for its determination that petitioners’ home was not suitable and recommending that the adoption be denied. The facts set forth in the report support the recommendation.* At the hearing, however, 19 witnesses testified to the fitness of petitioners to be adoptive parents of the child. A telegram from the father consenting to petitioners’ having temporary custody and letters from him stating that he would sign the necessary papers to give petitioners permanent custody were introduced. The evidence also shows, however, that the father subsequently signed a refusal to consent to the adoption and removed the child from petitioners’ home. Apart from the foregoing evidence regarding the father’s consent, the record discloses, and petitioners concede, that they have not obtained the formal consent of the child’s father as required by Civil Code, section 226.†

[474]Consent of a father or mother is not necessary, however, when “such father or mother of any child has relinquished said child for adoption as provided in section 224m of this Code.” (Civ. Code, § 224.) Petitioners invoked this section of the Civil Code and were permitted to amend their petition to conform to proof that the father had executed a relinquishment pursuant to section 224m. They then requested the court to grant the adoption despite the adverse report of the agency. An officer of respondent testified that the father had signed a relinquishment of the child to respondent for adoption, but that a certified copy thereof had not been filed with the State Department of Social Welfare.

The trial court found that neither the father, the State Department of Social Welfare, nor the Department of Public Welfare of the County of Fresno had consented to the adoption, that the father had not executed a binding relinquishment “by which the Department of Public Welfare of the County of Fresno is authorized to consent to said adoption and by which the consent of the [father] would be rendered unnecessary” and that “since no valid consent has been given by the parent or by the Department of Social Welfare of the State of California or by the Department of Public Welfare of the County of Fresno the Court is without jurisdiction to consider the other allegations of petitioners’ petition.” The court therefore entered its order denying the petition. Petitioners appeal.