Cross v. O'Connor

California Court of Appeal Jun 30, 1948 No. Civ. No. 13687Published

Before: Peters

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Holding. The court held that an adoption decree is subject to collateral attack by the adopted child if the record shows on its face that the child's parent was not provided with notice of the underlying guardianship or adoption proceedings.

Issues

Whether an adoption decree is subject to collateral attack when the record shows the natural parent received no notice of the proceedings.
Whether the failure to provide notice to a parent in an adoption proceeding constitutes a constitutional defect under the due process clause.

Disposition. affirmed

Quotations verified verbatim against the opinion

“if an adoption proceeding shows, on its face, that no service was had on one of the parents, the child purported to be adopted collaterally may attack the decree.”

“it appears, on the face of the record, that the real father of the child was given no notice, actual or constructive, of either the adoption proceeding or of the guardianship proceeding upon which the adoption was predicated.”

“The parent not notified, or, under the rule of the Hampton case, the child, is entitled to raise that constitutional defect.”

PETERS, P. J. This is a companion case to Estate of Smith, 1 Civ. 13459, ante, p. 456 [195 P.2d 842], this day [475]decided, and the law stated in that opinion need not be here again set forth.

In the instant case the respondent is the daughter of the deceased, and the appellant is his brother. Admittedly, if respondent is entitled to inherit as a daughter, she is entitled to the estate to the exclusion of the appellant. It was the theory of the appellant in the trial court, and it is his theory here, that respondent is not entitled to inherit as a daughter of the deceased because, so it is contended, she was adopted out of the family of the deceased in 1910 by a decree of adoption rendered by a Minnesota court. The trial court ruled that the adoption decree was ineffective as to respondent because it shows, on its face, that the father of the child was given no notice of the proceeding. Based upon this determination, the trial court, by its decree of final distribution, awarded the entire estate to respondent. From this decree the brother appeals.

In all essential details this case is governed by the rules announced in the Estate of Hampton, 55 Cal.App.2d 543 [131 P.2d 565], That case has been fully discussed in Estate of Smith (ante, p. 456 [195 P.2d 842]), and what was there said need not be here repeated. Suffice it to say that the Hampton ease held that, if an adoption proceeding shows, on its face, that no service was had on one of the parents, the child purported to be adopted collaterally may attack the decree. Those rules are controlling here.

The record shows the following: Respondent was born in July, 1902, in Minnesota, and was then named Mabel I. Cross. Her mother died in March, 1903. Her father was Roy H. Cross. He later assumed the name of Edward R. Martin. It is his estate that is here involved. The father abandoned the child in 1902. Subsequently, in 1910, a guardian was appointed for the child, and the grandmother of the child purported to adopt her. It is the validity of those proceedings that is here involved.

The record shows that on the petition of Julia R. Britton, respondent’s grandmother, filed in Minnesota and dated June 17, 1910, one F. J. Britton was appointed guardian of the respondent. The order appointing the guardian is also dated June 17, 1910. The petition for adoption is undated, but the affidavit of the petitioning party attached thereto is dated June 8, 1910. It alleges the abandonment of respondent by the father of the child in October, 1902. Attached is a eon-

Cross v. O'Connor

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