Sweeney v. Bowles

WARNS, J. pro tem.* Respondent, the natural father of two minor children, brought action to have two prior decrees of the Superior Court of Plumboldt County vacated and set aside. These decrees were entered January 21, 1955. One was a decree declaring the two children free of respondent’s custody and control. The other was a decree of adoption wherein the minors were adopted by appellants. In this action the trial court set aside both decrees. Appellants appeal from this decision.

On November 4,1953, appellants filed in the Superior Court of Humboldt County their petition for the adoption of the two minors alleging inter alia that the natural mother of the minors had by court decree been awarded full care, custody and control of the children; that the children had been in the care of petitioners for a number of years; and that the natural father had not supported the children for over one year last past, he having the ability to do so. The State Department of Social Welfare was notified of the filing of the petition for adoption and thereafter filed its report, attached to which was the consent of the natural mother. The department recommended that the best interests of the children would be served by the adoption and that the home of the petitioners was suitable, but stated the belief of the department was that the children were not legally free for adoption. The department gave its consent to the adoption, but recommended that the petition be granted “provided the children are declared free [198]from the custody and control of their natural father under Section 701 of the Welfare and Institutions Code.” The file of the adoption proceeding was introduced in evidence in this action. It does not appear affirmatively therefrom that the father was served with notice of the petition for adoption. On January 21, 1955, the court rendered its adoption decree finding that all of the allegations of the petition for adoption were true.

Prior to the entry of the decree of adoption appellants William and Anna Bowles petitioned the Superior Court of Humboldt County to have the minors declared free from the custody and control of their father, respondent herein. The record in that proceeding was introduced in evidence at the trial of this action. It shows that the natural father of the minors, respondent herein, was served with citation by publication as being resident in the State of Washington. The abandonment proceeding terminated in an order declaring the children free from the father’s custody. Respondent herein did not appear in either proceeding.