Adoption of Jacob A.

Filed 4/7/10 Adoption of Jacob A. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEALS from an order of the Superior Court of Los Angeles County, John L. Henning, Judge. Appeals dismissed.

Christopher Blake, under appointment by the Court of Appeal, for Trina A. and Gerald A.

Greines, Martin, Stein & Richland, and Jennifer C. Yang for Robert B. and Lisa B.

_____________________

Trina A. and Gerald A., the birth parents of Jacob A., filed notices of appeal from the juvenile courts August 20, 2009 order denying their petition to vacate adoption proceedings and to return child to birth parents. Although prior to 1995 birth parents could file a special motion to withdraw consent to adoption and the denial of such a motion was immediately appealable, there now exists no authorization for such a motion; and there is no statutory basis for an immediate appeal of the juvenile courts order. In addition, because Jacobs adoption has not been finalized, the juvenile courts August 20, 2009 order is not appealable as a final determination of the rights of Trina and Gerald pursuant to Code of Civil Procedure section 904.1, subdivision (a)(1). Accordingly, the appeals are dismissed.

FACTUAL AND PROCEDURAL BACKGROUND

Jacob was born in January 2008 in Ohio. Jacobs birth parents were placed in contact with Lisa B. and Robert B., the prospective adoptive parents, several months prior to Jacobs birth by Lisa and Roberts attorney. The two couples then spoke by telephone every week prior to Jacobs birth. Lisa and Roberts home in the Santa Clarita Valley was found suitable for the adoptive placement of a child on November 26, 2007.

Lisa and Robert were present at the hospital for Jacobs birth. Three days after his birth, Trina and Gerald each signed a Statement of Understanding and Independent Adoption Placement Agreement and a Waiver of Right to Revoke Consent in the presence of an adoption social work and an attorney in Ohio. Lisa and Robert brought Jacob to their home one week later.

Lisa and Robert filed an adoption request on Judicial Council Form Adopt-200 on February 6, 2008. On May 20, 2009 the Los Angeles County Department of Children and Family Services filed a post-placement report for an independent adoption recommending the petition for adoption filed by Lisa and Robert be granted. Among the exhibits filed with the report was a letter from Trina and Gerald, dated May 14, 2008 and addressed To Whom It May Concern. (The letter was apparently sent directly to the Childrens Court in Monterey Park.) The letter stated Trina and Gerald had become concerned about Jacobs well-being in the middle of January when they learned Lisa has severe systemic Lupus, which seriously limits her normal daily activities and her normal life expectancy. Her husband works all day which leaves her alone with the baby. The birth parents asserted they would not have selected Lisa and Robert to adopt their child if they had known about Lisas medical condition.

At a status conference held on June 19, 2008 the court ordered Trina and Gerald, who were now represented by counsel, to be present at the next hearing, scheduled for July 20, 2008, and to file their petition or other pleading to prevent the adoption of Jacob by June 23, 2008.

On June 30, 2008 Trina and Gerald filed declarations in opposition to the adoption petition and in support of their request that the adoption be vacated and the child be returned to their custody. The declarations reiterated their concern about Lisas health and alleged other misrepresentations and procedural irregularities in the process by which their consent to the adoption of Jacob had been obtained. On September 3, 2008 Trina and Gerald filed their formal petition to vacate adoption proceedings and to return child to birth parents, alleging their consent to the adoption had not been validly obtained and permitting the adoption to proceed threatened potential harm to the child.

Following additional briefing on behalf of all parties, trial proceedings were held during the week of July 27, 2009 in Columbus, Ohio and the weeks of August 4 and August 11, 2009 in Los Angeles; live testimony was heard, and the deposition testimony of Trina and Gerald was received into evidence.

On August 20, 2009 the juvenile court denied the petition, finding it had no basis in law or fact. The court expressly found, by clear and convincing evidence, the consents and waivers of right to revoke consent signed by Trina and Gerald were freely and voluntarily given by each of them, and are final and binding on each of them and no procedural irregularities had occurred in the adoption process that invalidated those consents or waivers. The court further found that neither Lisa nor Robert had any health condition curtailing his or her normal daily activities or reducing his or her normal life expectancy and that Trina and Gerald had failed to establish that anyone, in Ohio or California, defrauded them, exercised undue influence or duress over them, or misrepresented by act or omission any material fact to them. Finally, the court concluded the adoption of Jacob by Lisa and Robert would be in the childs best interest.

On October 9, 2009 Trina and on October 19, 2009 Gerald filed notices of appeal from the juvenile courts August 20, 2009 order denying their petition to vacate adoption proceedings and to return child to birth parents. Both Trina and Gerald alleged they were indigent and requested appointment of counsel on appeal. In letters filed with this court dated October 13, 2009 and October 22, 2009 opposing the appointment of counsel for Trina and Gerald, counsel for Robert and Lisa suggested the juvenile courts August 20, 2009 order is not an appealable order.

On December 17, 2009 this court appointed counsel for Trina and Gerald and directed counsel to file a letter brief addressing whether the August 20, 2009 order is an appealable order. Counsel was further directed not to file a brief on the merits of the appeals until the issue of appealability was resolved. On January 22, 2010 counsel for Trina and Gerald filed his letter brief on the issue of appealability, focusing on Code of Civil Procedure section 904.1, subdivision (a)(10) (appeal may be taken from orders made appealable by provisions of the Probate and Family Codes).^[1]

On January 27, 2010 we issued a further order, requesting a supplemental letter brief from Trina and Geralds appointed counsel addressing the appealability of the August 20, 2009 order as a final judgment under Code of Civil Procedure section 904.1, subdivision (a)(1). A supplemental letter brief was filed; and, as permitted by our January 27, 2010 order, a responding brief was filed by counsel for Lisa and Robert.

DISCUSSION

1. The Juvenile Courts Order Denying the Birth Parents Petition To Vacate Adoption Proceedings Is Not Appealable under Code of Civil Procedure Section 904, subdivision (a)(10)

Code of Civil Procedure section 904.1, subdivision (a)(10), authorizes an appeal [f]rom an order made appealable by the provisions of the Probate Code or the Family Code. Prior to January 1, 1995 former section 226a of the Civil Code (Stats. 1988, ch. 1382,  2, pp. 4657-4658) and then former section 8815 of the Family Code (Stats. 1993, ch. 758,  15, pp. 4232-4233) authorized a birth parent to file with the court considering an adoption petition a motion to withdraw his or her consent to the adoption of the child by prospective adoptive parents (see former 8815, subd. (a)). Both former Civil Code section 226a and former Family Code section 8815, subdivision (e), authorized an immediate appeal from an order of the court granting or withholding approval of a withdrawal of consent to an adoption.

As of January 1, 1995 the requirement for court approval of the withdrawal of consent to an independent adoption and the statutory authorization for a special proceeding to withdraw consent were eliminated and replaced by the procedure now specified in Family Code sections 8814.5 and 8815 under which birth parents have a specified period (initially 120 days, now 30 days) after signing a consent to adoption to either revoke the consent or waive the right to revoke. (See Stats. 1993, ch. 758,  16, p. 4233.) Once the consent to adoption has become permanent, the consent to the adoption by the prospective adoptive parents may not be withdrawn. (Fam. Code,  8815, subd. (a).) However, before that time, the birth parent or parents may request return of the child. In such a case the child shall immediately be returned to the birth parent or parents so requesting. (Fam. Code, 8815, subd. (b).) If the consent to the adoption is withdrawn in a timely fashion, the court shall order the child restored to the care and custody of the birth parent or parents. (Fam. Code, 8804, subd. (c).) At the same time it eliminated the procedure for obtaining an order regarding the withdrawal of consent under former Family Code section 8815, subdivision (a), the Legislature repealed former Family Code section 8815, subdivision (e), which authorized an immediate appeal from such an order.

Although a special motion to withdraw consent is no longer authorized, in general a legal parents valid consent is a jurisdictional prerequisite to an adoption, regardless of the childs interests. [Citation.] Where a parents consent to adoption is obtained through fraud or duress, the consent is not voluntary and the jurisdictional prerequisite to a valid adoption is lacking. (Sharon S. v. Superior Court (2003) 31 Cal.4th 417, 446 (Sharon S.).) Thus, although the Family Code contains no provisions for formal opposition to a petition for adoption, a challenge to the validity of an adoption proceeding on the ground the birth parents consents were not lawfully obtained is proper. (Ibid.) In addition, a birth parent has the right to oppose finalization of an adoption on the ground it is contrary to the interests of the child. (See Fam. Code,  8612, subd. (c) [court may make and enter order of adoption [i]f satisfied that the interest of the child will be promoted by the adoption]; Sharon S., at p. 446 [recognizing right of birth parent to oppose finalization on the ground that new circumstances make it contrary to Joshuas interests].)

Although acknowledging the elimination, effective January 1, 1995, of the special proceeding for a birth parent to seek court approval of his or her withdrawal of consent to adoption, together with the concomitant elimination of the immediate right to appeal from an order granting or withholding approval of a withdrawal of consent to an adoption, in response to our initial request for briefing, counsel for Trina and Gerald emphasized that the Legislature did not expressly prohibit an appeal from a challenge in the juvenile court to the validity of the birth parents consent to an adoption and did not otherwise limit appellate review of an order rejecting such a challenge to writ proceedings. Counsel then argued any doubt as to the right to appeal when fundamental interests are at stake should normally be resolved in favor of allowing an appeal, particularly when the Legislature has not expressly stated it intended to eliminate a previously existing right to appeal. (See In re Matthew C. (1993) 6 Cal.4th 386, 394 [if the Legislature intends to abrogate the statutory right to appeal, that intent must be clearly stated].) In light of that strong public policy, Trina and Gerald contend, we should find the August 20, 2009 order denying their petition to vacate adoption proceedings immediately appealable under Code of Civil Procedure section 904.1, subdivision (a)(10).

The issue here, however, is not whether the birth parents have a right to appeal the order denying their petition to vacate, but when such an appeal is proper. Absent statutory authorization for an immediate appeal of an interlocutory order, review by this court of the juvenile courts resolution of issues concerning the validity of a birth parents consent, as well as the question whether a childs interest will be promoted by the proposed adoption, are properly deferred to a review of the final judgment in the adoption proceeding pursuant to Code of Civil Procedure section 904.1, subdivision (a)(1). (See Adoption of Michael H. (1995) 10 Cal.4th 1043, 1050, fn. 2 [determination that unwed father has a constitutional right to veto adoption absent a showing of unfitness under Adoption of Kelsey S. (1992) 1 Cal.4th 816 is not a final judgment or an appealable interlocutory order; in context of adoption proceedings, appeal may be taken only from a final determination of the rights of the parties].)

2. The Juvenile Courts Order Is Not Appealable as a Final Judgment as to Trina and Gerald

In its August 20, 2009 order the juvenile court determined that Trina and Geralds consents and waivers of their right to revoke consent are final and binding on each of them and that the adoption of Jacob by Lisa and Robert would be in the childs best interest. Is that order, in effect, a final determination of the rights of Trina and Gerald A., so that their appeals under Code of Civil Procedure section 904.1, subdivision (a)(1), need not wait until the adoption itself has been finalized? (See, e.g., Pangborn Plumbing Corp. v. Carruthers & Skiffington (2002) 97 Cal.App.4th 1039, 1046-1047 & fn. 3 [order appealable because it purports to finally resolve all issues between these particular parties]; see generally Code Civ. Proc., 577 [[a] judgment is the final determination of the rights of the parties in an action or proceeding].)

Even though the juvenile court has concluded that Trina and Geralds consents and waivers are valid and irrevocable and has ordered that the adoption proceedings go forward without further notice to either of them, Trina and Geralds parental rights will not be terminated until Jacobs adoption is finalized. (See Fam. Code,  8617 [[t]he birth parents of an adopted child are, from the time of adoption, relieved of all parental duties towards, and all responsibility, for, the adopted child, and have no right over the child]; Sharon S., supra, 31 Cal.4th at p. 427 [section 8617 declares a legal consequence of the usual adoption]; see also Fam. Code, 8616 [adoptive parents have all rights and are subject to all duties of parent-child relationship [a]fter adoption].) In an independent adoption the legal custody of the child remains in the natural parent unless and until the adoption is granted, as contrasted to an agency adoption where legal custody has been relinquished to the agency. (Adoption of Driscoll (1969) 269 Cal.App.2d 735, 738 [decided under predecessor statute to Fam. Code,  8805].)

Indeed, as Lisa and Roberts counsel notes, if an independent adoption is not approved by the juvenile court, it is possible the child may be returned to the birth parents. (See Adoption of Driscoll, supra, 269 Cal.App.2d at p. 737 [[w]here, as here, the Department recommends approval of an independent adoption petition and the court denies it notwithstanding the Departments recommendation, the child must be returned to his natural parent or parents]; cf. Fam. Code, 8805 [if prospective adoptive parents move to withdraw their petition or if the court dismisses the petition, court may commit child to the care of the State Department of Social Services or delegated county adoption agency if child not returned to birth parents]; see also Sharon S., supra, 31 Cal.4th at p. 416 [notwithstanding valid consent, birth parent retains right to oppose finalization of adoption on ground that new circumstances make it contrary to childs interests].) In sum, Trina and Geralds rights have not yet been finally determined in the adoption proceedings, and no final judgment from which they may properly appeal has yet been entered.^[2]

3. Unusual Circumstances Do Not Exist That Justify Treating the Notices of Appeal as a Petition for Writ of Mandate

In their supplemental letter brief Trina and Gerald have requested, in the event we conclude the August 20, 2009 order is not appealable, that we treat their purported appeals as a petition for writ of mandate, correctly noting that uncertainty as to the appealability of the order at issue is one of the factors appropriately considered by an appellate court in deciding whether to exercise its discretion to deem an appeal a petition for writ of mandate. (See Olson v. Cory (1983) 35 Cal.3d 390, 401; H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1366-1367.)

In Olson v. Cory, supra, 35 Cal.3d 390, the Supreme Court held it was appropriate to treat an appeal from a nonappealable order as a petition for an extraordinary writ when requiring the parties to wait for a final judgment might lead to unnecessary trial proceedings; the briefs and record included, in substance, the necessary elements for a proceeding for a writ of mandate; there was no indication the trial court would appear as a party in a writ proceeding; the appealability of the order was not clear; and all the parties had urged the court to decide the issues rather than dismiss the appeal. (Olson, at pp. 400-401.) The Court concluded dismissing the appeal rather than exercising its power to reach the merits would be unnecessarily dilatory and circuitous. (Id. at p. 401.)

The Supreme Court cautioned, however, that the power to treat an appeal from a nonappealable order as a petition for a writ of mandate should not be exercised except under unusual circumstances. (Olson v. Cory, supra, 35 Cal.3d at p. 401; accord, In re Marriage of Lafkas (2007) 153 Cal.App.4th 1429, 1434 [[a]lthough an appellate court has discretion to treat an imperfect appeal as a petition for writ of mandate, the power should be exercised only in unusual circumstances]; see Black Diamond Asphalt, Inc. v. Superior Court (2003) 114 Cal.App.4th 109, 114 [discretion to treat purported appeal as a petition for writ of mandate should be exercised sparingly and only in unusual circumstances].) Other than the question of appealability itself, none of the factors present in Olson v. Cory, supra, 35 Cal.3d 390, or other cases in which the appellate courts have exercised this discretion are present here.

First, no briefs on the merits have yet been filed in the case; and it would appear that any appellate review of the claims raised by Trina and Gerald in the juvenile court will require evaluation of the courts resolution of fact-intensive issues. (Cf. Zabetian v. Medical Board (2000) 80 Cal.App.4th 462, 466 [[s]uch unusual circumstances [justifying review by writ] are present where the matter presents an issue of first impression, the issue has been thoroughly briefed and our determination is purely one of law].) Second, nowhere in their letter briefs submitted to this court on the jurisdictional question do Trina and Gerald make any showing that an appeal after finalization of Jacobs adoption would not provide an adequate remedy at law, one of the necessary elements for proceeding by way of a petition for extraordinary writ. (Cf. In re Marriage of Lafkas, supra, 153 Cal.App.4th at pp. 1434-1435 [declining to treat improper appeal as petition for writ of mandate; [h]usband has shown no exigent reasons why review of the interlocutory order should not await the rendition of a final judgment. Husband has an adequate appellate remedy by an appeal from the final judgment.].) Finally, far from being unnecessarily dilatory and circuitous, deferring any appellate review of the issue of the validity of Trina and Geralds consents until all issues in the adoption proceedings have been fully determined by the juvenile court and Jacobs adoption finalized appears to present the most efficient and expeditious way of concluding the proceedings and bringing stability to Jacobs life.

DISPOSITION

The appeals are dismissed. The parties are to bear their own costs on appeal.

PERLUSS, P. J.

We concur:

ZELON, J.

JACKSON, J.

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^[1] The letter brief also discussed the disentitlement doctrine, which had been raised in the October 2009 letters from Robert and Lisas counsel.

^[2] Trina and Gerald also suggest their petition to vacate the adoption proceedings could be viewed as analogous to a motion under Code of Civil Procedure section 473, subdivision (b) (section 473(b)), based on excusable neglect, to set aside their consents to Jacobs adoption, which became final for purposes of Family Code sections 8814.5 and 8815 when their notice of revocation was not filed within 30 days of the date they signed the consents. They then argue, assuming an order denying a motion under section 473(b) is necessarily appealable, the juvenile courts order denying their petition should similarly be deemed appealable. Putting aside the significant differences between a statutory motion for relief from a court-entered judgment, dismissal, order, or other proceeding ( 473(b)) and, as here, a petition to revoke or invalidate privately given consents, an order denying a section 473(b) motion is generally appealable as a post-judgment order under Code of Civil Procedure section 904.1, subdivision (a)(2). (That was the procedural context for the appeal in the case cited by Trina and Gerald, In re Yoder (1926) 199 Cal. 699, which involved the denial of a motion to set aside final adoption orders.) A section 473(b) motion itself is not independently appealable. Here, as discussed, there has not yet been a judgment; and the order denying Trina and Geralds petition is not an appealable post-judgment order.