Opinion
Page __
__ Cal.App.2d __ 253 P.2d 47 Ex parte HOLY FAMILY ADOPTION SERVICE. Civ. 4984. California Court of Appeals, Second District, First Division Feb. 18, 1953Clock, Waestman & Clock, E. W. Sheridan, Long Beach, Dockweiler & Dockweiler, Frederick C. Dockweiler, Joseph G. Gorman, Los Angeles, for petitioner.
[253 P.2d 48] Edmund G. Brown, Atty. Gen., and Ariel C. Hilton, Deputy Atty. Gen., for the State of California.
PER CURIAM.
The application for a writ of habeas corpus is denied.
WHITE, P. J., is of the opinion that the writ should issue.
WHITE, Presiding Justice (dissenting).
I am convinced that the writ here sought should be granted. Petitioner asks by its application for a writ of habeas corpus to have restored to it the custody of Patricia McDonald, a minor child, hereinafter referred to as the child. A similar application made to the Superior Court of the State of California in and for the County of Los Angeles was denied. It is alleged in the petition that Holy Family Adoption Service is an adoption agency or organization licensed by the State of California to find homes for children and to place children for adoption, as such an organization is referred to in sections 224, 224m et seq. of the Civil Code; that petitioner is licensed by the State Department of Social Welfare (hereinafter referred to as the Department) pursuant to the provisions of subdivision (b) of section 1620 of the Welfare and Institutions Code; that petitioner is a nonsectarian institution, serving persons without discrimination as to race, color or creed; that its functions and obligations are under the supervision and control of the Department and subject to the rules and regulations of such Department, as promulgated pursuant to the provisions of section 1621 of the Welfare and Institutions Code for the government of adoption agencies and for the performance of their services, as set forth in Manual of Adoption Policies and Procedures (sometimes called 'Adoption Manual'), and referred to in note appended to Welfare and Institutions Code, Annotated, section 1621.
It is alleged that the child whose custody is herein sought by petitioner was born in the City of Los Angeles, California, on February 27, 1952, and was relinquished to petitioner for adoption by her unmarried mother on March 13, 1952; that said relinquishment was accomplished through the medium of a written instrument executed in accordance with the provisions of section 224m of the Civil Code, a copy of said relinquishment agreement being attached to the petition as an exhibit. That prior to the acceptance of the relinquishment, petitioner 'performed the basic study requirements of the child as specified in section 2430-00 of the Adoption Manual, including birth information, medical care, reports and examinations, and its legal status, and upon concluding that the child was adoptable, proceeded in accordance with sections 2450-00 of the Adoption Manual to make basic study requirements of applicants desiring to adopt children to the end that a selection of home and placement for adoption for the child could be made in accordance with section 2470-00 of the Adoption Manual; that pursuant to section 2460-00-C-2 no application was considered from a single applicant, 'whether unmarried, widowed, or divorced.".
The petition then avers that on March 20, 1952, petitioner selected applicants Clement C. James and Edna M. James, husband and wife, as a family 'that offered the best potentialities for the full development of the child; and on the same day placed the child with said family with the express understanding and agreement as required by said section 24700-00 in its final sentence, that your petitioner might 'remove the child for cause at any time prior to completion of the adoption'; that said agreement, copy of which is annexed hereto as 'Exhibit B', was executed by both Clement C. James and Edna M. James, and provides, among other things, the following:
"Holy Family Adoption Service places a child in a family for the purpose of providing a permanent home for it. After one year or more has elapsed, and the child is entirely satisfactory to the family and Holy Family Adoption Service is fully satisfied as to the care and training of the child, and character of the home, legal adoption is permitted. * * * [253 P.2d 49] "Holy Family Adoption Service places the child in a family for the purpose of providing it a home, and with the intention and full expectation of leaving the child in the home, but it reserves the right to remove the child previous to legal adoption, if at any time the circumstances make it necessary to do so." (Emphasis added.)
It is further alleged that petitioner 'supervised the placement as it was required to do under section 2475-00 of the Adoption Manual, the child was brought to the clinic for tests and observations, and periodic visits were made to the home of said family by a social worker on the staff of your petitioner;
'That on or about November 15, 1952, said Clement C. James came to his death as a result of his suicide; that on December 4, 1952, your petitioner, having previously determined that said Edna M. James, as a widow, could not provide a permanent home for the child to the satisfaction of your petitioner, or as required by the policies of the State of California in its relinquishment program as established in the Adoption Manual, or as required by the policies of your petitioner, demand was made upon Edna M. James to return the child forthwith to your petitioner.'
It is then set forth that said Edna M. James having persisted in her refusal to return the child to petitioner, the latter, on December 15, 1952, filed in the Superior Court of Los Angeles County a petition for a writ of habeas corpus, to the end that said child might be returned to petitioner. That upon a hearing of said application, on February 6, 1953, the superior court 'decided as a matter of law that in all habeas corpus proceedings involving a minor the Court could determine what home will best promote the interests of the child, and since no issue was made nor evidence introduced as to the fitness of Edna M. James to retain the child, he ordered that the child be left with Edna M. James and its disposition determined on the petition for adoption filed by Edna M. James on February 5, 1953, or in proceedings subsequent thereto; and thereupon discharged said application of your petitioner.' (Emphasis added.) Thereupon the instant proceeding was instituted in this court.
It is true that as a general rule the District Court of Appeal has no jurisdiction to attempt by habeas corpus to interfere with the exercise by another court of jurisdiction theretofore acquired in a habeas corpus proceeding unless the prior jurisdiction has been terminated. In re Owen, 82 Cal.App. 280, 255 P. 541; In re Shaw, 84 Cal.App. 24, 257 P. 585. If it be conceded because of the character of the order made by the superior court in this matter, that its jurisdiction has not been terminated, nevertheless this court may assume jurisdiction of a proceeding pending in the superior court when only an issue of law is involved and that court has not ruled thereon. In re Browning, 99 Cal.App.2d 337, 338, 221 P.2d 736; In re White, 49 Cal.App.2d 160, 121 P.2d 100; In re Barents, 99 Cal.App.2d 748, 222 P.2d 488. The petition herein recites that at the former hearing no evidence was introduced relating to the fitness of any of the parties to have the custody of the minor child or of environment. The court made no findings, but merely denied the writ. The question decided by the superior court was therefore one of law alone. The prior hearing in the latter court and its decision being based on questions of law alone, such decision cannot be res judicata in an appellate court.
The power to adopt minor children is a creation of statute which was unknown to the common law, and the mode must be held to be the measure of the power. When therefore, the Legislature, exercising its well-nigh plenary power over the subject of adoptions, provided in section 224m of the Civil Code for the relinquishment of a child by its father or mother for adoption to any agency licensed by the State Department of Social Welfare to find homes for children and place children in homes for adoption, it follows that where, as in the instant case, the provisions of said section were adhered to, the right to the care, custody and control of said minor was by such relinquishment transferred from the natural mother to the adoption agency. When the relinquishment of the child to the licensed adoption agency was accomplished in the manner [253 P.2d 50] and form provided by section 224m of the Civil Code, such agency became invested not only with the right of custody and control of said child, but with the right by habeas corpus to obtain actual custody in the event that prior to entry of an adoption decree the person having actual custody refuses to surrender the minor.
It is my opinion that the superior court was in error in holding that the remedy of habeas corpus was not available to the adoption agency because disposition of the custody of the child could be determined on hearing of the petition for adoption of the child filed by Mrs. James subsequent to the filing of the petition for the writ of habeas corpus by the adoption agency. This I say because, under the provisions of sections 224m and 226 of the Civil Code, the child cannot be adopted unless the adoption agency, in its discretion, joins in the petition for adoption. Under a situation analogous to that here presented and under laws similar to those now in effect, such was the holding as far back as Ex parte Chambers, 80 Cal. 216, 218, 219, 22 P. 138.
For the foregoing reasons, I would issue the writ of habeas corpus prayed for.