Opinion
NOT TO BE PUBLISHED
Appeal from postjudgment orders of the Superior Court of Orange County, No. AD70454 Randall J. Sherman, Judge.
A. M., in pro. per. for Objector and Appellant.
No appearance for Plaintiffs and Respondents.
No appearance for Minor.
OPINION
SILLS, P. J.
The probate court granted the stepfather’s adoption petition in 1999 after documentary evidence was presented that a reasonable search had been made but the biological father could not be found. In 2009, appellant (and biological father) filed a postjudgment motion for the appointment of counsel pursuant to Family Code section 7862. He explained that he wanted to set aside the adoption on the ground of extrinsic fraud: the mother knew his whereabouts and how to contact him when the adoption petition was filed and her representation to the court to the contrary was intended to keep the father from appearing at and opposing the adoption. He further asserted that he only learned of the adoption in 2007 and of the fraud on the court in 2008 when the minor, who was by then an adult, visited him in prison and showed him court records of the adoption proceeding.
Without making any factual determinations, the court denied the motion for the appointment of counsel on the ground such an order was not authorized by Family Code section 7862 because no action to terminate the father’s rights was pending. On its own motion, the court also treated the motion as a petition to set aside and vacate the adoption. It denied it on the ground that any such petition was barred by Family Code section 9102. That section provides that any action to set aside an adoption is time-barred unless filed within one year of the entry of the order or, in the case of fraud, within three years of the entry of the order, and the father’s proposed collateral attack on the order was coming ten years after the adoption.
The probate court was wrong. First, the father’s action is not time-barred by Family Code section 9102. Although the Legislature may enact a statute of limitations for challenging an adoption order, a parent who was never given notice of the proceedings has a federal constitutional right to challenge the order even after the limitations period under state law has expired. (Armstrong v. Manzo (1965) 380 U.S. 545, 551-552.) Second, the father is entitled to the appointment of counsel under Family Code section 7862. Although that section requires the appointment of counsel for an indigent parent whose rights are the subject of a pending parental termination proceeding, where an indigent parent makes a prima facie case that an adoption order was entered without notice and a meaningful opportunity to be heard, the parent is also entitled to the appointment of counsel under that section. A parent who was never given notice of an adoption proceeding is effectively in the same position as an indigent parent opposing an ongoing proceeding.
Accordingly, we reverse and remand.
I
The facts necessary to decide the appeal are few and, as between the allegations in the initial stepparent adoption petition and the father’s current motion for appointment of counsel, essentially undisputed.
A.M., the biological father, tells an interesting life story: He was the manager of a famous athlete, hobnobbed with many people in the entertainment industry, and, at the President’s request, helped the federal government on covert operations involving this country’s foreign policy in the Middle East. It would be easy to dismiss these representations as mere ramblings, but there are documents in the probate court’s file that if authenticated could lend credibility to some of those statements. But whether true or not, he confirms he travelled extensively because of his job, had no permanent address, and was living in a major hotel in Los Angeles when he met the mother sometime in the mid-1980’s.
The record designated by appellant was incomplete. On the court’s own motion we called over the probate court file and take judicial notice of it.
The minor was born in 1987. The father and mother had dated whenever he was in town but, when it was time, she gave birth alone. Even though the father continued to travel the world, the two still dated when he was in town and met at the hotel in Los Angeles. Even though he said he was willing to live up to his responsibilities concerning the minor, “even considering marriage,” they never married and the mother said he never supported the minor. The mother said that by 1990 they had separated.
The mother then met the stepfather and they soon married. In 1998, the stepfather petitioned to adopt the minor. An investigation was conducted by the superior court’s Mediation and Investigative Services. The mother was asked where the father was and she said she had not seen him since 1990 when he left the Beverly Hilton in Beverly Hills where he regularly stayed. The report filed with the court stated that, “This investigator has been unable to locate alleged father [] with the limited information available from the mother. [] She did not have any information on any of his friends or family members nor did she know his date of birth. The undersigned was unsuccessful in locating [the father] through the California Department of Motor Vehicles which fit the description of [the father] as given by the birth mother. There are no listings with the Los Angeles Area Directory Information for [the father’s name] or for the business the mother knew him to own. [] He is unknown at the hotel at which the mother last knew him to stay while in Los Angeles.”
The attorney for the stepfather submitted a declaration for “dispensing with notice to alleged natural father.” He stated that “[b]ased upon the limited information provided” by the mother he instructed the Daily Journal Corporation to conduct a “public record search” for the father in Los Angeles County but nothing was found. He also “[c]aused a search to be performed through the Department of Corporations” for a business the mother thought the father owned, but the only business with that name had been suspended in 1990. No response was received to a letter sent to that business at its old address. An investigator was also sent out by the attorney for the stepfather to locate the father based on the information given by the mother but his investigation, also limited to the Los Angeles area, proved unsuccessful.
With evidence the biological father could not be located, the stepparent adoption was granted in 1999.
Ten years later, the father submitted a letter to the court which the court treated as a petition to set aside and vacate the adoption. He stated he had been in federal prison for the last 17 years and only became aware his son had been adopted when his son visited him in 2007. He also said he only became aware of the fraud on the court in 2008 when his son obtained copies of court documents showing the mother lied to the court about the father’s whereabouts. The father asserted the mother knew he was serving time in federal prison in another state, and in which one, while the stepparent adoption proceeding was pending. At no place in the probate court file, and in none of the investigators’ reports to the court, is there any indication an attempt was made to locate the father in the prison system.
The father filed the letter/petition to vacate the adoption order on his own behalf as well as that of his son. The son had filed an affidavit with the court in 2008 seeking copies of his confidential adoption records. He stated he had been misinformed about his father’s consent to the adoption and wanted to see his adoption file. He was entering this nation’s armed forces and wanted to enter under his birth name rather than his stepfather’s name.
The court reviewed the file. It then issued a minute order which reads in relevant part: “[The father] asks that the court appoint him counsel pursuant to Family Code Section 7862, but that statute applies only to a proceeding to terminate a parent’s parental rights, and since no such proceeding is pending, that request is DENIED. [The father] also suggests that he wishes to invalidate the adoption of his natural son [], an adoption which was finalized [in] 1999. The court will deem his papers to include a motion to vacate the adoption, but under Family Code Section 9102 such an action has a statute of limitations of one year after entry of the order, or three years after entry of the order if fraud is alleged. This application is made more than ten years after the adoption order was entered. Thus, the motion is untimely and is therefore DENIED.”
The father separately appealed from both orders. At his request, we consolidated them.
II
The father recognizes Family Code section 9102 sets out a time limitation within which a challenge to an order of adoption may be filed. That section explicitly provides: “(a) An action or proceeding of any kind to vacate, set aside, or otherwise nullify an order of adoption on any ground, except fraud, shall be commenced within one year after entry of the order. [¶] (b) An action or proceeding of any kind to vacate, set aside, or nullify an order of adoption, based on fraud, shall be commenced within three years after entry of the order.” He further recognizes his petition, filed ten years after the adoption order was entered, is not timely because it exceeds the lengthiest limitation period allowed under the statute.
The father argues, however, he “is entitled to a tolling of the applicable California Family Code with respect to his claims of Fraud []. [¶] If ever, one is entitled to ‘Nun Pro Tunc’ relief and/or a tolling of the applicable California Family Code Statute of Limitations—it is the Appellant herein—whom has set in a federal prison cell for the last 17 years while the rest of the world has passed him by, and the adoptive parents have along the way perpetrated a fraud upon the [court], to acquire custody of a prisoner’s child.”
Although no California case has interpreted Family Code section 9102, the courts have interpreted its predecessor statute, Civil Code section 227d, which set out a similar three-year, five-year statute of limitations. In Walter v. August (1960) 186 Cal.App.2d 395, the natural parents were not notified of a petition to have the children declared free from their custody and control. More than five years later, they filed an action to set aside the decree, which the trial court granted. In reversing the judgment, the Walter court concluded that, “Statutes of limitation are statutes of repose, and are based in part upon the proposition that persons who sleep upon their rights may lose them. We can think of no situation to which the principle is more applicable than that of natural parents who leave their child with others, contribute nothing to his support, and wait for more than five years to attack an adoption which has provided the child with the only home he has ever known. It might be possible to imagine a case which would be of such a character that a court would feel compelled to construe section 227d as admitting of some exception, but this is certainly not the case. [Citations.]” (Id. at p. 400.) Walter has not been questioned by any later California court.
But a scant five years after Walter was decided, the United States Supreme Court decided Armstrong v. Manzo, supra, which presented an almost identical notice problem. There, the stepfather sought to adopt the mother’s child. In Texas, the adoption would be permitted if the father consented to it or if it were shown the father had not contributed substantially to the support of the child, commensurate with his ability to pay, for a period of two years. The mother submitted an affidavit the father had not contributed to the child’s support and, consistent with state law, the judge accepted the declaration in lieu of the father’s consent and granted the adoption petition. The father was never given notice of the hearing.
In reversing the judgment, the Supreme Court held, “It is clear that failure to give the petitioner notice of the pending adoption proceedings violated the most rudimentary demands of due process. ‘Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and an opportunity for hearing appropriate to the nature of the case. [Citation.]’” (Armstrong v. Manzo, supra, 380 U.S. at p. 550.) It pointed out that, “Had the petitioner been given the timely notice which the Constitution requires, the Manzos, as the moving parties, would have had the burden of proving their case as against whatever defenses the petitioner might have interposed. [Citations.] It would have been incumbent upon them to show not only that Salvatore Manzo met all the requisites of an adoptive parent under Texas law, but also to prove why the petitioner’s consent to the adoption was not required. Had neither side offered any evidence, those who initiated the adoption proceedings could not have prevailed.” (Id. at p. 551.)
Although no California case has addressed the implications of Manzo on the statute of limitations set out by Family Code section 9102, our sister states have uniformly held that the only limitation on a parent who seeks to challenge an adoption on the ground of lack of notice is reasonableness in bringing the claim once the parent has knowledge of the order. (See, e.g., Adoption of D.C. (Ind. Ct. of App., 2008) 887 N.E.2d 950; McCallum v. Salazar (Va. Ct. of App., 2006) 636 S.E.2d 486; Matter of Adoption of Welshans (Or. Ct. of App., 1997) 946 P.2d 1160; In re Adoption of Miller (Ill. Ct. of App., 1982) 436 N.E.2d 611; see also Kramer, Legal Rights of Children (rev. 2d ed., 2005) § 6.8, pp. 530-531.) A statute of limitations that purports to put a time barrier to any challenge for extrinsic fraud is unconstitutional.
We agree that to the extent Family Code section 9102 seeks to impose a time limit to any challenge to an adoption decree, even one which was obtained through extrinsic fraud, it is unconstitutional as applied. Thus, to the extent the probate court here refused to afford petitioner a hearing on the ground his challenge was time-barred, the order must be reversed. This is not to say that petitioner’s claim is timely, that it may be barred for other reasons, or that there is any merit to his claim that the adoption decree was obtained through extrinsic fraud on the court. We merely hold that petitioner has the right to have a hearing at which he may put on evidence to support his claim that extrinsic fraud was committed and he brought his challenge within a reasonable time after first becoming aware of the adoption decree.
The right to challenge the adoption decree would be meaningless, however, if petitioner, who claims to be indigent, were not afforded counsel. Family Code section 7862 provides that, “If a parent appears without counsel and is unable to afford counsel, the court shall appoint counsel for the parent, unless that representation is knowingly and intelligently waived.” Here, the court denied the application because no action to terminate the father’s parental rights was pending. In a sense, that is true; the only matter actually pending was a request for the appointment of counsel. The purpose of the request, however, was for appointment of counsel so petitioner could pursue an attack on an adoption decree that terminated his rights. Given petitioner has shown enough to entitle him to at least a preliminary hearing he is entitled to the appointment of counsel for that purpose.
Accordingly, we reverse the orders and remand the matter to the probate court to permit the appointment of counsel and a hearing in accordance with the views expressed herein. No costs are awarded in this proceeding.
WE CONCUR: RYLAARSDAM, J.IKOLA, J.