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Adoption of B.C., Jr., A Minor. v. A.G

May 19, 2011

ADOPTION OF B.C., JR., A MINOR. E.G. ET AL., PLAINTIFFS AND RESPONDENTS,
v.
A.G., DEFENDANT AND APPELLANT.



APPEAL from the Superior Court of San Bernardino County. Michael J. Torchia, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) (Super.Ct.No. RARS01363)

The opinion of the court was delivered by: Acting P.J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

OPINION

Affirmed.

A.G. (the mother) gave birth to a son (the child). When the child was two, he was adopted -- supposedly with the mother's written consent -- by the mother's mother, E.G. (the grandmother), and her husband, B.C., Sr. (the stepgrandfather). They renamed him B.C., Jr.

When the child was five and a half, the mother filed a motion to set aside the adoption. She alleged extrinsic fraud, in that she had been told that what she was consenting to was a temporary guardianship, not an adoption. The trial court denied the motion as time-barred under Family Code section 9102. The mother appeals.

We will hold that Family Code section 9102 applies to any action or proceeding to set aside an adoption order on any grounds, including, as in this case, extrinsic fraud. We will further hold that Family Code section 9102 does not violate due process, even when applied to a claim that an adoption order is void due to lack of notice and lack of consent, at least under the circumstances of this case. Accordingly, we will affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

The child was born in August 2003. In January 2004, the grandmother filed an application to adopt him. In November 2004, the application was amended so as to add the stepgrandfather as co-petitioner. In April 2005, the mother signed a written consent to the adoption. The California Department of Social Services (the Department) recommended that the petition be granted. In November 2005, the trial court granted the petition.

In May 2010 -- four years and six months after the entry of the adoption order -- the mother filed a motion to set aside the adoption order based on fraud. The grandmother and stepgrandfather (collectively the grandparents), along with the Department, opposed the motion.

The declarations in support of and in opposition to the motion were in sharp factual conflict.

According to the mother, she suffered from severe depression after the child was born; she needed the grandparents' help to care for the child. They told her that they needed to set up a temporary guardianship, for such purposes as the child's health care. She admitted signing the written consent to adoption, but she testified that she thought it was a consent to a temporary guardianship. The social worker who presented it to her did not tell her what it was, did not give her a copy, and did not advise her of her rights in connection with adoption. (See Fam. Code, §§ 8801.3, subd. (b)(1), 8801.5.) When she asked the grandparents for copies of the guardianship documents, they "absolutely refused" to give them to her.

The mother "continued to have a very loving mother-son relationship" with the child. She saw him daily and had visitation with him almost every weekend. It was only after the grandmother filed a request for a temporary restraining order against her (which was denied) that the mother obtained counsel, who discovered that there had actually been an adoption. The mother also claimed that the grandmother had abused her -- physically, verbally, and, on one occasion, sexually -- when she was growing up.

The grandparents flatly denied the mother's testimony, calling it "full of lies." They denied telling her that they were seeking a temporary guardianship. Rather, they testified, they told her that they were seeking to adopt the child; she told them, "[D]o whatever you want . . . ." She "participated in, and was fully aware throughout the adoption process that [they] were adopting [the child]."

In October 2009, according to the grandparents, there had been an incident in which the mother "was physical[ly] and verbally abusive to all family members" in the child's presence. That was when they sought a restraining order, which was denied for procedural reasons.

The grandparents and the Department (respondents) argued that the motion was untimely under Family Code section 9102, which 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."

In response, the mother argued that Family Code section 9102 did not apply to a proceeding based on extrinsic fraud and/or lack of due process.

The trial court ruled that the motion was time-barred under Family Code section 9102.

I

FAMILY CODE SECTION 9102 APPLIES TO A PROCEEDING TO SET ASIDE AN ADOPTION BASED ON EXTRINSIC FRAUD

"'The basic rules of statutory construction are well established. "When construing a statute, a court seeks to determine and give effect to the intent of the enacting legislative body." [Citation.] "'We first examine the words themselves because the statutory language is generally the most reliable indicator of legislative intent. [Citation.] The words of the statute should be given their ordinary and usual meaning and should be construed in their statutory context.' [Citation.] If the plain, commonsense meaning of a statute's words is unambiguous, the plain meaning controls." [Citation.] But if the statutory language may reasonably be given more than one interpretation, "'"courts may consider various extrinsic aids, including the purpose of the statute, the evils to be remedied, the legislative history, public policy, and the statutory scheme encompassing the statute."'"' [Citations.]" (Catlin v. Superior Court (2011) 51 Cal.4th 300, 304.)

"We independently review questions of statutory construction. [Citation.]" (Pineda v. Williams-Sonoma Stores, ...


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