Opinion
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 bom in August 2003. In January 2004, the grandmother filed an application to adopt him. In November 2004, the application was amended
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 bom; 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 physically] 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.
“(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.
II
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)
“We independently review questions of statutory construction. [Citation.]” (Pineda v. Williams-Sonoma Stores, Inc. (2011)
The mother moved to set aside the adoption order based on extrinsic fraud. “Extrinsic fraud” refers to “circumstances in which ‘the aggrieved
Family Code section 9102, subdivision (b) fixes a three-year limitations period for setting aside an adoption order “based on fraud.” Respondents argue that “fraud” includes extrinsic fraud; thus, based on what would seem to be the plain meaning of the statute, the mother’s claim is barred.
County of San Diego v. Gorham (2010)
The appellate court reversed. It explained: “[E]ven where relief is no longer available under statutory provisions, a trial court generally retains the inherent power to vacate a default judgment or order on equitable grounds where a party establishes that the judgment or order was void for lack of due process [citation] or resulted from extrinsic fraud or mistake [citation].” (County of San Diego v. Gorham, supra,
Under Gorham, the meaning of Family Code section 9102 is not necessarily plain. We therefore look to its legislative history. As originally enacted in 1992, it provided:
“(b) An action or proceeding of any kind to vacate, set aside, or otherwise nullify an order of adoption on any ground other than a defect or irregularity of procedure shall be commenced within five years after entry of the order.” (Fam. Code, former § 9102; Stats. 1992, ch. 162, § 10, pp. 464, 711.)
It was substantively identical to its immediate statutory predecessor, Civil Code former section 228.15 (Stats. 1990, ch. 1363, § 3, p. 6090), which in turn was substantively identical to its immediate statutory predecessor, Civil Code former section 227d (Stats. 1951, ch. 638, § 5, p. 1819).
While Civil Code former section 227d was still in effect, Walter v. August (1960)
But there is more. In 1995, the Legislature enacted Assembly Bill No. 898 (1995-1996 Reg. Sess.) (Assem. Bill 898), which amended Family Code section 9102 to make it read essentially the way it reads today.
Assembly Bill 898, as originally introduced, provided; “No birth parent may seek to overturn the adoption of his or her child after the child has been in the custody of the adoptive parents for a period of one year after entry of the order of adoption where the consent of either birth parent was given in
The Assembly amended the bill, however, so as to delete the requirement that a birth parent had to have given valid consent. The amended version of the bill simply provided: “An action or proceeding of any kind to vacate, set aside, or otherwise nullify an order of adoption on any ground shall be commenced within one year after entry of the order.” (Assem. Bill 898 (1995-1996 Reg. Sess.) as amended Mar. 27, 1995, italics omitted.)
In connection with this version, the author of the bill explained that he wanted to reduce the statute of limitations in all cases to one year. He argued that “the current three-year and five-year statutes of limitation are simply too long. In these cases, the child has bonded with the adoptive parents and knows only those parents. . . . [I]t is not in the best interests of these children to disrupt the adoption after so long a period of time, just to protect the rights of the birth parents.” (Sen. Com. on Judiciary, Analysis of Assem. Bill 898 (1995-1996 Reg. Sess.) as amended Mar. 27, 1995, p. 3.)
The Senate Judiciary Committee, however, expressed concern about this amended version: “What if the birth parent never received the required notice? What if the adoptive parents knowingly participated in a fraud upon the birth parent or parents?” (Sen. Com. on Judiciary, Analysis of Assem. Bill 898, supra, at p. 4.) “There is a point at which a fraudulently obtained adoption is very much akin to a kidnapping. Most people would not argue that a kidnaper who managed to elude authorities for a sufficiently long period of time should be able to keep the kidnaped child because the stability of the child was paramount. This is because stability, while an important consideration, is not the only consideration when determining the best interests of the child. The fitness of an individual to parent has been determined to be a factor paramount to considerations of stability when determining the best interests of a child. ... [f] It is a viable argument that an adoptive parent who knowingly participated in some fraud on the birth parents in order to obtain the child, is not a fit parent to raise the child and it is in the best interests of the child to be removed from the adoptive placement.” (Ibid.)
Evidently these amendments obviated the concerns that had been expressed, as no similar concerns were raised again in any subsequent analysis of the bill. (See Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill 898 (1995-1996 Reg. Sess.) as amended Aug. 31, 1995;
In light of this history, it seems undeniable that the Legislature intended the three-year limitations period of Family Code section 9102, subdivision (b) to apply even to extrinsic fraud. The original bill would have set a limitations period if, and only if, a birth parent had given valid consent. The Legislature, however, chose to delete this provision and thus to make the limitations period apply even if a birth parent’s consent was invalid. Moreover, the author explained that the evil that the bill was intended to prevent was the disruption of an adoption, even after the child had bonded with the adoptive parents, “just to protect the rights of the birth parents.” (Sen. Com. on Judiciary, Analysis of Assem. Bill 898 (1995-1996 Reg. Sess.) as amended Mar. 27, 1995, p. 3.)
In sum, then, the Legislature arrived at the final statute through a process of horse trading. It recognized that the interest of a birth parent whose consent was obtained by fraud was deserving of some protection; however, it determined that the appropriate form of protection was a longer limitations period. The child’s countervailing interests in permanence and security demanded that, at some point, the rights of even a defrauded birth parent be cut off. We see no room in this reasoning to make an exception for cases of extrinsic fraud.
The mother argues that, in this particular case, there is little threat of disruption of the child’s life. She asserts that she has continued to be involved in his life; she also promises us that, if the adoption were set aside, she “would ensure that [the grandparents] continued to have contact” with the child. This is beside the point. Even though the Legislature’s underlying policy goal was to minimize disruption of the lives of adopted children, Family Code section 9102, as ultimately adopted, does not distinguish between cases of more disruption and less disruption; it applies in all cases.
The mother also argues that Family Code section 9102, subdivision (b) should not start to run until the fraud is (or reasonably should have been) discovered. She relies on Adoption of Sewall (1966)
Sewall involved a petition to set aside an adult adoption that had occurred almost 12 years earlier, based on, among other things, fraud. (Adoption of Sewall, supra, 242 Cal.App.2d at pp. 210-212.) At the time, Civil Code former section 227d barred any action to set aside an adoption after five years. (Sewall, at pp. 221-222.) The petitioner argued, however, that the applicable statute of limitations was the general statute for fraud, Code of Civil Procedure section 338, which did not begin to run until the fraud was, or reasonably should have been, discovered. (Sewall, at p. 222.)
The court held that Civil Code former section 227d did not apply to adult adoptions. (Adoption of Sewall, supra, 242 Cal.App.2d at pp. 223-226.) It
Family Code section 9102, subdivision (b), by its terms, runs from “entry of the [adoption] order.” This is unambiguous. It is impossible to construe it as running from the discovery of the grounds for setting aside the order. Moreover, any such construction would be inconsistent with the Legislature’s intent, as already discussed, to set an outside limit of three years, even for claims of lack of notice and extrinsic fraud.
We therefore conclude that “fraud,” within the meaning of Family Code section 9102, subdivision (b), includes extrinsic fraud. Hence, the trial court correctly ruled that the mother’s motion was time-barred under Family Code section 9102.
m
FAMILY CODE SECTION 9102 DOES NOT VIOLATE DUE PROCESS
The mother also argues that Family Code section 9102 violates due process when applied to a birth parent who was not given notice, as required by due process, of the adoption proceeding.
A. Forfeiture
B. Merits
“Since the interest of a parent in the companionship, care, custody, and management of his children is a compelling one, ranked among the most basic of civil rights [citations], the state, before depriving a parent of this
In California, ordinarily, an adoption petition need not be served on the birth mother. The birth mother has notice, however, because the adoption simply cannot proceed unless she has given her signed written consent.
It is hornbook law that a judgment rendered without the notice required by due process is void. (E.g., World-Wide Volkswagen Corp. v. Woodson (1980)
This boilerplate, however, does not tell us whether the Legislature could set a limitations period for a claim that a judgment is void. Even a due process claim can be made subject to a statute of limitations. “ ‘ “A constitutional right is always subject to reasonable statutory limitations as to the time within which to enforce it, if the constitution itself does not provide otherwise. . . .” ’ [Citations.]” (Kuperman v. San Diego County Assessment Appeals Bd. No. 1 (2006)
Some out-of-state cases hold that a statute of limitations that cuts off a birth parent’s right to challenge an adoption order on due process grounds does, in itself, violate due process. (White v. Davis (1967)
Although this precise issue has not yet been decided with respect to Family Code section 9102, there is relevant California authority. In Miller & Lux Inc. v. Secara (1924)
Kaufman v. Gross & Co. (1979)
On appeal, the plaintiff argued “that this statute of limitations cannot operate to bar a proceeding attacking a deed suffering from ‘jurisdictional’ defects rendering it void ab initio.” (Kaufman v. Gross & Co., supra,
It acknowledged a possible exception to this rule in cases where the owner was in “ ‘undisturbed possession’ ” (Kaufman v. Gross & Co., supra,
Finally, in Walter v. August, supra,
The court held that the action was barred. (Walter v. August, supra,
We believe the exception, if it exists at all, would apply when the birth parent is in a position analogous to that of an owner in undisturbed possession, under Kaufman. In other words, a birth parent who had no reasonable means of becoming aware of the adoption proceeding might be able to claim that a statute of limitations barring an action to set aside the adoption does, in itself, violate due process. As Walter noted, however, in most cases, the birth parents have at least constructive notice from the adoptive parent’s “adverse possession” of the child. (Walter v. August, supra,
Here, the mother had actual knowledge that there was some kind of legal proceeding going on concerning custody of the child. She claimed that, due to the grandparents’ fraud, she believed it was a temporary guardianship, rather than an adoption. Even if so, she had a duty to keep herself informed about the supposed guardianship proceeding. It should have been a red flag that the grandparents “absolutely refused” to give her copies of any of the guardianship documents. She also had actual knowledge that the grandparents had had physical custody of the child for over six years. At least under these circumstances, a statute of limitations that cuts off her right to set aside the adoption does not violate due process.
We find additional support for our conclusion in David B. v. Superior Court (1994)
The appellate court held that Welfare and Institutions Code section 366.26, former subdivision (h) (now subd. (i)(l)), which provided that an order terminating parental rights was “ ‘conclusive and binding’ ” and that “ ‘the court shall have no power to set aside, change, or modify it,’ ” required the trial court to deny the motion. (David B. v. Superior Court, supra, 21 Cal.App.4th at pp. 1017-1018, italics omitted.) It noted that, because the social services agency had not used due diligence, service by publication was not adequate notice, and hence the judgment was void. (Id. at p. 1016.) Nevertheless, it held that Welfare and Institutions Code section 366.26, former subdivision (h) did not violate due process. (David B., at pp. 1018-1020.)
It explained: “In Mathews v. Eldridge (1976)
The court noted that, under the statutory dependency scheme, a parent is entitled to notice at every step of the dependency, which in the case before it had lasted 18 months. Thus, a parent has repeated opportunities to assert a jurisdictional challenge. (David B. v. Superior Court, supra,
Second, as in David B., the child and the adoptive parents have an interest in the security and stability of the adoptive placement, and the state shares this interest. In fact, once an adoption petition has been granted, the adoptive parents have the same interest in custody that a birth parent has. Certainly once the child has been with the adoptive parents for at least three years, as Family Code section 9102, subdivision (b) would require, this interest has become a compelling one.
Third, also as in David B., the statutory scheme minimizes the risk of an erroneous deprivation. The adoption process provides numerous safeguards for the birth parents. A birth parent who places a child for adoption must first be advised of his or her rights. (Fam. Code, § 8801.5.) The birth parent’s consent to adoption must be witnessed. (Id., §§ 8801.3, subd. (b), 8814, subd. (a).) The birth parent has ample opportunity to revoke his or her consent. (Id., § 8814.5.) There must be an independent investigation (id., §§ 8712, 8811, 8908, 9001) and an independent report to the court regarding the proposed adoption (id., §§ 8715, 8807, 8914, 9001). The Department oversees the whole process.
An erroneous deprivation could still occur. A social worker could be negligent or crooked. In this case, the mother alleges that the social worker failed to advise her of her rights and failed to tell her what she was signing. The chances of this, however, are minimal; thus, the risk is outweighed by the shared interest of the state, the child, and the adoptive parents in finality. “Now and then an extraordinary case may turn up, but constitutional law like other mortal contrivances has to take some chances, and in the great majority of instances no doubt justice will be done. [Citation.]” (Blinn v. Nelson (1911)
We therefore conclude that Family Code section 9102, as applied in this case, is constitutional.
DISPOSITION
The order appealed from is affirmed. Respondents are awarded costs on appeal.
King, J., and Codrington, J., concurred.
Notes
The only difference was that the limitations period in Family Code section 9102, subdivision (b) for an action based on fraud was five years. (Stats. 1995, ch. 567, § 1, p. 4409.) This was reduced to three years in 2000. (Stats. 2000, ch. 937, § 6, p. 6980.)
Available at <http://www.leginfo.ca.gov/pub/95-96/bill/asm/ab_0851-0900/ ab_898_bill_950222_introduced.html> (as of May 19, 2011).
Available at <http://www.leginfo.ca.gov/pub/95-96/bill/asm/ab_0851-0900/ ab_898_bill_950327_amended_asm.html> (as of May 19, 2011).
Available at <http://www.leginfo.ca.gov/pub/95-96/bill/asm/ab_0851-0900/ ab_898_cfa_950327_101910_sen_comm.html> (as of May 19, 2011).
Available at <http://www.leginfo.ca.gov/pub/95-96/bill/asm/ab_0851-0900/ ab_898_cfa_950713_150358_sen_comm.html> (as of May 19, 2011).
Available at <http://www.leginfo.ca.gov/pub/95-96/bill/asm/ab_0851-0900/ ab_898_bill_950713_amended_sen.html> (as of May 19, 2011).
As a result of a subsequent Senate amendment, this was changed to five years in the final bill. (Assem. Bill 898 (1995-1996 Reg. Sess.) as amended Aug. 31, 1995, available at <http:// www.leginfo.ca.gov/pub/95-96/bill/asm/ab_0851-0900/ab_898_bill_950831_amended_sen.html> [as of May 19, 2011].) As already noted, however, it was changed back to three years in 2000.
Available at <http://www.leginfo.ca.gov/pub/95-96/bill/asm/ab_0851-0900/ ab_898_cfa_950831_151824_sen_floor.html> (as of May 19, 2011).
Available at <http://www.leginfo.ca.gov/pub/95-96/bill/asm/ab_0851-0900/ ab_898_cfa_950908_153159_sen_floor.html> (as of May 19, 2011).
Available at <http://www.leginfo.ca.gov/pub/95-96/bill/asm/ab_0851-0900/ ab_898_cfa_950918_120627_asm_floor.html> (as of May 19, 2011).
See footnote, ante, page 913.
Although there are exceptions to these broad general rules, we disregard those that do not apply here.
Walter also indicated that lack of notice and lack of consent made the adoption decree voidable, rather than void. (Walter v. August, supra, 186 Cal.App.2d at pp. 397-398.) This seems questionable, in light of the general principles, as already discussed, that a birth parent is entitled to notice of a proceeding to adopt his or her child as a matter of due process and that