California Adoption Based on One Parent's Consent - In re Adoption of Janelle M — Bay Area Divorce Lawyer Blog

There are certain circumstances in which a California court will allow a person to adopt a child, even where it is without the consent of one of the birth parents. The state’s Fourth District Court of Appeals recently considered a rather extreme (not to mention scary!) example of the type of situation in which such an adoption may be permitted in In re Adoption of Janelle M.

RM and BB married in 2002 and the couple had a child – Janelle – three years later. They eventually separated in 2008 and BB filed for divorce, claiming that RM had physically and emotionally abused her over the course of their marriage. One month later, RM’s friend allegedly told BB that RM was plotting to have her murdered. In addition to contacting the local police, BB obtained a restraining order, moved to a confidential location and had RM’s scheduled visits with Janelle discontinued. Janelle was three years old when she last saw her father in 2008. He was jailed the same year and later convicted for solicitation of murder.

The couple’s divorce was finalized in 2009 and a court granted BB sole legal and physical custody over her daughter. RM, who was released from prison the following year, was not allowed visitation rights. He was also not ordered to pay child support until April 2012.

BB married RB in November 2011. According to the Court, RB supported Janelle “financially and emotionally” for at least two years prior to the marriage. BB’s restraining order against RM was renewed the next month.

RM nevertheless sought visitation with Janelle shortly thereafter. He and BB attended family court mediation in early 2012. The mediator recommended that BB retain custody and that psychological evaluations and clinical assessments of RM, BB and Janelle be conducted to determine whether RM posed a risk of harm to his daughter.

While the tests were pending, RB sought to adopt Janelle. BB and the local health and human services agency also favored the petition. Now seven years old, the child had no recollection of RM and viewed RB as her “daddy.” Although RM claimed that the murder solicitation was “all a mistake” caused by a misunderstanding with his friend, a family court granted RB’s adoption petition.

On appeal, the Fourth District affirmed the lower court’s decision granting the adoption without RM’s consent. As the court explained, California law allows for adoption based on consent by a parent with sole custody over a child where the other parent “willfully fails to communicate with and to pay for the care, support, and education of the child when able to do so” for at least one year. “Token” efforts to communicate are not sufficient to avoid adoption on these grounds, the court further clarified.

Here, the court observed that RB alleged in his petition that RM had not seen nor communicated with Janelle for five years. BB’s restraining order remained in effect during this time, but the court said that it did not apply to contact between RM and Janelle. While he attempted to contact his daughter by letter from prison in 2009, the court noted that RM made no additional efforts after that time. The court also found that, despite being employed since his release 1.5 years earlier, RM did not pay child support until a court ordered him to do so in April 2012.

This case is clearly an extreme example of the bases on which a court may permit adoption without one parent’s consent. That said, the court’s ruling makes clear that a parent doesn’t have to be sent to prison in order to be deemed as having abandoned his or her child for adoption consent purposes. A parent or prospective parent faced with a similar situation is well-advised to seek the advice of a competent family lawyer. With more than 13 years of experience representing clients in divorce and adoption proceedings, San Jose divorce lawyer Lorna Jaynes utilizes innovative legal tools to resolve these and other family law disputes for clients in the San Francisco Bay Area.