Opinion
Previously published at 53 Cal.App.4th 684 Thomas V. Roland, Berkeley, for claimant and appellant.
Dena R. Thaler, Kathleen Marie Moura, Law Office of Dena R. Thaler, Oakland, for contestant and respondent.
PHELAN, Presiding Justice.
Kim Barnum-Smith (appellant) timely appeals from an order by which the Alameda County Superior Court found that she was not a "child" of the decedent, Louis Joseph, within the meaning of Probate Code section 6454 (former § 6408, subd. (e)), and that she was not, therefore, entitled to an intestate distribution from decedent's estate pursuant to that statute. Based on the same findings, the trial court also revoked appellant's letters of administration. We affirm.
All statutory references are to the Probate Code unless otherwise indicated. The statute which controls this appeal was originally enacted in 1983 as section 6408, subdivision (a)(2). (Stats.1983, ch. 842, § 55, p. 3804.) The language of the statute has remained essentially unchanged since 1990, when it was amended and renumbered as section 6408, subdivision (e), effective July 1, 1991. (Stats.1990, ch. 79, § 14, pp. 721-722.) In 1993, section 6408, subdivision (e), was renumbered as section 6454, again without substantive change. (Stats.1993, ch. 529, § 5, No. 8 West's Legis. Service, pp. 2267-2268.) For convenience, we will hereinafter refer to the statute, which was applied by the trial court in its current form, as "section 6454."
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant has not designated any reporter's or clerk's transcripts and, instead, relies on the version of facts set forth in the trial court's statement of decision. For purposes of this appeal, we must resolve all conflicts in the evidence and draw all reasonable inferences in favor of the trial court's decision. (In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 358, 236 Cal.Rptr. 543.)
With respect to appellant's claim that the decedent was her "foster parent" and she his "child" within the meaning of section 6454, the court found as follows: "[Appellant] was taken in by the decedents, Gladys and Louis Joseph and raised by them during the vast period of her minority, from age three on. The Josephs assisted her after her minority by financing her efforts at San Jose State University and a local junior college. Mr. Joseph 'gave' [appellant] away at her wedding. Certainly, the relationship between [sic ] the Josephs satisfied the common law definition of 'foster child,' at least during the minority and early adulthood of [appellant], which to simplistically recite [its] shorthand definition means one whose well being is fostered by another person. For a period, at the beginning of the relationship, and during her minority both of the Josephs would from time to time ask [appellant's] natural parents if they, the Josephs, could adopt [appellant]. Each such request was refused. After a while, but still during [appellant's] minority the Josephs discontinued asking." Appellant reached the age of majority on October 15, 1974, some 21 years before Mr. Joseph's death in 1995. There is nothing in the record to indicate that the decedent made any attempt to legally adopt appellant during this 21-year period.
Despite the court's finding that appellant was--at least for some period of time and for some purposes--a "foster child" of the decedent, the trial court concluded that she had not satisfied the requirements of section 6454 and was not, therefore, entitled to a share of the decedent's estate. Specifically, the trial court found that appellant had not established by clear and convincing evidence that the decedent would have adopted her "but for a legal barrier." (Ibid.) Because she was
II. DISCUSSION
Section 6454 provides: "For the purpose of determining intestate succession by a person or a person's issue from or through a foster parent or stepparent, the relationship of parent and child exists between that person and the person's foster parent or stepparent if both of the following requirements are satisfied: [p] (a) The relationship began during the person's minority and continued throughout the joint lifetimes of the person and the person's foster parent or stepparent. [p] (b) It is established by clear and convincing evidence that the foster parent or stepparent would have adopted the person but for a legal barrier." (Italics added for emphasis.) This provision was enacted pursuant to the recommendation of a probate consultant to the California Law Revision Commission, to provide for intestate succession " 'for step- and foster children in very limited situations, with the necessary safeguards incorporated by treating the case like an adoption....' (Italics added.)" (Estate of Claffey (1989) 209 Cal.App.3d 254, 258, 257 Cal.Rptr. 197.) Prior to the effective date of this provision, a stepchild or foster child had no right to inherit by intestate succession. (Id. at p. 256, 257 Cal.Rptr. 197; see also former § 26, added by 1983 Stats., ch. 842, § 21, p. 3026 [specifically excluding from the definition of "child" any person "who is only a stepchild, a foster child, a grandchild, or any more remote descendant"].)
Appellant argues at length that the decedent was her "foster parent" under well established common law principles. Appellant further contends that "the realities of current society" and sound reasons of public policy support an expansive reading of the term "foster parent," as used in section 6454, to include any person who "rears the child of another." Apparently, the trial court agreed with appellant that the decedent was her "foster parent" throughout her minority and into her early adulthood. The trial court also found that the decedent had repeatedly expressed a desire to adopt appellant while she was a minor, but was rebuffed each time by appellant's biological parents. The court did not find that the decedent's status as appellant's "foster parent" ever terminated during their "joint lifetimes." (§ 6454.) But even if we were to accept appellant's argument that the decedent was until the time of his death her "foster parent" within the meaning of section 6454, we could not conclude the trial court erred in finding she was not entitled to share in the decedent's estate under section 6454.
Appellant's claim failed because she did not satisfy the proof requirement of subdivision (b) of section 6454, by presenting clear and convincing evidence that the decedent "would have adopted [her] but for a legal barrier." Relying on a case from the Second District, Estate of Cleveland (1993) 17 Cal.App.4th 1700, 22 Cal.Rptr.2d 590, the trial court apparently reasoned that, although the decedent faced a substantial "legal barrier" to an adoption of appellant during the period of her minority because of the objections of her natural parents, that barrier was removed once appellant reached the age of majority, and no legal barrier to adoption existed thereafter until the time of the decedent's death. The trial court emphasized that the decedent had 21 years after appellant reached the age of majority to complete an adoption "had he really wanted to establish a parent/child relationship with [appellant]." Alternatively, the court noted decedent could have included appellant in a valid will or otherwise provided expressly for her to receive a distribution from his estate.
Implicit in the trial court's ruling was a determination that only an intent to adopt, coupled with a "legal barrier" that existed In Estate of Stevenson (1992) 11 Cal.App.4th 852, 14 Cal.Rptr.2d 250, the Sixth District reached the opposite conclusion. Stevenson involved two claimants who lived with their natural father and the decedent off and on beginning in the early 1950s when they were, respectively, two and three years old, and who believed until they were in their thirties that the decedent was their natural mother. (Id. at pp. 857-858, 14 Cal.Rptr.2d 250.) The claimants' father, as he was leaving for military service in Vietnam in 1967, asked the claimants' true biological mother to consent to adoption of the two claimants by the decedent, but she refused. (Id. at p. 858, 14 Cal.Rptr.2d 250.) Thereafter, the claimants lived with the decedent while their father served in Vietnam, and then with their father and the decedent until the father's death in 1983. (Ibid.) Sometime in the 1980s, when they were in their thirties, the claimants learned that the decedent was not their natural mother. Nonetheless, their relationship with the decedent continued until she died intestate in 1990. (Ibid.) Other than the one request in 1967, there was no showing that the decedent attempted to legally adopt the claimants.
Although the Stevenson court refers to the claimants as the decedent's "stepchildren," there is nothing in the opinion to indicate that the claimants' father was ever married to the decedent. (See 11 Cal.App.4th at pp. 857-858, 14 Cal.Rptr.2d 250.)
In those circumstances, the Stevenson court held there was substantial evidence of a parent-child relationship between the claimants and the decedent which continued throughout their "joint lifetimes" even though they did not live continuously with the decedent. (11 Cal.App.4th at pp. 859-862, 14 Cal.Rptr.2d 250.) Despite its conclusion that the legal barrier presented by the natural mother's refusal to consent to adoption was removed when the claimants reached the age of majority, the court further held there was substantial evidence that the decedent "would have adopted [the claimants] but for a legal barrier." (Id. at p. 866, 14 Cal.Rptr.2d 250.) It was not necessary, the court reasoned, for the "legal barrier" to exist throughout the parties' joint lifetimes or at the time of the decedent's death; the statute can be satisfied by a showing that the barrier existed when the parties attempted the adoption. (Id. at pp. 865-866, 14 Cal.Rptr.2d 250.) The Stevenson court believed that requiring the barrier to continue until the time of the decedent's passing would preclude all claims by adult foster- and stepchildren. (Id. at p. 866, 14 Cal.Rptr.2d 250.) The court further reasoned that a legally-barred attempt to adopt during the claimant's minority was sufficient because "once the child reaches adulthood, the parties may decide that adopting the child is not so important." (Ibid.)
With all due respect to our colleagues in the Sixth District, the analysis in Stevenson cannot withstand close scrutiny. As the Cleveland court explained: "The Stevenson holding was ... based on the conclusion that the Legislature could not have meant to exclude The Cleveland court also debunked the theory that once the child reaches the age of majority, adoption is "not so important," as follows: "There are many reasons for formalizing a parent-child relationship besides the care and protection of a minor. Adoption implicates estate tax planning (e.g., credits or exemptions for property passed to 'family member'); construction of insurance policies (e.g., 'family member' exclusion); right to recover for wrongful death; right to sue or be sued for negligence; dependency matters (e.g., reunification services for stepparent); and custody/visitation issues (as with 'grandchildren' of the stepparent or foster parent)." (17 Cal.App.4th at p. 1712, 22 Cal.Rptr.2d 590.) On the other hand, there may be many reasons for a decedent to decide not to pursue or complete an adult adoption: "Perhaps there had been a change in the nature or quality of their relationship. Perhaps the decedent was motivated to adopt the individual only to provide emotional and financial support during the individual's minority. If a decedent wanted to provide such an adult with a share of his or her estate, the decedent could do so by adopting the individual, which would remove all doubt as to whether the decedent considered the individual to be his or her 'child.' If the decedent determined that the process of adoption is too cumbersome, expensive, or no longer necessary to achieve estate planning goals, he or she could also write a will to provide for the individual. Where a decedent takes neither of these actions, it is fair to conclude that when many years pass without an adoption after the legal impediment ceases to exist, the decedent had other reasons for not effectuating the adoption." (Id. at p. 1710, 22 Cal.Rptr.2d 590.)
Like the trial court, we find the analysis in Cleveland to be more compelling, and more consistent with the plain meaning of section 6454, than that of the court in Stevenson. Under the holding of Cleveland, the order of the trial court must be affirmed.
III. CONCLUSION
For all the foregoing reasons, the judgment of the trial court is affirmed in its entirety. Costs to respondent.
CORRIGAN and WALKER, JJ., concur.