THE COURT.
Petitioner is the mother of a minor, and seeks by the proceeding herein to have the possession of this child delivered to her by the respondents.
By her petition she alleges that said child is of the age of 3% years and that heretofore she has been unable to properly care for said child by reason of economic factors beyond her control; that by reason thereof she delivered said child to the respondents Garcia to be gratuitously cared for by them until [494]*494such time as petitioner would be in a position to properly care for such child; and that she has demanded possession of said child from respondents but they have refused to surrender him to her.
She further alleges that prior to filing her petition for writ of habeas corpus from this court she filed a like petition in the Superior Court of the County of Los Angeles; that her petition was, on the 18th of September, 1956, denied; and that, the superior court having failed to find that she is a person unfit to have the possession of said child, the order of the superior court denying her possession of the child is res judicata of the fact of her fitness.
The return to the petition here filed by the respondents Garcia alleges in substance that petitioner abandoned said minor to the respondents, that petitioner is and at all times since the birth of said child has been an unfit mother and that it is to the best interests of the child that respondents retain the custody and control of said minor. They further plead the order of the superior court denying a writ of habeas corpus to petitioner as res judicata, and allege that in the proceedings in the superior court that court found petitioner was an unfit mother, that petitioner abandoned the child to respondents, and that it is for the best interests of said child to remain with respondents.
By stipulation of the parties the record of the proceedings in the superior court has been lodged with this court.
Neither petitioner’s contention that, the superior court having failed to make any finding upon the question of petitioner’s fitness to have custody of the minor child, its order denying a coercive writ against respondents is res judicata of petitioner’s fitness, nor respondents’ contention that that order is res judicata of petitioner’s right to the custody of the minor so as to preclude this court from granting a coercive writ against respondents, can be sustained.
Where habeas corpus proceedings have been prosecuted in the superior court and that court has made findings of fact, its order is res judicata of the issues tendered, tried, and decided by the superior court; and the petitioner, if unsuccessful in the superior court, is estopped in the absence of a change in circumstances from again trying those issues upon a petition to the District Court of Appeal for a writ of habeas corpus. (In re Holt, 34 Cal.App. 290 [167 P. 184]; In re Gille, 65 Cal.App. 617 [224 P. 784]; In re McDaniel, 90 Cal.App. 307 [265 P. 884]; In re Gury, 103 Cal.App. 738 [495]*495[284 P. 944]; In re Martin, 79 Cal.App.2d 584, 586 [180 P.2d 383]; In re Browning, 99 Cal.App.2d 337 [221 P.2d 736].) The decisions just cited hold that the decision of the superior court is res judicata of the issues determined by the superior court, but it is apparent from them and from the decision of the Supreme Court in In re Bruegger, 204 Cal. 169 [267 P. 101], that the order denying the writ is not res judicata in the broad sense that it bars further proceedings for the custody of the child, but in the very narrow sense that a petitioner for a writ of habeas corpus cannot, in the District Court of Appeal, again litigate the issues of fact decided in the superior court unless after the hearing in the superior court there is a change of the circumstances which affect the right to custody; nor does a decision by the superior court, which constitutes merely a decision of a question of law rather than a fact, bar the petitioner from presenting that same question of law to the District Court of Appeal upon an application for a writ of habeas corpus filed in that court. (In re White, 49 Cal.App.2d 160 [121 P.2d 100]; In re Landry, 61 Cal.App.2d 230 [142 P.2d 432]; In re Livingston, 108 Cal.App. 716, 718 [292 P. 285].)
The mother of an illegitimate, unmarried minor is entitled to his custody, service and earnings (Civ. Code, § 200). She may enforce her right to custody by a petition for a writ of habeas corpus. But the court, in such a proceeding, is not obligated to enforce this naked legal right by a coercive writ against the persons having custody of the minor, but may deny the writ if upon inquiry it finds as a fact that the mother has abandoned the child—that is to say, that she has knowingly and willfully deserted her child with the “intention to entirely sever, so far as it is possible to do so, the parental relation and throw off all obligations growing out of the same” (Guardianship of Snowball, 156 Cal. 240, 243 [104 P. 444]); or finds as a fact that the petitioner is a person morally or mentally incompetent to have the custody and control of her child—that is to say, that she is unfit to have such custody and control. If it finds either abandonment or unfitness, the mother may not again, in the absence of a change of circumstances affecting either the question of abandonment or the question of fitness, try those issues through the means of an application filed in the District Court of Appeal.
As neither party has the right to appeal from the order made by the superior court either granting or denying the [496]*496application to it for a writ of habeas corpus (In re Bruegger, supra), it must clearly appear to this court that the superior court did find facts constituting an abandonment by petitioner of her child or that the superior court tried and determined as a fact that the petitioner is mentally or morally unfit to have possession of her child, before this court will hold her estopped to apply to this court for relief.
Examination of the record of the proceedings in the superior court in the present matter demonstrates that the issue as to petitioner’s fitness was neither tendered nor tried by the superior court, and that the court did not find any facts upon which its conclusion that petitioner had abandoned her child could be predicated.
The superior court did not make any written findings of fact or conclusions of law, although it would have been the better practice in a proceeding of this kind to have done so. It did, however, in the minute order by which it denied petitioner the custody of her child, state the findings and conclusions upon which it based its order. This minute order does not contain any findings as to whether petitioner was morally or mentally unfit to have possession of her child, nor did the petition filed in the superior court or the return filed there by respondents raise that issue.
The petition filed in the superior court and the return thereto did, however, present the issue as to whether petitioner had abandoned her child.
Free access — add to your briefcase to read the full text and ask questions with AI
THE COURT.
Petitioner is the mother of a minor, and seeks by the proceeding herein to have the possession of this child delivered to her by the respondents.
By her petition she alleges that said child is of the age of 3% years and that heretofore she has been unable to properly care for said child by reason of economic factors beyond her control; that by reason thereof she delivered said child to the respondents Garcia to be gratuitously cared for by them until [494]*494such time as petitioner would be in a position to properly care for such child; and that she has demanded possession of said child from respondents but they have refused to surrender him to her.
She further alleges that prior to filing her petition for writ of habeas corpus from this court she filed a like petition in the Superior Court of the County of Los Angeles; that her petition was, on the 18th of September, 1956, denied; and that, the superior court having failed to find that she is a person unfit to have the possession of said child, the order of the superior court denying her possession of the child is res judicata of the fact of her fitness.
The return to the petition here filed by the respondents Garcia alleges in substance that petitioner abandoned said minor to the respondents, that petitioner is and at all times since the birth of said child has been an unfit mother and that it is to the best interests of the child that respondents retain the custody and control of said minor. They further plead the order of the superior court denying a writ of habeas corpus to petitioner as res judicata, and allege that in the proceedings in the superior court that court found petitioner was an unfit mother, that petitioner abandoned the child to respondents, and that it is for the best interests of said child to remain with respondents.
By stipulation of the parties the record of the proceedings in the superior court has been lodged with this court.
Neither petitioner’s contention that, the superior court having failed to make any finding upon the question of petitioner’s fitness to have custody of the minor child, its order denying a coercive writ against respondents is res judicata of petitioner’s fitness, nor respondents’ contention that that order is res judicata of petitioner’s right to the custody of the minor so as to preclude this court from granting a coercive writ against respondents, can be sustained.
Where habeas corpus proceedings have been prosecuted in the superior court and that court has made findings of fact, its order is res judicata of the issues tendered, tried, and decided by the superior court; and the petitioner, if unsuccessful in the superior court, is estopped in the absence of a change in circumstances from again trying those issues upon a petition to the District Court of Appeal for a writ of habeas corpus. (In re Holt, 34 Cal.App. 290 [167 P. 184]; In re Gille, 65 Cal.App. 617 [224 P. 784]; In re McDaniel, 90 Cal.App. 307 [265 P. 884]; In re Gury, 103 Cal.App. 738 [495]*495[284 P. 944]; In re Martin, 79 Cal.App.2d 584, 586 [180 P.2d 383]; In re Browning, 99 Cal.App.2d 337 [221 P.2d 736].) The decisions just cited hold that the decision of the superior court is res judicata of the issues determined by the superior court, but it is apparent from them and from the decision of the Supreme Court in In re Bruegger, 204 Cal. 169 [267 P. 101], that the order denying the writ is not res judicata in the broad sense that it bars further proceedings for the custody of the child, but in the very narrow sense that a petitioner for a writ of habeas corpus cannot, in the District Court of Appeal, again litigate the issues of fact decided in the superior court unless after the hearing in the superior court there is a change of the circumstances which affect the right to custody; nor does a decision by the superior court, which constitutes merely a decision of a question of law rather than a fact, bar the petitioner from presenting that same question of law to the District Court of Appeal upon an application for a writ of habeas corpus filed in that court. (In re White, 49 Cal.App.2d 160 [121 P.2d 100]; In re Landry, 61 Cal.App.2d 230 [142 P.2d 432]; In re Livingston, 108 Cal.App. 716, 718 [292 P. 285].)
The mother of an illegitimate, unmarried minor is entitled to his custody, service and earnings (Civ. Code, § 200). She may enforce her right to custody by a petition for a writ of habeas corpus. But the court, in such a proceeding, is not obligated to enforce this naked legal right by a coercive writ against the persons having custody of the minor, but may deny the writ if upon inquiry it finds as a fact that the mother has abandoned the child—that is to say, that she has knowingly and willfully deserted her child with the “intention to entirely sever, so far as it is possible to do so, the parental relation and throw off all obligations growing out of the same” (Guardianship of Snowball, 156 Cal. 240, 243 [104 P. 444]); or finds as a fact that the petitioner is a person morally or mentally incompetent to have the custody and control of her child—that is to say, that she is unfit to have such custody and control. If it finds either abandonment or unfitness, the mother may not again, in the absence of a change of circumstances affecting either the question of abandonment or the question of fitness, try those issues through the means of an application filed in the District Court of Appeal.
As neither party has the right to appeal from the order made by the superior court either granting or denying the [496]*496application to it for a writ of habeas corpus (In re Bruegger, supra), it must clearly appear to this court that the superior court did find facts constituting an abandonment by petitioner of her child or that the superior court tried and determined as a fact that the petitioner is mentally or morally unfit to have possession of her child, before this court will hold her estopped to apply to this court for relief.
Examination of the record of the proceedings in the superior court in the present matter demonstrates that the issue as to petitioner’s fitness was neither tendered nor tried by the superior court, and that the court did not find any facts upon which its conclusion that petitioner had abandoned her child could be predicated.
The superior court did not make any written findings of fact or conclusions of law, although it would have been the better practice in a proceeding of this kind to have done so. It did, however, in the minute order by which it denied petitioner the custody of her child, state the findings and conclusions upon which it based its order. This minute order does not contain any findings as to whether petitioner was morally or mentally unfit to have possession of her child, nor did the petition filed in the superior court or the return filed there by respondents raise that issue.
The petition filed in the superior court and the return thereto did, however, present the issue as to whether petitioner had abandoned her child. If the superior court did determine that issue against the petitioner, we must deny her relief here, inasmuch as she is not entitled to relitigate it, and the determination of that issue adversely to her by the superior court is determinative of her present right to custody. We are convinced, however, that that issue was not determined as a matter of fact by the superior court and that petitioner is not estopped from trying it here.
By the petition filed in the superior court it was in substance alleged that by reason of economic factors beyond petitioner’s control she had delivered her child to respondents to be gratuitously cared for by them until petitioner would be able to properly care for him; and that petitioner was then able to care for said child but that the respondents had refused to surrender him to her. By their return filed in the superior court respondents in substance alleged that in October of 1953 petitioner had intentionally abandoned her son to them, and had not, during the three years thereafter, maintained, pro[497]*497vided for, or supported her son, although she had the ability so to do.
By its minute order the court did not make any finding as to the factors which caused petitioner to put the child in the possession of respondents or as to what her intent was in so doing, or as to whether or not she had had the ability to support him, but found as facts, only, that she acted voluntarily in delivering her child to respondents and that she thereafter had made only “token effort to support or communicate with said minor child.” From these facts the court concluded that the child “has been abandoned under the provisions of Section 701(a) Welfare and Institutions Code, that petitioner has abandoned said minor child, and that petitioner has no legal right to the custody of said minor child.”
The only facts found by the court were that the child had been voluntarily delivered to respondents and that petitioner had made only a token effort to support or communicate with him. These facts fall far short of a finding that petitioner had actually deserted her child with the intention of entirely severing her parental relationship to him and with the intent to throw off all of the obligations growing out of that relationship ; nor do they negative the allegations of the petitioner that she delivered the child to respondents due to economic factors beyond her control and with the intent to recapture him when she was in a situation to properly care for him. Unless these allegations were negatived, abandonment could not be found. (In re Green, 192 Cal. 714, 719-721 [221 P. 903]; Roche v. Roche, 25 Cal.2d 141, 143 [152 P.2d 999].)
The balance of the minute order constitutes merely an erroneous conclusion of law drawn from those facts. The superior court apparently acted under the misapprehension that section 701, subdivision (a), of the Welfare and Institutions Code was applicable. But it is not. That section has no applicability to proceedings of this nature. It merely defines minors who are within the jurisdiction of the juvenile court and as to whom a petition may be filed under section 720, subdivision (b), of the Welfare and Institutions Code to have that person declared free from the custody and control of his parents. If such a petition had been filed and an order made thereon, the situation here would be different; but the court, in the present matter, was not sitting as a juvenile court and had no power to declare the minor here free from the custody and control of his mother, and could only deny the petitioner the right to the custody of her child if it found facts [498]*498which, would constitute an abandonment as we have heretofore defined that term.
It follows that the findings made by the trial court do not support its conclusion, and that the issue of abandonment was not determined by the trial court and that therefore petitioner is not estopped from having that issue tried here.
The return to the writ here having tendered both the issue as to petitioner’s fitness and the issue of abandonment, and neither of those issues having been determined as matters of fact in the proceedings in the superior court, it is necessary that we appoint a referee to find the facts as to said issues.
It is therefore ordered that the order heretofore made submitting this matter is hereby vacated, and A. Edward Nichols, Commissioner of the Superior Court of the State of California, in and for the County of Los Angeles, is hereby appointed referee to take evidence and determine the facts as to whether the plaintiff is a fit person to have the custody of her child and the issue as to whether or not she has abandoned said child, and to report said facts and his findings and conclusions of law to this court within 60 days.