Navarro v. Hull

175 P.2d 896, 77 Cal. App. 2d 500, 1946 Cal. App. LEXIS 990

• Court: California Court of Appeal
• Decided: December 31, 1946
• Docket: Crim. 1975
• Status: Published

Opinions

ADAMS, P. J.

This is an appeal from an order of the Superior Court of Lassen County discharging a writ of habeas corpus, in a proceeding initiated by Luis Navarro, who sought thereby to secure the custody of a female child of the age of about seven years, which child had been born to petitioner and one Gladys Hull (both Klamath Indians), who were never married. The petition alleged that in June, 1945, petitioner had publicly acknowledged said child to be his own, and had, with the consent of his wife, Joan Navarro, received said child into his family, and had otherwise treated said child as his legitimate child; that he had by his actions adopted said child and was entitled to her full custody and control; that Gladys Hull had, on November 14, 1945, against his wishes removed the child to Lassen County and refused to surrender her to petitioner. He further alleged that Gladys Hull was not a fit and proper person to have custody of said child, but that petitioner was a fit and proper person.

In response to the writ Gladys Hull produced the child. She also filed a return in which she alleged that Navarro had never contributed anything toward the support of the child, that she, herself, had provided her with religious and educational training; that in June, 1945, she brought the child to Sacramento together with her two other children and permitted them to visit petitioner who was then living with one Juanita Clark, whom he subsequently married about November 14, 1945; that early in November, 1945, she took said children to Lassen County where she was then, and still is, employed. Petitioner, in an answer to said return, alleged that respondent was living in an illicit relationship with one Paul Sandover, and again alleged that she was not a fit and proper person to have the child’s custody.

After a hearing the trial court filed a written opinion in which it was recited that Gladys Hull had taken the children to the home of petitioner in Sacramento and left them there with him and Joan Navarro for several months; that under the circumstances it appeared “and the Court so finds, that petitioner openly acknowledged the said child as his, and he thereby adopted her as his child.” It was further stated, however, that the court was not satisfied that petitioner was entitled to the exclusive custody of the child for the reason that the best interest of the minor was the compelling consideration in the matter; that from the moral aspects of the situation, as disclosed by the evidence, there was little choice as between father and mother, but that conditions in Lassen County, where the mother was then living and employed, did not disclose anything which would interfere with the welfare and best interests of the child; that under the circumstances shown by the evidence the court was satisfied that the custody remain with the mother, with the right of the father to visit his daughter at reasonable times, and possibly-to have her with him occasionally at such times as would not interfere with her welfare.

On this appeal the cause is submitted on an engrossed settled statement from which it appears that respondent testified that she had had the exclusive care of the child, had put her in a Catholic school since 1942, and had purchased $1,400 worth of government bonds for her; that since the child was nine months old Navarro had never contributed anything to her support nor communicated with her until the child was brought to Sacramento in June, 1945, when she was left with him temporarily; and that petitioner voluntarily turned the child over to her in November, 1945. Navarro testified that he had lived with his present wife in Sacramento since February, 1944, and that they were married in November, 1945; that he had informed his said wife and others that the child was his and had treated her as his own legitimate daughter.

Assuming that the evidence in the case is sufficient to support the conclusion that petitioner legitimated his daughter, as seems to be conceded by both parties, the contention of appellant that he therefore became entitled to her exclusive custody remains for decision.

Civil Code, section 230, provides:

“The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth. The foregoing provisions of this chapter do not apply to such an adoption.”

The precise question raised here as to the rights of the natural mother of a. child born out of wedlock, who has not intermarried with the father of the child, after the father of said child has "adopted” it as his legitimate child by compliance with the provisions of section 230, supra, apparently has not heretofore been before the appellate courts of this state. In numerous cases the rights of children under such circumstances to inherit from the father have been presented for determination. See Estate of Lund, 26 Cal.2d 472 [159 P.2d 643, 162 A.L.R 606], and Estate of Flood, 217 Cal. 763, 767 [21 P.2d 579]. And the rights of such a child to a pension upon the death of its father were presented for determination in Jenkins v. City of Los Angeles, 60 Cal.App.2d 50 [140 P.2d 45]. But in none of such cases have the rights of the natural mother been in issue.

Section 200 of the Civil Code provides that the mother of an illegitimate unmarried minor is entitled to its custody, services, and earnings; and section 197 of said code provides that the father and mother of a legitimate unmarried minor child are equally entitled to its custody, services and earnings. But under the theory advanced by appellant in this case, when an illegitimate child has been legitimated by its father, neither section 200 nor 197 thereafter applies, and the father alone is entitled to the custody of such child, and the rights of the mother granted by section 200, supra, are, even without her consent, destroyed by the acknowledgment of parentage by the father in conformity with section 230, though it must be conceded that because of section 224 of the Civil Code a judicial adoption could not be effected without the consent of the mother of an illegitimate child unless she came within the exceptions there stated—which are not applicable here.

We think that appellant’s position is untenable. Section 230, supra, is not, strictly speaking, an "adoption” statute, but a "legitimation” one. In Blythe v. Ayres, 96 Cal. 532, 559-560 [31 P. 915, 19 L.RA. 40], the court said that "the verb ‘adopts,’ as used in section 230, is used in the sense of ‘legitimates, ’ and that the acts of the father of an illegitimate child, if filling the measure required by that statute, would result, strictly speaking, in the legitimation of such child, rather than in its adoption. Adoption, properly considered, refers to persons who are strangers in Mood; legitimation, to persons where the blood relation exists. (See law dictionaries,—Bonvier’s, Black’s, Anderson’s, and Rapalje’s.) This is the distinguishing feature between adoption and legitimation, as recognized by all the standard law-writers of the day who have written upon the subject; and for the reason that the text-writers and the decisions of courts, to which we shall look for light and counsel, treat the subject as a question of legitimation, we shall view the matter from that standpoint. . . . Bar, in his work on International Law (p. 434), says: ‘Legitimation of bastards, either by subsequent marriage or by an act of the government (Rescriptum principis), is nothing but a legal equalization of certain children illegitimately begotten with legitimate children.’ In other words, the object and effect of section 230 is to change the 'status and capacity "of an illegitimate child to the status and capacity of a child born in lawful wedlock. ’ ’

That case is frequently cited and quoted on this subject. In Estate of Lund, supra, where the rights of a child born out of wedlock to inherit from his father who had legitimated him were in issue, the court quoted from Blythe v. Ayres that portion of the opinion above quoted, to the effect that the verb “adopts” as used in section 230, is used in the sense of “legitimates,” and that adoption, properly considered, refers to persons who are strangers in blood, and legitimation to persons where the blood relation exists. Also see Estate of McNamara, 181 Cal. 82, 86 [183 P. 552, 7 A.L.R. 313], and Estate of Flood, supra, at page 767, where the word “legitimation” rather than “adoption” under section 230 is emphasized. In fact, we find authorities generally using the word “legitimation” under such statutes. See In re Presley’s Estate, 113 Okla. 160 [240 P. 89, 90]; 10 C.J.S. 51-76; 7 C.J. 947 et seq.; 7 Am.Jur. 660 et seq.; 13 Cal.Jur. 933 et seq.

While the effect of “legitimation” of a child is to change its status from that of an illegitimate child to that of a legitimate one, it does not follow that when such change of status is effected the child ceases to be the child of its natural mother. If it does not become as to her a legitimate child, in which.event section 197 of the Civil Code comes into play, it must still be as to her- an illegitimate child, .as to whom the provisions of section . 200 are applicable. Section 230 provides that where legitimated by the acts of the father the child is deemed for all purposes to he legitimate from the time of its birth. Certainly the statute does not mean that the child becomes the child of the wife of its father when the father has married one other than its mother. Such wife might, conceivably, have herself been unborn at the time of the birth of the child. Nor does such wife, by consenting to the legitimation of a bastard child of her husband, consent that it become her child or adopt it as such, nor does such child legitimated by its father acquire rights of inheritance from its father’s wife. (See Estate of Flood, supra, at pages 777, 779; Keith v. Ault, 144 Ind. 626 [43 N.E. 924]. Furthermore, since it has been held that an unmarried father of an illegitimate child may legitimate it (see Serway v. Galentime, 75 Cal.App.2d 86, 90 [170 P.2d 32], and cases there cited), if the natural mother of the child is not to be considered its legitimate mother, then a child legitimated by its unmarried father would become, in effect, a half orphan, deprived of the rights of support by, and inheritance from its natural mother.

We think that no such results were intended, and that, upon the legitimation of the child by the father under the provisions of section 230, its status becomes that of the legitimate child of both of its natural parents, and that the rights of the child and of the parents thenceforth are the same as they would be had the child been born of the marriage of its natural parents. To this extent, then, the rights of the natural mother as set forth in section 200 of the Civil Code are modified for the benefit of the child, and neither of such parents has a superior right to its custody, services or earnings. This was obviously the position taken by the trial court, which considered the interests and welfare of the child as paramount to the equal rights of the parents, and, determining that such interests would be best served by leaving her with her mother, refused to disturb her present custody.

Appellant admits that there are no California decisions supporting his contention that he is entitled to the exclusive custody of the infant. He cites Allison v. Bryan, 21 Okla. 557 [97 P. 282,17 Ann.Gas. 468, 18 L.R.A.N.S. 931], as a similar case, in which, under somewhat similar circumstances, it was held that the father of the legitimated child was entitled to its custody. However, the statutes of that state were not then the same as those of California. Section 36, article 2, chapter 59, Wilson’s Revised & Annotated Statutes 1903, was the same as our section 230, supra; section 5 of said statute provided, as did section 197 of our Civil Code prior to its amendment in 1913 (Stats. 1913, p. 52), that “The father of a legitimate unmarried minor child is entitled to its custody, services and earnings. ” It is apparent therefrom that we have a distinction in statutory provisions that makes the Allison v. Bryan case inapplicable here. Furthermore, in the more recent case of Ex parte Hendrix, 186 Okla. 712 [100 P.2d 444], the Oklahoma court has limited the scope of its earlier decision in the Allison case. In Ex parte Hendrix, the mother of a child born out of wedlock sought to secure its custody as against the father. The trial court found that the respondent had publicly acknowledged the child as his own, having taken it into his home with the consent of his wife. It also found that neither of the parents was unfit to have the custody, and that while the mother had been guilty of serious breaches of the moral code, respondent had likewise been guilty of such breaches, and in view of the fact that petitioner was the mother of the child it would probably be given more loving care and attention in her home than in that of respondent, and it was to the best interests of the child that the custody be given to the mother. Respondent there urged that under section 5, supra, he was entitled to the custody, but the Supreme Court said that under the findings the trial court rightly considered the welfare of the child as of paramount importance.

In Allison v. Bryan, 26 Okla. 520 [109 P. 934, 138 Am.St. Rep. 988, 30 L.R.A.N.S. 146], also cited by appellant, the same parties as in the earlier case were involved. The father, who had been given the custody by the judgment in the earlier ease, had denied the mother access to her child, and action was brought by the mother to require respondent to allow her such access. Respondent alleged in reply that aside from his legitimation of the child he and his wife had also adopted it by appropriate judicial proceedings, so that in addition to becoming legitimated it had become the child of himself and wife by such adoption. It appeared that the natural mother had not given her consent to its judicial adoption or forfeited her right to refuse such consent, but respondent contended that by his legitimation of the infant he had acquired such rights as rendered its adoption valid by his consent alone, since the statutes of the state provided that the natural parents of a child adopted by judicial decree were deprived of all legal rights. But the court said (p. 937 [109 P.]) that under the statute providing for legitimation the child was legitimated rather than adopted (citing Blythe v. Ayres, supra), and that adoption could not be legally made where the parents of a legitimate, or the mother of an illegitimate, child were living and had not consented. It added: “We have found no foundation for the claim that all rights on the part of the mother of an illegitimate child, consistent with its best interests, are lost in the mere exercise by the father of his right of legitimation. The interests of the child are of first and controlling importance.” Also it said that while, under section 4899 of the Compiled Laws of Oklahoma 1909, the father of a legitimate unmarried minor child was entitled to its custody and earnings, and the reciprocal rights and duties between father and child were the same as those existing between legitimate parents and their legitimate children, still, “as to its mother, when her rights are involved, it is an illegitimate child, and the law is that an illegitimate minor child cannot be adopted without the mother’s consent, and that which cannot be done directly cannot be done indirectly. Except for the legitimating statute, no one could have disturbed this woman’s complete right of custody in and to her child, and in our judgment it would be a strained and unnatural construction of this statute and the rights of the parties under it to yield to the contention of counsel for defendant, for ‘the law should never receive such a construction as would tend to dry up the sources of natural affection. ’ Barela v. Roberts, 34 Tex. 554. If the mother desires to give her consent to adoption, she of course may do so, but she cannot be lawfully stripped of her inherent right to say no.” The right of the mother to have access to and to visit her child was affirmed. Also the court, in disposing of respondent’s contention that Mrs. Allison should have been made a party to the proceeding, said (p. 941 [109 P.]) : “Mrs. Allison is not a necessary party in either of these cases. The child by the act of the father was not made her heir. Barnes et al. v. Allen et al., 25 Ind. 222; Keith et al. v. Ault et al., 144 Ind. 626, 43 N.E. 924. Nor did it enter her household as her child. The statute under which it was legitimated would have been rendered in very many instances nugatory and its effectiveness largely curtailed, if acting under it the child to be legitimated were to take as an heir of the wife of its father, as but few if any wives could be found who would consent to receive into their homes such children when to do so would make them heirs equally with their own children, and in practically all of such cases the wife would refuse to permit its entrance in the family. The legitimation of the child under this statute was accomplished by the father, and the wife’s sole connection with the transaction was the giving of her consent to its reception into the family, where it might be treated as if it were legitimate.” (Italics added.)

Another Oklahoma case, also cited by appellant, which tends to clarify the meaning and effect of legitimating statutes is Templeman v. Bruner, 42 Okla. 6 [138 P. 152, 139 P. 993], which upheld the right of the mother of an illegitimate child which had been legitimated by its father, to inherit an Indian allotment from the child to the exclusion of the father. The court cited and quoted from Allison v. Bryan to the effect that the status of the child as an illegitimate child of its mother was not affected by the legitimation by its father, saying that where the rights of the mother were involved the child was still illegitimate and under the statutes of the state its mother was entitled to inherit from it as an illegitimate child.

The scope of the decision in Allison v. Bryan, supra, is stated in In re Buffington’s Estate, 169 Okla. 487 [38 P. 2d 22], where it was held that decedent Buffington had legitimated a son prior to his marriage to the widow who survived him, and that such legitimated child was entitled to share in his estate. Claimants opposing the rights of the son contended that he had never been legitimated as he had not remained in his father’s home. Certain language used' in the Allison case to the effect that a legitimated child should remain in the home of its father was there relied upon by appellants as it is in this case. There the court said (p. 26 [38 P.2d]) : “The question of the right of the respective parents to the care and custody of the child after such adoption is clearly a question apart from that of adoption itself and depends largely upon what is for the best interest of the child, and that was in fact the only question decided in the Allison case, for there the adoption was a conceded fact.”

It therefore appears that even in Oklahoma, where the statutes, following the common law rule, give the father of a legitimate, or legitimated, child the superior right to its custody, the courts may, nevertheless, in a contest between the natural mother and the father of a legitimated child, award the custody to the one or to the other as the best interests of the child dictate. More clearly, then, should such be held to be the power of the courts of this state in view of the provisions of section 197 of the Civil Code, supra. And the trial court in this case, having determined that the child’s welfare will he best served, for the present at least, by leaving her with her mother, its determination, if supported by evidence, is conclusive upon this court unless a clear case of abuse of discretion is shown (Munson v. Munson, 27 Cal.2d 659, 666 [166 P.2d 268].) No such abuse is shown here. The evidence shows that the child had always been in the care of her mother who had amply provided for her present as well as her future welfare, and until the child was brought to Sacramento in June, 1945, to visit her father, petitioner had not, since she was nine months old, seen or communicated with her, or contributed anything to her support. The evidence shows that the mother is industrious and has had and now has lucrative employment. Also, section 138 of the Civil Code provides that, other things being equal, the custody of a child of tender years should be given to the mother.

The order appealed from is affirmed.

Thompson, J., concurred.