People Ex Rel. Jones v. Savage

112 P.2d 892, 44 Cal. App. 2d 670, 1941 Cal. App. LEXIS 1049

• Court: California Court of Appeal
• Decided: May 7, 1941
• Docket: Civ. 11448
• Status: Published

Opinions

KNIGHT, J.

This appeal was taken by John Savage, guardian of the persons and estates of Dorothy and Bernard Jones, from a judgment of the juvenile court. The children are full orphans, and at the time of the rendition of the judgment were respectively 14 and 11 years of age. At that time also they were and for nearly two years prior thereto had been living with and being cared for by appellant and his wife at their home in San Francisco. Under the terms of the judgment, which was entered on March 29, 1939, the children were declared wards of the court, removed from the Savage home, and placed in the custody of the probation officer until they attained the age of 21 years or until further order of court; and the treasurer of the city and county was directed to pay to the probation officer $40 a month for their support and maintenance.

As stated by the court at the time the judgment was rendered, it was the intention to transport the children to London, England, to live permanently with their paternal relatives as soon as arrangements could be made therefor. As shown by the bill of exceptions upon which the appeal was taken, at none of the hearings was any sworn testimony taken. The judgment is based entirely on written and verbal reports made by the probation officers and statements made by the interested parties, not made under oath; and a private interview with the children. The. factual background of the case and a summary of the proceedings leading up to the rendition of the judgment as disclosed by the bill of exceptions may be stated as follows: James and Elizabeth Jones, the parents of the children, lived in Contra Costa County. The father died in 1935, and. in May, 1937, the mother was the victim of a homicide. Prior to his death the father had been in poor health and the family was receiving aid from the county. ITe was a native of Ireland, and was survived by a sister, Mrs. Lewis Oliver, living in Los Angeles, and several brothers and sisters in England. Mrs. Jones was born in Ireland, and among the relatives surviving her in this country was an uncle, Peter Benson, residing in Alameda County. For many years appellant and his wife maintained their home in San Francisco. By occupation appellant is a stationary engineer, and is employed steadily at the San Francisco Hospital; and all of the reports of the probation officer show that the Savages have always enjoyed an excellent reputation. Appellant had been a close friend of the father of the children for .many years, and the two families were intimate in their social relations. Upon the death of the mother the Savages went immediately to Contra Costa County and with the permission of the authorities brought the children to San Francisco to live with them, with the understanding that said county would continue aid for the children in the Savage home. Mrs. Jones left a small estate consisting of money, and Peter Benson applied for and was granted letters of guardianship of the children. At this time Mrs. Oliver was in England, and upon her return in November, 1937, she applied to the court in Contra Costa County to be appointed guardian in the place of Benson, with the view of taking the children to England to live with their father’s relatives. Soon after Benson’s appointment as guardian he was stricken with illness and died; whereupon appellant filed an application to he appointed guardian in opposition to the pending petition of Mrs. Oliver; and his petition was granted. All except $226 of the guardianship funds were expended under court order, the Savages having received only $180 to reimburse them for the money they had expended in behalf of the children during the time they had been caring for them. Meanwhile Contra Costa County had been threatening to discontinue the aid, claiming that it should be taken care of by San Francisco, and later in 1938 appellant applied to the social welfare department in San Francisco for the $20 a month allowance for each child provided by law for the care of full orphans. The department referred him to a senior probation officer, and appellant was advised that it would be necessary for him to file a petition in the juvenile court. Thereafter he was furnished with printed forms of two petitions with the blank spaces filled in with typing, one of which was an application for state and county aid, and the other a petition addressed to the juvenile court. He signed and verified both, and the petition addressed to the juvenile court was filed on January 24, 1939. The petition contained the allegation that the children were destitute and that there were no means of support through appellant or the relatives. But the record shows beyond question that appellant’s only purpose in signing and filing the petition was to obtain state and county aid, and that he and his wife had no thought whatever of surrendering the custody of the children. At the hearings which followed, however, the probation officer recommended the plan to deliver the custody of the children to Mrs. Oliver with the understanding that she would transport them to London to reside permanently with her brothers and sisters in that city; and the court agreed to the plan and expressed its intention of having it carried out. Appellant vigorously protested against such action, and it was made perfectly plain by appellant and his wife that” they would forego the aid rather than give up the custody of the children, and when it became apparent that their protest was unavailing, appellant moved through his attorney to dismiss the proceeding he had instituted. The motion was denied, the court saying that “the Savages had no place in the planning for these children since there were relatives who had prior right even though Mr. Savage was their legal guardian”. Thereupon and “without any trial”, so the bill of exceptions recites, the court granted the motion made by the probation officer that the children were declared wards of the court, and they were delivered into the custody of the probation officer to await completion of the arrangements to send them to London.

Shortly after the entry of the judgment appellant applied to this court for a writ of habeas corpus, and after a hearing it was held that from the record then presented it appeared that the juvenile court acquired jurisdiction to hear and determine the proceeding; that its judgment was valid on its face, that on habeas corpus it was beyond the power of this court to review the evidence or any errors or irregularities which were alleged to have occurred before the juvenile court, that the law afforded appellant an adequate remedy for such purpose by way of appeal from the judgment. (In re Jones, 34 Cal. App. (2d) 77 [93 Pac. (2d) 185].) The cause again came before this court on appellant’s application for a writ of mandate to require the settlement of a bill of exceptions; and the writ was granted. (Savage v. Superior Court, 36 Cal. App. (2d) 521 [97 Pac. (2d) 990].) Meanwhile, under the direction of the probation officer, the children were placed and they have since remained in separate private homes in different localities; and within a few months after the rendition of the judgment the European war started, which has made it impossible to carry out the plan to send them to London.

Disregarding all questions of alleged irregularity or error in the hearing of the proceeding, and conceding for all purposes of the appeal that the trial court acquired jurisdiction to hear and determine the proceeding, we are of the opinion that under the circumstances appearing in the record, appellant, as a matter of legal right, was entitled to a dismissal of the proceeding; and that in any event, treating the reports of the probation officers and the unsworn statements of the interested parties as competent evidence, the controlling finding upon which the judgment rests, namely, that the children were destitute and that there were no means of support through the guardian or the relatives, is contrary to the undisputed facts of the ease.

With respect to the question of the right of dismissal, while juvenile proceedings are instituted in the name of the people of the state, it has been definitely held that such proceedings in dealing with eases of dependent children, are not of a criminal nature and should not be treated as such. (In re Edwards, 99 Cal. App. 541 [278 Pac. 910, 290 Pac. 591].) Here the proceeding was not instituted by anyone connected with the administration of the juvenile law. It was filed by appellant solely at the instance and under the advice of the probation officer as a means of settling the controversy which had been carried on between Contra Costa County and the city and county of San Francisco over the payment of aid. In this regard it is stated in the report of the probation officer: “The Probation Officer feels that Contra Costa county was not fair in shipping the children to this community without aid, nor was the State Department consistent in their advising Mr. Savage that he could secure State aid only until August, 1939. However, Mr. Savage’s application has been presented to the court for decision regarding eligibility of the children to receive aid.” And again in the report it is stated that from the very beginning, when the children came to San Francisco in 1937, the probation officer was very reluctant to go ahead with the application for state aid because it was felt that the responsibility belonged to Contra Costa County. Furthermore, throughout the reports that were filed it is expressly stated that the Savages were devoted to the children and that the children were devoted to them; that the children were never in want and were in excellent health, and very happy in their surroundings; that they were Catholic and were being educated and trained in Catholic schools; that the Savages were sincerely desirous of giving the children a permanent home and had stated on several occasions that they would give up the right to aid rather than give up the custody of the children. It is repeatedly so stated in the reports; for example, in one place it is stated: “As Mr. Savage was granted guardianship of the persons and estate of the Jones children, he is very reluctant to have this set aside or have any plan made for the children, other than to have them remain in his home.” The report also states in substance and quotes figures to show that without the aid the Savages were amply able to provide for the children. Therefore, when it became apparent to appellant that it was the custody of the children and not the matter of aid that was being made the issue and that he was about to be deprived of the custody of the children, it was his legal right, in our opinion, to cause a dismissal of the proceeding. We find nothing in the juvenile law which may be construed as preventing him from so doing; being the duly appointed guardian he stood in the same position and was entitled to the same rights as a parent.

An entirely different situation would arise if such a petition as this were filed by someone in authority or by a third party; also in a case where filed by a parent or guardian and there was evidence before the court to show that the dependent child was in fact destitute or that it was being neglected either as to proper maintenance, training or education. But no such claim is here made, and the facts show to the contrary. Respondent calls attention to certain language used in deciding the proceeding in habeas corpus to the effect that since it affirmatively appeared that the juvenile court acquired jurisdiction of the proceeding it was within the discretion of the trial court to deny petitioner’s request for permission “to withdraw’’ his petition. But it is also stated therein that the facts of the case were not at that time before the court and that even if they were they would not be subject to review in a proceeding of that kind; whereas now the record of the entire proceeding, including all factual matters, is before the court.

What has been said with respect to the matter of dismissal applies with equal force to the question of the sufficiency of the facts to sustain the finding that the children were destitute and without means of support from the guardian or the relatives. As will appear from the record, the underlying reason for the recommendation of the probation officer and the holding of the trial court that the Savages be deprived of the custody of the children was not that the children were destitute or could not be provided for by the Savages, but because of the belief that the children should be with the kinsfolk. In this connection the probation officer stated to the court: “I know there is no question of the kind of care they [the Savages] are giving the children but there is a question as to whether or not the children don’t belong to the relatives and whether the relatives cannot provide for them.” And in accord therewith the court in addition to the remarks above referred to stated (quoting from the bill of exceptions) “that he felt the children should be sent to their relatives in England and that they should be with their blood kin and that arrangements should be made as soon as possible to send them there and that they were going to England. ’ ’ It would seem, however, that a question of that kind was one to be heard and determined in the probate court in the exercise of its jurisdiction in dealing with guardianship matters and that the process of the juvenile court may not be invoked for such purpose. As above pointed out, the contested issue as to whether the paternal relatives were entitled to the custody of the children in preference to the Savages was determined in the guardianship proceding in Contra Costa County, and such adjudica-. tion has never been set aside. It may be conceded that even in that situation the jurisdiction of the juvenile court may be invoked where there is destitution and neglect, but as already shown there is no factual basis for such a finding in the present proceeding.

For the reasons and upon the grounds stated it is ordered that the judgment be reversed with instructions to grant appellant’s motion to dismiss the proceeding.