194 P. 706 | Cal. | 1920
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *516 This is an appeal by Grace Akers, the mother of William David Akers, a minor of the age of seven years, from an order of the superior court of the city and county of San Francisco appointing Mrs. Chrissie Shreve guardian of the person and estate of said minor. The guardianship proceeding was heard and determined upon the issues raised by the respective petitions for the guardianship of the said minor, and the answers thereto, of Grace Akers, the mother of the minor, and Mrs. Shreve. The issues thus presented involve the questions of the abandonment of the child by the mother and the latter's fitness and competency to have the care, custody, and control of the child. In its findings of fact, the court below found, among other things, that Grace Akers, the mother of the child, in the month of November, 1915, abandoned the child and then, and ever since then, surrendered all her parental rights to said child, and, furthermore, that she was not a fit or proper person to have the care, custody, or control of the child, nor a competent person to be the guardian of the person or estate of the child. A reversal of the order is urged upon the ground that these findings are not supported by any competent evidence.
The uncontradicted evidence offered and received in support of the application of the mother shows that Grace Akers *517 was married at the age of seventeen years at the home of her mother, in Whispering Pines, Lake County, to Earl Akers, August 8, 1912, and that Earl Akers at that time was about thirty-five years of age. For a period of four months thereafter she and her husband were domiciled in the home of her mother. From there the couple went to reside in Lakeport, where her husband secured employment on a stage-line, and there they remained for a period of five months, when they returned to the home of Mrs. Akers' mother, where the child in controversy was born. When the child was three or four months old, the Akers removed to Cobb Mountain, where they resided for about five months, Mrs. Akers all the while being employed as a cook for a saw-mill crew of seven men. Then the family moved to Napa City, where they occupied a seven-room house for the period of a year or more, and during that time Mrs. Akers, in order to support the family, took in roomers, boarded three men, and took in family washing and ironing. The Akers family returned to the home of the mother of Mrs. Akers and, after three or four months there, Mrs. Akers secured employment at Adams Springs, in Lake County, her husband and child remaining in the meanwhile at her mother's home. During a small portion of the time mentioned, the husband was incapacitated for work and, during most of the time, was unable to secure more than occasional employment at his trade, that of machinist. After working four or five months at Adams Springs, Mrs. Akers decided to separate from her husband because of his refusal, or inability, to support her, and she did so, leaving the child with her mother.
Shortly after the separation, her husband forcibly took the child from the grandmother and placed it with his sister in Middletown. Mrs. Akers proceeded to Middletown and succeeded in having the child returned to and placed in the care of the grandmother. The husband again forcibly took possession of the child and placed it in the custody of Mrs. Shreve, at Calistoga, who agreed with the husband to keep and care for the child for the sum of twenty dollars per month. The mother made no further effort to regain control of the child and moved to San Francisco, where she resided with her sister, a married woman having a family of five children, and in that city supported herself for four years, working under the name of Grace Miller, at times, as a day waitress *518 in restaurants, as a servant in apartment houses, and as a helper in an airplane factory. During these four years she visited the child once at Calistoga and sent the child handkerchiefs and candy. Leaving San Francisco, she went to Globe, Arizona, where she worked for three weeks as a waitress under the name of Grace Lien (she explained that she was working under assumed names because she did not want her husband to know where she was), and then went to Douglas, Arizona, where she purchased a candy-store under an installment contract, and conducted the same in person.
Her husband died in November, 1919. Upon receiving news of his death, Mrs. Akers wrote from Douglas, Arizona, to her mother to get the child, and then came to San Francisco to oppose Mrs. Shreve's application and prosecute her own application for the guardianship of the child. When leaving Douglas, Arizona, she placed the candy-store in the hands of an agent to be sold, and decided that she would not return to Arizona save for the purpose of consummating the sale of the store. Mrs. Akers' mother owns and lives on a six hundred acre ranch in Lake County, has a comfortable home, is well able to care for the child and its mother, and would willingly provide a home for both.
The ability and fitness of Mrs. Shreve to have the care and custody of the child was not disputed. In support of her application and in opposition to the application of Mrs. Akers, evidence was offered and received in an endeavor to show that Mrs. Akers, some five years prior to the institution of the guardianship proceedings and particularly during the period of her married life when she was living with her husband, was guilty of immoral conduct of so grievous a nature as to render her incompetent to have the care and custody of the child then or at any time since then.
Upon that phase of the case, the only competent evidence adduced was to the effect that, when living in Napa City, some five or six years prior to the hearing of the application for guardianship, the reputation of the mother of the child for "truth, honesty, and integrity was bad"; that at that time she associated with another woman whose reputation for "truth, honesty, and integrity was bad"; that on several occasions she was seen in restaurants at varying hours of the night with this woman and two men; that some three or four men were seen going regularly to her house and that on one *519 or more occasions she went automobile riding with one of these men. The mother explained, and it was not only not disputed, but it was in effect admitted, that these men were either roomers or boarders, and therefore had a legitimate purpose in going to her home. The automobile rides, so the mother explained, and in this she was not contradicted, were with a man who not only boarded with the family, but was, as well, a particular and intimate friend of the husband from boyhood. She further testified that these rides were had with the knowledge and consent of her husband. It was not shown nor claimed that they were clandestinely taken, nor that they or the visits of the mother to restaurants in company with one other woman and two men were for any but a legitimate and innocent purpose. Mrs. Akers' mother, sister, and nephew, the latter a young man of the age of eighteen years, testifying in her behalf, gave evidence tending to show that her reputation before, at, and at all times subsequent to her marriage was in every respect good.
There was uncontradicted evidence to the effect that the mother, after separating from her husband, lived and worked under assumed names because he had threatened to kill her and, therefore, she desired to conceal her whereabouts from him. It was also shown in evidence against the mother that some several years before the hearing and while she was living with her husband she had written and addressed a letter to one of the men who was boarding with her, wherein she declared that he, meaning her husband, was "getting worse and worse till it is impossible to stand it," and then begged the man to whom the letter was addressed to always remember that he "had the first pure love of one woman." It was, however, an undisputed fact in the case that this letter, evidently written in a moment of caprice, had never been mailed or delivered to the person to whom it was addressed and that it was written in the presence of the husband.
[1] In accordance with the general presumption in favor of competency, a parent is presumed to be competent to discharge the duties of guardianship in the absence of an affirmative showing to the contrary. (Guardianship of Salter,
It follows necessarily that the error in this particular warrants and requires a reversal of the order, unless it can be said, as counsel for respondent contend, that the finding of the trial court that the mother had abandoned the child is supported by evidence and that that finding alone will suffice to support the order appealed from.
[6] Upon that phase of the case, the evidence in its entirety does no more than show that, being dissatisfied, if not discouraged, with the prospect of being compelled indefinitely to bear the burden of supporting herself and her husband, the mother of the child separated from her husband and, after an unsuccessful endeavor to have the child placed with and cared for by its grandmother, left for fields anew, far removed from the "Whispering Pines," to work out her own salvation single-handed and alone. Whether or not she was justified in separating from her husband need not be determined here. [7] Suffice it to say that the right of a parent to the custody of its child cannot be held to be forever forfeited by an act of relinquishment committed under circumstances of coercion, caprice, and discouragement. (Norval v. Zinsmaster,
The record reveals that the trial court made the order appealed from largely, if not entirely, upon the theory that "the only purpose in an inquiry of this kind is to determine what is best to be done with the child for its own welfare, and the question as to the character and reputation, fitness or unfitness, of the mother in a case of this kind, seems to me to be not the most important one." That this was the attitude of the trial court is evidenced by the further statement: "I don't know of any higher law than that this child be cared for and that it be in the custody of people who are able and willing to support it, and they have done that and shown that for these four years." It is now insisted by counsel for respondent that, regardless of the erroneous admission of palpably prejudicial evidence and apart from the question of the insufficiency of the evidence to support a finding of abandonment, the order appealed from should be affirmed upon the theory indicated and adopted by the trial court. [9] This we cannot do, because it is the settled rule of law in this state that the care, custody, and control of a minor child under the age of fourteen years must be committed to its parents, rather than to strangers, unless it be shown and found that the parent is unfit to perform the duties imposed by the relation or has, by abandonment of the child, forfeited the natural right to its custody. [10] In short, in a contest for guardianship, as here, between a parent of a child and a stranger to the child, the paramount question is the competency of the parent to act as guardian, and, in the absence of a justifiable finding of the parent's incompetency, the court must appoint the parent as guardian despite the fact that the material welfare of the child may perchance be enhanced by committing its care and custody to another person. (Code Civ. Proc., sec. 1751; Civ. Code, sec.
Finally, it is said that, in any event, the mother should be denied guardianship because it appeared that she was no longer a resident of the state of California. In response to this contention it will be enough to say that the evidence showed that she returned to California with the intent and purpose of residing in California and regaining the custody of her child, and that, if she returned to Arizona, it would be only temporarily and for the purpose of disposing of her business there. [11] In conclusion, it may not be amiss to say, as was said in effect in the Guardianship of Mathews, supra, that, even though it was shown that the mother had not, at the time of the hearing, a permanent home of her own and, therefore, might be unable for the time being to keep the child with her personally, nevertheless she should not for that reason alone be deprived of the legal custody of the child and the related right of selecting a fit and proper place where he should be kept and cared for.
For the reasons stated the order appealed from is reversed.
Angellotti, C. J., Wilbur, J., Olney, J., Shaw, J., Sloane, J., and Lawlor, J., concurred. *524