*1 150 In EE COEDY. Department January 22, 7039. F. No.
[S. 1915.] One. In Re an Abandoned CORDY, FLORENCE Child. Necessary Parent Child—Elements Child—Abandonment Cognizable Establish Abandonment—Cases Juvenile Court.— “any The section of the Civil Code that child left the care and parent another parents, its any provision for period year, may after of one parents residing within state, such notice to and to other residing county, such relatives of said child within the as the require, shall juvenile court be determined order of the court of in which said was so left to be an abandoned child sеction,” within the terms of this does not state all of the elements necessary abandonment, only to constitute defines the cir- juvenile under cumstances which can charge court take of eases kind, that determine whether or not there has been abandonment. Id.—Intent of Parent to Abandon Essential to Establish Abandon- things necessary ment.—One of to be shown to constitute part abandonment of the to abandon the child. The evidence this case does not such show intent. of Parent.—If Id.—Evidence Intent—Declaration the circum- parent—the show that stances and facts mother—did such contrary intent, her declaration to the would not be eonslusive in showing lack of intent. Superior APPEAL from an of the Court of Alameda declaring а child County to be an abandoned child. T. W. Judge. Harris, opinion facts stated in the are rendered District Appeal.
Court an, Appellant. Tapp Berlin, R. F. B. A. Journel, Respondents. West & De West, and T. C. argument J., opin- At Shaw, the close of the delivered thе J., concurring: court, Sloss, J., ion of Lawlor, opinion part section that upon respondent relies, the Civil Code necessary to does not all of elements constitute state under which only defines the circumstances abandonment, but Jan. 1915.] In re charge of kind and can take cases abandonment, or not been an whether there has
determine things necessary constitute be shown to one to abandon is intent on the abandonment *2 such It show intent. This evidence does not the child. conclusively not lack of intent is shown should said that the parent—the the bald declaration of mother—that she the did not If circumstances intend to abandon the child. the intent, and have such declaration facts show did opinion of district court оf would not be conclusive. The the satisfactory court, for appeal to the and the reasons therein just judgment given, stated, I the in addition to those is reversed. following opinion appeal district
The is the the and appellate Mаy 21, 1914, on district, rendered of the first supreme adopted approved by the court: and RICHARDS, appeal an from the This is J. county determining Florence of Alameda the meaning of sec- Cordy child within the abandoned appeal proseсuted by The 224 of the Code. the tion Civil the child. mother of undisputed in the case In practically
The facts are these: April, early part appellant, of the month living in Cordy, who was then San Francisco with Mrs. Annie respectively children, and their threе who were her husband old, years, months was two and ten deserted years, four disappeared, and has not been seen husband, or heard of who entirely destitute, family and left his the mother since. He over to turn the children chari- obliged was go to work. This was out about three institution table earthquake and year. fire of weeks before In that youngest child, Florence, badly was injured, disaster hospital. mother took found She was gave health, back it then nursed it a Mrs. child and her, promising pay keeр for ten dollars a month Zane returned, child was soon The and was its board. then for for friend, who a few weeks, another cared it with placed by its mother to Mrs. Condift, transferred because, then it was poor says, she was herself and destitute. mother fоr brief when period, a certain the child Miss kept latter In ee child, and pro- Smith became interested the welfare of the posed to Mrs. to find a This Condiff home it. she did with Thurston, family without children named who are the re- spondents here, upon understаnding apparently but was not to know the mother whereabouts the child. Mrs. When the mother next came Condiff to see her child she was directed to Miss who Smith, declined to tell her where agreed was, brought to have it to her rooms occasion- аlly, might arrangement where the it. mother visit This carried out some time until Miss Smith lax in became sending finally to let mother refused it, come there to visit and also refused inform her where finally could be seen. mother located the child at the home of was thеn Fran- Sán cisco, there, permission but was denied went see Shortly thereafter the Thurstons removed from the until, city, again daughter; and the mother lost track of her persisting search, finally indirectly learned that the Berkeley; going Thurstons over were therе search- *3 through length directory address, the she at found their and went to their home endeavor see the to child. Her length request yielded at first refused but atwas to, and years the mother for the first time several saw her little good girl; saw being and also that she was a home and was luxury. in comfort and cared and nurtured even mother; says know her as its child did not and Mrs. Thurston seeing child requested the state the she that after that it was its be told that she mother. should never This Mrs. only it Cordy but true to be taken denies; even as another example pres- self-effacement mother love. the She was child, adoption Thurston’s ently consent to the asked to the so, day first did on the and at next retracted her consent sign adoption papers; to finding and refusеd however, willing the Thurstons were and anxious keep the little wring girl hearts, would their as that it Mrs. Thurston go away; herself said, very to let still poor and home, and without sick and destitute she left the child with understanding with the could occa- sionally it. This she did come and seе for about three years, through improving financial when, state own labors children, of her whom managed two elder she had those reclaim, that she would family; reunite her concluded In re Jan. 1915.] they request that Thurstons with the hence went legal do, and a they This refused child. her the deliver begun on both child was
struggle possession for the corpus, sides, applying for a writ habeas mother in aid adoption instituting proceedings, Thurstons Cordy juvenile Florence petitioning the thereof It from the order is. an аbandoned declared be appeal been taken. this has favor that therein made their this in relation to proceedings instituted In none quality and fitness matter moral or maternal has the child custody and control of her present mother to have present- nor has her question; into to her called restored been though measure, ability for the child in a financial to care luxury degree of comfort and or probably not to the extent disputed. The sole accustomed, been which it has been is as to the construction presented upon appeal this question which, in so far Civil Code placed on section to be “Any us, reads as follows: to the matter before as it relates custody by of another its or сhild left in the care any support, period its parents, provision for without parents may after such notice to the year, of one residing and to such other relatives of said within the state residing county require, as the court shall within the child by court of the determined left, an was so abandoned in which said child (Civ. Code, 224.) of this section.’’ sec. within the terms reading question pertinent most raised The first and question contemplates as to whether it of this section of another without left may be declаred the court child,” be “an abandoned having been shown. word to abandon it relinquish “To Webster means
“abandon” defined *4 claiming again resuming of or give up with the intent never rights give up absolutely; in; interests to to forsake or one’s relinquish utterly; to all with entirely; connectiоn to renounce by person as a whom is bound in; desert, one concern allegiance fidelity; quit; to for- special of a relation Dictionary.) (Webster’s If this New International sake.” ordinary meaning of word “abandon” usual and is the having significa- a then it is not to be construed different unless quoted, in of the code above tion the section 154 Cal. In re Cordt. [169 legislature give of it another meaning and narrower is clearly discerned in the and from context the whole language of the section. This of rule construction should especial application have an of character, cases this where existing parent the natural relation between a sought respondent’s to be severed law. It is the conten- language tion in this plain; ease that the of section is parent’s leaving that the fact of a mere her child in the care space year provi- of another for a of a sion for sufficient in itself to warrant determining in that the child is abandoned child. But this lеgislative intent, cannot have been the instances will at right thinking sympathetic once occur to the mind of the rigid injustice application monstrous of such a rule. meaning of the word “abandoned” We think rather that the given the makers of law as аbove was intended to dom- every section, to cause to be read into inate the of idea acts of the in relation provision it the that the must have been enumerated in the statute done the child with an intent to abandon the child. must She have left it custody of intention, to the care and others with that and a failure, like intent shown to underlie must be she has failed, support. to make for its Guardianship Snowball, In the case 156 240, Cal. 444], supreme Pac. declared that the term “aban- given forеgoing meaning construing don” was to be in and in Code; section the Civil the later case Matter 1914A, 214, Cas. 126 Cozza, 161], Pac. [Ann. of the same court given declared that this word should be meaning in the construction section same the Civil latter case Code; рower and further held that the adoption proceedings deprive the court of her derogation right of her natural it, and be- special power conferred the statute, such statute ‘‘ strictly construed; should be law is solicitous toward maintaining integrity natural relation child; adversary proceedings adoption, and in where sought of that relation is the absolute severance without the against protest of parent, consent and the inclination contemplates court, be, as the law it should is in favor maintaining relation; every the natural intendment should claim of the mother in favor of the under the evidence; *5 Jan. 1915.] In EE COBDY. interpretation open construction and
and the statute right of the natural support should be construed (Matter 514, 524, parent.” Cas. Cozza, [Ann. 165].) 1914A, 126 Pac. justice apply- propriety No and nicer illustration ing this rule of construction to the section code case question given in the need be than afforded that time from the mother, shows that this at bar. evidence has husband, and her when she was deserted left destitute persisted watching following over the movements and power capable all her child with which she was welfare degree of desperate condition, with a and and deserted persistence worthy maternal and of all commenda- solicitude finally ; years separation found tion that after she loss originally had been en- her the care those who knowledge consent; she her with it without trusted home of the child in the comfortable left her support: make expressly did not also shows at she undisputed the time evidence But the custody willing in its they to continue did so were adoption while agreement for its she was unable working was out because assume its care аnd no and sick and poor destitute had day, only thing do, she could home. She did the she did thus intuitive mother love could thing that her the best so, welfare of her child. This present for the devised interpretation humane law rational and it is more of a mother under such con- conduct on that such ought compulsion not construed evidenc- ditions offspring, nor deemed work a to abandon an intent right care, custody, of her natural to the and re- forfeiture affection sponsive order is reversed. J., Kerrigan, J., concurred.
Lennon, P.