*1 they apparent were made the court is at once possession prompted by testimony appellant had in her judge concluded, capsules of heroin from which the trial purpose other than has them for some said, as he “she her own.” is dismissed attempted from the sentence 1039]).
(People Millum, v. Cal.2d is affirmed. J., Doran, J., Fourt, concurred. Dist., 5778. Div. One. Oct. No. Second 1956.]
[Crim. Corpus. CROZE, on Habeas In re MARIA *2 Ruiz, Jr., Manuel for Petitioner. Halpern Sanchez, & Knapp and Leopoldo for G. Sanchez
Respondents. THE COURT. Petitioner ismother of minor, by proceeding seeks possession herein to have the of this by respondents. her child delivered to petition By alleges her she that age said child is of years and heretofore that she has been properly unable to 3% by care for said child reason beyond of economic factors by that reason control; thereof she said delivered child to the gratuitously respondents to be Garcia cared them until petitioner care position properly such time as would be in a for such of said child; possession and that she has demanded from respondents they child have refused to surrender him her. filing her for writ alleges prior
She further petition petition from this court filed a like she County Angeles; of Los Superior 1956, denied; that, petition was, September, on the 18th ais having failed to find she possession unfit have the of said judi- res possession of the child is denying her fitness. cata of the of her fact respondents
The return to the here filed alleges petitioner in substance Garcia abandoned said all respondents, minor to the times and at an unfit and that since the birth of said has been mother retain respondents it is to the best interests of the child that plead They control minor. further said denying order of the a writ of habeas judicata, allege that in res an unfit found court that court *3 respondents, mother, that abandoned the child to to remain of said child that it is for the best interests respondents. with proceedings record of the
By stipulation of the the lodged with this court. superior has the that, superior court the petitioner’s contention Neither upon peti- the any finding make having failed to minor its order custody of the to have tioner’s fitness judicata res against respondents is denying a coercive writ that contention that respondents’ nor fitness, petitioner’s the petitioner’s judicata of is res granting a coercive from preclude this minor so as to can be sustained. against respondents, writ corpus proceedings prose habeas Where have been findings court and that court superior in the has made cuted judicata tendered, tried, fact, its order is res issues superior court; petitioner, if decided court, estopped the absence in the is unsuccessful again trying from those issues change in circumstances of a Appeal for a writ of petition to the District Court upon a Holt, Cal.App. 184]; 290 P. corpus. (In re 34 habeas [167 McDaniel, 784]; P. In Gille, Cal.App. 617 re 65 In re [224 Gury, Cal.App. 738 ; P. In re 103 Cal.App. 307 90 884] [265
495 Martin, 584, Cal.App.2d 79 586 P.2d 944]; In re P. [180 [284 736].) 337 P.2d 383]; Browning, Cal.App.2d In re 99 [221 just hold the decision of the The decisions cited by issues determined superior court is res of the from the from court, apparent it them but Bruegger, 204 Supreme in In re Cal. Court decision denying the is not res 101], the order writ P. [267 that it further judicata in sense bars the broad very narrow sense child, but for the District corpus cannot, of habeas a writ fact decided again litigate the issues of Appeal, Court hearing unless after the which affect of the circumstances is a court there superior court, nor a decision custody; does right to question of law rather of a merely a decision which constitutes presenting that same fact, bar the than a appli Appeal to the District question of law filed in that court. for a cation writ Landry, re P.2d Cal.App.2d 160 White, 49 [121 Livingston, 108 Cal. Cal.App.2d 432] 285].) P. App. 718 [292
The mother minor illegitimate, unmarried Code, custody, earnings (Civ. entitled to his service and may custody by 200). She enforce her § pro corpus. for a writ of habeas in such a But right by ceeding, obligated legal is not this naked enforce against custody of the persons having a coercive writ may upon inquiry finds as minor, deny if child—that is to that the mother has abandoned the fact willfully her child say, knowingly she has deserted possible entirely sever, “intention to so far as it is with the obligations off all so, parental relation and throw do Snowball, (Guardianship the same” growing out of 444]); or finds as a fact that peti Cal. morally mentally incompetent is a tioner to have say, and control of her child—that is to she *4 If is to have such and control. unfit finds either may unfitness, or the mother not again, abandonment in the affecting ques of a of circumstances absence either the try of fitness, or the tion of abandonment those issues application filed the through the means of District Appeal. to from party neither has the the order As granting superior denying court either or by the made application it for corpus (In to Bruegger, supra), it clearly must appear superior this court that court did constituting by find facts petitioner abandonment of her superior child or that the court tried and determined petitioner a fact that mentally morally or unfit to possession her child, before this court will hold her estopped apply for this court relief.
Examination of the record superior present matter court demonstrates petitioner’s issue as to neither tendered nor tried fitness was by superior any find court, and that the court did not facts upon which had her petitioner its conclusion abandoned predicated. child could be superior did not court make findings written of fact
or law, although conclusions of it would have been the better practice in a proceeding of this kind to did, have done so. It however, in the minute by petitioner which it denied custody of child, state findings and conclusions which it based its order. This minute order does not contain any findings as petitioner to whether morally mentally unfit possession to have of her nor petition did the filed superior court or by the return respondents filed there raise that issue. petition filed in the superior court and the return did, thereto however, present the issue as petitioner to whether
had abandoned her child. If superior court did determine against that issue the petitioner, we deny must here, relief inasmuch as she is not entitled to relitigate it, and the deter- mination adversely by to her court present determinative of her custody. We are convinced, however, that that issue was not determined as a by matter fact petitioner and that is not estopped trying it here. By filed in the it was substance alleged beyond reason economic petitioner’s factors control she had delivered her child to respondents to be gratuitously cared for them until would be able properly for him; care was then able to care said respondents child but that had refused to surrender By him to her. their return filed respondents alleged substance that in October of 1953 intentionally had abandoned them, her son not, during years had thereafter, the three maintained, pro- *5 although ability for, son, or she had the supported vided her so to do. as
By finding its minute order court did not make petitioner put to in the the factors which caused to the child possession respondents her intent in so or as to was what ability to or as to not had doing, whether or she had him, only, that support facts, but found she acted volun- tarily delivering respondents child to that she support had only thereafter made “token to communi- effort minor From cate with said child.” these facts the court con- that the provi- cluded the child been under “has abandoned 701(a) Code, sions of Section Welfare Institutions that petitioner petitioner minor has abandoned said and that legal right custody no to minor child.” has said only by found facts that court were the child had voluntarily respondents delivered to petitioner and that only had token support made effort to or communicate with him. These fall far finding facts short actually had deserted her with the entirely child intention of severing parental relationship himto and with the intent obligations growing to off throw all of out of relation ship negative nor they allegations do respondents that she delivered due economic beyond factors her control and with the recapture intent to him she in a properly when was situation care him. allegations negatived, these Unless were abandonment could Green, not 714, be found. 192 Cal. 719-721 Roche, Roche v. 999].) Cal.2d The balance of the minute order merely constitutes erroneous conclusion drawn law from those facts. apparently acted under the misapprehension 701, subdivision (a), that section of the Welfare and Institu applicable. tions was But it Code not. That section has applicability no merely this nature. It jurisdiction who are defines minors within the juvenile petition and as to may whom be filed under section (b), of subdivision the Welfare and Institutions Code free from declared and control parents. If such a his had been filed and an order thereon, made the situation here would be different; but present matter, sitting was not juvenile as power no minor and had declare the here free from the mother, only and control of his deny could right of her petitioner the child if it found facts which, heretofore would constitute an abandonment as we have defined term. findings
It follows that the made the trial court conclusion, do not support its and that the issue abandon ment not the trial court and determined there estopped having tried fore that issue here. *6 having here tendered
The return to the writ both the issue petitioner’s of abandonment, as to and the issue and fitness having determined neither those issues as matters necessary superior court, in the in the it is fact to said issues. appoint a referee to find the facts as that we that the order heretofore made It is therefore ordered sub- Nichols, hereby vacated, A. Edward mitting is and this matter California, Superior Court the State Commissioner appointed Angeles, hereby is County of Los and for the facts as to whether determine the and referee take evidence custody of her child person to have the plaintiff is fit a or not she has abandoned said to whether and the issue as findings and conclusions facts and his report said and to days. 60 court within of law to this I agree cannot (Paul), pro tem.*I dissent. J. NOURSE majority this or by the court with expressed with the views they thereby have set I believe conclusions, their because corpus is naught where habeas used at rule that established illegally a confined not to determine whether keep who have but determine shall restrained litigated finding upon an issue custody, a of fact minor in again litigating from estops parties superior corpus in of habeas upon application for a writ that fact majority court; because the effect appellate corpus for a of habeas writ application opinion is to turn novo in this a trial de of error with into a writ in this court error be found. should nearly years has been the 30 established rule that For application form of for a proceeding writ where corpus superior has been had court to deter- of habeas a minor rights mine the of fact has been an issue tendered tried proceeding in that adversely petitioner, pre- which, if determined would by the of a coercive order the issuance clude proceeding and the respondent against the * (cid:127) Assigned by Judicial Council. Chairman of
499
not,
deny
petitioner may
writ,
court does
the coercive
upon
any change in the circum
the same facts and without
petition for
again litigate
a writ
stances,
Appeal.
District
re
habeas
filed
Gille, Cal.App.
Holt, 34
65
Cal.App.
184];
290
P.
[167
Cal.App.
McDaniel,
In
90
307
P.
;
617
P.
re
[265
[224
784]
In
Cal.App.
;
In
re
Gury,
944]
884]
Martin,
P.2d
re Brown
Cal.App.2d 584,
586 [180
736].)
effect
these
ing,
Cal.App.2d
superior court dis
decisions
not
the order of the
to make
again asserting
petitioner’s
charging the
a bar to the
legal right
custody,
her
to estop her,
until there
ais
circumstances,
again
in facts
litigating
from
issues
against
which have been determined
her and
preclude
which
enforcing
legal
custody.
bare
pointed out,
As I have
the order of
court dis
charging a writ of
denying
custody of his or her
operate
does
as res
the sense that it is a
barring a further assertion
petitioner’s
right; and if in
court an issue
of fact
petitioner’s
such as
abandonment of her child or her
unfitness to
of the child is not tendered and tried
*7
but the order of
superior
the
merely
court
holds as a matter
of
petitioner
law that
does not
legal right
have a
the
of
child,
the
then
its order is not
question
res
and the
may
relitigated
be
upon
petition
a
filed in the District Court
Appeal.
White,
re
In the ease here it is admitted to the was tendered had abandoned ad- determined superior that it was tried there and has versely no here that there petitioner; and there is claim days elapsed any change (Only in circumstances. entry superior order of the court between the filing petition here.) order of
Assuming, majority does, the minute as findings of fact conclusions law constituted court superior erroneously deter- demonstrates that the court abandoned her that does mined had determine the issue not detract the fact that did only treating for abandonment; petition and it is a writ error, here for writ of of habeas as granting a in this finding that there was error and trial then majority decision of the can be sustained. To court, that the rule an issue abolishes the established so hold effect relitigated for here; court be litigated in the cannot findings support find error do not if can this court find error does judgment, it can because the evidence every permitting findings, thus case this support for the action of the a basis to review trying the same issues as were tried this court. majority present does in the case relieve decision apparently—from the record before
petitioner from what proceedings—a of the oral mis- record us do not we my opinion our decision should carriage justice. But exigencies case, present meet the molded as to not be so principles of law even follow the established should injury. petitioner may have present suffered though the says has no majority In this I think judgment court. from the error, of that court is final as they are of her child until is a there circumstances. prerogative is an ancient of habeas A writ might form, one seek immediate relief original its which, in *8 privilege imprisonment, illegal from an States the Constitution of United of this writ which use (art. I, 2) and the Constitution this state 9, (art. I, clause § The courts this state people. guarantee 5)§ any statute, irrespective issue this writ power inherent away power this take to issue Legislature nor could the
501
protect
writ
illegal
imprisonment
citizen from
(Matter
restraint
Hughes,
360,
159
366
684]).
Cal.
P.
[113
I do
think,
not
however, that it could be
contended that
Legislature
not
procedure
could
limit
parties
which the
try
private
could
their
rights
to the
of a child so as
to preclude the trial of
that issue
corpus.
habeas
The writ was
law,
at common
in
and,
this state
insofar
my
research discloses, in all other
states
has
Union
purpose
used for the
of litigating private rights
toas
of a minor. When
used,
so
proceeding
it is a
in rem, equitable
nature,
in
in which the child is the res, and
right
determined
is that of
the custody
minor,
not
the minor’s
to be free from restraint.
(In re Frazier,
Cal.App.
50
45, 47
P.
;
parte
Ex
[194
510]
Armstrong,
It is held that the a proceeding such is a final determination of rights litigated therein until there has been in circumstances affect ing the best interests of rights the minor or the of the parties, and the issues so judicata determined are only res in a subsequent proceeding in other proceeding in which of the minor put Cal.App. issue. re Holt, 34 290 ; P. [167 184] In Cal.App. re 65 Gille, P. 784]; 617 In re McDaniel, 90 [224 Cal.App. P. 884]; Cal.App. 307 In Gury, re 103 738 [265 [284 ; P. In Martin, Cal.App.2d 584, re 79 586 P.2d 944] [180 ; Browning, Cal.App.2d 99 P.2d 337 383] [221 736] Clifford, Am.St.Rep. 460 37 Wash. ed., on Judgments, Freeman 5th vol. 1764-1766; 253; 514; 748.)1 Am.Jur. ann. 110 Am.Jur. A.L.R. Appeal 1I am not unmindful District of the decision of the Court of Guardianship DeBrath, Cal.App.2d 968], which it was held that a determination of a of fact a habeas proceeding judicata only corpus proceeding. was res in another habeas entirely But this decision seems to me unsound. The basis for the doc public policy limiting litigation trine of res is “the sound by preventing party who has had fair trial one on *9 (p. says the Judgments, on author supra, Freeman principles public policy requiring applica- the
1766) “The of : in estoppel judicial proceedings, tion of of to the doctrines imperatively as of are repose society, order to secure the pri- contesting private in the of individuals demanded eases of habeas rights vate under the form any other form. . . . litigation as if conducted the were properly a once custody ‘The of the of minor question proceed- finally whether a adjudicated, be an unless there ing otherwise, time, is settled all against impregnable as judgment the rendered is appeal, and ’ ” a collateral assault. majority of of the a other states of the courts Union rights is that where the writ used determine the have held private custody of appeal lie, a child an will appeal not lie is for its although an will where used determining or not is original purpose whether a illegally deprived liberty. of his as proceeding equitable as the is nature and
Inasmuch rights peti- judgment final determination any fact, seem it determines it would tioner insofar as appealable final necessarily follow that order is as a provisions of section 963 order or under the Code Civil Procedure. Supreme our cognizant I am the decision of but I 101], Bruegger, of In re Cal. 169 case there respectfully given the court submit that reasons order not lie from an for its that an would decision custody in a of his child denying parent right that the proceeding such this are valid Supreme Court and should be reexamined Bruegger overruled. given by adjudication
The first reason the court is that the judicata only long is final and res so as the facts are the same affecting parent’s welfare or the conditions child’s and the unchanged, remain order of the court is there- temporary interlocutory. fore but every affecting But minor of a temporary Every in the same interlocutory. sense subject change such order is to modification or there is when controversy” (Bernhard again drawing America, Bank it v. into 807, 892]), Cal.2d and I know of no which would rule applicable only if make the rule the issue were tendered same type proceeding action or as that which was first decided. change affecting competency of circumstances either the person originally awarded or the best interests of interlocutory An award of in an child. decree subject of divorce is modification at time within (16 cited). discretion of the Cal.Jur.2d and cases guardian appointment removal and the of another may be made within the discretion of the court showing of a (24 circumstances Cal.Jur.2d *10 yet all 337); appealable. removing such orders are An order guardian appointing expressly ap- one and another is made pealable by statute; modifying custody an order of a decree give custody person so as to to a originally other than the one custody appealable judg- awarded an as order after final ment; proceeding awarding and an order made in a divorce custody to one of the to the exclusion of the other is appealable a judgment. as final these no more Yet orders are final denying petitioner than the order made this matter right to the of her child. ground
The second primary purpose stated is that the of the writ of purpose when used for the of de- termining right pro- to of a minor child is to summary vide a speedy determining ques- of mode tion ; appeal and the court right concludes that if the of were granted, an order suspended by appeal made would be and the proceeding deprived of efficacy. its If this reason ever had only it validity, was cases where the had been granted appeal and the was the respondent; for if the writ petitioning were denied, parent would have to await a change in circumstances in order to further assert right, though even court had erroneously determined right. the enactment of
Since section 949a of the Code Procedure, this assigned Civil second reason by the court clearly for its force, decision loses all for under that section appeal stay will not an the court granting a parent give coercive writ which would her custody of her child.
The court further states that it deems it definitely to be legislative settled absence of appeal action an will not lie in matters of this kind. It cites establishing as this rule the Matter Perkins, 424; Cal. Ring, Matter 247; Zany, 28 Cal. Matter 164 Cal. 724 supra. Matter In all Hughes, of these cases the issuing writ, acting under its inherent powers are confirmed the Constitution. In none of which exercising equitable powers its was the them rights party not a trying private as one ruling in none of them was the proceedings, to the judicata any issue, as to and in each them court res applications in the had to successive judg- far case is different where Appellate Courts. The precludes a retrial court is res ment of the lower application appellate court. upon an of fact of the issues repeatedly, Supreme Court has recognize that I does not lie in habeas keeping its decisions with grant power to it does not have held that corpus proceedings, Appeal by the District Court hearing after a decision but in each corpus, of habeas denying a writ granting either sought the writ was it is so held in which of the decisions deprive People solely determine court have none of them did the and in liberty, of his hearing might grant it to whether before appellate try in the the writ was purpose where custody of a to the parties as rights private proceedings. party not a writ. discharge the I would *11 Oct. Third Dist. 1956.] No. 8790. [Civ. al., Respondents, v. FAIR et R. CODMAN WINIFRED al., Appellants. et DISTRICT IRRIGATION OAKS