In Re Morrow
SIMS, J.
Patricia Walters the natural mother of a minor has appealed from an order granting the petitioners Youngs’ petition to declare the minor free from parental custody and control. She contends that the evidence is insufficient to establish either of the grounds prescribed in subdivisions (a) and (b) of
(1) Preliminarily it is determined that the petitioners, by their participation without objection in the mother‘s questionable, but, in any event, unsuccessful proceedings to obtain a new trial, are estopped to object to the timeliness of the filing of the notice of appeal. On the merits, however, the evidence is found sufficient to sustain the findings and order of the court. The order must be affirmed.
Timeliness of the Appeal
The petitioners contend that the appeal should be dismissed for lack of jurisdiction because the objecting mother failed to file a timely notice of
Apparently in ignorance of the provisions of
The petitioners assert that where there is no provision for a new trial, a notice of intention to move for a new trial cannot be effective for any purpose. (See, Estate of Welch (1956) 146 Cal. App.2d 534, 538 [304 P.2d 57]; Bryant v. Los Angeles Transit Lines (1953) 116 Cal. App.2d 473, 474 [253 P.2d 731]; Lynch v. Watson (1945) 69 Cal. App.2d 51, 53 [158 P.2d 250];3 and 3 Witkin, Cal. Procedure (1954) Appeal, § 121, p. 2297.) If the proceedings to secure a new trial were completely abortive, the time within which to file a notice of appeal expired on Monday, August 19, 1968 (the 17th falling on a Saturday). In that event this court would be without jurisdiction to consider the case on its merits, and should dismiss the appeal. (County of Los Angeles v. Jamison (1961) 189 Cal. App.2d 267, 269 [11 Cal. Rptr. 309]; Estate of Welch, supra, 146 Cal. App.2d 534, 538; Bryant v. Los Angeles Transit Lines, supra, 116 Cal. App.2d 473, 474.)
Petitioners not only failed to object to the proceedings in the trial court, but also failed to make a motion to dismiss the appeal before this court. They
In Slawinski v. Mocettini (1965) 63 Cal.2d 70 [45 Cal. Rptr. 15, 403 P.2d 143], the court stated, “It is a well established policy that, since the right of appeal is remedial in character, our law favors hearings on the merits when such can be accomplished without doing violence to applicable rules. Accordingly in doubtful cases the right of appeal should be granted. [Citations.]” (63 Cal.2d at p. 72.) In Slawinski the plaintiffs were held to be entitled to rely upon the date set forth in the written order of the judge and the notice prepared and sent by defense counsel as correctly setting forth the date on which their motion for new trial had been denied and from which their time to appeal would run (id.). The case is generally viewed as recognizing that late filing of a notice of appeal may be relieved by proof of estoppel. (See Mills v. Superior Court (1969) 2 Cal. App.3d 214, 219 [82 Cal. Rptr. 469]; Desherow v. Rhodes (1969) 1 Cal. App.3d 733, 742-745 [82 Cal. Rptr. 138]; Gomes v. Superior Court (1969) 272 Cal. App.2d 702, 704 [77 Cal. Rptr. 539]; and Witkin, Cal. Procedure (1967 supp.) Appeal, § 124B, pp. 965-966.)
Sufficiency of the Evidence
The order (judgment) from which the appeal is taken recites: “that said minor child has been left in the care of petitioners by her ... natural parents and said parents have failed to communite with said child for a period of more than six months prior to the filing of said petition ... with the intent on the part of her parents to abandon said minor child.” (See
(2 - 4) In attacking the sufficiency of the evidence to sustain the foregoing findings and the judgment predicated on them, the objecting mother is faced with the following rules on review:
“A reviewing court must accept as true all evidence tending to establish the correctness of the findings of the trial judge. All conflicts in the evidence must be resolved in favor of the respondents and all legitimate and reasonable inferences must be indulged in to uphold the judgment. It is well settled that whenever a finding or judgment of the trial court is attacked as being unsupported, the power of the reviewing court begins and ends with the determination of whether there is any substantial evidence, contradicted or uncontradicted which will support the conclusions reached by the trial court. [Citation.] All evidence most favorable to respondents must be accepted as true and that which is unfavorable discarded as not having sufficient verity to be accepted by the trier of fact. If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed [citation].
(5) “That abandonment and intent under
The record includes the written report of the juvenile probation officer and an addedum thereto prepared as required by the provisions of
The minor, Virginia, was born October 21, 1958. She was the second of three children born to her mother and sired by Victor Morrow. The natural mother had previously married Adolf Talerico in 1952 and as a result of this marriage had three boys born respectively May 21, 1953,
In 1963, Michele was found to be operating in a 6 to 10-month level although she was then three years old. She was removed from the home and made a dependent child of the juvenile court on September 20, 1963. In May 1964 the mother sought psychiatric help from the Monterey County Psychiatric Clinic and commenced counseling which continued up to the time of the hearing in this action. Nevertheless, on September 21, 1964, a year after the first child had been removed from the home, Virginia and her brother were removed from the home. Virginia was placed with the petitioners where she has remained ever since, and her brother was placed in the same foster home as his younger sister. On October 8, 1964, Virginia and her brother were each adjudged to be a dependent child of the juvenile court under the provisions of
The children had been removed on the recommendation of a physician because of neglect and “severe parental deprivation.” The record is replete with evidence of Virginia‘s mental and physical retardation. It suffices to state that although she was almost six years old she was but 29 inches tall and weighed only 25 pounds, could not talk, only mimic, and was not toilet trained. At the time the mother stated that she could not cope with the children, that she was resentful of them, and that she was agreeable to having them placed out of her care. At the hearing in 1968, the mother acknowledged that in 1964 because of her emotional illness she had feared her children, and that she could not handle them then, she could not affirm or deny whether she had stated that she had an emotional block toward the Morrow children, but believed she could have stated that she had felt that the Morrow children were not even her own.
In November 1964 the mother, accompanied by Mr. Morrow, paid her only visit to Virginia at the petitioners’ home. There was no communication
In January 1965, the three Talerico boys were removed from the mother‘s custody, and on January 21, 1965 an order was entered adjudging them dependent children of the juvenile court because of parental neglect.
On April 26, 1965, the mother came into the welfare department and signed a semi-annual application to establish the childrens’ eligibility for aid to needy children. In September 1965 she attended the annual hearing in juvenile court (
In October 1965 the mother paid her last visit to her daughter prior to the filing of the petition in this action. Virginia was in a hospital where she had a fatty tumor removed from her back on October 13, 1965. The mother and the child‘s maternal grandmother visited her on that occasion. According to the petitioners, and as admitted by the mother, there was no further comunication between mother and daughter or between the mother and the petitioners either by way of visit, telephone call, letter, note, Christmas, birthday or other gift or card.
The Morrows separated in 1965 and in December 1965 the mother filed suit for divorce. She instructed her attorney that Morrow should have custody of his children. She testified that she did this because she had a guilt complex and wanted to be fair to him due to the fact that he had undergone
On December 27, 1966, the mother was finally divorced from Morrow, and on the same day she married her present husband. On January 19, 1967 the dependency status of the Talerico children, with whom the mother and maternal grandmother had continually communicated at least once a month through 1965, 1966 and 1967 was reviewed and renewed. In June 1967, the three boys were released to the custody of their mother on a trial basis, and in January 1968 they were discharged as dependent children. At the time of the hearing in this action they apparently were getting along well in a home with their mother, stepfather and maternal grandmother.
In 1967 there was no communication between the mother and Virginia. The mother did not appear at the hearing on the annual review on September 14, 1967, and the child‘s dependency status was continued by order of the court.
Meanwhile, Mr. Morrow resumed visitations with Virginia about three months after the November 1964 incident. He visited six or seven times in all during 1965 and 1966. He brought her presents for her birthday, Christmas and Easter, and made his last visit on her birthday October 21, 1966. He telephoned to inquire after her condition when she was in the hospital in October 1965. He reportedly terminated his visits, and all other communications with the children, because the visits distressed him and because it was too confusing for the children. He apparently made intermittent payments for the support of his three children until October 26, 1967. He filed a formal consent to the adoption by petitioners on May 6, 1968.9
The mother testified that she knew the father was paying support and making regular visitations and that she thought his children would be assured a good home; that she believed he was visiting the children in 1967; that she only heard in September or October 1967 that he was no longer communicating with them and was consenting to Virginia‘s adoption; and that it was
The record reflects that the petitioners started thinking about adopting Virginia in 1967 because she fit in well with their family (father, mother, sons 11 and 8 and daughter 6), and because the girl would become upset whenever a foster child, temporarily in the home, would leave. It also appears that following the mother‘s request for visitations in October 1967, and while it was under study, the welfare department in December 1967, and a psychiatric social worker at the county clinic interceded on behalf of petitioners to secure the mother‘s views regarding consent for the adoption; and that the mother having indicated that she did not wish to give her consent, the present proceedings together with a petition for adoption were filed on January 24, 1968.
Thereafter, there were two visitations between the child and her mother and stepfather. In February or March, the three Morrow children were brought to the probation office. According to the welfare department supervisor who attended the confrontation along with a probation officer, there was almost a total lack of communication between the mother and the children. The stepfather did all the talking. On her return from this visit Virginia refused to talk about and never said a word about seeing her real mother.
Thereafter, and prior to the hearing on June 13, 1968, a social welfare worker took the three children to meet the mother and stepfather at a park. The mother greeted the children with a salutation, but it was the stepfather who hugged them, played tag with them, talked to them about their school, and opened the trunk of the car and handed them little gifts. On her return, Virginia related that she had received a gift from her stepfather, and that he had talked and played with her, and that her mother looked better, dressed much better than she used to, but was the same as she was before.
The mother explained that she was constrained because these were supervised visits, and that she had feelings for her children which were not revealed because she was not an emotional person and did not show her emotions very much.
The objecting mother insists that her mental and emotional condition throughout the period under review was such that the trial judge should have found neither the necessary intent to abandon, nor the necessary cruel treatment or neglect. Before examining this contention in the light of the foregoing evidence, it is necessary to analyze the requisites under the subdivisions of section 232 at issue in this case.
Under subdivision (a) it is required that the child “... has been left by
“The fact that a judicial decree has placed custody of the child away from the parents does not, however, necessarily prevent or destroy the element of `leaving’ because nonaction of the parents may convert into a leaving (and, the other elements present, into an abandonment) that which initially could not be regarded so. (In re Maxwell, 117 Cal. App.2d 156, 165 ... [three year nonaction by parent after child was made ward of juvenile court; trial court‘s finding of abandonment upheld despite mother‘s rehabilitation from alcoholism]; In re Barton, 168 Cal. App.2d 584 ... [trial court‘s finding of abandonment sustained for lack of communication or support, although child was placed by guardianship decree following mother‘s consent for guardianship for care; mother had tried to regain child by habeas corpus, and testified noncommunication was based on belief she was forbidden by court to communicate with child, and no demand had been made for support].) The relevant nonaction of the parents is that of failure to contribute to support or to communicate, subjects considered below, but the conclusion on his first point, that of `leaving,’ is that there may be such leaving even though originally a court decree had taken the custody of the child from the parents.” (In re Conrich, supra, 221 Cal. App.2d at pp. 666-667.)
(8) Under subdivision (a), therefore, the salient point is the mother‘s failure to communicate with her daughter from November 1964 until her request to see her in October 1967. A “failure to communicate for the period of six months, shall be presumptive evidence of the intent to abandon.... If in the opinion of the court the evidence indicates that such parent ... [has] made only token efforts to ... communicate with the child, the court may declare the child abandoned by such parent....” (
It may be conceded for the purposes of this case, as has been determined in connection with
Nevertheless, the trial court was entitled to find as noted above, that her emotional instability did not prevent her from communicating with and manifesting an interest in others of her offspring. The instructions of the welfare department were not questioned for almost three years, although during that period the mother had opportunities to consult with the welfare department and juvenile probation department and interested herself in recovering the custody of her three boys. (Cf. In re Barton, supra, 168 Cal. App.2d 584, at p. 589.) The explanation that she was leaving the custody of the Morrow children to her husband and only sought them when she learned he was abandoning them may be suspect, because it shows in itself an ambivalent, as well, as a conditional, attitude toward the custody of those children. The court could find that her interest in Virginia was only rekindled by the feeling of guilt engendered by the threat of the adoption itself, and by the incitation of her new husband. The finding and judgment under
(10) The facts established (see fn. 8, and accompanying text above) show that Virginia was cruelly treated and neglected by both of her parents; that she was made a dependent child of the juvenile court; and that her parents had been deprived of her custody from October 8, 1964 to the date of the hearing June 13, 1968. The foregoing fulfills the requirements of the provisions of
In re Zimmerman (1962) 206 Cal. App.2d 835 [24 Cal. Rptr. 329] involved proceedings to have a minor declared free from the custody and control of her mother under provisions of law substantially similar to those now found in
This court, after reviewing the distinction between a proceeding to declare a minor a ward (now dependent child) of the juvenile court, and a proceeding to declare the minor free from the custody and control of his parents, concluded, “We do not think that such proceedings to free a child from parental control have been invested by the Legislature with the rigid and inflexible character that appellants ascribe to them. It is clear to us that the court‘s consideration of the matter must proceed beyond the point of concluding merely that the mother was deprived of the custody of her child for moral depravity and that the period of a year has elapsed. The court in the instant proceedings is not finalizing an antecedent interlocutory judgment.” (Id., p. 843.)
(11) So here the parent was entitled to have the circumstances leading to the earlier order reviewed in the light of subsequent events, and with consideration of the nature of the order sought in the second proceedings. The 1964 order making Virginia a dependent child of the juvenile court, and the orders made in 1965, 1966 and 1967 continuing that status, are not subject to review in these proceedings, but the question of the nature of the cruelty or neglect upon which the original 1964 order was predicated may be the subject of inquiry. She relies on the following statement, made in a case reversing, for insufficiency of the evidence, an order which made children wards of the court, and transferred their custody from their father to their maternal grandmother. “We think it is only in instances where there is demonstrated incapacity or something akin to criminal neglect that the law
The probation report filed in these proceedings, after referring to the procedings under which the three Morrow children and three Talerico children were removed from the custody of the mother because of serious neglect, recites: “No Court action was taken against the mother as she was emotionally disturbed and later submitted to psychiatric counseling at the County Clinic.” The conditions described in the reports filed in these proceedings sustain the court‘s finding “that said minor child has been cruely [sic] treated and neglected by her parents.” Since the order and judgment in these proceedings may be upheld under the provisions of subdivision (a) it is unnecessary to determine to what extent the parent must be criminally responsible for the original cruelty or neglect. (Cf.
The petitioners concede that in proceedings under subdivision (a) the court is to consider the present fitness of the parent. (See In re Cardenas, supra, 194 Cal. App.2d 849, 855.) In re Zimmerman, supra, indicates that under subdivision (c) the court should consider the present condition of the erring parent (206 Cal. App.2d at pp. 844-845). (12) It is reasonable to consider under subdivision (b) whether the conditions which gave rise to the cruelty or neglect still persist.
(13) In this case the court had such evidence before it. On the one hand it appears that the mother had successfully rehabilitated herself. She testified that she thought she was well and could handle the Morrow children, and that she was getting along well with her three sons. The report from the probation office and an included report from the psychiatric clinic confirmed that with the help of her husband she was managing well with the Talerico children. This conclusion was also confirmed by the testimony of the social worker, and the testimony of her husband. On the other hand, it was brought out that the mother was still under psychiatric treatment; that she had been diagnosed as basically indifferent to the younger children; that it would be hazardous for her health to take the younger children into her home; that she would do well to provide an adequate home for the three older children; and that in a prehearing interview she stated that she did not feel she could be responsible for taking care of Virginia at that time. The court also had before it the accounts of the post-petition visits.
The trial court, in considering the mother‘s present fitness, was entitled to take into account the history of her demeanor over the preceding four years. The neglect may consist not only in the deprivation of material support, but
Finally it should be noted that since 1965 (Stats. 1965, ch. 1064, § 1, p. 2710) the courts have been under the following mandate: “The provisions of this chapter shall be liberally construed to serve and protect the interests and welfare of the child.” (
As suggested by petitioners, the following is adopted: “We realize that the record shows that appellant has made a praiseworthy and apparently successful effort to rehabilitate herself. We have no doubt of her present sincere desire to care for Linda. It is a most serious responsibility to deprive a parent of her child. But the Legislature has provided that if the child is abandoned, as defined in the section, the trial court may enter such an order. (14) The weight to be given to the rehabilitation of appellant and her excuses for her past conduct was for the trial court. It has found the facts required by law. Those findings are supported. Therefore, this court must affirm.” (In re Maxwell, supra, 117 Cal. App.2d 156, 166.)
The purported appeal from the order denying the objector‘s motion for a new trial is dismissed. The order declaring the minor free from parental custody and control is affirmed.
Molinari, P.J., and Elkington, J., concurred.