Pitzer v. Peterson

California Court of Appeal Jan 25, 1943 No. Civ. 3079Published

Before: Marks

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Holding. The court held that the evidence supported the finding of abandonment under the Welfare and Institutions Code, that the probation officer's investigation is discretionary rather than mandatory, and that formal findings of fact are not required in this special proceeding.

Issues

Whether the evidence was sufficient to support a finding of abandonment under Section 701 of the Welfare and Institutions Code.
Whether an investigation by the probation officer is a mandatory prerequisite to filing a petition under Section 721 of the Welfare and Institutions Code.
Whether the trial court was required to make separate findings of fact in this proceeding.

Disposition. affirmed

Quotations verified verbatim against the opinion

“This evidence supports the conclusion that Kathleen was an abandoned child as that term is used and defined in section 701 of the Welfare and Institutions Code.”

“We therefore conclude that findings of fact were not necessary in this proceeding.”

MARKS, J.

This is an appeal from a judgment of the Juvenile Department of the Superior Court of Kern County decreeing that Kathleen Norma Peterson, a minor, had been abandoned by her parents, and declaring her free from parental custody and control.

Kathleen was the daughter of Leo R. and Flora Peterson who separated in September, 1937, and were subsequently divorced. There were three children the issue of this marriage. At the time of the separation Marion was four, Charlotte was two and one-half years and Kathleen about two months old. Counsel for Peterson states that the divorce decree awarded the custody of Marion to the mother and the custody of Charlotte and Kathleen to the father.

In November, 1938, Kathleen was given into the custody of Mr. and Mrs. Pitzer with the express consent of her mother and the implied consent of her father.

On March 18, 1942, Earl Y. Pitzer filed his petition to have Kathleen declared free from the custody and control of her parents. An order to show cause was issued and served on both parents. Flora Peterson, who had remarried and was then Flora Starks, did not appear. Leo R. Peterson appeared and contested the petition.

The trial court entered the following judgment:

“ ... IT IS HEREBY BY THE COURT ORDERED that Kathleen Norma Peterson, a minor of the age of four (4) years, is now and for more than a year prior to the filing of this petition, has been within the above-named county of Kern, State of California, and that said minor has been abandoned by her parents, and that said minor is therefore declared free from the custody and control of her parents as provided in the Welfare and Institutions Code of the State of California. ’ ’

Section 701 of the Welfare and Institutions Code under which this proceeding was brought contains the following:

“The jurisdiction of the juvenile court extends also to any person who should be declared free from the custody and control of his parents. The words ‘person who should be declared free from the custody and control of his parents’

[793]

include any person under the age of twenty-one years who comes within any of the following descriptions:

Pitzer v. Peterson

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MARKS, J.

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