People Ex Rel. Pollock v. Bogart

California Court of Appeal May 27, 1943 No. Civ. 6879Published

Before: Peek

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Holding. The court held that the grandmother was not a necessary party entitled to notice of the juvenile court proceedings because she lacked legal custody of the minors, and that her motion to vacate the judgment constituted an impermissible collateral attack.

Issues

Whether the grandmother was a necessary party entitled to notice of the juvenile court proceedings under the Welfare and Institutions Code.
Whether the grandmother's motion to vacate the judgment constituted a collateral attack on the original order.
Whether the trial court properly refused the grandmother's offer of proof regarding her custody of the minors.

Disposition. affirmed

Quotations verified verbatim against the opinion

“we do not feel that appellant was a necessary party upon whom service of citation was a jurisdictional prerequisite”

“it logically follows that appellant’s offer of proof was properly refused by the court on the ground that such motion constituted a collateral attack upon the judgment.”

PEEK, J.

This is an appeal from an order denying a motion to vacate and set aside orders declaring that the three minor grandchildren of appellant were wards of the juvenile court and committing them to separate foster homes.

The proceedings were instituted on April 28, 1941, by Ethelwyn Pollock, the mother of Georgia, Ethelwyn and Barbara, aged six, four and three years respectively, by the filing of a petition wherein she alleged that the children came within the provisions of subdivision (c) of section 700 of the Welfare and Institutions Code in that they were not provided with the necessities of life by their parents, and praying that they be adjudged wards of the juvenile court. The petition also alleged that the mother had been awarded the custody of the children in a previous divorce action, and that she and the children resided at the same address as the appellant in the city of Sacramento.

At the hearing on the mother’s petition the court found that all of the facts contained therein were true; that each child came within the terms of subdivision (c) of section 700 of said code. The children were adjudged wards of the juvenile court, and, by separate commitments dated May 2, May 5, and June 6, 1941, were committed to different foster homes.

Approximately a year later, on the 7th day of May, 1942, and long after the time for appeal had elapsed, appellant moved the court to vacate and set aside the orders on the ground that the court was without jurisdiction, that at the time of the foregoing proceedings and for a long time prior thereto the minors were in her care and custody, and although she was their grandmother she was not served with notice of said proceedings, and that the minors did not come within any of the provisions of section 700 or 701 of the Wei-

[834]

fare and Institutions Code. At the conclusion of the hearing of said petition the trial court, in its findings, properly followed the directions set forth in section 735 of the said code, and found that the record was silent as to the actual giving of notice; that the record was also silent as to who had the custody of the children twenty-four hours prior to the hearing, yet it could not be presumed

(Canadian & American Mortgage & Trust Co.

People Ex Rel. Pollock v. Bogart

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PEEK, J.

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