Bisenius v. Scherbel

SHEPARD, J.

This matter comes before this court on appeal from a judgment denying the petition of Dannie Louise Bisenius, appellant herein, to have the above-named minor, Betty Josephine Bisenius, (hereinafter called Betty), declared free from the custody and control of her mother, Phyllis Lorraine Scherbel, respondent herein.

Betty is a minor child, born April 27, 1947, to respondent and her then husband, Richard Andrew Bisenius (hereinafter called the father). In 1951, respondent became involved with another man, separated from the father, left the family home in California, and taking Betty went to Florida where respondent’s parents resided, arriving there about October 11, 1951. In December, 1951, the father went to Florida, took possession of Betty and without respondent’s consent brought Betty back to California. The father was granted an interlocutory decree of divorce on October 10, 1952, on the formal ground of extreme cruelty and the custody of Betty was therein awarded to him. On February 6, 1953, respondent went through a marriage ceremony with still another man named Jackson. The final decree of divorce between the father and respondent was entered October 23,1953. On February 8, 1954, the father was married to appellant herein, and two children were later born to this union. The father died about November 21, 1956, and shortly thereafter appellant was appointed guardian of the person and estate of Betty, which guardianship still continues.

On July 10, 1958, appellant filed her petition to have Betty declared free from custody and control of respondent, basing her petition on section 701, subdivision (a) of the Welfare and Institutions Code. The cause was heard on the merits, the court rendered judgment denying the petition, and appellant has appealed therefrom.

The first contention of appellant is that the evidence was not sufficient to support the finding that respondent did not abandon Betty. The testimony at the trial was partly conflicting, but there was evidence from which the court could

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reasonably have believed that at the time of the taking of Betty by the father in December, 1951, respondent did not consent to Betty’s permanent removal from her custody; that she attempted at numerous times in the following months and years to communicate with Betty by telephone and letter; that she was unable financially to physically visit Betty until Christmas 1955; that she visited with Betty on Christmas 1955, and in April, 1956 ; that she was first apprised of the death of the father on June 27, 1957; that she at that time asked appellant for a visit with Betty and was refused; that she sent telegrams and letters to Betty in 1958 and visited Betty in April, 1958; that she believed when she found out about the guardianship that there was no need for her to send support money; that she stated at different times that she would not consent to adoption and that she did not intend to relinquish her parental rights over Betty nor to abondon her.