Guardianship of Kostors

KAUFMAN, P. J.

This is an appeal by Alice Kostors, the mother of Evelyn Kostors, from an order appointing respondents, Earl and Elsie Gilbert, as guardians of the person and estate of Evelyn Kostors, a minor.

[390]

Respondents, who are not related in any way to this 15-year-old minor, were appointed guardians of her person and estate over the objections of her mother and her maternal grandparents. Her father is not living, and no relative supported the petition of respondents. The minor was, throughout the pendency of this proceeding, a ward of the juvenile court. Although appellant’s brief, to the statement of facts in which we may look (Rules on Appeal, rule 17(b)), because no respondents’ brief was filed, states that the petition for letters was filed at the request of the probation officer, there is no showing or suggestion of notice to or consent by the juvenile court. Neither petition nor order makes any reference to the fitness or lack of fitness of the mother. She appeals from the order. Respondents have filed no brief.

Although our Supreme Court has recognized a “modern trend” to “regard as of primary importance the welfare of the minor himself”

(In re Mathews,

174 Cal. 679, 683 [164 P. 8]), and despite some strong dissents, the majority of that court holds to the doctrine of parental right in guardianship and custody matters (for full review of the decisions, see

Guardianship of Smith,

147 Cal.App.2d 686 [306 P.2d 86]). We are therefore bound by the rule that “The parents of a legitimate child have preference over a nonparent and the custody shall not be given to a nonparent unless the parent is found unfit.”

(Guardianship of Smith,

42 Cal.2d 91, 92 [265 P.2d 888, 37 A.L.R.2d 867].) Here the finding of unfitness is wholly lacking.

The fact that the child is a ward of the juvenile court does not of itself imply either that custody has been removed from the mother or that the mother is unfit, since the juvenile court “may define the extent of control permitted” to the parent and “no ward of the Juvenile Court shall be taken from the custody of his parent” without the latter’s consent, unless specified facts supporting such removal are found. (Welf. & Inst. Code, § 739.) There is nothing in this record to suggest that any such finding was ever made by the juvenile court. The fact that the minor is over 14 years of age, and has nominated a guardian, does not dispense with the requirement that guardianship be shown to be “necessary or convenient.”