WARD, J., Dissenting. I dissent.
The majority opinion directs a reversal of the judgment with instructions to grant appellant’s motion to dismiss. The conclusion is based upon two grounds: that as a matter of legal right appellant was entitled to a dismissal, and that the finding that the children were destitute is contrary to undisputed facts.
It is not held that the motion to dismiss should be granted as a matter of law, except as stated, “that under the circumstances appearing in the record, appellant, as a matter of legal right was entitled to a dismissal.” The only “circumstances” referred to in the opinion are the record itself and the inferences drawn from certain acts, statements and reports. Considering the right of dismissal, it must be borne in mind that the petition to declare the children wards of the juvenile court had been filed and the matter had proceeded by way of several hearings before appellant’s attorney, who had been present at such hearings, presented a motion to dismiss the petition. The record in fact shows that no suggestion of dismissal was made until the court indicated that the custody of the children would not be given appellant.
[681]In a hearing on habeas corpus upon this same matter, it was determined that “In thus disposing of the proceeding the juvenile court conformed to all procedural requirements of the juvenile court law; and admittedly the judgment itself is in legal form”, also that “the record reveals no ground upon which it may be held that petitioner was deprived of any legal right granted by the juvenile law; and since it affirmatively appears that the court acquired jurisdiction of the proceeding and of the parties in conformity with the requirements of the statute, it was entirely within the discretion of the court to deny petitioner’s request for permission to withdraw his petition.” (In re Jones, 34 Cal. App. (2d) 77, 81, 83 [93 Pac. (2d) 185].)
On the question presented—custody of the children—the habeas corpus decision In re Jones, supra, is res judicata on the matter covered by the above quotation (In re Holt, 34 Cal. App. 290 [167 Pac. 184]; In re Stratton, 133 Cal. App. 738 [24 Pac. (2d) 832]) so long as the facts, the welfare of the child and the rights of all parties are the same (In re Gille, 65 Cal. App. 617 [224 Pac. 784]), as they are in this proceeding.
In re Jones, supra, pages 78, 79, 80, contains the following lengthy recital of the facts: “Two hearings were had before the juvenile court; petitioner and his attorney were personally present at both, and at the final hearing petitioner requested permission to withdraw the petition. His request was denied, and at the conclusion of the hearing the court found that the status of the children fell within the provisions of subdivision c of section 700 of the Welfare and Institutions Code, and accordingly adjudged them to be wards of the court and committed them to the custody of the probation officer. Shortly afterwards they were placed temporarily in private homes, it being the intention of the court ultimately, as expressed at the final hearing, to award permanent custody to relatives in England. . . .
“The writ of habeas corpus was issued upon the strength of certain allegations in the petition to the effect that no evidence whatever was taken at any time ‘in behalf of any person’; that petitioner sought to introduce testimony at the final hearing of the matter but was not permitted to do so; that consequently the judgment is without evidentiary support. But the record produced at the hearing in support [682]of the return to the writ clearly negatives such allegations and shows a substantial compliance with all necessary jurisdictional requirements. It appears therefrom that when petitioner made application to have the children adjudged wards of the court the probation officer, in conformity with the provisions of sections 638 and 639 of the Welfare and Institutions Code, caused a full and complete investigation to be made of the case, including an inquiry into the antecedents, character, family history and environment of said children, and made a written report thereof to the judge of the juvenile court. This written report was presented to the court in accordance with section 640 of said code at the first hearing of the matter, held on January 25, 1939, and was at all times open to the inspection of petitioner and his attorney. Present at said hearing were Miss Leete, the children, petitioner and his wife and their attorney, and Mrs. Oliver . . . the court interrogated all interested parties, especially as to the family history, the chief question at issue being whether it would be to the best interests of the children to place them with their relatives in England as requested by Mrs. Oliver, or to allow them to remain with petitioner and his wife.”
Regarding a hearing on a supplemental report, the same opinion states (p. 81) : “ ... that petitioner had informed the probation officer it would not be possible for him to take care of the children without state and county aid. . . . Thereupon, and after the court had expressed the conviction that the children should be reared by their kinsfolk, petitioner asked permission to withdraw his petition; but the judge replied that inasmuch as the relatives had come forward and offered the children a permanent home, he felt that petitioner's request to withdraw the petition should be denied. ’ ’
It is further stated at page 82: “It is true the hearing was not conducted with all the strict formality of a criminal proceeding; but it was not necessary to do so because as frequently pointed out by the courts, proceedings of the juvenile court in dealing with cases of dependent children are not of a criminal nature. (In re Edwards, 99 Cal. App. 541 [278 Pac. 910, 290 Pac. 591], citing earlier cases.) Such court operates under special powers, in conformity with pro[683]eedure prescribed therefor by the juvenile court law, which authorize the consideration by the juvenile court, in cases of this kind, of the written reports and recommendations of the probation officer, which under said law are open to inspection of the interested parties. (Secs. 638, 639 and 640, Welfare and Institutions Code.) In other words, from its very nature and because of necessary qualifications for doing the work for which it is intended, the juvenile court was not designed as a trial court in the ordinary sense; and its method of operation is very different from the one governing in the trial of criminal cases, mainly because technicalities and formalities are largely eliminated.” However, it was also stated in the opinion on the habeas corpus proceeding that there was an adequate remedy on appeal. It may be concluded therefore that if any reason appears to hold that “appellant, as a matter of legal right, was entitled to a dismissal”, it must be found in the inferences that may be drawn from the written reports of the probation officers and the evidence and statements of all parties at the several informal hearings.
The majority opinion seems to hold that because the judge of the juvenile court stated “he felt the children should be sent to their relatives in England”, the matter was one to be heard in probate court. The children have not been sent to England, but if that contingency should arise and it should then be determined that such is the proper course to pursue, having in mind the welfare of the children, there will be time enough to invoke the jurisdiction of the probate court to vacate the order appointing appellant as guardian, which appointment should play but a small part in the consideration of this appeal. The facts in relation thereto are set forth in the opinion in In re Jones, supra, wherein it was held that the juvenile court in San Francisco had obtained jurisdiction in the present matter.
The majority opinion also holds that, irrespective of the guardianship proceeding in Contra Costa County, and that the adjudication thereon has never been set aside, “It may be conceded that even in that situation the jurisdiction of the juvenile court may be invoked where there is destitution and neglect, but as already shown there is no factual basis for such a finding in the present proceeding.” There was no direct finding of neglect. It was not an issue except in [684]so far as it may be presumed as a possibility under the sworn allegation of the petition “that there is no means of support through himself [appellant] or relatives.”
The appellant as guardian, appearing before the juvenile court on a petition to have that court assume custody of the children did not stand in a more favorable light than a parent. When a child becomes a charge upon the state, the state, with due regard to the child’s welfare, should determine the selection of the child’s home. This duty has been imposed upon the judge of the juvenile court by statute. “ . . . from its very nature and because of necessary qualifications for doing the work for which it is intended” (In re Jones, supra, p. 82), the social problems involved should be left to the sound discretion of the juvenile court.
The majority opinion holds that there is “nothing in the juvenile law which may be construed as preventing” appellant from causing a dismissal of the proceeding. There is nothing in the law which requires such action by the court; the matter is purely one of discretion.
The majority opinion does not hold that the judgment was rendered “without any trial”, but mention is made that the bill of exceptions so recites. If any question arises upon this point, there is a proper remedy for correcting the record. Certainly it was an inadvertence on the part of the trial judge to sign the document in which some one had inserted that statement. Such a statement is in conflict with the decision of In re Jones, supra, which is the law of this case.
The majority opinion mentions that under the direction of the probation officer the children “have since remained in separate private homes in different localities”. I find no mention of this in the transcript on appeal. If true, it must have been upon order made after judgment and should play no part in the determination of this appeal. However, its mention in the majority opinion requires comment. Whatever the reason, I am willing to presume, until the record shows to the contrary, that it is sound and good. I am willing to assume that the probation officers, who specialize in child welfare problems, are better informed on matters of this kind than the average layman. It may have been deemed advisable to separate these children for the time being; it may have been thought to their best interests, considering the past bitter prejudices of their mother, as well as appellant [685]with whom they were residing, for their father’s family, that their further exchange of ideas in that regard, as well as perhaps the mulling over of the details of the murder of their mother, was an unhealthy condition. It may have been thought there would be less antagonism toward their father’s people if the children were separated for a time. According to the record on appeal “After Mr. Jones’ death, Mr. Savage continued as a very close friend of Mrs. Jones, and both he and his wife were in close touch with the family when Mrs. Jones met her death. They immediately went to Contra Costa County and took the children with the understanding that Contra Costa County would continue aid for the children in the Savage home. There were two children born to Mr. and Mrs. Jones, Dorothy, born January, 1925 in Oakland, and Bernard, born August 28, 1928, in Richmond. The children had lived with their mother up to the time of her death. At present they are attending St. Peter’s School in San Francisco and have made a very good adjustment in the home of Mr. and Mrs. Savage. There is no question but that the friction between the family of their father and that of their mother has left quite an impression on them, in that we believe that Mrs. Jones constantly prejudiced the children against their father’s people and Mrs. Savage has added to this feeling until at present time both children feel that they do not care to go to any of their relatives.” The only relative on the father’s side living in California was on a trip to England at the time of the death of the mother of the children and she is able and willing to support them; also they should be eligible to part of the paternal grandmother’s estate in Ireland upon her death. Upon the return of this relative to this country, she sought to be appointed guardian. The record shows: “She evidently felt that the matter was not worth fighting over after the children had been turned over to Mr. and Mrs. Savage, and she felt that the children had been so prejudiced against her that it would be difficult for them to adjust in her home. However, after Mr. Savage obtained guardianship she started corresponding with this office and definitely stated she would be willing to give the children a home or would take them to Ireland where their relatives could help provide for them.” This matter is mentioned only because of the reference in the majority opinion
The main question considered in the majority opinion— the sufficiency of the record—is a factual one; namely, are there any inferences that may be drawn from the facts presented to substantiate the finding of the trial court?
The evidence shows appellant took an- oath that the children were destitute. Was that in fact true, or was the oath false ? The record discloses that while no duty devolved upon appellant to support the children, he could have done so. The record also shows, and the majority opinion holds, that in filing the petition alleging destitution his “only purpose” was to obtain state and county aid. The motion to dismiss" was not based upon the fact that appellant had not read or did not know the contents of the petition he had signed, but that he “was not aware of its legal effect”. Appellant was represented at the various hearings on this matter by able counsel.
The judgment declaring the children wards of the juvenile court contains the following: “The above named minor children Dorothy Jones and Bernard Jones having been regularly brought before the above entitled court on the 29th day of March, 1939, upon the verified petition of John Savage their guardian; said children being present and duly represented in Court and the Court having fully examined and considered all of the evidence presented, both in support of, and in opposition to said petition and all and singular the facts and matters appertaining thereto having been fully considered by the court, the court now makes its findings of facts as follows:” The court found that “John Savage, the guardian of said children not able to pay toward the cost of the support and maintenance of said children” and that “all of the statements of fact contained in said petition are true and supported by competent evidence”. In the petition sworn to by appellant it was claimed that “the children are destitute”. Referring to a report of the juvenile court officer, the majority opinion recites “that without the aid the Savages were amply able to provide for the children”. It seems that the conclusion in the majority opinion that the children were not destitute is based upon this report. There was no legal or moral obligation resting upon appellant to support the children. In the sense that the children were [687]at least subject to the charity of appellant, they were destitute. The estate of their mother, with the exception of a small amount remaining under the control of appellant, has been used in part for the expenses of the children. The girl “was left some insurance and a small savings account by her mother, amounting to about $1400. After an elaborate funeral, which cost around $600, and various attorneys’ fees which were paid out of the insurance, there is now in this fund approximately $250.” These facts, together with the sworn statement of appellant that the children were destitute, his statement appearing in the record that “he cannot care for the Jones children without State and County aid for their support”, also that portion of the report in Avhich it appears that he was unable to support the children entirely and that he claimed that “they are eligible to State and County aid regardless of what his income is and what their relatives may be able to do” were sufficient upon which to base the finding of destitution, and in my judgment negatives the statement in the majority opinion that “there is no factual basis for such a finding in the present proceeding”. The probation officer “shall make such investigation as he deems necessary.’’ (Welfare and Institutions Code, sec. 721.) At the times “petitioner with said children appeared in open court”, no objections AAere offered to the filing or the consideration of the reports or statements of the probation officers. The court in its discretion had a right to (Welfare and Institutions Code, sec. 733) consider privately the future, to determine whether the guardian should exercise any control over the ward, to “define the extent of control permitted” and whether the guardian is ca'pable “of providing . . . proper maintenance, training, and education for the person” (Welfare and Institutions Code, sec. 739) “with due regard to the rights and claims of the parents of such person, and to any and all ties of blood or affection, but with the dominant purpose of, serving the best interests of such person.” (Welfare and Institutions Code, sec. 784.)
The whole controversy being factual, from which conflicting inferences may be drawn, I am of the opinion that this court is bound by the judgment.
Since preparation of the above dissent, Presiding Justice Peters has written an opinion concurring in the views expressed by Justice Knight. In addition, the concurring opin[688]ion appears to be a reply to my dissent relative to factual matters. My only comment is that “its [the evidence] weight was for the juvenile court, and not for us.” (In re Stein, 86 Cal. App. 226, 229 [260 Pac. 566].)
A petition for a rehearing was denied June 6, 1941. Ward, J., voted for a rehearing.
Respondent’s petition for a hearing by the Supreme Court was denied June 30, 1941.