Creely v. Creely

NOURSE, P. J.

This is an appeal from an order of the Juvenile Department of the Superior Court of San Francisco County decreeing George Vincent Creely to be an abandoned child free from parental custody and control. After appellant’s brief was filed the respondent failed to file her brief within the time prescribed by the Rules on Appeal. Notice was duly given in accord with rule 17(b), and the case was thereafter submitted upon appellant’s opening brief.

Appellant and his wife separated on or about December 30, 1927, when their child, George Vincent Creely, was one year of age. He is now over eighteen and is about to be in-, ducted into the military service. Mrs. Creely moved from their Los Angeles home to San Francisco and in the early part of 1928 went with her son to live with Maberyl B. Olvera, the petitioner herein. She filed a divorce action in that year but the decree was never obtained. On January 7, 1931, Mrs, Creely signed a written consent to the adoption of the boy by Mrs. Olvera and shortly thereafter disappeared. Petitioner has had sole custody of the minor since 1929, and has raised and supported him during this period. On January 6, 1944, Mrs. Olvera filed her petition to have George Vincent Creely declared an abandoned child. George J. Creely, the

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father, appeared and contested the action. After hearing the matter and the testimony on both sides the court entered its findings and order in accordance with the petition.

Proceedings to declare a minor free from parental control are governed by section 701 of the Welfare and Institutions Code which reads in part as follows: ‘ ‘ The jurisdiction of the juvenile court extends also to any person who should be declared free from the custody and control of either or both of his parents. The words ‘person who should be declared free from the custody and control of either or both of his parents ’ shall include any person under the age of 21 years who comes within any of the following descriptions:

“(a)

(Minor left in another’s custody.)

Who has been left by either or both of his parents in the care and custody of another without any provision for his support, or without communication from either or both of his parents, for the period of one year with the intent on the part of such parent or parents to abandon such person. Such failure to provide, or such failure to communicate for the period of one year, shall be presumptive evidence of the intent to abandon. Such person shall be deemed and called a person abandoned by the parent or parents abandoning him.”