Garrett v. Duncan

SHEPARD, J.

This is an action by which the above-named plaintiff seeks to have it declared that defendant Carl Duncan is not her father, that she was not legitimated by the marriage of defendants, and that plaintiff is emancipated from the control of defendants because of abandonment. The trial court on conflicting evidence found against the plaintiff and in favor of the defendants.

The preliminary facts of this action are the same as those appearing in 4 Civil Number 6135,

ante,

p. 291 [1 Cal.Rptr. 459] (1960), filed today by this court.

Here, plaintiff petitioned, through her guardian ad litem, to be declared free from the custody and control of the defendants. This petition was denied, the trial court being of the opinion that neither of the defendants had neglected or abandoned plaintiff to the extent required by section 701, Welfare and Institutions Code, and that both of the defendants were fit to have custody of the child. In addition, the trial court

[298]

found that it would be for plaintiff’s best interest to be returned to the defendants.

It should be noted at the

very

outset

that

the findings of the trial court below that the defendants were fit and proper to have the care, custody and control of plaintiff and that it is in plaintiff’s best interests to be returned to their care, custody and control are mere surplusage and of no force and effect. An order for guardianship is still in full force and effect. The questions of best interest and parental fitness are not issues in an action to have a minor declared free from the custody and control of its natural parent on the grounds of abandonment.

(In re Bisenius

(1959), 173 Cal.App.2d 518, 521 [1] [343 P.2d 319].) The question of whether or not these parents deserted the plaintiff without provision for its identification as is provided in Civil Code, section 224, paragraph 2 was likewise not an issue before the trial court. Consequently, the findings with respect to best interest and parental fitness and purporting to direct custody to the parents are outside the issues, a nullity, and must be disregarded.