Matter of Cannon

CHIPMAN, P. J.

Petitioner, H. T. Cannon, father of the above-named persons, all of whom are minors, seeks to set aside a judgment of the juvenile court of San Joaquin

[551]

County, duly made and entered October 1, 1913, adjudging them to be neglected persons.

The court denied the petition in so far as the custody and care of the female children are concerned but granted the petition as to the two boys, Frank and George, on condition that said Cannon first “convince the court of his wish and intention in good faith to provide for the support of the said sons by paying to Albert Eckstrom, the registrar of Associated Charities of the county of San Joaquin, state of California, the sum of eight dollars per month for a period of three months, payable on the first of each month beginning with the first day of October, 1914, for the maintenance and support of his son George, at the Children’s Home, in Stockton, California, where he now is.” Petitioner appeals from this judgment.

Appellant challenges substantially all the findings of fact and conclusions of law and claims that, inasmuch as he as the parent never consented to having the custody of his children taken from him, the court, under section 29 of the Juvenile Court Law of 1913 (Stats. 1913, p. 1285), was without jurisdiction to make the order of October 1, 1913. The section provides as follows: “No neglected . . . person shall be taken from the custody of his parent . . . , without the consent of such parent . . . , unless the court shall find such parent ... to be incapable of providing, or to have failed or neglected to provide proper maintenance, training and education for said person; and in no case unless the parent . . . (be found?) to be incapable of providing, or to have failed or neglected to provide proper maintenance, training and education for said person.”

Appellant claims that the rule required to be met, under section 224 of the Civil Code, for the adoption of a minor, applies here as that rule is laid down

In the Matter of Cozza,

163 Cal. 514, 522, [Ann. Cas. 1914A 214, 126 Pac. 164], where it was held that “consent lies at the foundation of adoption” and that “unless said consent is given, or for the exceptional causes expressly enumerated, the court has no jurisdiction in the matter.” The proceedings leading to the order of October 1, 1913, are not in the record. The order is there found and states that the children above mentioned “be and each of them is hereby declared to be neglected persons and that they be placed on probation and committed to