Marmaduke v. Hilyard

On March 17, 1931, respondent was appointed guardian of the person and estate of Elayne Marmaduke, then aged about nine years. On September 16, 1931, J. Morgan Marmaduke, father of said minor (the mother is dead) filed a petition to have such appointment vacated and revoked and to have the custody of said child awarded to him. The superior court held against him and we are considering his appeal.

Some legal points are presented, but they all merge into the question of fact upon which the trial was had, to wit: Is appellant, under all of the circumstances obtaining, a fit and proper person to have the custody of the child? Appellant in effect concedes that he must show present conditions *Page 451 to be so much better than those found in the guardianship proceeding as to justify a contrary holding. We shall briefly sketch the court's findings: In July, 1928, appellant was placed on probation for issuing fictitious checks. One of the probation requirements was that appellant remain out of California for ten years and he went to Kansas City, Missouri, taking Elayne with him. Parenthetically we here desire to express our doubts as to the legal rights, and our emphatic condemnation of the policy of American courts issuing decrees of banishment to citizens under any combination of circumstances. In the summer of 1929, respondent, with the knowledge, consent and request of appellant, returned Elayne to Los Angeles, California, and upon his request delivered her to his wife, Jean Marmaduke. Shortly thereafter the minor was taken from Jean Marmaduke by the juvenile court, declared a ward of the court and placed in the custody of Mr. and Mrs. William H. Stubblefield, her maternal grandparents, and parents of respondent. Respondent lives with the Stubblefields and the minor is well cared for in the home. The minor lived with appellant, his wife Jean Marmaduke, and her son, about the age of Elayne, from November 24, 1928, to July 13, 1929. During this period the minor was kept in a "filthy, unclean and unkempt condition"; sleeping part of the time with the said son, who frequently soiled the bed with urine. Also part of the time she slept in a room with Mr. and Mrs. Marmaduke and observed sufficient happenings to suggest lewd practices on her part. She was caused to do work beyond her years and she witnessed quarrels and a physical encounter between appellant and his wife. Whisky was drunk in her presence and she was urged to drink it. She was not sent to school. She was whipped unnecessarily by Mrs. Marmaduke. She was given insufficient nourishment, and her stepmother used profane language in her presence. While appellant was under probation he passed checks to which he forged his father's name and his parents paid out ten or twelve thousand dollars on such account. Appellant is of a weak character and the conduct of father and stepmother is "below that which is ordinarily found in a well-conducted home". The testimony shows that appellant has not contributed in any way to the minor's support since the appointment of the guardian. *Page 452