In Re Cordy

The court is of the opinion that the part of section 224 of the Civil Code upon which the respondent relies, does not state all of the elements necessary to constitute abandonment, but only defines the circumstances under which *Page 151 the juvenile court can take charge of cases of that kind and determine whether or not there has been an abandonment, and that one of the things necessary to be shown to constitute abandonment is intent on the part of the parent to abandon the child. This evidence does not show such intent. It should be said that the lack of intent is not conclusively shown by the bald declaration of the parent — the mother — that she did not intend to abandon the child. If the circumstances and facts show that she did have such intent, her declaration would not be conclusive. The opinion of the district court of appeal is satisfactory to the court, and for the reasons therein given, in addition to those I have just stated, the judgment is reversed.

The following is the opinion of the district court of appeal of the first appellate district, rendered on May 21, 1914, and adopted and approved by the supreme court:

This is an appeal from on order of the juvenile court of the county of Alameda determining Florence Cordy to be an abandoned child within the meaning of section 224 of the Civil Code. The appeal is prosecuted by the mother of the child.

The practically undisputed facts in the case are these: In the early part of the month of April, 1906, the appellant, Mrs. Annie Cordy, who was then living in San Francisco with her husband and their three children, who were respectively four years, two years, and ten months old, was deserted by her husband, who disappeared, and has not been seen or heard of since. He left his family entirely destitute, and the mother was obliged to turn the children over to the care of a charitable institution and go out to work. This was about three weeks before the earthquake and fire of that year. In that disaster the youngest child, Florence, was badly injured, and was found by its mother in the county hospital. She took the child and nursed it back to health, and then gave it to a Mrs. Zane to keep for her, promising to pay ten dollars a month for its board. The child was soon returned, and was then placed with another friend, who cared for it a few weeks, and it was then transferred by its mother to Mrs. Condiff, because, as the mother says, she was herself poor and destitute. The latter kept the child for a brief period, when a certain Miss *Page 152 Smith became interested in the welfare of the child, and proposed to Mrs. Condiff to find a home for it. This she did with a family without children named Thurston, who are the respondents here, but upon the understanding apparently that the mother was not to know the whereabouts of the child. When the mother next came to Mrs. Condiff to see her child she was directed to Miss Smith, who declined to tell her where it was, but agreed to have it brought to her rooms occasionally, where the mother might visit it. This arrangement was carried out for some time until Miss Smith became lax in sending for the child, and finally refused to let the mother come there to visit it, and also refused to inform her where the child could be seen. The mother finally located the child at the home of the Thurstons, which was then in San Francisco, and went there, but was denied permission to see the child. Shortly thereafter the Thurstons removed from the city, and the mother again lost track of her daughter; until, persisting in her search, she finally learned indirectly that the Thurstons were in Berkeley; and going over there and searching through the directory she at length found their address, and went to their home in her endeavor to see the child. Her request was at first refused but was at length yielded to, and the mother for the first time in several years saw her little girl; and also saw that she was in a good home and was being cared for and nurtured in comfort and even luxury. The child did not know her as its mother; and Mrs. Thurston says that after seeing the state of the child she requested that it should never be told that she was its mother. This Mrs. Cordy denies; but even if true it is only to be taken as another example of the self-effacement of mother love. She was presently asked to consent to the Thurston's adoption of the child, and at first did so, but on the next day retracted her consent and refused to sign the adoption papers; however, finding that the Thurstons were willing and anxious to keep the little girl and that it would wring their hearts, as Mrs. Thurston said, to let it go away; and being herself still very poor and sick and destitute and without a home, she left the child with the Thurstons, with the understanding that she could occasionally come and see it. This she did for about three years, when, her financial state improving through her own labors and those of her two elder children, whom she had managed to reclaim, she concluded that she would reunite her family; *Page 153 and hence went to the Thurstons with the request that they deliver her the child. This they refused to do, and a legal struggle for the possession of the child was begun on both sides, the mother applying for a writ of habeas corpus, and the Thurstons instituting adoption proceedings, and in aid thereof petitioning the juvenile court to have Florence Cordy declared to be an abandoned child. It is from the order therein made in their favor that this appeal has been taken.