In Re Green

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 716 This proceeding for the appointment of a guardian of the person and estate of a minor child, Margretta Green, culminated in the court below in an order directing the issuance of letters of guardianship to the respondent, Gretta M. Banks, a half-sister of the mother of the child. The mother, Beulah Green Footman, resisted the petition for guardianship and appeals from the order.

The facts brought forth at the hearing of the petition and pertinent to the point presented upon the appeal, succinctly stated, are these: Neither at the time of the birth of the child nor at any time thereafter did the mother and father live together, and in 1912 the mother obtained a final decree of divorce which awarded to her the custody of the child. The father makes no claim to its custody. Shortly after the birth of the child, in Oakland, appellant, being destitute, went with the child to a ranch in Sonoma County, *Page 717 where they lived for a time with her family, which consisted of her mother, Mrs. Peterson, a half-brother and three half-sisters. As soon as she felt her strength returning she and the child, her mother, and her half-brother went to Berkeley to live, where her mother, Mrs. Peterson, kept house and cared for the child while appellant worked to support the family. For a part of the time appellant worked in a cannery. The child was taken back to the ranch and cared for by respondent on two occasions, once when Mrs. Peterson was ill and asked respondent to come and get the child, and once when Mrs. Peterson and appellant went to Los Angeles. Upon their return from Los Angeles Mrs. Peterson went to the ranch to get the child, and at that time respondent and her husband objected to the child being moved back and forth so often and insisted that either they or appellant must keep her. Appellant's half-brother testified that when appellant was informed of this she "kind of objected in a way. She said it was pretty hard to give up the little one. . . . We used to talk it over quite a bit, what a nice little girl she was. And she was working, I think, at the Golden West Hotel, and she worked at various places, but she never had, you might say, a home and under those circumstances she admitted lots of time that Margretta was better off where she was." Mrs. Peterson, appellant's mother, testified that when she returned to Berkeley and told appellant of respondent's suggestion, "She studied awhile and said 'Maybe it would be the best thing to do.' " After that appellant went to Iowa to study nursing. Before leaving she went to the ranch where the child was. Evidently there was some conversation concerning the child. However, about the only evidence of this conversation is respondent's statement, "I told her I must have her to raise in my own way. You see that has been ten years ago . . . and I cannot recall the exact conversation and it seems as though my sister answered, 'Of course,' that is, in my mind that she answered 'Of course.' " Leaving her child in her half-sister's care, appellant went to Iowa, where she studied nursing until forced to return to California in 1913 because of ill health. After her return to California, and until December, 1917, appellant underwent a series of serious operations for the purpose of removing a condition brought about by neglect at the time her child was born. The operation *Page 718 left her in a very weakened condition and unable to work during a great part of the time. Whenever her health would permit she obtained employment, chiefly as a nurse in a physician's office, but, due to the irregularity of these periods, she was scarcely able to earn money enough to support herself. Appellant was twice married, but neither marriage turned out successfully. During neither marriage did appellant have a permanent home nor was she entirely relieved of the necessity of working to support herself. The operation performed in December, 1917, proved successful, and since that date appellant's health has vastly improved. In 1918 appellant was employed as a nurse for the state compensation fund. While in this position she met her present husband, who, in September, 1918, engaged her to care for his home and his two motherless children, in the city of Oakland. In 1920 appellant and Mr. Footman were married, and appellant, having a permanent home for the first time since the birth of her child, wrote to respondent, stating that she and her husband would take Margretta into their home. Respondent thereupon filed the present petition for letters of guardianship. There is some conflict in the evidence as to the number of times that appellant sent gifts to the child. It is an admitted fact in the case that appellant contributed nothing to the child's support, but it also appears that appellant was never requested to do so, and further, that not only did appellant have no permanent home in which to receive the child until her present marriage, but that at no time did she have any funds with which to support the child except that, shortly before the child was left with respondent, she received six hundred dollars in a suit for alienation of affection against the father of her first husband. Part of this money was used to pay the expenses of respondent's wedding, part for a trip which appellant and her mother took to Los Angeles, and part to help pay appellant's expenses while studying at the hospital in Iowa. It appears also from respondent's testimony that from time to time appellant visited the ranch where the child was, and that "she has visited her more frequently the last three years (that is since March, 1918) than before." Appellant herself states that she went to see the child every chance she got and as often as her illness and lack of funds would permit. *Page 719 This summary of the evidence leads to a consideration of the grounds upon which the court awarded the guardianship to the half-sister of the mother of the child. Section 1751 of the Code of Civil Procedure provides: "The father or mother of a minor child under the age of 14 years, if found by the court competent to discharge the duties of guardianship, is entitled to be appointed a guardian of such minor child, in preference to any other person . . ." Upon the question of the competency of the mother, the court below found "that since contestant's marriage to her present husband, Henry E. Footman, in July, 1920, she has been and now is a fit and suitable person to become the guardian of said minor." Thus there is removed from this appeal all question of the fitness and competency of appellant. [1] In view of this finding, any findings concerning the fitness or unfitness in the past are mere surplusage, for the determining factor in cases of this character is the parent's fitness for guardianship at the time of the hearing of the petition. (Guardianship of Snowball, 156 Cal. 240 [104 P. 44].) This proposition is not seriously questioned by respondent, who relies primarily for an affirmance of the order appealed from upon the finding that appellant "failed and neglected to contribute in any material extent to its (the child's) maintenance or care, she having the ability to do so; and that contestant at said time abandoned said child, and has thereby forfeited her rights to the custody or guardianship thereof."