In re Gianoli

ADAMS, P. J. On December 3, 1942, Fred M. Gianoli filed herein a petition for a writ of habeas corpus, alleging that his daughter, Roberta Mabel Gianoli, aged fifteen years, was being restrained of her liberty by Floyd Walker and Iola Walker, his wife; that on or about September 1, 1935, petitioner had placed said child with the Walkers and had been paying them for taking care of her; that since said date petitioner had remarried and that he and his wife had repeatedly asked that his daughter be surrendered to him, but that the Walkers had refused. He also alleged that on the 16th day of October, 1942, he had applied to the superior court for a writ of habeas corpus, praying that his daughter be taken from the custody of the Walkers, and that said court had issued a writ, but upon hearing thereof had denied petitioner relief and had remanded said child to the custody of the Walkers.

The writ having issued from this court, respondents produced the minor in court and made a return alleging that the said Roberta had been living with them at their home in Cloverdale for more than six years, that they were entitled to her custody by virtue of certain guardianship proceed[161]ings in the Superior Court of Sonoma County wherein that court, on November 19, 1942, had appointed them guardians of the person of said minor, and that they had duly qualified as such guardians and letters of guardianship had been issued to them on November 21, 1942. Attached to the return, as exhibits thereto, were certified copies of the papers in the guardianship proceeding, including the petition for appointment, nomination of the Walkers as guardians made by the said minor, opposition to the petition filed by Fred Gianoli, the findings and order of the court appointing the Walkers guardians, and the letters of guardianship. They also alleged the filing by Gianoli of a petition for writ of habeas corpus in the .Sonoma County court, and attached to their return, as exhibits, the petition, return and order therein. It was further alleged' in said return, that on November 27, 1942, petitioner had filed notice of appeal to this court from the order appointing the Walkers guardians of said minor.

At the hearing of the petition before this court it was stipulated by the attorneys for the respective parties that the transcript on appeal in the guardianship matter should be considered as the evidence herein.

The findings and order of the court in that proceeding recite that the minor, Roberta Mabel Gianoli, was born on June 13, 1927; that she was and had been for more than six years temporarily domiciled in Sonoma County, during which time she had been living with the Walkers; that said minor had, in writing, nominated the Walkers as her guardians, that no other guardian had been appointed or nominated by her since she had arrived at the age of fourteen years, and that she had no guardian of her person; that the Walkers were fit, proper and suitable persons to have her care, custody and control; that it was necessary and convenient that a guardian or guardians of her person be appointed, and that her nomination of guardians was her free and voluntary act. It was therefore ordered that the Walkers be appointed guardians of the person of said minor and that letters of guardianship issue to them upon their taking the oath of office as such guardians.