Kiles v. Soutar

DORAN, J. The present appeal is from a judgment appointing Edward D. Soutar as guardian of the person of Christine Joyce Kiles who is the minor child of the appellant, Prank Cortez Kiles. Edward D. Soutar is the maternal grandfather of the child. Christine Joyce Kiles was born August 12, 1944, to appellant and Jean Marie Kiles, husband and wife. Prom the briefs of both parties it appears that on December 2, 1945, at Long Beach, California, the appellant “shot and killed his wife, Jeanne Marie Kiles, the mother of said minor child.” Immediately thereafter Edward D. Sou-tar, the maternal grandfather, placed the child in the home of Mr. and Mrs. D. C. Gann of Long Beach where the child now resides.

On December 14, 1945, the respondent grandfather filed a petition setting forth the above facts and asking to be appointed guardian. On December 25, 1945, the appellant [752]father, then incarcerated in the county jail, filed an answer and objection praying that “the petition of Edward D. Sou-tar for appointment of himself as guardian ... be denied, and that contestant herein, Frank Cortez Kiles, father of said minor, be appointed guardian of the person” of said child. The father further asked “That said minor be temporarily placed in the custody of her paternal grandparents, Frank Cortez Kiles, Sr., and his wife, at Dacota, California, until the criminal action now pending against contestant be finally disposed of.”

The matter came on for hearing on December 24, 1945, and was then continued until January 25, 1946, and again until January 31, 1946, for the purpose of obtaining reports of the Juvenile Department concerning the appellant’s parents, Mr. and Mrs. Joseph M. Kiles, Sr., and for the taking of further testimony. After hearing all the evidence, the trial court found “that the said Frank Cortez Kiles is not a competent, fit or proper person to have the custody of said minor child. . . . that on February 26, 1946, the said Frank Cortez Kiles was sentenced to, and is now confined in, the State Penitentiary at San Quentin, California, upon his plea and the finding of the court that he was guilty of murder of Jeanne Marie Kiles.” The court further found that Edward D. Soutar, the maternal grandfather, was a proper person to be appointed guardian of the minor child, and rendered judgment accordingly.

The appellant’s brief states the question involved on this appeal as follows: “Was the trial court guilty of an abuse of discretion in granting the petition of the maternal grandfather of a two-year old motherless, female, minor child, for Letters of Guardianship of the person of said child, over the written protest and objections of the natural father of said child.” Appellant’s main contention is “that the testimony of the petitioner and respondent (Edward D. Sou-tar) shows clearly and concisely that he was in no position, due to his home surroundings to perform the duties incident to the trust imposed, and that if granted letters it was his intention to place the child in the care and keeping of a Mr. and Mrs. Gann, non-relatives of the child, permanently, or to use his own words ‘as long as it lives.’ ”