Kirkner v. Simpson

BARNARD, P. J. These are appeals from orders granting the petitions, respectively, in an abandonment, an adoption, and a guardianship proceeding, involving a girl baby born on April 28, 1944, at the Loma Linda Hospital. The attending physician was Dr. Loleta Simpson, a member of the staff of this hospital, and she was assisted by her sister Dr. Winea Simpson, who is the petitioner here. We will refer to them as Dr. Loleta and Dr. Winea.

The parents of the child are P. M. Kirkner, who has never been divorced from his wife, and Mrs. Bitzner, a widow. These parties have lived together as man and wife since 1942, and Mrs. Bitzner’s son Billy, who was 11 years old at the time of the trial, has lived with them. Mrs. Bitzner took the name of Kirkner and, for convenience, will be referred to as Mrs. Kirkner.

Mr. and Mrs. Kirkner operated a summer resort at Warren, New York. In October, 1943, they came to Palm Springs for the winter. In November, Mrs. Kirkner was examined at Loma Linda by Dr. Loleta, who ascertained she was pregnant. Dr. Loleta then had some six consultations with Mrs. Kirkner before labor began and several with Mr. Kirkner. Mrs. Kirkner entered the hospital'on April 26, 1944, informing Dr. Loleta that they were anxious to return to New York and at her request measures were taken to hasten the birth of the baby, which was born on April 28, 1944. Mrs. Kirkner left the hospital on May 7, and they left by automobile for New York on May 13, 1944. The baby was given by Dr. Loleta to the petitioner, Dr. Winea, about June 1, 1944. She named it Marguerite but later changed the name to Gilda, to comply with a request made by Mrs. Kirkner.

Mr. and Mrs. Kirkner spent the next winter in Florida and returned to California in November, 1945. They remained near Palm Springs until the middle of February, 1946, when they returned to New York. They again returned to California on November 7, 1946. In the meantime, neither Mr. nor Mrs. Kirkner had paid anything toward the support of [485]the child, had made any effort to see it, or had made any serious attempt to find out where it was or who had it.

On February 2, 1946, Dr. Winea filed her petition for adoption. After their return to California in November, 1946, Mrs. Kirkner filed a petition for a writ of habeas corpus for the purpose of obtaining custody of the child. Shortly thereafter, Dr. Winea filed a petition for the appointment of herself as guardian of the person of the child and a petition for an order declaring the child free from the custody and control of its parents, pursuant to the provisions of chapter 2, part 1, division 2 of the Welfare and Institutions Code. Mrs. Kirkner filed an answer to each of the other petitions. By stipulation, the four matters were heard together and Mr. Kirkner was joined as an objector. Apparently the petition for writ of habeas corpus was denied. In any event, the court found in all respects in favor of Dr. Winea and all three of her petitions were granted. Both Mr. and Mrs. Kirkner have appealed from each of these orders.