Campbell v. Gates

ADAMS, P. J. This is an appeal from an order of the Superior Court of Stanislaus County, granting letters of guardianship of the person of Billy Harold Sloot, aged about 2% years, to Lome A. Campbell, great-uncle of the boy. Appellant, who is the mother of said child, opposed the application of petitioner. The court made no findings.

The testimony shows that on January 17, 1947, an interlocutory divorce decree was entered in Santa Clara County, in an action between appellant and her former husband, Henry Sloot, which decree awarded the custody of the child to his mother, and ordered Sloot to pay her $20 per month for its support. Two days later Sloot called respondent to come to Mountain View, where the Sloots had been living, and get the child, which he did. On this proceeding respondent testified that he consented to take the child only on condition that he should adopt it. Sloot then secured the attorneys who had represented him in the divorce proceedings to start adoption proceedings on behalf of respondent, and they secured appellant’s consent to such proceedings within the next five [297]days. However, in July following, appellant refused her consent to such adoption, and the proceedings were never completed.

On May 19, 1947, Mrs. Sloot, having established residence in Nevada, obtained a decree of divorce from Henry Sloot, and shortly thereafter she married Alfred B. Gates, in Nevada. She and her husband then returned to California and sought to secure the child from respondent. They were refused, and Mrs. Gates, and her mother who accompanied her to respondent’s home, were refused permission to see the child. Respondent even called the sheriff who came but took no action.

On August 15, 1947, Mrs. Gates sought, by habeas corpus proceedings brought in Santa Clara County, to secure possession of her child, but the proceedings were dismissed for lack of jurisdiction. On September 10, 1947, she began a similar proceeding in Stanislaus County but the writ was discharged for reasons not shown by the record before us. On December 2, 1947, this proceeding was begun and resulted in the issuance of letters of guardianship to respondent.

As previously stated, the trial court made no findings; there is, therefore, no finding that it was necessary or convenient that a guardian be appointed, and no finding that appellant, the child’s own mother, is not a fit and proper person to have his custody. And it may be well said that there is nothing in the record before us which could sustain such a finding. Under these circumstances the judgment must be reversed. Section 197 of the Civil Code provides that: “The father and mother of a legitimate unmarried minor child are equally entitled to its custody, services and earnings. If either the father or mother be dead or unable or refuse to take the custody or has abandoned his or her family, the other is entitled to its custody, services and earnings.'”