Panattoni v. Dana

BRAY, J. From an order of the juvenile court declaring Donald Dana Panattoni free from the custody and control of his father, the father and the paternal grandfather appeal.

Questions Pbesented

1. Was the order of the juvenile court setting time and place of hearing the petition and directing citation to issue a compliance with section 721 of the Welfare and Institutions Code?

2. Did the court abuse its discretion in denying a motion for continuance of the hearing?

Facts

There is no controversy over the facts. Louise Stradi Dana, the maternal grandmother of Donald, the minor, filed a petition in the juvenile court asking that the minor be freed from the control of his father. It alleged that the father, Donald Lawrence Panattoni, was unfit to have - the minor’s custody for the reason that the father was now in San Quentin serving a sentence of from five years to life for the murder of his wife, the child’s mother, whom he beat to death in a room adjoining that occupied by the child. Other charges of unfitness were also set forth. The petition further alleged that the child was now in the actual custody of petitioner. The same day that the petition was filed, an order of the juvenile court was signed and filed. This order is denominated “Order Setting Time and Place of Hearing of Petition and Directing that Citation Issue.” It states: “It appearing that a petition has been filed by Louise Stradi Dana in the above entitled matter, alleging that said Donald Dana Panattoni is a person who should be declared free from the custody and control of Donald Lawrence Panattoni, his father, and praying that the above entitled Court make an order judicially depriving said above named father of the control and custody of said child.” After giving the names of the mother and father of the minor and the fact that the mother is dead and the father in San Quentin, it stated that it appears that the child is now in the custody of petitioner “with whom said child was placed by” the father. It then ordered that the hearing of said petition be set for a certain time and place and that a citation should issue requiring the father to appear at the time and place stated, such citation to be served upon the father.

A written opposition to the petition was filed by the father and by Lawrence Panattoni, the paternal grandfather, and [176]an affidavit by the latter. The answer denied most of the allegations of the petition other than the conviction of the father for the murder of his wife and his incarceration at San Quentin. Both the answer and the affidavit set forth that there was no necessity that the child be declared free of its father for the reason that petitioner had theretofore been appointed guardian of the person and estate of the minor, in a proceeding in which the objectors here had filed a counter-petition seeking such appointment. The affidavit stated that the paternal grandfather and grandmother had filed certain proceedings for the adoption of said minor; that the father had given his consent to such adoption; that the adoption proceedings would be heard as soon as the State Department of Social Welfare had filed its report, and that if such adoption were permitted there would be no necessity for this proceeding. It stated that the sole purpose of this proceeding was to render nugatory the consent of the father to the adoption, and asked that the hearing be continued until after the determination of the adoption proceedings.