Nash v. Reznick

SHINN, P. J. Appeal on the judgment roll by petitioners, Philip L. Nash and Marjorie M. Nash, from an order granting a new trial in a proceeding to have minor declared free from custody of parents.

Mr. and Mrs. Nash filed a petition in juvenile court under the provisions of section 701 of the Welfare and Institutions Code to have Larry Lee Nash, aged 3, declared free from the custody and control of his natural mother after she had refused to consent to the adoption of said child by petitioners.

Section 701 and subdivision (a) read as follows: “The jurisdiction of the juvenile court extends also to any person who should be declared free from the custody and control of either or both of his parents. The words ‘person who should be declared free from the custody and control of either or both of his parents’ shall include any person under the age of 21 years who comes within any of the following descriptions : (a) [Minor left in another’s custody.] Who has been left by either or both of his parents in the care and custody of another without any provision for his support, or without communication from either or both of his parents, for the period of one year with the intent on the part of such parent or parents to abandon such person. Such failure to provide, or such failure to communicate for the period of one year, shall be presumptive evidence of the intent to abandon. Such person shall be deemed and called a person abandoned by the parent or parents abandoning him. ’ ’

The child was born to respondent, Ethel Hendrickson, then an unmarried woman, on February 18,1946. She entered the hospital under the name of Marjorie M. Nash and gave the name of the father of the child as Philip Nash and the child’s birth certificate was made out accordingly. The child was then given into the care and custody of the petitioners, Mr. and Mrs. Nash and the natural parents, Ethel Hendrickson and Morris Reznick (who are now married) contributed nothing to his support. The trial court found that respondents, parents of said child, abandoned him, and concluded that he should be declared free from their custody and control.

Respondents moved for a new trial on the following grounds: “(1) Irregularity in the proceedings of the adverse party, by which citees were prevented from having a fair trial; (2) accident or surprise, which ordinary prudence could not have guarded against.” The motion was granted for the latter reason.

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