Truschke v. La Rocca

SALSMAN, J. John F. Truschke III appeals from a portion of a judgment which denied his petition for appointment as guardian of bis illegitimate daughter. The trial court [77]found that John had failed to legitimate his child in conformance with the requirements of Civil Code section 230.

The principal issue on appeal is whether appellant by his conduct succeeded in legitimating his natural daughter.

The facts are not in dispute. John Truschke and Suzanne Marie La Rocea met when Suzanne was 16 years of age and John was 18. About four months after they first met they agreed to marry. Suzanne’s father objected. Suzanne became pregnant with John’s child and her father placed her in St. Elizabeth’s Home in San Francisco to await the birth of her baby. John continued to see Suzanne. There was testimony that the young couple discussed marriage while Suzanne was at St. Elizabeth’s and planned that John would take care of the baby until Suzanne reached her 18th birthday, at which time they would marry. Suzanne was transferred from St. Elizabeth’s to St. Mary’s Hospital without John’s knowledge, but John discovered Suzanne’s whereabouts and continued to see her twice a week for an hour a day until their daughter was born.

Before the birth of the baby John bought a crib, baby clothes and other things necessary for the care of an infant. He spent approximately $310 for these items.

After the birth of the baby Suzanne decided not to marry John and refused to give him the child. She told John that she was “. . . going to put the baby up for adoption. ”

At no time did John have physical custody of the baby. He did not physically receive the child into his home, and in fact saw the child only once.

Suzanne placed the child in pre-adoptive foster care, but at the time of trial she had not signed any final relinquishment. Before filing his petition for guardianship, John executed and filed an affidavit in which he acknowledged paternity of baby Suzanne Marie.

Appellant contends that Civil Code section 230 does not require that he take his child physically into his family circle in order to comply with its terms, and that on facts here present, he has fully complied with the provisions of that code section in that the child was constructively brought into his family circle. We do not agree.