Bayes v. A. J.

CHRISTIAN, J. This appeal, brought on behalf of A. J., a boy aged 13, attacks an order of the juvenile court adjudging him a dependent child under section 600, subdivision (b) of the Welfare and Institutions Code1 upon a finding that, as [201]alleged in the amended petition, ‘ ‘ The home of said minor is an unfit place for him by reason of the depravity of his mother, in that the mother is . . . co-habiting with a man not her husband. ’ ’

The only evidence received at the jurisdictional hearing was the testimony of the minor’s mother and the man with whom she is living, establishing the following facts:

1. Their cohabitation had continued for several months and the adulterous relationship had produced one infant, with another expected.

2. The mother had left her husband (appellant’s father) when ‘ ‘ he tried to give me away to another man. ’ ’

3. The mother desires to get a divorce but cannot meet the cost on her welfare grant. Both the mother and the man with whom she is living testified that they plan to be married when she obtains a divorce.

Hearing this evidence, the judge declared that “an adulterous cohabitation is ipso facto depravity in the home” and, without further inquiry, made an order determining appellant’s dependency under Welfare and Institutions Code section 600, subdivision (b). The order also commits appellant to the care, custody and control of the probation officer for placement in a foster home or institution.

Citing In re Raya (1967) 255 Cal.App.2d 260 [63 Cal.Rptr. 252], appellant contends that the evidence does not support the order of dependency. In Raya, the facts were similar to ours. Poverty had prevented the mother from obtaining a divorce and marrying the man with whom she was living; the relationship with that man was " stable, not casual or promiscuous; ...” (255 Cal.App.2d at p. 266.) The Court of Appeal held that this evidence was riot sufficient by itself to support an adjudication of dependency under section 600, subdivision (a). 2 The court concluded, from an analysis of the purposes and history of the Juvenile Court Law in relation to the “dominant parental right to custody of the child,” that “before section 600, subdivision (a), authorizes the drastic step of judicial intervention, some threshold level óf deficiency is demanded. Although a home environment may appear deficient when measured by dominant socioeconomic