B. G., In re

• Decision Date: 20 June 1974
• Citation: 11 Cal.3d 679,523 P.2d 244,114 Cal.Rptr. 444
• Parties: , 523 P.2d 244 In re B.G., et al., persons coming under the juvenile court law. Vlasta Z., Plaintiff and Appellant, v. SAN BERNARDINO COUNTY WELFARE DEPARTMENT et al., Defendants and Respondents. L.A. 30181. In Bank
• Court: California Supreme Court

Page 444

114 Cal.Rptr. 444

11 Cal.3d 679, 523 P.2d 244

In re B.G., et al., persons coming under the juvenile court law.

Vlasta Z., Plaintiff and Appellant, v. SAN BERNARDINO COUNTY WELFARE DEPARTMENT et al., Defendants and Respondents.

L.A. 30181.

Supreme Court of California,

In Bank.

June 20, 1974.

Slaff, Mosk & Rudman and Edward Mosk, Los Angeles, Vinnedge, Lance & Glenn and Gary V. Spencer, Ontario, for plaintiff and appellant.

Robert H. Mnookin and F. Raymond Marks, Berkeley, as amici curiae on behalf of plaintiff and appellant.

No appearance for defendants and respondents.

David Keene Leavitt, Beverly Hills, as amicus curiae on behalf of defendants and respondents.

TOBRINER, Justice.

Bedrich G. fled Czechoslovakia in 1968 with his two children and entered the United States as a political refugee. After Bedrich died in 1969, the juvenile court took jurisdiction over the children and placed custody with foster parents in California. Their mother, a resident of Czechoslovakia, now seeks to recover custody of her children. The juvenile court, however, ruled that the best interests of the children would be promoted by continuing their placement with the foster parents; the mother appeals from that order. ¹

The present case is the first juvenile court custody dispute to come before us since passage of the Family Law Act in 1969 and the only reported case, to our knowledge, in which a superior court has awarded custody to a nonparent against the claim of a parent expressly found fit to care for the children. These circumstances compel us to inquire into the relationship of the Family Law Act to custody proceedings under the Juvenile Court Law. We have concluded that Civil Code section 4600 governs custody awards in juvenile court proceedings, and that under this section it is no longer essential that a court, to award custody to a nonparent, find the parent unfit to care for the child. Such an award, however, must be supported by an express finding that parental custody would be detrimental to the child and that finding must be supported by evidence showing that parental custody would actually harm the child.

We summarize briefly our resolution of the issues raised by this appeal. First, we observe that although the juvenile court failed to notify the mother of her right to appear at the 1969 jurisdictional hearing, the mother has waived that omission and consented to the jurisdiction of the court. We also confirm the ruling of the superior court granting the foster parents' standing to appear as parties in this proceeding. We cannot, however, affirm the order of the juvenile court awarding custody to the foster parents, since that order does not conform to the requirements of section 4600. The court rendered no finding that an award of custody to the mother would be detrimental to the children; its opinion, moreover, strongly suggests that the juvenile court decided the question of custody solely on the basis of the 'best interests' of the children, without applying the principle that an award of custody to the parent is the preferred disposition, and that a contrary result requires a showing that such custody would be actually harmful to the child. We therefore reverse the order of the juvenile court and remand the cause to that court for further proceedings.

1. The facts.

V.G. and B.G. (hereinafter referred to as the children) were born in Czechoslovakia in 1963 and 1964, respectively, the children of the marriage of Bedrich and Vlasta G. In August 1968, shortly after Soviet troops occupied Czechoslovakia, Bedrich, their father, fled the country with his two children. Vlasta, their mother, did not consent to the children's departure not did she know about it until she arrived home from work. The father took the children to Munich, West Germany.

The father remained in Munich for about six months. During this period he attempted to persuade his wife to join him; she, in turn, sought to convince him to return to Czechoslovakia with the children. ²

In March 1969, the father's mother and stepfather (hereinafter referred to as grandparents, grandfather or grandmother), residents of Yucaipa, California, sent the father funds to enable him to come to the United States. The father and children flew to California and entered the United States as political refugees. They went to live with the grandparents; the father found employment and arranged for day care for the children with neighbors, Roy and Madeline Smith. Three weeks after his arrival in California the father collapsed; a medical examination revealed terminal cancer. In June 1969, the father, who was then too weak to write, dictated a 'will' to an interpreter in which he stated that the children should remain in the United States. ³ The father died on July 8, 1969.

The mother, who was injured in an automobile accident in November 1968, was still recuperating in May 1969, when she first learned that the children's father was seriously ill. The grandparents sent her an airplane ticket but apparently failed to supply the necessary documents to secure a visa. ⁴

The probation department, informed that the father had died and that the children were staying with the Smiths, who had applied for a foster home license, scheduled a dependency hearing. The department did not orally contact the grandparents, who could not be reached because of their work schedules, but sent them notice of the dependency hearing by mail. It did not notify the mother or any agency, such as the embassy, that might reasonably be expected to forward notice to the mother. ⁵

On August 29, 1969, the minors appeared in juvenile court in response to petitions filed by the social worker. The petitions states that: (1) the father had died in California; (2) the 'mother's exact whereabouts is unknown; she is presumed living in Czecholovakia'; and (3) the children are Czechoslovakian nationals. The court found the allegations true, adjudged the minors dependent children of the juvenile court, and placed them in the custody of the welfare department to be maintained in the home of the Smiths as their foster parents. ⁶

During the next two years the children resided with the foster parents. The matter came before the court for annual review in August 1970, but the mother received no notice of this proceeding; the court confirmed the disposition established by the August 1969 order. During this period the mother and grandmother continued to exchange correspondence, but the mother was never informed that the children were living with foster parents or that they were subject to court supervision. On September 27, 1970, the mother remarried. She continued her efforts to secure help from the Czechoslovakian Red Cross, the Brno Office for the Protection of Children, the Ministry of Foreign Affairs and the Czechoslovakian Embassy in Washington, D.C.

In December of 1970, the grandparents visited the welfare department and informed the department that they had received letters from the Czech Embassy indicating that the embassy thought the children were living with the grandparents and had engaged an attorney to institute proceedings to return the children to their mother. In re-examining the file, the social worker discovered an envelope with the mother's address on it, which apparently had been received some time earlier.

The matter again came before the court for annual review in August 1971. The court, now aware of the mother's desire to regain custody of her children, continued the case for 30 days. After further continuances, the mother appeared by counsel on November 4, 1971, acknowledged the personal and subject matter jurisdiction of the court, and requested the court to exercise that jurisdiction by transferring custody of the children to her. The court ordered that the children would be continued as dependent children of the court, in the custody of the probation officer, but to be maintained in the home of the mother.

The Czech Embassy arranged for the children to fly to Czechoslovakia on November 18, and the parties agreed that a welfare worker, the grandparents, and the foster parents would bring the children to the airport. On November 18, however, the children disappeared. The grandparents told the welfare worker 'if you want to know where the kids are, watch T.V.' The children and the foster parents appeared on the evening television news; the foster parents announced that they and the minors were going into hiding.

The next morning an attorney representing the foster parents filed a petition for writ of prohibition with the Court of Appeal. ⁷ That court denied the petition on condition that the juvenile court vacate its order of November 4, and reopen the proceedings 'for the purpose of conducting the Dispositional Hearing.'

When that hearing began on February 28, 1972, the foster parents asserted that the juvenile court lacked jurisdiction because of its failure to notify the mother of the August 1969 jurisdictional hearing. The mother's counsel stipulated to the court's jurisdiction over the mother as of the 1969 hearing. The court then denied the foster parents' motion to dismiss. The foster parents petitioned for habeas corpus in the Court of Appeal, again asserting that the juvenile court lacked jurisdiction over the minors, but the Court of Appeal denied the petition.

On March 15, 1972, at the end of the dispositional hearing, the juvenile court stated orally its findings and reasoning. The court first noted that everyone involved--the mother, the foster parents, and the grandparents--were 'fine people,' and that the children had received proper and loving care from the grandparents and foster parents. ⁸ He then expressly found that the mother was a fit parent for the children. ⁹ The court, however, expressed its concern that the mother had encountered difficulties in relating to both her present and her former husband, that she displayed little warmth...