Estate and Guardianship of Guidry, In re
| Decision Date | 20 October 1961 |
| Citation | 196 Cal.App.2d 426,16 Cal.Rptr. 579 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In the Matter of the ESTATE AND GUARDIANSHIP OF GUIDRY, a Minor. Raymond Elbert McEUEN, Anna Lee McEuen, Contestants and Appellants, v. LOS ANGELES COUNTY BUREAU OF ADOPTIONS, Petitioner and Respondent. Civ. 25377. |
Lyle W. Rucker, Los Angeles, for appellants.
Harold W. Kennedy, County Counsel, Jean Louise Waller, Deputy County Counsel, Los Angeles, for respondent.
Appeal from order revoking letters of guardianship of the person of [No Name] Guidry, a minor, rendered under § 1580, subdivision 8 of the Probate Code upon the ground that said guardianship is no longer necessary.
The minor child, born September 9, 1958, was in the home of Raymond Elbert McEuen and Anna Lee McEuen, husband and wife, appellants herein, from September 10, 1958 to February 29, 1960. On or about October 8, 1958, appellants filed a petition for the adoption of said child. Thereafter, on February 27, 1959, with the written consent of the child's natural mother, appellants filed their petition for appointment of guardian. On June 15, 1959, an order was made appointing Mr. and Mrs. McEuen guardians of the person of [No Name] Guidry, and on June 16 Letters of Guardianship issued.
The father of said minor, on April 27, 1959, signed a 'Relinquishment (Parent Outside California in Armed Forces)' of the said minor child to the Los Angeles County Bureau of Adoptions. And on June 1, 1959, the mother of said minor signed a 'Relinquishment (Out of County--Joint Custody)' of said child to the said Bureau of Adoptions.
On February 29, 1960, the court in the adoption matter denied appellants' petition for adoption and, pursuant to that court's order, the care, custody and control of the said minor was delivered forthwith to the Los Angeles County Bureau of Adoptions and the child has since remained in the care and custody of said Bureau.
On September 13, 1960, the Bureau of Adoptions filed herein its Petition for Revocation of Letters of Guardianship upon the sole ground that, pursuant to Probate Code, § 1580(8) 'It is no longer necessary that the ward should be under guardianship.' On November 7, 1960, the court entered its order revoking said letters of guardianship and the appeal is from this order.
The conclusion of the trial court that 'It is no longer necessary nor convenient that the ward should be under guardianship' is based upon these Findings: (I) The Relinquishment to the bureau signed by the mother; (II) The Relinquishment to the bureau signed by the father; (III) 'That the petition of Raymond Elbert McEuen and Anna Lee McEuen for the adoption of the said Minor was denied by the above-entitled Court on February 29, 1960, for the reason that it was not in the best interests of the Minor that the Minor remain in the home of the said Petitioners.' (IV) That the said minor, pursuant to court order, was delivered into the care and custody of the Los Angeles County Bureau of Adoptions on February 29, 1960; and (V) That said bureau has provided all necessary care and support for the said minor in a foster home from said date to the present time.
Appellants first contend that there is no evidence in support of Finding III. It is alleged in the Petition for Revocation of Letters of Guardianship that 'this court, in Department 7 thereof, on the twenty-third day of February, 1960, determined that it was not in the best interests of the minor that the minor remain in the home of the said petitioners, Raymond Elbert McEuen and Anna Lee McEuen, and that it was not in the best interests of the minor that she be adopted by said petitioners, and said court denied the Petition for Adoption * * *.' The appellants do not, in their Answer, deny these allegations. At no time have appellants claimed that the court in the adoption proceedings did not make such a determination. Their failure to deny these allegations must be construed as an admission of their truth, obviating the need for introducing evidence thereof. Code Civ.Proc. § 462; 39 Cal.Jur.2d § 16, p. 25; Witkin, California Procedure, § 516, p. 1509. Thus, the contention that Finding III is unsupported is without merit.
It is alleged in appellants' answer to the petition herein: These allegations, and appellants' arguments upon this appeal as to the validity and propriety of the order in the adoption proceeding, merely constitute an attempt to relitigate that matter. No appeal was taken from that order and it has become final. The merits of that decision cannot be reviewed in this proceeding. Furthermore, the within petition is based solely, as aforesaid, upon subdivision 8 of Probate Code, § 1580--that said guardianship is no longer necessary.
Appellants' next contention is that the court's conclusion of law that it is no longer necessary or convenient that the ward should be under guardianship is not supported by the evidence or the findings.
The only evidence in this case consisted of the testimony of Walter A. Heath, Director of the Los Angeles County Bureau of Adoptions, and the receipt in evidence of the two relinquishments. This evidence supports the facts set forth in Findings I, II, IV and V. No contention is made that the minor was not validly relinquished to the agency for adoption.
The order of June 15, 1959, appointing appellants as guardians, establishes that as of that time such guardianship was necessary and proper. Guardianship of Sturges, 30 Cal.App.2d 477, 489, 86 P.2d 905. A guardian may not be removed for a cause other than those stated in section 1580, Probate Code. Estate of Walsh, 114 Cal.App.2d 82, 84, 249 P.2d 578. The burden rests upon the moving party to establish that the guardianship is no longer necessary. Guardianship of Brock, 154 Cal.App.2d 431, 433, 316 P.2d 3.
Probate Code, § 1500 provides: 'Every guardian has the care and custody of the person of his ward * * * according to the order...
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