Fox' Guardianship, In re

• Decision Date: 27 November 1957
• Citation: 318 P.2d 933,212 Or. 80
• Parties: Matter of the GUARDIANSHIP of Doris Eileen FOX, also known as Doris Irene Fox, a Minor. Bert M. FOX and Doris Elene Fox, Appellants, v. Dorothea LASLEY, Respondent.
• Court: Oregon Supreme Court

Page 933

318 P.2d 933

212 Or. 80

Matter of the GUARDIANSHIP of Doris Eileen FOX, also known as Doris Irene Fox, a Minor Bert M. FOX and Doris Elene Fox, Appellants, v. Dorothea LASLEY, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Dec. 13, 1956.

Reargued and Submitted Sept. 25, 1957.

Decided Nov. 27, 1957.

Jay E. Jordan, Spokane, Wash., argued the cause for appellants. With him on the brief were Hickson & Dent, Portland.

Roscoe C. Nelson, Portland, argued the cause and filed a brief for respondent.

McALLISTER, Justice.

This is an appeal by Bert M. Fox and Doris Elene Fox, his wife, from a decree of the circuit court for Multnomah county denying their petition for the removal of the respondent, Dorothea Lasley, as guardian of the person of their minor child, Doris Eileen Fox, and for the termination of said guardianship. The child, who is referred to in the record both as Doris Eileen and Doris Irene, will be referred to herein simply as 'Doris' and her mother as 'Mrs. Fox.'

During the period material to this case, Bert M. Fox and his wife have lived in Crescent City, California, with their family, which, in February, 1952, consisted of six children, including Doris who was then about 2 months old. During February, 1952, one of the older children was severely burned by accident and after the child had been hospitalized in Crescent City for about two weeks, the mother took the injured child so San Francisco. Fox, who was left at home to care for the other five children, asked his wife's sister, a Mrs. Richards, who lived in Vancouver, Washington, and other relatives for help. In response to the call for help, Mrs. Richards went to Crescent City accompanied by Mrs. Fox's stepmother, Mrs. Lillie M. Quinn, who also lived in Vancouver, and Mrs. Fox's stepsister, Mrs. Cecil Austin, who lived in Junction City, Oregon. Three of the Fox children were taken by the relatives to be cared for during the emergency. One child, Helen, was taken by Mrs. Austin, the second child, Edward, was taken by Mrs. Quinn and Doris was taken by Mrs. Richards to her home in Vancouver. After about six weeks, Mrs. Richards, who had several children of her own, arranged to have Doris cared for by the respondent, Dorothea Lasley, who took the child to the Lasley home in Portland.

About two months after the children had been taken by the relatives, Mrs. Quinn returned Edward to Crescent City. A short time later Mr. and Mrs. Fox came to Oregon, reclaimed the other two children and took them back to the Fox home in Crescent City. A few weeks later, Mrs. Lasley and Mrs. Austin went to Crescent City in an effort to have the two Fox children, Helen and Doris, given again into their care. While in Crescent City on this trip, the two women conferred with Howard J. Benner, who was the probation officer for Del Norte county, of which Crescent City is the county seat. Mr. Benner was acquainted with the Fox family, having investigated on a previous occasion the care being given the children by Mr. Fox.

After a conference with Mr. Benner, the Foxes agreed to again give custody of Doris to Mrs. Lasley and custody of Helen to Mrs. Austin. The two women left Crescent City with the children on or about May 7, 1952 and returned to Oregon. On the following day Mr. Benner mailed to Mrs. Lasley at her home in Portland a document entitled Relinquishment for Guardianship, the material portion of which reads as follows:

'Know All Men By These Presents:

'That We Bert Fox and Doris Eilene Fox, natural parents of Doris Irene Fox, hereby place said child in the custody of Dorothea Lasley and consent that and Court of competent jurisdiction may appoint Edwin Lasley and Dorothea Lasley, or either of them, guardians or guardian of the person of said minor child.

's/ Bert M. Fox

's/ Doris E. Fox'

The above document had been prepared at Benner's request by the District Attorney for Del Norte county and was executed by Mr. and Mrs. Fox after some persuasion on the part of Benner.

Apparently the parties did not have a clear understanding as to the duration of Mrs. Lasley's custody of Doris. It is certain, however, that the Foxes did not intend to give up custody of Doris permanently or irrevocably and that Mrs. Lasley was well aware of that fact. On March 29, 1952, while Doris was being cared for by Mrs. Richards in Vancouver, Washington, Mrs. Lasley's attorney wrote to Mr. Benner at Crescent City inquiring whether the child could be adopted and submitting Mrs. Lasley's application to adopt the child. Mr. Benner replied to this letter on April 1, 1952, and stated in substance that he had made some investigation and did not intend to interfere with the custody of the Fox children by their parents.

The letter written to the Lasleys by Mr. Benner on May 8, 1952, forwarding the Relinquishment for Guardianship indicated clearly a continuing interest in the child by both Mr. Benner and the parents. Mrs. Lasley was requested to make a periodic report on the welfare of the child so that Mr. Benner could in turn report to the parents. At the hearing on the petition for her removal as guardian, Mrs. Lasley testified that while she was in Crescent City she was told by Mr. Benner that Doris could not be adopted.

On June 14, 1952, Mrs. Lasley filed a petition in the circuit court for Multnomah county praying for her appointment as guardian of the person of Doris. The Relinquishment for Guardianship was attached as an exhibit to the petition but no citation of any kind was served on either of the parents. On the same day that the petition was filed an order was entered by the circuit court appointing Mrs. Lasley as the guardian of the person of Doris.

In about five or six months after Mrs. Lasley was appointed guardian, the parents requested that Doris be returned to them and when such request was refused, filed their petition in the circuit court praying that the guardianship by terminated and that the custody of their child be restored to them. After a hearing, the court found that Mrs. Lasley had been duly appointed guardian of the person of Doris, had given said child a good home and proper care and had properly discharged her duties as such guardian. The court further found that the Foxes were morally unfit to have custody of their child. Based upon such findings, the court entered as order denying the petition to terminate the guardianship and ordering that the child should remain in the custody of the guardian.

We must first decide whether an Oregon court had jurisdiction to appoint a guardian of the person of a minor whose domicile was then in California. That the domicile of the child at all times was in California is hardly open to question. Every child is assigned a domicile at birth which, if the child is legitimate, is usually the domicile of the father. Restatement, Conflict of Laws 30, § 14. With a few exceptions not material in this case, a child during its entire minority has the same domicile as that of its father. Restatement, Conflict of Laws 55, § 30. This court has approved and adopted these general rules for determining the domicile of a minor in the recent case of Ex parte Lorenz (Lorenz v. Royer), 194 Or. 355, 368, 241 P.2d 142, 148, 242 P.2d 200. We quote from the opinion in that case:

'An infant, being non sui juris, is incapable of fixing or changing his domicile, unless he has been emancipated by his parents; and even then, according to some authorities, he is unable to make such change. During minority, the domicile of an infant continues to be the same as that of the person from whom he took his domicile of origin and changes only with the domicile of that person. 28 C.J.S., Domicile, § 12b (1), p. 21. In 28 C.J.S., Domicile, § 12b (2), p. 21, we read:

"The domicile of a legitimate child, during minority and until emancipation, ordinarily follows that of the father, while the latter is alive, regardless of the consent or desire of the parties, and even though the child is not living with him. * * *"

In this state jurisdiction to appoint guardians for minors is vested by ORS 126.105 in the county courts and circuit courts having original and exclusive probate jurisdiction. The statutes authorizing the appointment of guardians provide in part as follows:

'When it appears to the satisfaction of the court from a duly verified petition praying for the appointment of a guardian that a person resident of the county in which the petition is filed is a minor, spendthrift or is incompetent and needs the care of a guardian, or that such person has property in the county needing the care and attention of a guardian, or that such person is a nonresident of the state and has property in the county needing the care and attention of a guardian, the court shall make an order setting a time for the hearing of such petition and directing the issuance of a citation * * *.' ORS 126.120.

'If, upon the hearing, the court is satisfied that the allegations of the petition are sufficient and true, and that no other court in this state has acquired jurisdiction of the matter, it shall make an order appointing a guardian; * * *.' ORS 126.135.

The petition filed by Mrs. Lasley asking for her appointment as guardian does not allege that Doris was a resident of Oregon but instead alleged that Doris 'is at the present time residing in the City of Portland, Multnomah County, Oregon, in the home of your petitioner.' The petition further alleged that the 'natural parents of said Doris Irene Fox, to-wit: Bert Fox and Doris Eilene Fox, are nonresidents of the State of Oregon, and reside in the County of Del Norte in the State of California.' The findings of the court were in the same language as the petition.

It has been frequently stated that the county and circuit courts of this state when acting in probate matters are courts of general jurisdiction. See Anderson v. Clough, 191 Or. 292, 230 P.2d 204, and cases cited therein. It is now settled,...