Gano, In re

• Decision Date: 21 May 1958
• Citation: 325 P.2d 485,160 Cal.App.2d 700
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of Tracy Lurene GANO, a person under the age of 21 years. Chester E. ANDERSON and Ida Minnie Anderson, Petitioners and Respondents, v. Donald Elmer GANO and Ila Lurene Gano, Citees and Appellants. Civ. 22604.

Page 485

325 P.2d 485

160 Cal.App.2d 700

In the Matter of Tracy Lurene GANO, a person under the age of 21 years Chester E. ANDERSON and Ida Minnie Anderson, Petitioners and Respondents, v. Donald Elmer GANO and Ila Lurene Gano, Citees and Appellants.

Civ. 22604.

District Court of Appeal, Second District, Division 1, California.

May 21, 1958.

Rehearing Denied June 16, 1958.

Hearing Denied July 16, 1958.

Frederick A. Kepka, Long Beach, for appellants.

Bentson & Blumberg, Long Beach, for respondents.

LILLIE, Justice.

This is an appeal by the natural parents, Donald Elmer Gano and Ila Lurene Gano, from a judgment declaring their minor child, Tracy Lurene Gano, to be free from their custody and control.

The respondents, Chester E. Anderson and his wife, are the brother and sister-in-law of the natural mother. They acquired the minor child on June 12, 1955, in Washington. Seeking to adopt her, respondents commenced abandonment proceedings thirteen months thereafter by filing a petition under Section 701, subdivision (a) of the Welfare and Institutions Code. It was heard on February 4, 1957. Appellant's motion for a nonsuit was denied. The trial court found that '* * * Tracy Lurene Gano, has been left in the custody of another by her parents for more than one year prior to the filing of petition herein without provision for her support or maintenance and with only token communication from her said parents with intent of said parents to abandon said person.' The judgment, entered February 13, 1957, declared Tracy to be free from the custody and control of her parents. From the judgment and the order denying their motion for a nonsuit the natural parents have appealed.

Their main point on appeal is that the evidence was insufficient to justify the court's finding that the natural father and mother left their child in the custody of another for more than one year without provision for her support and with intent to abandon her. They further urge that the trial court abused its discretion in finding that the parents made only token communication regarding the child and that the evidence was insufficient to justify the finding. To be considered also is appellants' contention that as a matter of law there was no abandonment and the trial court erred in denying appellants' motion for nonsuit.

Donald Gano and his wife, Ila, appellants herein and residents of Montana, have four children including Tracy. In June, 1955, they lived in Othello, Washington, with their two children, Christine and Tracy. During an argument Donald forceably evicted Ila from the family traner and took the children to his parents. A week later, his wife not having returned, Donald telephoned Ila's sister Florence and told her that she would have to take the children or he would give them to the welfare authorities. Florence wanted Christine but not Tracy, who was then seven months old. She contacted her brother, Chester Anderson, also a brother of Ila and asked him and his wife, respondents herein, to take her.

On June 12, 1955, three days after Donald called Florence, she and the Andersons drove to Othello to see him. After talking at length with him about Ila, Christine and Tracy, he again told them that if they did not take the children he would turn them over to the welfare authorities. Later in his father's trailer Florence and respondents told Donald they wanted to raise the children as their own on a permanent basis and would not take them under any kind of a temporary arrangement. Twice that morning Donald told Anderson that he wanted him to adopt Tracy and raise her as his own; that he didn't want her to know who her mother and father were and that although he wanted visitation privileges he didn't want to visit her for a year or two.

They then went to the office of Fred Shelton, a lawyer known to appellants but unknown to respondents, to have him prepare an agreement whereby Donald would relinquish custody of the two children for adoption. Anderson in the presence of Donald told the facts to Shelton and advised him he was leaving for Philadelphia to attend Navy school and wanted a custody agreement for the future adoption of Tracy and to protect him in case of a misunderstanding. Later in the day they returned to sign the agreement. At that time respondents took Tracy and several days later left for Philadelphia where Anderson attended Navy school for six months. During this time they lived across the river in Thorofare, New Jersey. Respondents since then have corresponded with Florence and other members of the family about once a month.

In July, 1955, respondents received a letter from Ila, the contents of which they could not recall but to which Anderson replied on July 30, 1955. Both Mr. and Mrs. Anderson testified that this was the only communication they ever received from appellants and that at no time had they received any other letters, cards or communication from them. They also denied having received any gifts or support from appellants on behalf of Tracy. In December, 1955, respondents were transferred to Long Beach where they now reside. When they moved from New Jersey they left their forwarding address.

On March 20, 1956, respondents' attorney Myron Blumberg of Long Beach directed a letter to Donald's father advising him that abandonment proceedings were about to be commenced and asked for Donald's address. To this letter they received no answer from appellants, nor did they receive any reply to Mr. Blumberg's letter to appellants dated May 3, 1956, wherein he told them of the Anderson's intention to adopt Tracy, or to the citation directed to them September 27, 1956.

Ila testified that immediately after leaving Donald she went to their lawyer Fred Shelton and asked him to draw up some papers 'so I could have my kids.' Ten days later she returned and was told by him that he had forgotten to prepare them and that Donald had transferred the children's custody. Shortly thereafter she and Donald reconciled and on June 18, 1955, they went to Florence's home and got Christine. Donald did not mention Tracy but Ila told Florence: 'I could not give up Chrissie, but I don't want Tracy.' Prior to that date Ila told Florence that Tracy had been sickly since her birth and she would like to have someone else care for her. Ila further testified that she wrote to Anderson in July, 1955, and asked for Tracy, and in December sent a package of toys, which Donald mailed. Donald at no time personally communicated with the Andersons or Tracy, either in New Jersey or Long Beach. Florence, in addition to corresponding with the Andersons, wrote to appellants once a month and saw them in her home at various times since June 18, 1955. During these visits Ila made little mention or inquiry of Tracy; Donald made none.

Appellants claim that there was not sufficient evidence upon which the court could base its finding that both parents left Tracy for more than one year in the custody of another without provision for her support with intent to abandon her. This court is familiar with the general rules set forth in the cases cited by appellants and more particularly with the fundamental principle that in an adversary proceeding of this kind every intendment should be made in favor of maintaining the natural relation of parent and child. However, appellants in their argument overlook the substantial evidence in the record pointing to the conduct of each parent during the period in question, reflecting their clear intention to abandon Tracy to respondents; the well-known principle of law that the reviewing court will not re-evaluate the credibility of the witnesses, reweigh the testimony, or draw inferences contrary to those drawn by the trial court; and the wealth of cases decided under Section 701(a) of the Welfare and Institutions Code holding that the matter of abandonment and intent is one of fact for the trial court to determine.

A reviewing court must accept as true all evidence tending to establish the correctness of the findings of the trial judge. All conflicts in the evidence must be resolved in favor of the respondents and all legitimate and reasonable inferences must be indulged in to uphold the judgment. It is well settled that whenever a finding or judgment of the trial court is attacked as being unsupported, the power of the reviewing court begins and ends with the determination of whether there is any substantial evidence, contradicted or uncontradicted which will support the conclusions reached by the trial court (Bancroft-Whitney Co. v. McHugh, 166 Cal. 140, 134 P. 1157). All evidence most favorable to respondents must be accepted as true and that which is unfavorable discarded as not having sufficient verity to be accepted by the trier of fact. If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed (In re Estate of Teel, 25 Cal.2d 520, 154 P.2d 384).

That abandonment and intent under Section 701(a) of the Welfare and Institutions Code are questions of fact for the trial judge is well established. His decision, when supported by substantial evidence, is binding upon the reviewing court. An appellate court is not empowered to disturb a decree adjudging that a minor is an abandoned child if the evidence is legally sufficient to support the finding of fact as to the abandonment (In re Welch, 108 Cal.App.2d 466, 238 P.2d 1031; In re Adoption of Ayers, 116 Cal.App.2d 55, 253 P.2d 65). This is true, also, on the question of intent. In re Jones, 131 Cal.App.2d 831, 281 P.2d 310.

Section 701(a) of the Welfare and Institutions Code in part provides that a minor who has been left in the care and custody of another without any provision for his support or without communication from either or both of his parents for a period of one year with intent on the part of such parent or parents to abandon him shall be deemed abandoned and declared free from such parental control. The section further...