Helen J., In re

• Decision Date: 21 March 1973
• Citation: Helen J., In re, 107 Cal.Rptr. 106, 31 Cal.App.3d 238 (Cal. App. 1973)
• Parties: In re Helen J. et al., Minors. COUNTY OF LOS ANGELES DEPARTMENT OF ADOPTIONS, Petitioner and Respondent, v. Linda J. and Anton J., objectors and Appellants. Civ. 39932.
• Court: California Court of Appeals

Page 106

107 Cal.Rptr. 106

31 Cal.App.3d 238

In re Helen J. et al., MinorsCOUNTY OF LOS ANGELES DEPARTMENT OF ADOPTIONS, Petitioner and Respondent, v.Linda J. and Anton J., objectors and Appellants.

Civ. 39932.

Court of Appeal, Second District, Division 5, California.

March 21, 1973.

Hearing Denied May 23, 1973.

John D. Maharg, County Counsel; Raymond G. Fortner, Jr., Deputy County Counsel, for petitioner and respondent.

Richard Morris, Beverly Hills, for objectors and appellants.

KAUS, Presiding Justice.

Linda J. and Anton J.('citees') are the natural parents of the five minors involved in this proceeding under section 232(b) of the Civil Code.¹The children, born between April, 1963, and July, 1967, were taken from their home in January, 1968, by welfare authorities when they were found in bad physical condition and without adult supervision.They were adjudged dependent children on january 11, 1968.(Welf. & Inst.Code § 600.)Medical examinations of the children disclosed that Anton III, about 3 1/2 years old, had serious burns on his forearms.Josef and Jonathan, twins of about 2 1/2 years, were suffering from intestinal problems associated with malnutrition.

The children were placed in foster homes.Their status as dependent children was renewed annually, the last time on January 4, 1971.On May 17, 1971, in order to allow for their permanent adoption, the County of Los Angeles Department of Adoptions('county') petitioned under section 232.9 to have the children declared free from parental custody and control.On September 21, 1971, the court granted the petition.Findings of fact and conclusions of law were signed and filed September 22, 1971.The judgment was entered on October 5, 1971.

In this appeal from the judgment the citees raise several contentions.

I.

Their first claim is that the court did not acquire jurisdiction because the citation had not been served on the 'person having the custody or control' of the children or 'the person with whom' the children were, as directed by section 234 of the Civil Code.

The record filed in this court does not expressly show, one way or another, whether there had been compliance with section 234.The fact is, however, that the court's minutes show that the first time this matter was on its calendar, on June 21, 1971, the minors were present, as were citees.The hearing was then continued to July 26, 1971.All 'parties and witnesses' were ordered to return without further order, notice or subpoena.

Since the purpose of section 234 can only be to bring the children before the court and since they were before the court, the point has no merit.

For what it is worth, we note that starting with the July 26 hearing, citees were represented by highly competent private counsel.At no time did he make a point of the minor's absence from the proceedings.

II.

Citees claim that the court erred in not advising the minors of their rights under section 237.5.The section reads, in relevant part, as follows:

'At the beginning of the proceeding on a petition filed pursuant to this chapter, the judge shall first read the petition to the child's parents, if they are present, and may explain to the child the effect of the granting of the petition and upon request of the minor upon whose behalf the petition has been brought or upon the request of either parent the judge shall explain any term or allegation contained therein and the nature of the proceeding, its procedures, and possible consequences.The judge shall ascertain whether the minor and his parent, have been informed of the right of the minor to be represented by counsel, and if not, the judge shall advise the minor and the parents, if present, of the right to have counsel present.The court may appoint counsel to represent the minor whether or not the minor is able to afford counsel, and, if they are unable to afford counsel, shall appoint counsel to represent the parents. . . .'(Civ.Code § 237.5.)

When the proceedings started on July 26 the following took place: 'THE COURT: Gentlemen, are you ready to proceed in the J. . . .Matter?(COUNTY COUNSEL): Ready, Your Honor.(CITEES' COUNSEL): Ready, Your Honor.(COUNTY COUNSEL): Your Honor, at the outset I might inquire if the citees, Mr. and Mrs. J. . . ., have been informed of their rights under Section 237.5 of the Civil Code, and if not, I request that they be.(CITEES' COUNSEL): With reference to what particular--Yes, Your Honor, they have.THE COURT: All right, you may proceed. . . .'

Concededly this colloquy makes it impossible for citees to claim that they were not advised of their own rights under section 237.5.(Cf.Adoption of R.R.R., 18 Cal.App.3d 973, 987, 96 Cal.Rptr. 308.)They do, however, claim that they have standing to complain about the court's alleged failure to advise the minors of their rights, particularly the right to be represented by counsel.We note that the claim of error is based solely on asserted noncompliance with section 237.5.No constitutional argument is put forward.

It is apparent that under the circumstances citees' argument is highly technical.The only apparently mandatory duty enjoined on the court by section 237.5, was to ascertain whether the minors had been informed of their right to counsel and, if not, to so advise them.Just how that failure is supposed to have harmed the children is not made clear.The statute does not compel the court to appoint counsel for the minors.The chance that any of the five children, whose maximum age was eight would have retained private counsel seems miniscule.In any event, the record justifies answering appellants' technicality with another: Section 237.5 demands that its dictates and suggestions be complied with 'at the beginning of the proceeding.'That was June 21.Citees have not furnished us with a transcript for that date.We are therefore justified in relying on the presumption that official duty was regularly performed.(Evid.Code § 664.)

III.

Citees claim that the court did not find that the conditions which gave rise to the minors being found dependent children in 1968, still persisted in 1971(cf.In re Morrow9 Cal.App.3d 39, 56, 88 Cal.Rptr. 142) and that it did not find that an award of custody of their parents--appellants--would be detrimental to them.²

They further complain that they were not given an opportunity to object to the findings, submit counter findings and to request special findings.

These contentions all assume that the judgment declaring the minors free from appellants' control must be supported by findings.

Procedurally what happened in this case is this: on July 26, 1971, nine witnesses testified.Then, with counsel's concurrence, the court ordered appellants and Anton III examined by 'Doctor Ackley, the Court psychiatrist' and stated that it would decide the matter after receiving Doctor Ackley's report.Two days later, the minute order for July 26 was 'amended nunc pro tunc' to change the appointment of Doctor Ackley to an appointment of 'the first available psychiatrist on the list . . . ' Both counsel were notified.The first available psychiatrist apparently turned out to be a Doctor Lieberman, who submitted his report on September 20.A minute order for September 21 reads in part as follows: 'Petition is granted.Counsel for petitioner shall prepare Findings and Judgment.'Certain findings, which are now attacked, were signed on September 22 and filed the same day.Though they were served on counsel, the judgment was also filed on September 22 and entered about two weeks later.

Conceding for the sake of argument that in connection with the preparation of the findings the court complied neither with section 632 of the Code of Civil Procedure, nor with California Rule of Court 232, and conceding further that the findings which were signed and filed did not expressly cover all matters which appellants claim as essential to support the judgment, these matters are of no moment if no findings were required at all.

The provisions of the Code of Civil Procedure with respect to findings are found in part 2 of that code relating to civil actions.Section 21 of the same code divides all judicial remedies into 'actions' and 'special proceedings.'Actions are defined as follows: 'An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.'(Code Civ.Proc., § 22.)Special proceedings consist of 'every other remedy.'(Code Civ.Proc., § 23.)This distinction between actions and special proceedings has been fleshed out by the Supreme Court.'The distinction . . . is well recognized.'The term 'special proceeding' is used in the codes of practice of many of the states in contradistinction to 'action.'It may be said, generally, that any proceeding in a court which was not under the common-law and equity practice either an action at law or a suit in chancery is a special proceeding.' . . .'(In re Central Irrigation District, 117 Cal. 382, 387, 49 P. 354, 356;see alsoTide Water Assoc. Oil Co. v. Superior Court, 43 Cal.2d 815, 822, 279 P.2d 35;Church v. County of Humboldt, 248 Cal.App.2d 855, 858, fn. 2, 57 Cal.Rptr. 79.)Having that distinction in mind, it has been held that proceedings under the provisions of former section 701 et seq. of the Welfare and Institutions Code which were generally supplanted by the provisions of the Civil Code under which the present proceeding is brought, were not actions but special proceedings which did not require findings.(In re Peterson, 56 Cal.App.2d 791, 795, 133 P.2d 831;see alsoAdoption of Thevenin, 189 Cal.App.2d...