Marr v. Superior Court In and For Siskiyou County

• Decision Date: 03 December 1952
• Citation: 250 P.2d 739,114 Cal.App.2d 527
• Court: California Court of Appeals Court of Appeals
• Parties: . Civ. 8324. District Court of Appeal, Third District, California

Page 739

250 P.2d 739

114 Cal.App.2d 527

MARR et al. v. SUPERIOR COURT IN AND FOR SISKIYOU COUNTY.

Civ. 8324.

District Court of Appeal, Third District, California.

Dec. 3, 1952.

Robnett & Wilson, Alturas, for appellant.

Tebbe & Correia, Yreka, Richard L. Mayers, Deputy Atty. Gen. for Dept. of Social Welfare as amicus curiae.

VAN DYKE, Justice.

This is a proceeding in prohibition. On May 23, 1951 a child was born in the State of Washington to an unwed mother who, within a few days after the birth of the infant, executed a consent to its adoption by Clifford L. and Estelle Grove, residents of California. The consent was executed in accordance with the law of Washington, but not in accordance with the laws of California. Mr. and Mrs. Grove brought the child to their home in Siskiyou County, in which county they then resided. On July 15, 1951, they filed in the Superior Court of that county a petition for the adoption of the child. While the adoption proceedings were pending, the mother changed her mind concerning adoption, asserting that the consent form had been executed by her under misunderstanding and mistake. She came to California to claim her child. By that time the Groves were residing in the County of Modoc. On February 5, 1952, petitioner here, who is the probation officer of the County of Modoc, filed in the juvenile court of that county his petition to have the child declared a ward of the juvenile court. The mother appeared at the hearing of the petition, represented by counsel, and the juvenile court on February 8th declared the child a ward of the court, finding that it came within the provisions of subdivision (b) of Section 700 of the Welfare and Institutions Code. It was ordered that the child be committed to petitioner Marr as probation officer to be by him placed with Mr and Mrs. Grove. No appeal was taken by the mother from the order of the juvenile court and the same became final. The Groves still have the infant. The State Department of Social Welfare investigated the adoption matter and on July 31, 1952 reported to the Superior Court of Siskiyou County, recommending that the petition for adoption be denied and that the child be returned to the care and custody of the mother. While reporting favorably upon petitioners for adoption, the department found that the consent of the mother had not been executed in accordance with California law and that therefore the minor was not legally free for adoption. The department withheld its consent. On July 15, 1952, the child's mother asked the court in the adoption proceedings to order Mr. and Mrs. Grove to show cause therein why the proceedings should not be dismissed and the child delivered to her. She supported the application by an affidavit asserting that she had never consented to the adoption of her child in the manner and form provided by the California Civil Code and that it would be for the child's best interest that it be delivered to her so she might take it to her residence in Washington. The order asked was issued, the court acting through Honorable Claude E. Gillis, judge pro tempore. Mr. and Mrs. Grove were ordered to produce the child in court 'there to be disposed of as may be directed.' Between the service upon them of the order to show cause and the date of the hearing thereof, Mr. and Mrs. Grove filed in the adoption proceedings their written consent to the dismissal thereof and served and filed also notice of motion to dismiss the same. In support of the motion they brought to the attention of the Siskiyou court all of the proceedings in the juvenile court of Modoc County. They took the position, and so informed the Siskiyou County court by affidavit filed therein, that it was beyond their right and power to produce the child without an order of the juvenile court permitting them so to do. Mr. and Mrs. Grove did not appear at the hearing of the order to show cause. Their attorneys appeared, introduced in evidence a certified copy of the juvenile court order and presented and argued their motion to dismiss the adoption proceedings in view of the lack of consent to adoption. They objected on jurisdictional grounds to the court hearing the order to show cause or taking any action thereunder save to grant the prayer of the mother for the dismissal of the adoption proceedings. The court proceeded to hear the order and took the same under submission. Thereafter the court took the following action: It made an order awarding the child to the mother and ordered Mr. and Mrs. Grove to deliver it to her. It adjudged the Groves to be in contempt for failure to produce the child in court. It ordered that for that contempt they be committed to the Sheriff of Siskiyou County until they should produce the child before the court and in any event until the expiration of five days; further that each pay a fine of $100 or on failure thereof be confined in the county jail one day for each $2 of such fine. Finally, the court decreed that when the child should have been so delivered, the commitment for contempt completed and the fines paid, the adoption proceedings should 'stand dismissed.' Marr, the probation officer, and Mr. and Mrs. Grove thereupon petitioned this Court for an alternative writ of prohibition, directed to the Superior Court of Siskiyou County staying all said proceedings, which writ was issued. It is apparent from the foregoing that the custodial orders made by the respondent court immediately and totally conflict with the like orders of the juvenile court of Modoc County. There is presented, therefore, the question of which of the conflicting orders is paramount.

The respondent court first takes the position that its orders could not confict with those of the juvenile court because the decree of that court adjudging the minor child to be its ward was void for want of jurisdiction. It places this contention upon the ground that the petition filed by probation officer Marr in the juvenile court, though containing all other allegations necessary under the statute, omitted an allegation that the minor stood in need of parental control. The same defect appears in the decree. While the court found that the child was within the County of Modoc, was a person of the age of 8 months, had no parent or legally-appointed guardian actually exercising proper parental care over her...