Morrow, In re

• Citation: 9 Cal.App.3d 39,88 Cal.Rptr. 142
• Court: California Court of Appeals Court of Appeals
• Decision Date: 24 June 1970
• Parties: In the Matter of the ADOPTION OF Virginia MORROW, also known as Virginia Lynn Young, a Minor. Robert YOUNG and Cynthia Young, Petitioners and Respondents, v. Patricia WALTERS, Objector and Appellant. Civ. 26295.

Page 142

88 Cal.Rptr. 142

9 Cal.App.3d 39

In the Matter of the ADOPTION OF Virginia MORROW, also known as Virginia Lynn Young, a Minor.

Robert YOUNG and Cynthia Young, Petitioners and Respondents, v. Patricia WALTERS, Objector and Appellant.

Civ. 26295.

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

June 24, 1970.

Twohig, Haas & Schnal, Seaside, for appellant; Cyril Viadro, San Francisco, of counsel.

William R. Kennedy, Monterey, for respondents.

SIMS, Associate Justice.

Patricia Walters the natural mother of a minor has appealed from an order granting the petitioners Youngs' petition to declare the minor free from parental custody and control. She contends that the evidence is insufficient to establish either of the grounds prescribed in subdivisions (a) and (b) of Civil Code, section 232 ¹ for the making of such an order. The petitioners assert that the appeal should be dismissed for lack of jurisdiction because it was not filed within the period prescribed by law, and they also resist the objecting mother's argument on the merits.

Preliminarily it is determined that the petitioners, by their participation without objection in the mother's questionable, but, in any event, unsuccessful proceedings to obtain a new trial, are estopped to object to the timeliness of the filing of the notice of appeal. On the merits, however, the evidence is found sufficient to sustain the findings and order of the court. The order must be affirmed.

Timeliness of the Appeal

The petitioners contend that the appeal should be dismissed for lack of jurisdiction because the objecting mother failed to file a timely notice of appeal. The record reflects that the court announced its decision in favor of the petitioners at the conclusion of the hearing on June 13, 1968, and directed the preparation of a decree. The formal order declaring the minor free from parental custody and control was signed, filed and entered on June 17, 1968, and was endorsed 'Notice of Entry of Order mailed June 18, 1968.'

Apparently in ignorance of the provisions of section 238 of the Civil Code, which indicate that the court may have no power to grant a new trial, ² the objecting mother on June 27, 1968 filed her notice of intention to move for a new trial. The matter was regularly set for hearing and heard on July 31, 1968. No objection was interposed to the motion. It was argued on the merits and was denied. A notice of appeal was filed on August 28, 1968, more than 60 days after the date of mailing notice of entry of judgment (see Cal.Rules of Court, rule 2(a)), but within 30 days after the entry of the order denying the objector's ostensible motion for a new trial (Id., rule 3(a).)

The petitioners assert that where there is no provision for a new trial, a notice of intention to move for a new trial cannot be effective for any purpose. (See, Estate of Welch (1956) 146 Cal.App.2d 534, 538, 304 P.2d 57; Bryant v. Los Angeles Transit Lines (1953) 116 Cal.App.2d 473, 474, 253 P.2d 731; Lynch v. Watson (1945) 69 Cal.App.2d 51, 53, 158 P.2d 250; ³ and 3 Witkin, Cal.Procedure, Appeal, § 121, p. 2297.) If the proceedings to secure a new trial were completely abortive, the time within which to file a notice of appeal expired on Monday, August 19, 1968 (the 17th falling on a Saturday). In that event this court would be without jurisdiction to consider the case on its merits, and should dismiss the appeal. (County of Los Angeles v. Jamison (1961) 189 Cal.App.2d 267, 269, 11 Cal.Rptr. 309; Estate of Welch, supra, 146 Cal.App.2d 534, 538, 304 P.2d 57; Bryant v. Los Angeles Transit Lines, supra, 116 Cal.App.2d 473, 474, 253 P.2d 731.)

Petitioners not only failed to object to the proceedings in the trial court, but also failed to make a motion to dismiss the appeal before this court. They first raised the point of lack of jurisdiction in their reply brief filed May 1, 1969.

In Slawinski v. Mocettini (1965) 63 Cal.2d 70, 45 Cal.Rptr. 15, 403 P.2d 143, the court stated, 'It is a well established policy that, since the right of appeal is remedial in character, our law favors hearings on the merits when such can be accomplished without doing violence to applicable rules. Accordingly in doubtful cases the right of appeal should be granted. (Citations.)' (63 Cal.2d at p. 72, 45 Cal.Rptr. at p. 16, 403 P.2d at p. 144.) In Slawinski the plaintiffs were held to be entitled to rely upon the date set forth in the written order of the judge and the notice prepared and sent by defense counsel as correctly setting forth the date on which their motion for new trial had been denied and from which their time to appeal would run (id.). The case is generally viewed as recognizing that late filing of a notice of appeal may be relieved by proof of estoppel. (See Mills v. Superior Court (1969) 2 Cal.App.3d 214, 219, 82 Cal.Rptr. 469; Desherow v. Rhodes (1969) 1 Cal.App.3d 733, 742--745, 82 Cal.Rptr. 138; Gomes v. Superior Court (1969) 272 Cal.App.2d 702, 704, 77 Cal.Rptr. 539; and Witkin, Cal.Procedure (1967 supp.) Appeal, § 124B, pp. 965--966.)

Civil Code, section 238 provides, '* * * the court shall have no power to set aside, change, or modify * * * (the order and judgment), but nothing in this section shall be construed to limit the right to appeal from such order and judgment.' Code of Civil Procedure, section 655 provides, 'The provisions of this article apply only to superior courts and municipal courts.' Section 656 gives the following definition: 'A new trial is a Re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee.' (Emphasis added.) Section 657 reads in part, 'The verdict may be vacated and Any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: * * *.' (Emphasis added.) It is arguable that Civil Code, section 238 refers to setting aside, changing or modifying an ordered judgment which has become final; that it is not intended to prohibit the re-examination which may generally be conducted under section 657 or section 663 of the Code of Civil Procedure before a judgment or order is final; and that the provisions of section 238 were merely inserted out of an abundance of caution to distinguish the continuing jurisdiction over custody which generally marks proceedings for dissolution of marriage. (Civ.Code, § 4600; and see former § 138.) ⁴

It is unnecessary to resolve the foregoing question. For the purposes of this case, and pursuant to the policy enunciated in Slawinski v. Mocettini, supra, it is sufficient to determine that the petitioners, having failed to raise the point before, are now estopped to urge a construction of Civil Code, section 238 which would preclude this appeal.

Sufficiency of the Evidence

The order (judgment) from which the appeal is taken recites: 'that said minor child has been left in the care of petitioners by her * * * natural parents and said parents have failed to communicate with said child for a period of more than six months prior to the filing of said petition * * * with the intent on the part of her parents to abandon said minor child.' (See § 232, subd. (a), fn. 1 above.) The court further found 'that said minor child has been cruelly treated and neglected by her parents and that she has been a dependent of the Juvenile Court of the County of Monterey for a period of one year prior to the filing of said petition.' (See § 232, subd. (b), fn. 1 above.) ⁵

In attacking the sufficiency of the evidence to sustain the foregoing findings and the judgment predicated on them, the objecting mother is faced with the following rules on review:

'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. (Citation.) 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 (citation).

'That abandonment and intent under section 701, subdivision (a) of the Welfare and Institutions Code (now, § 232, subd. (a) of the Civ.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 (citation). This is true, also, on the question of intent.' (In re Gano (1958) 160 Cal.App.2d 700, 705, 325 P.2d 485, 489. See also In re Neal (1968) 265 Cal.App.2d 482, 488, 71 Cal.Rptr. 300; In re Conrich (1963) 221 Cal.App.2d 662, 668, 34 Cal.Rptr. 658; In re Bisenius (1959) 173 Cal.App.2d 518, 524, 343 P.2d 319; In re Barton (1959) 168 Cal.App.2d 584, 588--589, 336 P.2d 210; and In re Maxwell (1953) 117 Cal.App.2d 156, 166, 255 P.2d 87.)

The record includes the written report of the juvenile probation officer and an addendum thereto prepared as required by the provisions of section 233 of the Civil Code, ⁶ and the reporter's transcript of the testimony elicited from the petitioners, a deputy probation officer, the county supervisor of child welfare, a...