Raya, In re

• Decision Date: 20 October 1967
• Parties: In the Matter of Timateo RAYA, also known as Timothy Raya, and Frances Raya, Minors. Henrietta B. RAYA, also known as Henrietta B. Mendoza, Appellant, Isidro Raya, Appellant, Warren E. THORNTON, Sacramento County Probation Officer, and John P. Corey, Director, County of Sacramento, Department of Social Welfare, Respondents. Civ. 11734.
• Court: California Court of Appeals Court of Appeals

Page 252

63 Cal.Rptr. 252

255 Cal.App.2d 260

In the Matter of Timateo RAYA, also known as Timothy Raya, and Frances Raya Minors. Henrietta B. RAYA, also known as Henrietta B. Mendoza, Appellant Isidro Raya, Appellant, Warren E. THORNTON, Sacramento County Probation Officer, and John P. Corey, Director, County of Sacramento, Department of Social Welfare, Respondents.

Civ. 11734.

Court of Appeal, Third District, California.

Oct. 20, 1967.

Clarence S. Brown, Legal Aid Society, Sacramento, for appellant Isidro raya.

James A. Brennan, Sacramento, for appellant, Henrietta Raya.

John Heinrich, County Counsel, by Robert Galgani, Deputy County Counsel, Sacramento, for respondents.

Kenneth Wells, Public Defender, Sacramento, for real parties in interest.

PER CURIAM.

The Superior Court of Sacramento County, sitting as a Juvenile Court, has adjudged the two minors, Timateo (Timothy) and Frances Raya, 9 and 7 years of age, respectively, to be dependent children within the meaning of Welfare and Institutions Code section 600, subdivision (a). ¹ Five court orders are involved. Their net effect was to remove said children from the custody of both their parents; Henrietta Raya, the mother (who prior to the first of such orders had had the children in her custody) and Isidro Raya, the father. Under the latest of said orders the children were placed in the Sacramento Receiving Home 'pending suitable placement by the Sacramento County Welfare Department.' The orders are appealable and have priority on appeal. (Welf. & Inst.Code, § 800.) They were appealed both by the father and the mother. Appearing on behalf of the children, the Public Defender has filed a brief supporting the parents' appeals. On September 20, 1967, we issued a temporary stay of execution and placed the children in the custody of their mother. The appeals have been argued.

Basic facts are that in the course of the hearing of a divorce action it developed that the couple, separated, were each presently cohabiting with partners of the opposite sex under a consensual extramarital, but long lasting, arrangement; that Mrs. Raya and her consort, William Mendoza, have had four children out of wedlock while Mr. Raya and his mistress, a Miss Fernandez, have had three children. Miss Fernandez, unmarried, also had had a child before the Raya-Fernandez liaison.

Mr. and Mrs. Raya separated in 1960. They have not lived together since. At the time of the separation Mrs. Raya took the two children with her and they have been with her until the court orders described.

As soon as Raya and Miss Fernandez commenced living together a divorce was contemplated but at the time Raya lacked funds to pay the legal expense. (Both families have been on relief sporadically. The Department of Social Welfare has known of the extramarital status of the two couples.) On February 7, 1967, Raya filed a divorce action; this through the Sacramento Legal Aid Society, whose policy to give financial assistance in proper domestic relations matters for the benefit of parties with substandard financial means is recent. The purpose here was to effect a change in the relationship of both couples, who have expressed an intent to marry as soon as this may legally be accomplished. (The report of the probation officer hereinafter mentioned credits the sincerity of this intent.) The Raya divorce will be final in February 1968. Mr. Raya's divorce complaint alleges Mrs. Raya to be a fit and proper person to have custody of the children.

During the pendency of the divorce a probation report was ordered. The report, dated April 18, 1967, includes these facts: The Mendoza-Raya family resides in a three-bedroom home in a low rent district. The home is being purchased by the couple. It is described as 'neat, clean and quite comfortable * * * and furnished with all necessary facilities.' The children lived in the Raya-Mendoza household and accepted Mr. Mendoza as their father and he was a father to them. The Rayas separated when the children were very young and since that time they had had little or no contact with their natural father. When they subsequently learned that their natural father was Raya, they became quite disturbed. The report states the children appear well cared for and Raya concedes that Mrs. Raya has been a good mother who gives the children good parental care. The Mendoza-Raya home is one block from the school which the children attend. Their school attendance record is good and they are doing exceptionally well in school. The report's appraisal in this regard is: 'These children appear to be happy, healthy, normal youngsters and well cared for * * * bright, friendly.' The entire family, of the Catholic faith, attend church each Sunday.

Raya has contributed something to the support of the children but has also been before the Domestic Relations Division of the Sacramento County District Attorney's office for some remissness in this regard. The report's evaluation and recommendation includes: 'Your officer is of the opinion that the mother of Timothy and Francis Ray (sic) is a person of good moral character and that she is properly caring for said minors and, too, is seeing that they receive an education as well as spiritual training, and your officer feels that inasmuch as we do have children here of tender age who are in need of maternal love, care, guidance, training, discipline and education, it is to their best interests and welfare that they continue in the custody of their mother. * * * (with) an opportunity to visit with their natural father and to become better acquainted with him.'

The facts in this report apparently have been accepted by the trial court; but its Conclusions were not. In fact, a minute order of March 21, 1967 (before the date of the report) reads: 'Court finds both parents unfit. Refer to Juvenile Court under 600 A W & I Code. To be heard in Dept. 6 sitting as Juvenile Court.' The matter was again referred to the County Probation Office, which thereafter filed petitions alleging the two Raya children were minors described in section 600, subdivision (a), of the Welfare and Institutions Code (see fn. 1). A hearing was held on the petition on June 23, 1967. Attorneys representing both parents were present, also Public Defender Kenneth Wells, who had been assigned by the court to represent the minors. A new probation report was then heard. Its factual determinations were substantially as stated above. Its recommendation, however, was that which later became the court's order. Testimony was also given by Raya, Mrs. Raya, and their respective intended spouses. Their testimony did not substantially differ from the facts in the reports.

Separate orders covering each minor have been made. Two orders were made on June 23, 1967. They declared the children to be dependent children under section 600, subdivision (a). The first (in each case) committed them to the joint supervision of the probation officer and county welfare department. Modified orders the same day changed the custody of the children to their maternal grandmother. Those orders were in turn modified three months later, on September 20, 1967. (The court at that time had learned the maternal grandmother was living with her 'husband' out of wedlock.) The last order removed the children from the grandmother's custody and placed them, as stated above, in the receiving home.

The trial court found, utilizing the language of section 600, subdivision (a), that the children had 'no parent or guardian actually exercising proper and effective care and control and continue(s) to be in need of such care and control,' in that each of the natural parents had lived in unmarried cohabitation for more than the five preceding years. This finding cannot be disturbed on appeal if there is substantial evidence to support it. (In re Macidon, 240 Cal.App.2d 600, 607, 49 Cal.Rptr. 861; In re Corrigan, 134 Cal.App.2d 751, 754--755, 286 P.2d 32.) The evidence before the court supplied no substantial support for the finding.

In wardship proceedings the welfare of the child is the paramount concern. (In re Farley, 162 Cal.App.2d 474, 478, 328 P.2d 230; In re Corrigan, supra, 134 Cal.App.2d at p. 754, 286 P.2d 32.) Section 600, subdivision (a), of the Welfare and Institutions Code permits an adjudication of wardship when proper and effective parental care or control is lacking. The phrase 'proper and effective' offers at best a dim light to discern the point at which a juvenile court is authorized to invade and supplant a parent-child relationship. In one sense the phrase expresses an objective identical with the judicially expressed goal of the child's welfare. In another sense it connotes parental fitness or unfitness. (See Marr v. Superior Court, 114 Cal.App.2d 527, 530, 250 P.2d 739.) Additional coloration may be gained from the notion of the 'neglected child,' whose home environment exposes him to physical or moral detriment. ²

However this may be, the statutory criterion of improper and ineffective parental care denotes a fairly extreme case. A dominant parental right to custody of the child pervades our law. (See Prob.Code, § 1407; Civ.Code, § 197; Roche v. Roche, 25 Cal.2d 141, 143--144, 152 P.2d 999; Stever v. Stever, 6 Cal.2d 166, 168--170, 56 P.2d 1229; In re Campbell's Estate, 130 Cal. 380, 382, 62 P. 613; 2 Armstrong, California Family Law, pp. 993--1018.) Although expressed more often in divorce and guardianship cases, the dominating right of a parent to custody of his child plays a role in the interpretation of section 600, subdivision (a). Many homes, however blessed by marital vows, fall short of an ideal environment for children. It may be safely assumed that the Juvenile Court Law was not intended to expose such homes to wholesale intervention by public authorities. 'It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom...