Reyna, In re
| Citation | 126 Cal.Rptr. 138,55 Cal.App.3d 288 |
| Decision Date | 17 February 1976 |
| Docket Number | No. 2454,2454 |
| Court | California Court of Appeals |
| Parties | In re Baby Boy REYNA on Habeas Corpus. |
Proceeding in habeas corpus to secure custody of a child. Order previously made submitting matter, vacated, and a referee appointed to take evidence and determine facts as to whether award of custody to the father would be harmful to the child, and whether an award of custody to a nonparent is required to serve the best interests of the child. (Civ.Code, § 4600.)
On April 14, 1975, David filed a petition for writ of habeas corpus in the Kern County Superior Court seeking to obtain the custody of his child from the Kern County Welfare Department Adoption Agency. A hearing on the matter commenced before Judge P. R. Borton on June 26, 1975, and the petition was denied on June 27, 1975, by a minute order without findings of fact. 1 On August 15, 1975, David filed a petition for a writ of habeas corpus with this court. We issued an order to show cause and scheduled a hearing as to why the petition should not be granted. The matter was duly argued and submitted for decision on December 10, 1975.
We derive the facts from the evidence presented at the habeas corpus proceeding in the trial court. David, age 19, and Emily began dating sometime in 1971 in Hollister where they resided with their respective parents. David and Emily had sexual intercourse several times in 1974 and David asked Emily to marry him but she refused. Emily became pregnant in May or June 1974. She moved to San Luis Obispo to enter an education program. David came to visit her on several occasions. After he became aware that she was pregnant David again asked Emily to marry him but she again refused because she did not believe the marriage would succeed. David told his mother in November 1974 that Emily was pregnant and he was the father and wanted to marry her. Around Thanksgiving Emily moved to Bakersfield where she told her roommate of her pregnancy and of David's paternity. She also told her roommate she was going to put the baby up for adoption because she did not want the child to suffer and because a marriage to David would not succeed.
Emily visited the Kern County Welfare Department Adoption Agency on January 2, 1975, to see about relinquishing the baby. She told a social worker David was the father and that his parents lived in Hollister although she was not certain of his whereabouts. The child was born on January 24, 1975. David was named as the father on the birth certificate. The blood types of the baby and David are the same. Emily signed the statutory relinquishment form on January 28, 1975, relinquishing the custody of the baby to the agency. 2 The reason the relinquishment form was obtained by the agency so soon after the child's birth was that Emily was leaving for Texas.
The agency put the child in a foster home for about two weeks. The child was then placed in the 'preadoptive' home of Mr. and Mrs. Steven Camarillo where the child has lived continuously until the present time. Adoption proceedings have not been instituted by the Camarillos because they are awaiting a final determination of David's right to custody of his child.
On February 24, 1975, the agency sent a letter to David at his parents' address in Hollister informing him he had been named as the father; that Emily had signed the relinquishment; that before the child could be adopted his rights and responsibilities had to be discussed; and that his signature on the relinquishment would sever all ties and responsibility for support. The letter apparently was not received by David's parents. Thereafter, about March 1, when Emily was in Hollister she told David the child had been born and there were papers for him to sign in Bakersfield; this was the first information David had regarding the child's birth. David told his mother he wanted the child. David's mother called the agency in early March informing it of her son's wishes. The agency was surprised to hear from David it had assumed Emily really did not know David's whereabouts. The agency explained this is why it did not maintain the foster home placement any longer than it did. David was advised to retain an attorney.
Louis Colson, adoption supervisor for the agency, visited David and his mother at the mother's home in early March. According to Colson the home was 'fine.' David told Colson he wanted the child but they did not discuss David's plans for the child. Colson did discuss the child's future care with David's mother.
At the time of the hearing below David had been living in Hollister with Gloria, his prospective wife, for about four months. Gloria, 29 years old, has 3 young children and has been separated from her husband for 6 years. She and David plan to marry when Gloria's divorce is finalized, and they intend to move to Watsonville for employment and schooling.
David was unemployed but was looking for a job. His gross earnings for the first half of 1975 were less than $1,000; in 1974 they were approximately $2,500. David had been expelled from high school because of truancy, had been arrested for burglary, and had paid a fine. He also had been accused of having beer in his high school locker. Two months before the hearing he had been arrested for drunkenness in public. David has a drinking problem; he obtained counseling for this problem on one occasion at the mental health department. The counselor believes that David needs further assistance but David feels his problem is solved.
Gloria did not finish high school but plans to do so. She has a job lined up in Watsonville. She knows about the baby whom she calls 'Ray' and wants to raise him as she cannot have any more children. Gloria has experienced recent emotional problems stemming from the marriage of an earlier boyfriend. She sought psychiatric help and was placed in a hospital for a short period. While in the hospital Gloria's children stayed with her mother. The status of Gloria's children is being monitored by the San Benito County Welfare Department at Gloria's request because of her emotional problems. The social service worker handling Gloria's case believes that it possibly might be detrimental for another child to be placed in Gloria's home at present because of her emotional problems; however, no attempt has been made to take Gloria's children away from her. Gloria recently sprained her ankle and voluntarily placed her children in a foster home while she recuperated. She took a substantial amount of valium under a doctor's prescription for the pain. She also took some mescaline for the same purpose. Other than that she does not take drugs.
David's mother is willing to take the baby into her home until David is able to support him. She says the baby is part of their family and belongs with his family. If David is awarded custody he and Gloria will raise the child, although his parents would take over if he were unable to do so.
David apparently has never seen his child.
While this is an original proceeding in this court, the superior court's determination of the factual issues in the proceeding below is entitled to some weight. We are not foreclosed, however, from a further consideration of questions of law, including whether there is substantial evidence to support the lower court's findings of fact. (In re Richard M. (1975) 14 Cal.3d 783, 790--791, 122 Cal.Rptr. 531, 537 P.2d 363.) Although the trial court failed to make express findings in denying David's claim to custody of his child, the transcript of the lower court proceedings is part of the record before us, and we are permitted to review the evidence to determine if all necessarily implied findings are supported by the evidence, resolving all doubts in favor of the trial court's decision. (Estate of Taylor (1970) 6 Cal.App.3d 16, 21, 85 Cal.Rptr. 474; Hong v. Hong (1965) 237 Cal.App.2d 239, 242--243, 46 Cal.Rptr. 710.) The transcript indicates that the parties agreed that David had the burden of proof as to paternity and legitimation and the respondent agency had the burden of proof as to David's unfitness. (Evid.Code, §§ 115, 500.) In denying David's petition for custody, the trial court impliedly found that, although David may have proved he was the father, 3 he had not legitimated the child and he was not fit to raise the child. The trial court further impliedly found that the agency had complied with the statutory procedures for the relinquishment of the child by the mother.
For the reasons hereafter expressed, it is clear that the trial court did not apply the correct standard in determining the custody issue.
The Family Law Act in Civil Code section 4600 provides in pertinent part:
'In Any proceeding where there is at issue the custody of a minor child, the court may, during the pendency of the proceeding, or at any time thereafter, make such order for the custody of such child during his minority as may seem necessary or proper. If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to his wishes in making an award of custody or modification thereof. Custody should be awarded in the following order of preference:
'(a) To either parent according to the best interests of the child.
'(b) To the person or persons in whose home the child has been living in a wholesome and stable environment.
'(c) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.
'Before the court makes any...
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