IN RE: Guardianship of SMITH et al.

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District Court of Appeal, Second District, Division 2, California.

IN RE: Guardianship of SMITH et al. HOWES v. COHEN.*

Civ. 18903.

Decided: July 18, 1952

Hahn, Ross & Saunders, Los Angeles, for appellant. Juaneita M. Veron, Huntington Park, for respondent.

Frieda Howes filed her petition to be appointed guardian of Leland and Sharon Smith alleging that she was the daughter of Margaret Smith, deceased mother of the two minors and that their only relatives residing in California are herself, her brother, Paul Smith, and Harry Cohen. Thereafter Mr. Cohen filed his objections to Frieda's appointment and at the same time countered with a petition for his own appointment. He alleged that the mother of the children is deceased; that they are now under the care of Frieda Howes; that the minors are the illegitimate children of himself and Margaret.

The court found that both Frieda Howes and Harry Cohen are qualified to be the guardian of the minors but held that it is for the best interest and welfare of the children that Frieda be appointed guardian of their persons. It was thereupon ordered that letters of guardianship of the persons of Leland and Sharon be issued to petitioner, Frieda Howes.

Harry Cohen now demands a reversal of the order on the grounds that (1) as the natural father of his minor children after the death of their mother, he has a superior right to the care, custody and control of such minors as against all other persons, the court having determined that he is a fit and proper person for such custody; (2) the superior right of such a father to the custody and control of his minor children applies regardless of whether the children are legitimate or illegitimate.

Section 1406 of the Probate Code provides that in ‘appointing a general guardian of a minor, the court is to be guided by what appears of be for the best interest of the child in respect to its temporal and mental and moral welfare; and if the child is of sufficient age to form an intelligent preference, the court may consider that preference in determining the question. * * *’ While section 1407 of the same code provides for the order of preference to be followed in the appointment of a guardian, and designates the parent as of the first class, there is no language of that section or of any other section which makes it imperative for the court to appoint a parent. The only hope for a father to get himself appointed as general guardian of his minor children is to attain such character and to cultivate such traits and qualities as will make his appointment appear most conducive to the best interest of his children in respect of their temporal and mental and moral welfare.

It is a basic principle in guardianship matters that the court acts for and on behalf of the child and must regard as of paramount consideration its interest and welfare, to which all other claims must yield. In re Guardianship of Reynolds, 60 Cal.App.2d 669, 675, 141 P.2d 498; In re Britt, 176 Cal. 177, 182, 167 P. 863; In re Martin, 79 Cal.App.2d 584, 586, 180 P.2d 383; In re Guardianship of Bynum's Estate, 72 Cal.App.2d 120, 121, 164 P.2d 25. This principle is not new to the jurisprudence of California. It was originally expressed in section 246 of the Civil Code which was in 1931 included in section 1406 to 1409 of the Probate Code. When it was in force, section 246 was the rule for guidance of probate courts in appointing guardians. See Guardianship of Allen, 162 Cal. 625, 629, 124 P. 237; In re McDaniel, 90 Cal.App. 307, 309, 265 P. 884; In re Estate of Dellow, 1 Cal.App. 529, 531, 82 P. 558. Neither is the doctrine strange to the decisions of other states. It was held in New York that a surviving parent has a right to the guardianship of the children, particularly when they are of tender age, yet under all the circumstances the chief consideration must always be what will best promote the welfare of the children. In re Bock, 280 N.Y. 349, 21 N.E.2d 186. There an uncle was appointed rather than the mother. In Massachusetts a father was denied custody of a nine-year-old son who had lived all his life with his grandmother. The court pointed out that there is no requirement that the parents must be found unequivocally to be unfit before the custody of the child can be awarded to a suitable third person. Perry v. Perry, 278 Mass. 601, 180 N.E. 512.

In the matter at bar, the Smith children have been reared in the Catholic faith and are accustomed to the teachings, literature and practices of that church. Appellant is a Jew. His wife is a Protestant. While they must both be deemed responsible, intelligent citizens and capable of managing the two children, the vast difference between the social and home life the children have known and now enjoy would be oppressive should they be suddenly taken into the Cohen home. While such a difference is readily adjusted by persons of mature years, it would be a barrier to happiness for little children reared in the Catholic fold. For a lifetime the mother of Leland and Sharon recited the rosary, honored the saints and assisted at holy Mass. They and their elder sister who offered to be their guardian are presumably steeped in that faith. Could Mr. Cohen with calm spirit or Mrs. Cohen with Christian charity accompany the children to the parochial school, sit with them through the celebration of Mass at the cathedral? Frieda Howes, having the same church loyalty as her mother, would suffer no discomfort in keeping about the children the songs, the stories, books and music they have known since birth.

As adolescents they live in the world of emotion. As Catholics they cannot suddenly be adjusted to the ideals, language and daily practices of a Protestant mother and a Jewish father. See In re Estate of Dallow, supra, 1 Cal.App. at page 532, 82 P. 558. The homing instinct is predominant with those of tender age. They desire the light and shadows of their mother's home, the sympathetic words she spoke, the songs she sang. These things would be absent from the house of Mr. Cohen however kind or wise he might be. To Leland and Sharon the change would be painful. These considerations must have moved upon the mind of the court in selecting the guardian.

Moreover, in determining what is best for their moral welfare, the court must have considered the moral standards of appellant. In violation of the morals that prevail throughout the nation, he brought these children into the world. If they become good citizens, it will not be due to their emulating his moral practices. The trial court, may, therefore, justifiably have considered that the moral concepts he has entertained will not serve to promote the moral welfare of his children. They have not yet conceived the significance of the practice of a father in moving along from one woman to another—from a fireside on K street with Jane Doe to an apartment by the seashore with Alice Roe. The welfare of the children and that of society imperatively demand that no mistake be made in selecting their guardian now.

If entrusted to their sister, Frieda Howes, they will experience no cataclysmic disappointment, no rude awakening from the world they share together under her surveillance. They know and love her. The abode where she lives is the only home they have ever known. It is far better for a child of innocent years to dwell among the people and with the attachments formed in childhood than to be torn away from familiar scenes, friendly faces and kindly voices to be cast into a strange environment. Ex parte De Leon, 59 Cal.App.2d 510, 515, 139 P.2d 109; In re Green, 67 Cal.App. 504, 506, 226 P. 76; Application of Bell, 28 Cal.App. 547, 550, 153 P. 240.

In addition to that which apparently impressed the court as being the preferable environment for the children, the trial judge conferred with them separate and apart from all other persons. That conference evidently persuaded the court that they entertained an intelligent preference for their sister's home as against that of their natural father. The court must have been impressed by their wish to be permitted to abide in the home of their departed mother.

If there is substantial evidence to support the finding of a court, the judgment based thereon will not be disturbed. The same principle is applicable to a guardianship matter. The sole question is whether the court abused its discretion in finding that Frieda should be the guardian. There is nothing in the record to indicate that it did so in determining it to be for the best interest of the children and for their temporal, mental and moral welfare, that they remain in the custody of their sister. In re Guardianship of Walsh, 100 Cal.App.2d 194, 196, 223 P.2d 322, 22 A.L.R.2d 689; In re Estate of Hubbard, 97 Cal.App.2d 321, 325, 217 P.2d 744; Matter of Allen, 162 Cal. 625, 629, 124 P. 237; In re Guardianship of Reynolds, 60 Cal.App.2d 669, 680, 141 P.2d 498; Riesenburg v. Riesenburg, 97 Cal.App.2d 714, 218 P.2d 577. In view of the foregoing authorities and in the absence of a claim by appellant that the court abused its discretion, it would be error to disturb the judgment.

In support of his claim that the natural father, after the decease of the mother, has a superior right to the custody and control of minor children where it is found that he is a fit and proper person to serve as their guardian, appellant has cited a number of California decisions. In re Guardianship of Campbell, 130 Cal. 380, 62 P. 613; In re Guardianship of Salter, 142 Cal. 412, 76 P. 51; Matter of Galleher, 2 Cal.App. 364, 84 P. 352; Matter of Forrester, 162 Cal. 493, 123 P. 283; In re Estate of Tetsubumi Yano's Estate, 188 Cal. 645, 206 P. 995; In re Arkle, 93 Cal.App. 404, 269 P. 689; In re Guardianship of McCoy, 46 Cal.App.2d 494, 116 P.2d 103; In re Guardianship of DeRuff, 38 Cal.App.2d 529, 101 P.2d 521; In re Guardianship of Case, 57 Cal.App.2d 844, 135 P.2d 681; Hartman v. Moller, 99 Cal.App. 57, 277 P. 875. Such cases are not persuasive. Those decided prior to 1931 as for example, Estate of Tetsubumi Yano and Guardianship of Campbell, all relied upon section 1751, Code of Civil Procedure, which specifically prescribed that a parent if ‘competent to discharge the duties of guardianship, is entitled to be appointed a guardian * * *.’ Such statute was repealed in 1931 and its successor statutes (Probate Code, secs. 1406 et seq.) contain no mandatory language giving a parent this absolute right. Accordingly, the earlier opinions are without authoritative force.

Although statements supporting appellant appear in the later McCoy and DeRuff decisions, an examination of the text of those cases reveals that they are in harmony with the rule that it is the child's welfare that is of paramount importance. In the latter case, a guardianship award to the maternal grandmother was reversed because of the trial court's failure to find the fitness of the mother or to make a finding of any facts proving why she should not have custody. Likewise in Re Guardianship of Case, 57 Cal.App.2d 844, 135 P.2d 681, although this court stated the rule in the language of the former section 1751 of the Code of Civil Procedure, a review of the record indicates that the determinative point was that the minor's welfare was to be best served by awarding the child to its father.

Although decisions hold that before a mother can be deprived of the custody of her infant she must have been found to be an improper guardian, Roche v. Roche, 25 Cal.2d 141, 143, 152 P.2d 999; Stever v. Stever, 6 Cal.2d 166, 169, 56 P.2d 1229; Newby v. Newby, 55 Cal.App. 114, 116, 202 P. 891, the law presumes the interest of a child will best be subserved by awarding its custody to a parent, unless the latter is unfit, In re White, 54 Cal.App.2d 637, 640, 129 P.2d 706 and that it is a natural right of a parent to have the care and custody of his minor child, In re Guardianship of Sloot, 92 Cal.App.2d 296, 298, 206 P.2d 862, yet in no decision does it appear that an illegitimate father was permitted to take his progeny from their home under such circumstances as those disclosed in the instant proceeding.

We conclude as did the court in Re Guardianship of Casad, 106 Cal.App.2d 134, 147, 234 P.2d 647, 654, that ‘the court is now under statutory mandate to be guided by ‘what appears to be for the best interest of the child in respect to its temporal and mental and moral welfare’ in every case, without exception.' (Italics added.)

Order affirmed.

MOORE, Presiding Justice.

FOX, J., concurs. McCOMB, J., concurs in the judgment.