IN RE: Victoria HARRISON

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District Court of Appeal, Third District, California.

IN RE: Victoria HARRISON, a Minor. Evan K. HARRISON, Petitioner and Appellant, v. Julie Vance IVARSSON et al., Respondent.

Civ. 10310.

Decided: February 19, 1963

Chamberlain & Chamberlain, J. Frank Murphy, Auburn, and Al. B. Broyer, Dist.Atty., Auburn, for petitioner-appellant. Devlin, Diepenbrock & Wulff, Sacramento, and Franklin H. Tuttle, Auburn, for respondent.

Evan K. Harrison has appealed from an order of the Superior Court of Placer County sitting as a juvenile court dismissing a petition to declare Victoria Harrison, also known as Victoria Ivarsson, a minor, a ward of the juvenile court.

Victoria Ivarsson, the minor, is the daughter of Edward Harrison, deceased, and Julie Vance Ivarrson. After Edward Harrison's death Julie married her present husband, Karl Ivarsson, who then adopted the child. The Ivarssons reside in a small town in Switzerland. In the spring of 1960 appellant requested that Victoria visit him and her paternal grandmother. This request was granted on the condition that the child be returned to her home in Zermatt, Switzerland, in August.

On August 19, 1960, a petition was filed in the superior court by Evan K. Harrison, the stepgrandfather, to have Victoria declared a ward of the court. The verified petition alleged that Victoria was a person within the provisions of subdivision (c) of section 700 of the Welfare and Institutions Code which provided that the jurisdiction of the juvenile court extends to any person under the age of twenty-one ‘[w]ho is destitute, or who is not provided with the necessities of life by his parents, and who has no other means of obtaining such necessities.’

The verified petition asserted that the child is the beneficiary of a $2,000,000 trust which is under the supervision of the courts of the State of Washington; that the child is not receiving an education in a school where the English language is taught or where any other subjects required to be taught by the public or private schools in the State of California or the State of Washington are part of the curriculum; that the child suffers from an untreated eye affliction; and that the village of Zermatt is an unhealthy place for the child to reside. Additional allegations were made concerning improper use of funds received by the minor's parents for the child's support.

After the petition was filed, the parents arrived in the United States. The child was placed in the custody of her mother and thereafter a stipulation was entered into. It provided that the guardian and litem in Washington, certain doctors, and the probation officer were to work out an educational and health program for Victoria to follow. This stipulation was never carried into effect because the Washington court instructed Oles, the guardian, not to proceed in the matter.

In the interim the child and her parents returned to Switzerland. A hearing was scheduled in the California court on March 9, 1961. On that date the court was informed that contrary to an agreement that neither the child nor the child's parents would be present but that their counsel would present their case. Thereafter, by agreement of court and counsel the matter was set for hearing on March 14, 1961.

On March 7, 1961, prior to the March 14th hearing, the probation officer filed his report herein, and after reviewing the case and reciting his reasons, he recommended that the case be dismissed. On March 27, 1961, at a further hearing, the probation officer stated that while he felt the minor was in need of some type of psychiatric counseling, he felt that whatever was required could be best provided for by the court in the State of Washington of which she was a ward; that even though she was in need of treatment that would not, in his opinion, justify her being made a ward of this court, and that that was his opinion aside from any practical problems involved by virtue of her parents being residents of Switzerland. He therefore recommended that the petition be dismissed. The court followed the recommendation of the probation officer and dismissed the petition. This appeal followed.

While we are convinced that the order of the trial court that the minor child, Victoria, should not be made a ward of the juvenile court is amply supported by the evidence and the law, we do not believe we should pass upon that question because we have concluded the appeal must be dismissed because the order dismissing the petition is not an appealable order.

Section 580 of the Welfare and Institutions Code read at the time this action was heard (all code section references are to the 1959 code): ‘A judgment or decree of a juvenile court assuming jurisdiction and declaring any person to be a ward of the juvenile court or a person free from the custody and control of his parents may be appealed from in the same manner as any final judgment, * * *.’

The only California case construing this provision is Moch v. Superior Court, 39 Cal.App. 471, 179 P. 440. Petitioners in the Moch case were seeking to have the minor declared free from the custody of her parents and sought to adopt the minor who had been living with them. The juvenile court believing that it had no jurisdiction to determine the child's status as to the mother entered a ‘judgment’ which purported to dismiss the petition as to her. Petitioner sought a writ of mandate in the appellate court to require the juvenile court to proceed with the hearing and determination of the proceeding. The appellate court decided that the juvenile court did have jurisdiction and that a writ of mandate was an appropriate procedure to compel exercise of that jurisdiction.

It should be noted that in the case at bench the juvenile court not only assumed jurisdiction to hear and determine the petition but a hearing was held and the matter was by stipulation of the parties submitted to the court for decision.

The court in the Moch case held further that an appeal was precluded by a proper construction of section 23 (the predecessor of section 580) of the Welfare and Institutions Code. The court said at page 478, 179 P. at page 442:

‘* * * This is admittedly a special proceeding of a civil nature, and, if there were no provisions respecting appeals in the Juvenile Court Law itself, we should hold the provision of section 963 above quoted applicable thereto, under the authority of People v. Bank of San Luis Obispo, 152 Cal. 261, 92 Pac. 381. But that act does contain such a provision. Section 23 thereof provides: ‘Every judgment or decree of a juvenile court assuming jurisdiction and declaring any person to be a ward of the juvenile court or a person free from the custody and control of his parents may be appealed from in the same manner as any final judgment, and any subsequent order may be appealed from as from an order after judgment.’ This presents an apt situation for the application of the maxim, ‘Expressio unius est exclusio alterius.’ No other conclusion may reasonably be drawn therefrom than that the Legislature did not intend thereby to provide for appeals from judgments and orders within the scope of that act other than those there enumerated. Peralta v. Castro, 15 Cal. 511; Frandzen v. County of San Diego, 101 Cal. 317, 321, 35 Pac. 897.'

A case supporting the view expressed in the Moch case is In re Powell, 167 Kan. 283, 205 P.2d 1193. In that case the petitioner and the father brought an action to declare a minor a dependent and neglected child. They attempted to appeal from a judgment declaring that the minor was not a dependent and neglected child. The Kansas Supreme Court held that no appeal would lie from the order. The Kansas statute, like ours, read: ‘An appeal shall be allowed * * * from the final order of commitment made by the juvenile court, * * *.’ The court held that an order that the child was not dependent or neglected was not an order from which an appeal would lie since it was not a final order of commitment. The court pointed out that appeal is not a matter of right but is purely statutory and may be limited by the Legislature to any class of cases or in any manner, or may be entirely withdrawn.

The right of appeal in this state too is wholly statutory, and no judgment or order is appealable unless it is expressly declared to be so by the Constitution or by statute. (People v. Keener, 55 Cal.2d 714, 720, 12 Cal.Rptr. 859, 361 P.2d 587.) Our statute stated: ‘A judgment or decree of a juvenile court assuming jurisdiction and declaring any person to be a ward of the juvenile court * * * may be appealed * * *.’ There is no provision for an appeal from an order dismissing a petition to declare a minor a ward, and as stated in Moch v. Superior Court, supra, we believe no other conclusion may reasonably be drawn from the language of section 580 than that the Legislature did not intend to provide for appeals from orders of the juvenile court dismissing a petition to declare a minor a ward of the juvenile court.

Our conclusion that the appeal must be dismissed makes it unnecessary to discuss the other points raised by the briefs.

The appeal is dismissed.

SCHOTTKY, Justice.

PIERCE, P. J., and FRIEDMAN, J., concur.