In Re Welch

Citations: 108 Cal. App. 2d 466; 238 P.2d 1031Docket: Civ. No. 18432

Court: California Court of Appeal; December 27, 1951; California; State Appellate Court

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In *In re Jone Welch*, the California Court of Appeals affirmed a decree declaring Jone Welch, a minor, as an abandoned child under section 701 of the Welfare and Institutions Code. The statute allows for juvenile court jurisdiction over individuals under 21 years who have been left in the care of another without parental support or communication for a year, indicating intent to abandon. The petition alleged that Jone's parents left her in the care of Mona Tate Kramer without support or communication since January 9, 1948, with the intent to abandon her. A supplemental petition indicated the mother had not communicated or provided support since Jone was placed in the Hakes' home on January 13, 1949, despite being able to earn money.

The court found the allegations true, emphasizing the mother's failure to maintain financial support or contact, particularly after January 9, 1948. Jone was born out of wedlock on September 12, 1944, and initially placed with Mrs. Kramer under a written agreement that included financial obligations which the mother began to neglect in late 1946. Despite some payments made intermittently, the mother ceased all payments after January 9, 1948. The mother argued that the evidence did not sufficiently demonstrate her intent to abandon Jone. The court's findings supported the conclusion of abandonment based on the mother's actions and lack of communication.

Jone was placed in a plaster cast from her armpits to one ankle and spent about 10 days in the hospital, after which she was taken to Mrs. Kramer's home. Appellant paid the hospital bill and Jone remained in the cast for approximately eight months, requiring 24-hour nursing care from Mr. and Mrs. Kramer. Medical visits to the hospital occurred monthly, often arranged by the Kramers. During this period, the appellant visited Jone four to five times. In January 1946, the appellant married Mr. Dagmar and later moved to Las Vegas, where she filed for divorce in October 1946. She returned briefly to Mrs. Kramer's home due to illness and lived in Las Vegas for about eight months before moving back to California.

In May 1947, the appellant took Jone to a birthday party and subsequently returned her to Mrs. Kramer. Mrs. Kramer attempted to contact the appellant multiple times regarding Jone's care, including sending registered letters that were returned unclaimed, as the appellant refused to accept them. In letters dated July and August 1947, Mrs. Kramer expressed concern over Jone’s care and the accumulating board bill, which reached nearly $600. Mrs. Kramer suggested adoption as a solution. The Children's Hospital Society later advised Mrs. Kramer to obtain court consent for Jone's treatment, leading her to file for guardianship. In October 1947, Mrs. Kramer was appointed Jone's guardian, which was necessary for medical treatment.

The appellant was informed of the guardianship in November 1947 and expressed her objections to Mrs. Kramer. In January 1948, the appellant visited Jone and later wrote a letter promising to send money orders and acknowledging the guardianship as a necessary step. By June 1948, Mrs. Kramer confronted the appellant about her responsibility for Jone, suggesting that if she could not care for her, she should consider adoption.

Appellant expressed her desire to prevent the adoption of her child, Jone, and moved to a larger apartment to accommodate her. On July 28, 1948, Mrs. Kramer requested a probation department investigation regarding Jone's living arrangements. A probation officer noted that appellant had rented a three-room apartment with an outdoor play area, anticipating Jone would soon live with her. While Mr. and Mrs. Kramer were on vacation in Oregon in August 1948, a friend of theirs informed Mrs. Kramer that appellant wanted Jone and doubted Jone's vacation status. In response, Mrs. Kramer wrote to appellant, reflecting on her assessment of appellant's living conditions as inadequate for Jone's care and suggesting adoption. However, she indicated willingness to consider appellant's ability to provide for Jone.

After Mrs. Kramer's return, she and appellant communicated, and on Jone's birthday, September 12, 1948, appellant visited Jone and gave her a gift. On November 10, 1948, Mrs. Kramer wrote again, expressing their emotional investment in Jone and their wish to adopt her, while inviting appellant to visit. Mrs. Kramer reported no response to this letter, but appellant claimed she had called Mrs. Kramer to assert her intention to take Jone home. Shortly before Christmas, 1948, appellant visited Jone but did not address the adoption issue during her visit. On January 13, 1949, Jone was placed with Mr. and Mrs. Hakes. Appellant visited Jone briefly on July 22, 1949, and later sought to visit her on Christmas Day 1949 but was informed that Jone was with the Hakes, who were out of town.

On November 13, 1950, during the hearing, the appellant had not seen Jone since July 22, 1949. Mr. and Mrs. Hakes and Mrs. Kramer initiated a petition on February 25, 1949, to declare Jone free from parental control. The appellant filed a habeas corpus petition on July 15, 1949, which was denied, and also filed a petition to remove the guardian, denied without prejudice on January 18, 1950. A second petition for removal was filed in May 1950 but no hearing occurred due to a lack of citation. Prior to the abandonment hearing, Mr. and Mrs. Hakes filed for Jone’s adoption, which was heard after the abandonment petition was determined.

The appellant testified about her financial situation, detailing her earnings as a motion picture actress in 1945 and 1946, and her subsequent struggles in 1947 and 1948, including working as an apprentice dog trainer with limited income. She acknowledged receiving financial support from friends and family. The appellant claimed she learned Jone was living with the Hakes in May 1949 upon receiving the petition. She argued that the evidence did not sufficiently prove Jone was abandoned under section 701(a) of the Welfare and Institutions Code, which requires proof of voluntary abandonment without support or communication for one year.

The court found that the appellant had voluntarily left Jone in Mrs. Kramer's care and failed to provide support starting January 9, 1948. The appellant had initially agreed to contribute $21 weekly for Jone's care but did not fulfill this obligation, nor did she inform Mrs. Kramer of her whereabouts after that date.

Failure to provide for a minor for one year serves as presumptive evidence of intent to abandon, per Welfare and Institutions Code § 701(a). This presumption can be challenged with contrary evidence, but the determination of intent to abandon over the specified period is a factual question for the trial court. The appellant claimed her lack of support payments was due to financial hardship; however, the court found she had the means to support the child during the alleged abandonment period. Evidence included her travels to San Francisco and Mexico, a $50 down payment on a car, residency in a three-room apartment, and later moving to an $85 monthly rental house. The trial court is responsible for evaluating the evidence and witness credibility, and its findings must be upheld if legally supported. The statutory presumption of abandonment and other evidentiary inferences were sufficient to substantiate the abandonment finding. The court also addressed the child's preference to live with Mr. and Mrs. Hakes, stating that such wishes were irrelevant to the issue of abandonment. As long as the evidence supported the trial court's findings, the appellate court could not overturn the ruling. The decree and order were affirmed, with concurrence from Shinn, P.J., and Vallee, J.