Summary
In Ex parte Miller, 109 Cal. 643, 648, [42 P. 428], Temple, J., in a concurring opinion, used this language: "When a parent is deprived of the custody of his child, and, therefore, of the right to its services and earnings..., he is no longer liable for its support and education.
Summary of this case from Lewis v. LewisOpinion
Hearing in the Supreme Court upon writ of Habeas Corpus.
COUNSEL:
H. C. Grant, and A. D. D'Ancona, for Petitioners.
Martin Stevens, and James L. Robison, for Respondent.
The remedy under section 203 of the Civil Code was not intended to be exclusive. If so, it is to that extent unconstitutional and void, as the courts could not by such means be deprived of their inherent jurisdiction, as successors of the court of chancery, to interfere for the protection of children in cases not provided for, or which could not be conveniently and speedily remedied by a civil action under that section. (Const. 1849, art. VI, sec. 6; Const. 1879, art. VI, sec. 5; Wilson v. Roach , 4 Cal. 362; Willis v. Farley , 24 Cal. 499; Estate of Hinckley , 58 Cal. 505-07; People v. Davidson , 30 Cal. 379; Rosenberg v. Frank , 58 Cal. 400; Beach's Modern Equity Jurisprudence, sec. 1022; 2 Story's Equity Jurisprudence, secs. 1328-44; 3 Pomeroy's Equity Jurisprudence, sec. 1304, and cases cited; De Manneville v. De Manneville, 10 Ves. 52, 57-64; Mercein v. People, 25 Wend. 64, 100-03; 35 Am. Dec. 653; Albert v. Perry , 14 N. J. Eq. 540; Richards v. Collins , 45 N. J. Eq. 283, 286; 14 Am. St. Rep. 726; Baird v. Baird , 19 N. J. Eq. 481; Lord v. Hough , 37 Cal. 666, 668, 669.) Such a construction of the above section would render it unconstitutional, for the additional reason that it abridges the chancery jurisdiction of the courts by limiting the persons who may invoke their jurisdiction. (Daniell's Chancery Practice, 1347; Starten v. Bartholomew, 6 Beav. 143; Sale v. Sale, 1 Beav. 586; Fox v. Suwerkrop, 1 Beav. 583; Raven v. Kerl, 2 Phil. 692.) Such construction would render the section violative of the constitution as an abridgment of the power of chancery to exercise its jurisdiction summarily. (Daniell's Chancery Practice, 1347; In re Duke of Newcastle, 15 Ves. 447, note "B"; Ex parte Mountfort, 15 Ves. 445-47; Code Civ. Proc., sec. 1747.) The codes provide a remedy independently of section 203 of the Civil Code, and the appointment of guardians on petition in special proceedings is the settled practice in this state. (Civ. Code, 203, 243, 246-48; Code Civ. Proc., 1747, 1751, 1753, 1801; In re Get Young , 90 Cal. 77; In re Vance , 92 Cal. 195-97; Lord v. Hough , 37 Cal. 657.)
JUDGES: In Bank. Harrison, J. Garoutte, J., McFarland, J., and Van Fleet, J., concurred. Temple, J., concurring. Beatty, C. J., dissents.
OPINION
HARRISON, Judge
The return to the writ issued herein shows that the said Lilley Miller is an infant of the age of about eleven years, and that she is in the custody and under the control of John McComb, by virtue of an order of the superior court of the city and county of San Francisco, made May 8, 1894, appointing him guardian of her person. On February 28, 1894, McComb filed a petition in said superior court, praying to be appointed guardian of her person, and thereupon the court appointed a day for hearing said petition, and directed notice to be served upon her parents by citation, at least five days before said hearing. The citation was thereupon issued out of the court, and served upon the parents, and at the hearing the said parents appeared in person, and by attorney, and the court, after hearing the petition, and considering the same, made an order on the 8th of May appointing McComb the guardian of the infant, and on the 12th of May letters of guardianship were issued to him, and he has since had the custody and control of said infant. Section 243 of the Civil Code provides: "A guardian of the person or property, or both, of a person residing in this state, who is a minor, or of unsound mind, may be appointed in all cases other than those named in section 241 by the superior court, as provided in the Code of Civil Procedure." Section 1747 of the Code of Civil Procedure provides that "the superior court of each county, when it appears necessary or convenient, may appoint guardians for the persons or estates, or either of them, of minors who have no guardian legally appointed by will or deed, and who are inhabitants or residents of the county, or who reside without the state, and have estate within the county. Such appointment may be made on the petition of a relative or other person on behalf of the minor, or on the petition of the minor if fourteen years of age. Before making such appointment the court must cause such notice as such court deems reasonable to be given to any person having the care of such minor, and to such relatives of the minor residing in the county as the court may deem proper." As the parents of the child appeared in person and by attorney at the hearing upon the petition, the giving of the notice to that extent became immaterial; but it may be noted that they were also served with the notice directed by the court.
The action of the superior court in appointing the respondent as guardian of the infant was a judicial proceeding, from which an appeal could have been taken to this court (Code Civ. Proc., sec. 963, subd. 3; In re Get Young , 90 Cal. 77); and, unless the appeal was taken within sixty days after the order of appointment was entered (Code Civ. Proc., sec. 1715), it became final. The right of the guardian to the custody of the infant can be attacked collaterally only upon the want of jurisdiction in the superior court to make the order; and when, upon proceedings in habeas corpus, the respondent justifies his custody of the infant by this judgment, an impeachment of the judgment is a collateral attack.
The constitution (art. VI, sec. 5) has conferred upon the superior court jurisdiction in all matters in probate, and that court is thus given control over the person and estates of minors (Wilson v. Roach , 4 Cal. 366), and the power to appoint their guardians. (Murphy v. Superior Court , 84 Cal. 592.) As the filing of the petition for the appointment of a guardian gave to the superior court jurisdiction of the subject matter, and the appearance of the parents at the hearing of the petition, as well as the service upon them of the citation, gave to the court jurisdiction over their persons, it was incumbent upon them to present to that court any matter, if such existed, which would [42 P. 429] have justified the court in denying the petition. They cannot afterward upon proceedings in habeas corpus assert a right to the custody of the infant as against the guardian, which they might have presented in that proceeding, but which they neglected to present.
Section 203 of the Civil Code is not a limitation upon the jurisdiction which has been conferred by the constitution upon the superior court, nor is it a limitation upon the exercise of that jurisdiction which is authorized by section 243. Section 243 authorizes this jurisdiction to be exercised "in all cases other than those named in section 241"; and section 1747 prescribes the procedure to be observed in the exercise of the jurisdiction. The primary purpose of section 203 is to confer a right of action in favor of a child against its parent for the abuse of parental authority, and as an incident thereto, upon establishing the cause of action, to emancipate the child from the control of the parent and at the same time enforce in its favor and against the parent the parent's obligation of support and education. The authority for appointing a guardian for the child is not conferred by this section, and it is dependent upon an enforcement in behalf of the child of the right of action, thereby authorized. In Hunt's case , 103 Cal. 355, the judge of the superior court had made an ex parte order directing the respondent Kane to take the custody of the children before any hearing had been had upon his petition for guardianship, or a judicial determination that any grounds existed for appointing a guardian for the minors. The order was also made without any notice whatever to the parents, or either of them, and without the issuance of any letters of guardianship, or requiring from Kane any undertaking, and it was held that this proceeding of the court was wholly unauthorized. What was said in the opinion concerning section 203 was merely illustrative, and was not required by the facts of the case, and cannot be invoked as authority under the facts of the present case.
The writ is discharged and the infant is remanded to the custody of the respondent.
CONCUR
TEMPLE
Temple, J., concurring. I concur in the order dismissing the writ and remanding the child to its guardian. I do not think section 203 of the Civil Code throws any light whatever upon the question here involved. It does not purport to be, nor is it, a limitation upon the power conferred upon the judge of the superior court in other sections. The argument that it has such effect is, I think, founded upon a mistaken view of the policy of the law. If, it is said, a guardian can be appointed in such a case on the application of any person whomsoever, in a summary proceeding, then section 203 serves no useful purpose. Why should the right to bring such an action be confined to certain specified persons, and why must it be determined in a regular action, if the same purpose can be attained in this summary proceeding? The answer is, that the same purpose is not attained in the summary proceeding.
When a parent is deprived of the custody of his child, and, therefore, of the right to its services and earnings by the summary proceeding, he is no longer liable for its support and education. This is true as a general proposition of law, and it is recognized by our code. Section 196 of the Civil Code provides that a parent entitled to the custody of a child must give him support and education suitable to his circumstances, plainly implying that the parent does not owe that duty to a child when he is not entitled to its custody.
Section 204 is: "The authority of a parent ceases: 1. Upon the appointment by a court of a guardian of the person of a child." In accordance with this idea section 205 of the same code provides for the case of the death of a parent chargeable with the support of a child, and section 207 that when a parent neglects to provide necessaries for a child "who is under his charge" third persons may provide and recover their value from such parents. In cases of divorce and in controversies between the parents in regard to the custody of children, other sections provide for the support of the children (Civ. Code, secs. 137, 199), but in no other case except as provided in section 203 has the court the power to deprive the parent of his authority and yet hold him liable for the maintenance of his child according to his condition. If a parent, because of his own incompetency or moral worthlessness, neglects his child, it would ordinarily be of no importance to have a decree requiring him to support a child which he is neglecting or abusing; but if a wealthy parent were to abuse his authority, it would be of the first importance to the child that it should be educated as a child born in that condition of life is entitled to be.
That this is the purpose of section 203 I cannot doubt, and it has no bearing whatever upon the construction to be given to section 243 of the Civil Code, or section 1747 of the Code of Civil Procedure.
I therefore concur in the order.
DISSENT:
BEATTY
Beatty, C. J. I dissent. It appears from the return to the writ that on February 28, 1894, John McComb filed his petition in the superior court of the city and county of San Francisco, describing himself as secretary of the California Society for the Prevention of Cruelty to Children, and alleging that Lilley Miller, a minor, has no guardian legally appointed by will, and is a resident of said city and county; that Benjamin Miller and Rena Miller, her parents, are "unfit and improper persons to have the custody of said minor"; that she is ten years of age; that her parents reside in San Francisco, and that it is necessary to appoint a guardian of her person.
Upon the filing of this petition an order was made appointing Friday, March 19, 1894, for the hearing, and directing [42 P. 430] five days' notice thereof to be served upon the parents. Upon this a citation was issued, requiring the parents to appear on March 9th and show cause why John McComb should not be appointed such guardian, which citation was served on March 6th, only three days before the day appointed for the hearing.
The order of the superior court does not show that the parents appeared in court, but it is alleged in the return that they did, and that there was a full hearing. However this may be, the order appointing a guardian merely recites that the petition came on regularly for hearing; that due proof was made to the satisfaction of the judge that notice had been given to the relatives of the minor residing in the county; that the minor was a resident of the county and needed the care and attention of some fit and proper person. Wherefore it is ordered that John McComb be appointed guardian of the person and estate of said minor, and that letters issue upon his giving a bond in the sum of five dollars. It further appears that the required bond was given and letters of guardianship thereupon issued.
It is now held that by these proceedings the natural right of the parents to the custody and society of their minor child has been finally determined, and that she is henceforth subject to the exclusive control of the guardian so appointed, or of such others as may be appointed in his place.
This decision is, in my opinion, in conflict with section 203 of the Civil Code, which reads as follows: "The abuse of parental authority is the subject of judicial cognizance in a civil action brought by the child, or by its relative within the third degree, or by the supervisors of the county where the child resides; and, when the abuse is established, the child may be freed from the dominion of the parent, and the duty of support and education enforced."
In the matter of the minor children of Henry Hunt this court rendered a decision in Bank, which is reported in 103 Cal. 355, and in which it was held that "the father and mother being the natural guardians of a child can be deprived of the custody of its person only by a proceeding under section 203 of the Civil Code."
In that case a stranger had asked to be appointed guardian of two minor children of the petitioner upon an allegation that the parents were persons of intemperate habits, and not fit to have the custody of their children.
Upon the filing of the petition an ex parte order was made by the judge of the superior court, awarding the custody of the children to the petitioner pending a hearing. After the day appointed for the hearing, but before its completion, and before any final order in the matter, the writ of habeas corpus was issued out of this court, and afterward the case was decided in the manner and upon the ground above stated.
It has been contended in the argument here that the point decided in the Hunt case was not necessarily involved or involved at all, and consequently that the expression above quoted from the opinion was obiter, and of no authority. I cannot assent to this view. While it is possible that the case might have been decided upon another ground, it cannot be denied that the ground upon which the decision was expressly put was presented by the case. It clearly appeared that an attempt had been made, in a summary statutory proceeding for the appointment of a guardian, to determine the question whether the parents of minor children had not by their misconduct (their intemperate habits) forfeited their natural right to the care, custody, and society of their children. If the issue tendered by the petition was one which the court had no jurisdiction to try in that proceeding, it is clear that the provisional order made therein, awarding the temporary custody of the children to the petitioner, was in excess of the jurisdiction of the court and void. Upon whatever other grounds, therefore, the order might have been attacked, it is very clear that, if it was open to attack upon this ground, the petitioner was at liberty to plant himself upon it, as the report shows that he did, and the court was at equal liberty in making its decision to ignore other grounds, if any such there were, and to confine itself to this ground, if it was deemed sufficient to support its conclusions, as in fact it was. Under these circumstances, to say that the expression above quoted from the opinion is obiter is equivalent to saying that nothing can ever be decided in a case in which the same conclusion is sustained upon two independent lines of reasoning, which seems to be absurd. But the authority of that decision is assailed upon the further ground that the point decided, not being necessarily involved, was not duly considered, and for want of due consideration was erroneously decided, and a rule thereby established, not only contrary to the intention of the legislature, but extremely inconvenient and even dangerous in its operation. This contention deserves serious consideration. It may be conceded that the language of the decision (In re Hunt, supra ), taken in its broadest sense, and unqualified by reference to the facts of that case, goes too far. The case before the court was one of alleged unfitness of the parents arising out of their own misconduct, a case, in other words, of forfeiture of parental rights on the ground of parental abuse, and the language of the opinion must be understood as having reference to that state of facts. A parent might become unfit to have the custody of his children without any fault or misconduct on his part, as in case of insanity, permanent or temporary. In such a case it would generally be convenient and often necessary to appoint a guardian of the persons of his minor children during the continuance of his disability. To such and similar cases section 203 of the Civil Code has no [42 P. 431] application. But, in my opinion, it does apply to all such violations or neglect of parental duty as jeopardize the safety and welfare of a child to an extent justifying a forfeiture of parental dominion, and, when it applies, I see no reason why the remedy therein prescribed should not be held exclusive, as was decided in the case referred to.
The meaning of this and other provisions of our code relating to the subject of guardianship will be rendered plainer by comparing them with the doctrines and rules of the common law in regard to the same matter. The common law recognized the natural right of parents to the care and control, and to the society, services, and earnings, of their minor children. It also recognized the duty and necessity of guarding against the abuse of parental authority. The parent, though guardian by nature of his minor children, was but a guardian after all, and as such subject, like all other trustees, to the jurisdiction of the chancellor. Guardians in socage and guardians in chivalry were designated by the law, and had the custody of the persons of their wards, as well as of their estates. There were also guardians appointed by will or deed under the statute 12 Car. II., c. 24. All these were trustees, subject to removal, discipline, or correction by the chancellor for any neglect or misconduct prejudicial to the ward. And upon the same grounds, and for the same reasons, the natural guardian was subject to the same jurisdiction, and it extended to every sort of misconduct or neglect by which a parent could forfeit his parental rights. It is no doubt true that in the matter of guardianship of the person the jurisdiction of the chancellor was exercised less freely in the case of parents (guardians by nature) than in the case of guardians designated by law, or appointed by will or deed, or appointed by the chancellor himself, in default of other designation. But if so, it was only because the mutual benefits flowing from the natural relation of parent and child are so manifest and important as to outweigh breaches of duty which in any other guardians would be ground of removal. The interest of the child, however, was always the paramount consideration, and when its safety or welfare was menaced the chancellor had power to free the child from the parental dominion and to take it under his own protection. The means by which this jurisdiction was invoked and exercised was a suit in equity against the offending parent. (Pomeroy's Equity Jurisprudence, sec. 1307, and cases cited.)
This being the state of the law before the codes, our legislature, in enacting section 203 of the Civil Code, has done little more than to put into the statute what was the law already. The abuse of parental authority is the subject of judicial cognizance in a civil action, and so it always was. And there is no reason to suppose that the words "abuse of parental authority" were used in a sense less comprehensive than I have attributed to them, viz., a sense which will comprehend every sort of neglect or misconduct by which a parent may justly forfeit his parental rights; or, in other words, every case in which the unfitness of the parent is predicated upon his own fault, whether of omission or commission. If this is so, it seems clear to my mind that the further intent of the provision is that when a child is to be forever freed from the dominion of its parents upon the ground of parental abuse, the issue must be tried and determined in a civil action prosecuted in the name of the child, or of a near relative, or of the board of supervisors of the proper county. It is intended that the acts and facts constituting the abuse should be alleged in issuable form; that the offending parent should be summoned into the court in the usual way, and should have the ordinary right of a defendant in a civil action to defend by demurrer and answer, and to have the issue tried as other issues are tried in civil actions. And it is further intended (for such would be the necessary consequence) that a trial and determination of the issue in favor of the parent should be a bar to another action for the same cause.
In this case the proceeding was not instituted by nor conducted in the name of the child or of a relative or of the board of supervisors, and it was not a civil action as defined in the code (Code Civ. Proc., sec. 30), but a special and summary proceeding, in which upon a petition containing no specific allegations, but couched in the baldest and vaguest general terms, the parents were cited upon five days' notice (five prescribed, three actually given) to show cause why the petitioner -- a mere stranger -- should not be appointed guardian, and they, as a necessary consequence, deprived permanently of the custody and society of their child. If such procedure is allowable, section 203 of the Civil Code might as well not exist. Why limit the right of action to certain designated persons, and why require or authorize a civil action, if any stranger may pass the statute by, and have a trial of the issue in a summary proceeding, the only effect of which, if the decision should happen to be in favor of the parent, would be to leave him exposed to the necessity of litigating the same matter the next day in a new proceeding, commenced by some other stranger volunteering in the child's behalf?
If, instead of the proceedings by which this child was transferred to the custody of General McComb, an action had been commenced as the statute provides, these parents, as defendants in such action, must have been served with a summons and copy of a complaint containing a statement of specific facts; they would have had at least ten days to demur or answer, and the cause, when at issue, would have gone upon a trial calendar; there would have been time to subpoena witnesses, and, in short, the proceedings would have been conducted with that deliberation, and with [42 P. 432] the opportunities to defend, which the law deems essential where the controversy involves the smallest property or contract right. And, in case of a judgment adverse to the parents, they would have had one year to appeal, instead of the sixty days within which they were compelled to appeal from this order.
The question involved, therefore, although merely a question of procedure, is one of some practical consequence. But even if it were otherwise, the mere fact that the statute has prescribed the remedy, by action brought by some one of certain enumerated persons, is a sufficient reason for insisting upon that course, unless there are other concurrent remedies allowed by law. It is said that under section 1747 of the Code of Civil Procedure the superior court of any county has a general authority to appoint guardians of the persons or property of resident minors, and to determine, upon the petition for guardianship therein prescribed, any and all questions upon which the necessity or propriety of such appointment depends. In a certain sense this is true; the court not only may, but must, determine whether or not "it is necessary or convenient" to appoint a guardian. But it is entirely consistent with this proposition to hold that as to one occasion for exercising the power of appointment, viz., the forfeiture of parental rights by abuse of parental authority, it must look solely to the judgment of a competent tribunal, given in a proper action, brought by a proper party, in order to determine whether the occasion has arisen. Or, in other words, it is entirely consistent with the conceded power and jurisdiction of the probate court in the matter of guardianship to hold that when abuse of parental authority is the ground of application, the necessary and material allegation of the petition must be, not merely that the parent is unfit, or that he has abused his authority, but that a competent tribunal has duly given a judgment to that effect. And not only are these two propositions entirely consistent with themselves, and with every provision of the codes upon which counsel rely, but it is only by insisting upon both that all parts of the statute, and especially section 203 of the Civil Code, can be given effect. In this view, all parts of the statute are perfectly harmonized, and each operates as it was clearly intended to operate. But to hold that the legislature, while taking the pains to declare that the abuse of parental authority is the subject of a civil action, and to limit the number of those who may prosecute the action, has at the same time given full liberty to any stranger or volunteer to ignore at his pleasure the prescribed method of procedure, is to convict the law-makers of the merest folly. I do not think such folly should be imputed. On the contrary, I think the provisions of section 203 of the Civil Code should be strictly upheld and enforced, not only because it is the law, but because it is a law which, while it conserves rights which certainly are as sacred as any rights of property, is capable of strict enforcement without incurring any of the dangers to children which counsel has supposed would ensue. The statute, as we have seen, introduces nothing new. The jurisdiction of the chancellor in England and the courts of equity in this country to try actions involving questions of parental abuse, and to dispose of the custody of children subjected to such abuse, has long been thoroughly established. And there is no reason why, independent of section 203 of the Civil Code, such actions should not be maintained in this state, except that all matters of procedure being here regulated by statute, it might be held, in the absence of any provisions similar to those of said section 203, that the provisions relating to the appointment of guardians were intended to be exclusive. As it is, however, it is plain to my mind that they were not intended to be exclusive, but that they must be administered in conjunction and in harmony with section 203.
The argument against this view is altogether based upon the supposed hardships, inconveniences, and dangers that it involves, but these, I think, may be easily shown to be purely imaginary, and, even if they were more real than imaginary, the argument from inconvenience could not be regarded if the law is plain as it seems to me. The inconveniences resulting from the operation of a law are for the consideration of the legislature, and the courts must assume that they have been duly weighed and deliberately encountered as being of less concern than those which the law was designed to remedy. But I repeat these supposed inconveniences are purely imaginary.
The substance of the argument under this head is that it is necessary, in view of the welfare of children, which is the paramount consideration, that the court should have the power to proceed summarily in order to prevent the irreparable ruin which might ensue if in the cases supposed the children were not removed without delay from the control and influence of their wicked and depraved parents. But, conceding that such cases as counsel suppose have occurred and will hereafter occur, I cannot see why the remedy by action is not just as efficacious as the remedy pursued in this instance.
The action is an equitable action; the judge is armed with all the powers of the chancellor. Whatever provisional orders it is necessary to make pending the litigation to protect the interests or insure the safety of the child, he has as much and more authority to make than he has when sitting in probate or in a guardianship proceeding. The code provisions relating to guardianship confer no power upon the judge to provide for the temporary custody of the child. If he has authority to make any such order he must derive it from [42 P. 433] the equitable jurisdiction conferred upon the superior court, and if it is derived from that source he can exercise it as well and as amply in an action as he possibly can in a special proceeding. So far, therefore, as the exigencies of the case may demand immediate action on the part of the judge, the child is certainly as well protected if not much more amply protected in an action than in the special proceeding.
If it is contended that provisional orders for the temporary custody of the child made after the commencement of an action will not be sufficient to meet the exigencies of some cases, the answer is that an action may be commenced as easily and expeditiously as a special proceeding, and what will answer in one case will answer equally well in the other. But counsel seem to claim that there may be delays in commencing an action owing to the absence or unwillingness of relatives or inattention on the part of the board of supervisors. We do not think it ought to be assumed that the board of supervisors, being advised of their duty and power in the premises, would neglect to interpose in a proper case, but allowing that they would, and that there were no relatives willing to act, there would be nothing to prevent the society for the prevention of cruelty to children, or any other charitable organization or private person, from applying to the proper court to be appointed guardian ad litem, so as to commence the action in the name of the child. And, if the case was of such pressing exigency as to justify the extreme course resorted to in this and other instances of taking the child from its parents without any legal warrant, but with a view to legal proceedings, such a course would be as appropriately followed by an action as by a special proceeding.
There is no reason, therefore, for ignoring the statute in these matters. Indeed, the minor would enjoy a much more ample measure of protection in the civil action provided for in section 203 of the Civil Code than under a mere petition for guardianship; for in that proceeding the superior court acts under a statute which confers no power to issue an injunction against the offending parent pendente lite, as may be done by the chancellor. (See cases cited by Pomeroy, supra, and Schuler's Domestic Relations, sec. 249.)
To take this case as an illustration: What would have become of the infant child during the nine days inter vening the filing of the petition and the day appointed for the hearing if her protection had depended upon the statutory provisions relating to the appointment of guardians, and her parents had been wicked and depraved enough to subject her to the contamination and outrage that counsel have instanced as occurring in other cases? She must have been left during that interval of time in the power of her parents, and that would have sufficed for her ruin if the courts and the law are as impotent as the argument supposes. But, in truth, they are not. To protect a child from immediate danger the law will justify the same measures as were taken in this case, and if the parent seeks to regain her custody by habeas corpus a court will not put her back in his power when it appears that her welfare would be imperiled by so doing, especially when proceedings have been commenced or are about to be commenced, to determine the parental right; and upon commencement of the action the court, as has been shown, could see that she was protected pendente lite .
It remains to be noted that section 203 of the Civil Code does not in itself provide for the appointment of a guardian, or even infer the necessity of such appointment in all cases covered by it. It provides a method of establishing parental unfitness arising out of parental misconduct, and for a judgment freeing the child from the parental dominion, as well as a judgment enforcing the duty of support and education. When in such an action the abuse of authority is established, and a judgment has been given freeing the child from parental authority, a case is then presented in which it may be necessary or convenient to appoint a guardian of the child's person. But, when a child has living parents (or a living parent), in whose custody he is, and who are otherwise fit, the superior court has no authority, in a summary proceeding, to take him away from his natural guardians upon the ground that they have forfeited their rights by their misconduct, unless such forfeiture has been established by a judgment in the action provided for in section 203 of the Civil Code.
Counsel have cited many provisions of the Civil Code and Code of Civil Procedure which they contend are inconsistent with the construction here given to section 203. There is nothing in any of these objections, and I shall not review them in detail, but I will notice the one upon which counsel seem to rely with the greatest confidence. Subdivision 3 of section 246 of the Civil Code reads as follows: "Of two persons equally entitled to the custody in other respects preference is to be given as follows: 1. To a parent; 2. To one who was indicated by the wishes of a deceased parent; 3. To one who already stands in the position of the trustee of a fund to be applied to the child's support; 4. To a relative."
It is contended that on the construction here given to section 203 no room is left for the operation of a provision which assumes that there may be two persons equally entitled to the custody of a minor in other respects, and one of them a parent. It is not difficult to suppose a great variety of cases to which this section would apply without trenching upon the operation of section 203. Suppose a guardian of the person of a minor child to have been appointed because its only living parent was insane, or had been convicted of a felony, or [42 P. 434] was a fugitive from the state, or was an habitual drunkard, or was living in adultery, and suppose that the parent had recovered his reason, had been pardoned, had returned to the state, had been cured of his drunkenness, or abandoned his scandalous mode of life. In the first case he would become entitled to the custody of his child on recovering his reason, if, in other respects, he was equally entitled with the guardian. In the other cases, although adjudged guilty of parental misconduct, and his natural right gone, he might still claim the guardianship by appointment in preference to a stranger no better qualified in other respects.
In all these cases, and in many others that might be supposed, there would be room for the operation of section 246, which, after all, amounts to little more than the statement of a general principle, to be applied in any possible case that might arise in which two persons equally entitled in other respects, but one of them the parent, were contending for the custody of a minor child.
It is next urged by counsel that it has become the settled practice in this state to forfeit the natural right of parents without an action, and two cases are cited in which this court has impliedly conceded the validity of proceedings here in question. (Matter of Get Young , 90 Cal. 77; Matter of Vance , 92 Cal. 195.) In neither of these cases was the point raised or considered that an action was necessary. In the matter of Hunt, it was argued and decided by the court in Bank, in accordance with the views here expressed. And the doctrine of that case, I am convinced, is a salutary and a necessary one. The natural right of a parent to the custody and society of his child is certainly equal in dignity and importance to any right of property, and ought not to be taken away with less deliberation than would be required if the controversy were over a cart or a horse.