Weber v. Holt

This appeal is presented on the judgment roll alone. Prom the brief of appellant (which is not contradicted by respondent) it appears the case arises out of a divorce proceeding by the mother of the infant Homer Allen Holt, a child, who at that time, was approximately 2% years of age.

At the outset it is to be noted that “when an appeal is taken on the judgment roll alone . . . and when the record on appeal from an order does not show the evidence on which the order is based it will be presumed that the order was properly made and that the evidence necessary to sustain it was presented to the court ...” It necessarily follows that appellant’s first contention is without merit—that is—that the court was without power to order the custody and control of the child to be taken from her without giving her a hearing in the matter. In the absence of anything to the contrary and in accordance with the rule above mentioned this court must presume that the juvenile court did exactly what it said it did in its order, that it “required proof of the facts alleged in said petition and the truth thereof [was] established to its satisfaction by the testimony of Virginia Weber, Probation Officer.”

It is next contended that a juvenile court may not take jurisdiction of a custodial matter when that very question is then pending in a divorce proceeding. In the case of Dupes v. Superior Court, 176 Cal. 440 [ 168 P. 888 ], a like question was presented. It is true, the court there said, that in a divorce proceeding the superior court has extensive powers relative to the welfare of children of the parties engaged in such a proceeding. However, ‘ ‘ The mere fact that a litigation is pending between the parents and that an order regarding the custody of the children has been made therein does not take away the power of the state nor prevent the exercise of that power under the Juvenile Court law.”

Appellant’s fourth contention is that the court erred in not designating with particularity the home in which the child was to be placed. This contention is likewise without merit. The court, in effect, adopted the recommendation of the probation officer wherein it was recommended that the child remain with his paternal aunt. As was held in the case of People v. Superior Court, 104 Cal.App. 276 , 282 [ 285 P. 871 ]: “Technicalities and formalities are largely done away with, and its simple procedure is designed ... to enable the judge thereof to best guide and control its wards, with more consideration for their future development than for their past shortcomings.” In no sense is it a trial court. (See, also, In re Halamuda, 85 Cal.App.2d 219 [ 192 P.2d 781 ].) The very nature of the work of the juvenile court would be destroyed by compelling strict compliance with the traditional court procedure.

It is appellant’s final contention that a child may not be taken from the mother as punishment for her previous conduct; that such an order must be predicated upon present existing conditions. In Dupes v. Superior Court, 176 Cal. 440 [ 168 P. 888 ], the court there held that “In passing upon the question regarding the fitness or unfitness of the mother the court will be aided by evidence of her conduct in the past.” Under the circumstances it cannot be said that the court was either punishing the mother or that the evidence disclosed by the record was not sufficient to sustain the attacked order.

The judgment is affirmed.

Van Dyke, P. J., and Schottky, J., concurred.