Opinion
Rehearing Denied March 2, 1931
Hearing Granted by Supreme Court March 30, 1931
Appeal from Superior Court, Merced County; E.N. Rector, Judge.
In the matter of the proceedings on the petition of Marie S. Canisso to have Mary Lopes Silva declared an abandoned child. From a judgment declaring the infant to be an abandoned child, the parents appeal.
Motion to dismiss appeal denied, and judgment reversed.
COUNSEL
T.F. Lopez, of Fresno, for appellants.
S.V. Cornell, of Turlock, for respondent.
OPINION
Mr. ROLFE L. THOMPSON Justice.
This is an appeal from a judgment declaring the infant daughter of the appellants to be an abandoned child. There is also a motion to dismiss the appeal on the ground that the transcript of evidence is incomplete.
Mary Lopes Silva is the infant daughter of the appellants, who also possess several other children. At the urgent request of the petitioner, Marie S. Canisso, the child was intrusted to her care by its parents, and remained a member of her family for the period of five years. The parents then demanded the return of their child. Mrs. Canisso thereupon petitioned the court for a decree, pursuant to the provisions of the Juvenile Court Act of California (Stats.1915, p. 1225, and amendments, 1 Deering’s Gen.Laws of Calif., 1923, p. 1535, Act 3966), to declare Mary Lopes Silva an abandoned child and free from the control of her parents.
A trial of the cause followed. The hearing was commenced in the absence of the court reporter. After the examination of the first witness had been completed in chief, the reporter appeared, and the balance of the testimony was taken in shorthand and subsequently transcribed. The petitioner abandoned her effort to prove the parents of the child were unfit to care for her. In the course of the trial counsel for the petitioner said: "Perhaps I can shorten things up. I realize we have made no showing as to the (un)fitness of the home of the parents, and that part of our petition will have to be abandoned."
The court found that the child had been left by its parents in the custody of the petitioner for a period of more than a year with intent on the part of the parents to abandon her, and that during this period of time the parents had neither contributed to her support nor provided for the maintenance of the child. A decree was accordingly rendered to the effect that Mary Lopes Silva was an abandoned child and free from the control of her parents.
An appeal from this decree was perfected by the parents of the child pursuant to section 953a of the Code of Civil Procedure. A transcript of all testimony which was taken by the phonographic reporter was transcribed and duly certified by the trial judge on August 16, 1930, in the following language: "The foregoing transcript *** including all testimony offered or taken *** is true and correct and is hereby settled and allowed." This transcript and the proceedings on appeal were filed in this court August 30, 1930. No application for diminution of the record to correct any defect or error in the transcript, pursuant to Supreme Court rule XIV, was ever made to this court, or at all. October 15, 1930, the trial court, apparently on its own motion, made and entered a minute order in said matter purporting to correct and amend the certificate to the transcript. This minute order recited that the former certificate had been inadvertently made, and thereupon directed that it be amended to certify that the transcript of testimony to which it was attached is full, true, and complete, "except that said transcript does not contain any record of the direct examination of the petitioner in said matter, to-wit: Marie S. Canisso, and that there was no official court reporter present at the time of the direct examination of the said Marie S. Canisso." A certified copy of this minute order, accompanied by affidavits to the same effect, were subsequently filed in this court. Upon this showing a motion to affirm the judgment was made to this court. The appeal was also submitted on its merits.
The motion to dismiss the appeal on the ground of incompleteness of the record charged: (1) Failure to certify to the written report of the probation officer as a part of the evidence; (2) omission of the evidence adduced in the examination in chief of the witness Marie S. Canisso; and (3) the invalidity of the certificate to the transcript on appeal, for the reason that a judge is not authorized to certify to evidence which is not taken by the official court reporter.
The petitioner relies upon the rule that a judgment will be affirmed on appeal when the transcript of testimony is incomplete, for the reason that it is assumed the omitted evidence will amply support the judgment in every particular in which the defect does not appear upon the face thereof. 2 Cal.Jur. 697, § 401; Foster v. Young, 172 Cal. 317, 156 P. 476; Coleman v. Farwell, 206 Cal. 740; 276 P. 335. The written report of the probation officer, which is required by the provisions of section 20 of the Juvenile Court Act, is merely preliminary to the institution of proceedings to declare a minor child to be either free from the control of its parents or a ward of the court. It is not a part of the evidence upon which the court may rely in determining the issues of the case. It is an extrajudicial statement of facts which gives the contestants no opportunity for cross-examination of the officer. It is not binding as a part of the evidence of the case. It is therefore unnecessary to certify to this document as a part of the transcript of evidence.
In accordance with good reason, it has been held a court is without authority to certify to a transcript of testimony which was not taken by the official court reporter. 2 Cal.Jur. 623, § 343; Bush v. Allen, 172 Cal. 102, 155 P. 456; Jones v. Busick, 75 Cal.App. 606, 243 P. 27.
The only methods of supplying an appellate court with testimony taken at the trial without the presence of an official reporter is either by stipulation as to the facts or by the settlement of a bill of exceptions in the manner provided by statute. On principle, it would seem to be equally true that a court would lack authority to certify to only a portion of the material testimony, unless the balance of the evidence were omitted by stipulation. This rule does not apply to identified documents which have been offered in evidence. The authentication of only a part of the material evidence is of no value to a reviewing court. The omission of a single material fact may change the entire result of the action. It is therefore the duty of an appellant to furnish the reviewing court with an authenticated record of all the material evidence adduced at the trial. In the absence of such complete record, the appellate court will assume that every material fact necessary to support the judgment exists in the omitted evidence.
In the present case, however, the court certified that the record on appeal contained a full and complete transcript of all the evidence which was adduced at the trial. This certified copy of the transcript of evidence was duly filed in the appellate court. In the absence of a valid amendment to this certificate, procured in the manner required by law by means of an order of the appellate court to correct the error by diminution of the record, it must be assumed this certificate of the trial judge is true and correct. Bell v. Brigance, 194 Cal. 445, 229 P. 27.
All courts of record have inherent power to correct their records so as to make them speak the truth. Kaufman v. Shain, 111 Cal. 16, 19, 43 P. 393, 52 Am.St.Rep. 139; 15 C.J. 975, § 395. But it is said in the authority last cited: "One court has not authority to correct the records of another court." In re Dubosky (D.C.) 232 F. 380.
And in 2 Ruling Case Law, 155, § 130, it is said: "No record lodged with the clerk of the appellate court can be changed without the permission of the court duly entered of record at the time."
The mere certificate to a transcript which, by means of an appeal, has become a record in a court of review, has passed beyond the jurisdiction of the trial judge, and may not be changed except by authority of the court in which the record reposes. No motion to change the certificate by diminution of the record was made in the present case. Three months had elapsed since the original certificate was executed. The transcript to which it was attached was no longer a record in the trial court. The minute order which was subsequently made by the trial judge in an effort to modify this certificate was therefore ineffectual so far as the transcript on appeal is concerned. Nor does the recital in the reporter’s transcript of evidence that "Mrs. Marie S. Canisso (was) re-called for cross-examination" impeach the binding effect of the certificate. Although this language does infer that the witness had been previously called for examination in chief, neither this language of the reporter contained in the transcript which may be inconsistent with the solemn certificate of the trial judge, nor ex parte affidavits, may be considered to impeach the validity of the certificate. If this were possible, the authentic act of a court of record would be valueless. For the purpose of this motion to dismiss the appeal, we must therefore accept the certificate of the trial judge as true and assume that the transcript is a full and complete record of all the evidence which was adduced at the trial. It necessarily follows this motion to dismiss the appeal on account of alleged incompleteness of the transcript lacks support of the record. The motion to dismiss is therefore denied.
The appeal must be considered on its merit. For the reasons heretofore assigned, only the valid record as it is presented to us may be considered. We must assume there is no legal evidence before us of a purported change of the certificate, or of an absence of any evidence which was adduced at the trial.
After a careful examination of the entire record, we are convinced there is no substantial evidence to support the finding of the court to the effect that the parents of Mary Lopes Silva relinquished her custody with the intent of abandoning the child. This is the only issue remaining in the case. During the progress of the trial, the petitioner specifically waived the question regarding the fitness of the parents to care for the child. Abandonment consists of relinquishing the custody, control, and parental authority over a child with the intent of surrendering those rights. In re Snowball, 156 Cal. 240, 104 P. 444; Juvenile Court Act, supra, § 15. The failure to exhibit an interest in the child by visiting it or by contributing toward its maintenance, when the opportunity or ability to do so exists, is some evidence of abandonment. In the present case there is no substantial evidence of abandonment. It is a serious matter to deprive parents of the custody of a child. This should not be permitted without substantial evidence of either abandonment of the child or unfitness of the parents to care for it.
The evidence shows without contradiction that the parents of the infant child were employed on the premises of petitioner. The respective families were friends, countrymen, and neighbors living only about a mile apart. Mrs. Canisso had no small children of her own. The appellants had a large family of some eight children, and were poor. The petitioner became attached to the child, and asked the mother of the child to permit her to keep it for a few weeks. The child remained with petitioner for nearly five years, during which time she was well and kindly treated, receiving frequent visits and contributions of clothing from her parents.
Regarding her custody of the child, Mrs. Canisso testified through an interpreter:
"Q. Did you at that time ask Mrs. Silva to take the child for a couple of weeks as you had no small child and wanted company?
A. Yes, she told her she could keep her for two weeks.
"Q. Now, since then, the Silvas have asked for that child many times, haven’t they?
A. They never wanted to take her home until now. *** She said they came there and fight for it.
"Q. But the Silvas never told you that you could keep that child for good, did they?
A. She told her she could keep her for two weeks, but they did not come and get her at the end of two weeks. ***
"Q. Did Mrs. Silva ever tell you that you could keep that child for good, that they would let you have her for always?
A. No sir, but she had the baby over there, and they never went after her. ***
"Q. Didn’t the Silvas visit over at your house quite often?
A. They did not visit Mrs. Canisso, they visited the baby." Several witnesses testified in behalf of the petitioner, to the effect that she took good care of the child. No further material facts were elicited from these witnesses.
Frank Filx, who was a partner and lived with Mr. Silva for four years, testified that the parents visited their child at the home of Mrs. Canisso, "about twice a month."
Mrs. Marie Denize, a friend of both families, testified that Mrs. Canisso told her "the child was Mrs. Silva’s *** that she had her there and they wanted to keep it because she liked it. *** Because Mrs. Silva had lots of them and she said she would help Mrs. Silva by keeping her there for a while." This witness also testified that Mrs. Silva often visited her child and took wearing apparel to it whenever she was in need of clothing. The husband of Mrs. Denize testified to substantially the same facts.
Tony Silva, the father of the child, testified that they left the child with Mrs. Canisso at her request for a period of about two weeks. He said they often asked for the child, and the petitioner replied: "You are not paying no board, it is not costing you anything, and let her stay here." He said that they often visited the child, and bought clothing for it "whenever I buy for others I buy for her." Mrs. Silva testified to substantially the same facts related by her husband. Both parents testified they had never told Mrs. Canisso she could keep the child, and both claimed they had often demanded her return.
Laura, the daughter of petitioner, testified that Mr. and Mrs. Silva had given the child "a few pennies for a birthday," and that "the baby has a little bank account of her own now." She said the parents came for the child shortly before the proceedings for abandonment were commenced, and that her mother said, "They could not take the baby unless they paid the board."
The record contains no evidence in conflict with the foregoing statement of facts. A fair construction of the record indicates that the child was left with the petitioner temporarily, for the reason that the parents were struggling to maintain a large family and because Mrs. Canisso was attached to her. The respective families were neighbors and friends, and belonged to the same nationality. There is no evidence of intent on the part of the parents to abandon control of their infant child. Just the contrary is exhibited by the constant interest in the child, shown by frequent visits, contributions of clothing, and birthday gifts, small as they may have been. The testimony of the petitioner corroborates this conclusion. She admits that she first obtained possession of the child for two weeks only. No doubt she became attached to the child and did not wish to give it up. Evidently she took good care of it. This is not sufficient, however, upon which to deprive the natural parents of a child of its custody. To do so upon such unsatisfactory evidence as this case presents would become a travesty on justice. There is no substantial evidence to support the findings of an abandonment of the child on the part of the parents.
As before stated, the motion to dismiss is denied; and the judgment is reversed.