In Re Gutierrez

This is an appeal from an order of the superior court of the county of San Diego, sitting as a juvenile court, declaring Guadalupe and Elvira Gutierrez, minors, to be wards of said court, and taking them from the custody and control of their father, Tomas Gutierrez, appellant herein. [1] The only averment upon which jurisdiction could be maintained to declare these minors wards of the court is *Page 129 contained in the following allegation of the petition: "That said Guadalupe and Elvira Gutierrez have no parent or guardian capable of exercising proper parental control." The court, in its order committing the minors to the care of their grandmother, under the custody of the probation officer, finds that all of the allegations of the petition are true. In the hearing on writ of habeas corpus in this same matter, we held that this finding was sufficient to sustain the order. On this appeal the issue is presented on the sufficiency of the evidence to support this finding. We think the evidence is insufficient. It was shown by the testimony, without dispute, that at the time of commencing this proceeding the minors, who are girls aged respectively one and three years, were in the…