Original proceeding by Paul W. Westerlund for a writ of prohibition to prevent Thomas J. Croaff, a judge of the Superior Court in and for the County of Maricopa, from continuing to exercise jurisdiction in the matter of the adoption of Marguerite Westerlund, a minor.
Peremptory writ granted.
Clark, Scoville & Coker, of Phoenix, for relator.
Francis J. Donofrio, Co. Atty. and James J. Caretto, Deputy Co. Atty., both of Phoenix, for respondent.
Frank J. Duffy, of Phoenix, for petitioners.
Udall, Justice. Stanford, C. J., and LaPrade, J., concur.
[68 Ariz. 38] This is an original proceeding initiated in this court by Paul W. Westerlund, relator, seeking to prevent respondent, the Honorable Thomas J. Croaff, one of the judges of the superior court of Maricopa County, from continuing to exercise jurisdiction in the matter of the adoption of Marguerite Westerlund, a minor, in cause No. 1518 now pending in said court. Statutory notice of application for a peremptory writ of prohibition was given the respondent who has appeared by filing both a motion to dismiss the petition and an answer.
The facts necessary to a determination of this proceeding are not in dispute and may be briefly summarized. Don A. Seeds and Marguerite Elinor (Westerlund) Seeds, husband and wife, filed in the superior court of Maricopa County an amended petition to adopt as their own child (Mrs. Seeds being the natural mother) Marguerite Westerlund, a female minor child of the age of approximately 14 years. The petition alleged that the natural father, Paul W. Westerlund, "* * * has wilfully deserted and neglected to provide proper care and maintenance for said child for more than one year next preceding the filing of this petition * * *" and that "* * * Your petitioners verily believe that the welfare of the said child will be subserved and her best interests promoted by said adoption." The relator (whose residence is in Long Beach, California), having been served with a copy of the petition, made an appearance in the case and resisted the application to adopt his daughter. His motion to dismiss set out that he had not consented in writing to said adoption as is required by Sec. 27-203, A.C.A.1939, and further he denied that he had deserted his daughter or neglected to provide for her. The matter came on for hearing before the court (Judge Croaff presiding) on August 24, 1948, on the issue of desertion and neglect to provide, at the conclusion of which the following occurred:
"The Court: There may be this finding: on the motion to dismiss, the Court finds from the evidence that the father of the child, Paul Westerlund, is not guilty of wilfully deserting and neglecting to provide proper care and maintenance for the said child for one year next preceding the filing of the petition.
"Mr. Scoville: Your Honor, you deny my motion to dismiss?
"The Court: The motion to dismiss is denied, and it is the Court's interpretation of the law that I should proceed to take testimony and hear the question of whether or not it will be for the welfare of the [68 Ariz. 39] child and for her best interests that the adoption should be made."
As the basis for invoking the extraordinary remedy of prohibition, it is the relator's contention that when the court found that there had been no desertion or neglect to provide on his part, he having refused to consent in writing to the adoption, the court should have granted his motion to dismiss the petition as it was then without jurisdiction to proceed further in the cause. On the other hand it is the position of the respondent that the ruling made was merely a preliminary finding of fact, and that it remains in the realm of conjecture and presumption as to what final disposition the court might make of the petition. Furthermore, it is urged that relator had a ...