164 P. 364 | Idaho | 1917
This case involves the question of the right to the custody of Ruth Priest and William Priest, the minor children of William Priest and Marie Priest, the respondents. The appellants, W. E. Tipton and Nellie Tipton, claim right to the custody of Ruth Priest, and the appellants, Charles Jain and Jessie Jain, claim right to the custody of William Priest. Two petitions for writs of habeas
In September, 1914, a petition was filed in the probate court for Shoshone county, alleging that the appellants were not proper persons to have the care and custody of said minor children, and praying that a citation be issued by said court to appellants, requiring them to show cause why said children should not be removed from their custody and control and surrendered to the Idaho Children’s Home Finding and Aid Society and treated as wards of the court. A hearing was had. The court found that the appellants were at that time unfit and improper persons to have the control and custody of the said children, and adjudged that the said children should be removed from the custody and control of the appellants and surrendered to the Idaho Children’s Home Finding and Aid Society, to be treated as wards of the court. The Idaho Children’s Home Finding and Aid Society will hereafter be referred to in this opinion as the society. The children were taken to the branch home of the society at Lewis-ton, Idaho. The probate judge, the appellants, the representative of the society at Lewiston and everyone else concerned understood that the order was not a final order, permanently depriving the parents of the custody of the children, bnt merely an order temporarily depriving them of such custody until such time as they should reform and convince the court that they were again entitled to the children.
On Oct. 2, 1915, the probate judge, upon petition of. the parents, found that they had reformed and were proper persons to have the care and custody of their children, and made
On Oct. 11th, the society, through its state superintendent, consented to the adoption of Ruth Priest by Mr. and Mrs. Tipton, and of William Priest by Mr. and Mrs. Jain. On Oct. 15th, adoption proceedings were had in the probate court for Latah county, by which the Tiptons adopted Ruth Priest and the Jains adopted William. The Jains and Tiptons were residents of Latah county; by permission of the society, Ruth had been living with the Tiptons and William had been living with the Jains for some months prior to the adoption.
On Oct. 11th, the probate judge having satisfied himself that the rumors about the parents were unfounded, wrote the representative of the society stating in effect that after investigation he had decided the children should be returned to the parents, and directed that arrangements be made for that purpose. The society replied that the children had been adopted and that it no longer had control over them. Thereafter the parents sued out writs of habeas corpus, resulting in the proceedings above mentioned.
The first question which arises in this case is whether a judgment of a district court in a habeas corpus proceeding involving the custody of a child is appealable. While the question is not raised by either of the parties to the action, we think that it is squarely raised by the proceedings and that it is the duty of the court to take notice of it. See. 4807, Rev. Codes, as amended by chap. 111, Sess. Laws 1911, provides that an appeal may be taken to the supreme court from a final judgment of the district court in an action or special proceeding commenced in the court in which the same is ren
The judgment or order of the court is a final jadgment in the sense that by it the parties to the action are concluded as to the particular issues presented. (Bleakley v. Smart, (Kan.), 11 Ann. Cas. 125, 87 Pac. 76; Cormack v. Marshall, 211 Ill. 519, 1 Ann. Cas. 256, 71 N. E. 1077, 67 L. R. A. 787; Hall v. Whipple, supra; Clifford v. Williams, 37 Wash. 460, 79 Pac. 1001; In re Hamilton, 66 Kan. 754, 71 Pac. 817.) We are of the opinion that the judgment of the court in such a proceeding is a final judgment within the purview of our statute relating to appeals.
We conclude that an appeal lies from the judgment of the district court in such a proceeding. (Stewart v. Paul, 141 Ala. 516, 37 So. 691; Bleakley v. Smart, supra; Hall v. Whipple, supra; State v. Baird & Torrey, 19 N. J. Eq. 481; Jamison v. Gilbert, 38 Okl. 751, 135 Pac. 342, 47 L. R. A., N. S., 1133; and other cases cited above.)
The court is not called upon to decide, and does not decide, whether an appeal will lie to this court from the final judgment of the district court in the ordinary habeas corpus proceeding involving the legality of the imprisonment of a party by virtue of the commitment of a court.
The specifications of error, so called, are very general, and this court feels it is called upon to specifically notice only those points which counsel has attempted to support by argument or citation of authorities in the briefs or on the argument.
It is contended that the district court of the first judicial district had no jurisdiction, and that the case should have been sent to the district court for Latah county, in which
It is contended that the court erred in refusing to permit the introduction of testimony relative to the conduct of William and Marie Priest prior to the time that the children were removed from them. Such testimony was offered for the purpose of showing the extent to which the parents were addicted to the use of intoxicating liquor and other bad habits, as tending to show whether or not it would be possible for them to have reformed as claimed. The principal question of fact in the case is whether they had reformed. The findings and order of the probate court stand as evidence against the parents, and the burden was upon them to show that they had corrected the serious faults set forth in said findings. The order of the probate court could not be collaterally attacked by either party to this proceeding. It does not seem, however, that admitting such testimony for the purpose stated, would have had the effect of making a collateral attack upon said order. However, the principal question being whether the parents had reformed, it seems that the material evidence upon the point is evidence as to their conduct since the children were taken from them. From the record in this ease we do not think that testimony as to their conduct before that time was sufficiently material to require that it be admitted. The rejection of such testimony was, therefore, justified on the ground of its immateriality.
The alleged error in permitting witnesses to testify relative to what happened in the proceeding in the probate court of Latah county at the time of the alleged adoption of the children is not material, because this court does not think that the mere fact that the children and parties were not examined separately, if it be a fact, would of itself invalidate the proceedings.
Most of the other points raised by appellants relate to the question of the validity and effect of the several proceedings had in the probate court, to wit: First, the original proceedings by which the children were taken from their parents and committed to the custody of the Children’s Home Finding and Aid Society by order of the probate court for Shoshone county; second, the order of the probate court for Shoshone county by which the guardianship of the society was revoked and the children were ordered returned to their parents; third, the order of adoption of the probate court for Latah county.
We will first consider the force and effect of the order committing the children to the custody of the society. It is ordered by the court that the said children be removed from the custody and control of their parents and surrendered to the society, to be treated as wards of the court. By using the words “wards of the court,” it would seem that the probate court intended to retain some control over the children. The probate courts have jurisdiction in guardianship matters. (Const., art. 5, sec. 21.) For this purpose they are courts of general jurisdiction. (In re Brady, 10 Ida. 366, 79 Pac. 75; Ex parte Sharp, 15 Ida. 120, 96 Pac. 563, 18 L. R. A., N. S., 886.) The legislature has no power to deprive the judicial department of any power or jurisdiction which rightly pertains to it as a co-ordinate branch of the government. (Const., art. 5, sec. 13.) By the order of the
Sec. 3 of said act, on page 41, provides that the parents may petition the board of directors of the society, asking that the children be returned to them on the ground that they have reformed, or are in condition to properly care for the children, and if the board, after an investigation, deem it for the best interests of the child, it may be returned to its parents, and the guardianship of the society shall terminate, and the parents shall resume their natural relationship to such child. Such provision cannot have the effect of vesting jurisdiction to decide that the child shall be returned to its parents, exclusively in the board of directors of the society and of depriving the probate court of jurisdiction to decide such matter, because to give it such effect would again, be an unconstitutional invasion of the powers and jurisdiction of the probate court. The board of directors may decide for the society whether or not it desires to voluntarily resign the guardianship or to return the children to their parents, but the ultimate decision in each ease is with the probate court, The probate court had the same control over the society as guardian as it would have over any other guardian, and it had jurisdiction to revoke the guardianship of the society and return the children to their parents, if a proper showing were made.
The order of Oct. 2d was in effect an order terminating the guardianship and discharging the society as guardian. There was no formal hearing of the matter. No formal notice was given the society. However, an informal notice was given and its representative at Lewiston was apprised of the fact that the probate court had terminated its guardianship and the reasons for such action. Under the circumstances we think the society had sufficient notice of the order to make that order binding upon it. If the society desired to be heard in objection to the petition of the parents, or the order of the court, it should have made such objection in the probate court for Shoshone county. It would then have been the duty of the court to hear such objection. Upon receipt of the telegram on the 7th, the society should have held the children as directed, instead of putting them beyond its control.
However, the society is not a party to this proceeding. The appellants base their right to the custody of the children upon the orders of adoption made by the probate court for Latah county. Under the provisions of the act of 1909, the society has authority to receive, control and dispose of children under eighteen when the father, mother or person legally entitled to act as their guardian shall surrender them in writing to the society, or when the person legally authorized to make such surrender is not known and a notice is published in a newspaper. When a child shall have been so surrendered and such child shall have been accepted by such society, then (but not otherwise) the rights of its natural parents or of the guardian of its person (if any) shall cease, and such corporation shall become entitled to the custody of such child, and shall have authority to care for and educate
The question as to whether the parents of a child must in all cases be notified of adoption proceedings is a difficult one, as to which the authorities do not agree. Conceding that in the cases mentioned in sec. 2703, Rev. Codes, the consent of the parents to the adoption is not necessary, there is still a question as to whether they should not be notified of the proceedings in order to have an opportunity to show whether or not their consent is necessary. It is indeed drastic to hold that the natural, parents may be permanently deprived of their status of parentage and its accompanying rights by a proceeding of which they have no notice. Some authorities seem to have gone this far; some have refused. We do not pass on this vexing question, for the reason that it is not necessary to do so for the purpose of this case.
Even if it should be conceded that the parents were not entitled to notice of adoption proceedings in case they had previously been judicially deprived of the custody of their children on account of neglect, we do not think that this is such a case. When the statute says that the consent of the parents is unnecessary where they have been judicially deprived of custody of their children on account of neglect, we construe it to mean cases where they have been finally and permanently deprived of such custody by a final, absolute and unconditional judgment of the court. In view of the language used in the order of the probate judge for Shoshone county, and under all the facts of this case, we do not think that such order was a final and unconditional judgment, absolutely and permanently depriving the parents of the custody of their children. (Ex parte Martin, 29 Ida. 716, 161 Pac. 573.)
Our conclusion is that the probate court of Latah county had no authority to make the orders of adoption without no
From the views above expressed in regard to the several proceedings in the probate court for Shoshone county and the probate court for Latah county, it follows that the legal rights of the parties, so far as the custody of the children is concerned, are not finally concluded by any of said proceedings. Sec. 5774, Rev. Codes, provides that either the father or mother of a minor, being themselves respectively competent to transact their own business, and not otherwise unsuitable, must be entitled to the guardianship of the minor. This section is construed and upheld by this court in In re Crochcron, 16 Ida. 441, 101 Pac. 741, 33 L. R. A., N. S., 868. In that case the court, in referring to its former decision in Andrino v. Yates, 12 Ida. 618, 87 Pac. 787, makes it clear that it is only where the legal right of the parent to the custody of the child is not clear that the child can be permitted to the custody of another on the ground that it will be better eared for by such other. If the parent fulfills the requirements of sec. 5774, he is entitled to the custody of his child, even though'another person may be even more suitable to have the custody. The rights of these parents not being affected by the orders of adoption, they are entitled to the custody of the children if the evidence shows that they are now competent to transact their own business and not otherwise unsuitable. Upon these questions the lower court found in favor of the respondents.
‘ ‘ It is the settled law of this state that an appellate court will not disturb the findings or judgment of the trial court where there is a substantial conflict of the evidence. This rule applies with equal force to actions of law and suits in equity, where a trial is had on oral evidence.” (Smith v. Faris-Kesl Const. Co., 27 Ida. 407, 150 Pac. 25, and other Idaho decisions there cited.) We hold this rule applies to a hateas corpus proceeding of a civil nature to determine the right to the custody of children as well as to other actions at law or suits in equity. Upon the question as to whether these.parents have reformed and are now proper persons to have the custody
The decision of the district court, affirmed by this court, is to the effect that the parents are now entitled to the custody of their children. The parents must understand that their right to maintain such custody in the future depends upon whether they continue to conduct themselves in such a way as to deserve it.
The judgment of the district court is affirmed.