37 P.2d 3 | Kan. | 1934
The opinion of the court was delivered by
This is a juvenile court proceeding. Guy Vail, a resident of Lyon county, filed a petition in the juvenile court of
The principal question argued on the appeal is whether there is evidence to sustain the court’s findings that Raymond McGrath was a dependent and neglected child, as those terms are used and defined in our juvenile court law (R. S. 38-401 to 38-429). The statute (R. S. 38-402) defines those terms as follows:
“. . . For the purpose of this act, the words ‘dependent child’ and ‘neglected child’ shall mean any child who for any reason is destitute or homeless or abandoned, or dependent upon the public for support, or has not proper parental care or guardianship, and has idle and immoral habits, or who habitually begs or receives alms, or who is found living in any house of ill-fame or with any vicious or disreputable persons; or whose home, by reason of neglect, cruelty or depravity on the part of its parents, guardian or other person in whose care it may be, is an unfit place for such child; or any child under the age of ten years who is found begging, peddling or selling any article, or singing or playing any musical instrument upon the street, or who accompanies or is used in aid of any person so doing.”
The pertinent evidence may be summarized as follows: J. B. McGrath and his wife were married October 18,1911, at Las Vegas, N. Mex., where he then was stationed as an employee of the Atchison, Topeka & Santa Fe Railway Company in its auditing department. Not long thereafter he was transferred to San Marcial for three years, when he was transferred to Topeka for a few months and then to Emporia, where they lived for three years. By this time two children, J. B. and Richard, had been born to them. Mrs.
Within a few days after his wife’s death Mr. McGrath wrote to Mr. Vail asking for the custody of his sons, Richard and Raymond. Within a short time Mr. Vail, the attorney who represented Mrs. McGrath in the separate maintenance action, and an attorney representing Mr. McGrath, had a conference with respect to. turning over these children to Mr. McGrath. Mr. Vail said there was a balance of $80 due on the alimony and other items, amounting to $22, which he thought Mr. McGrath should pay, also that he should assume the payment of the expenses of his wife’s funeral, $425. Mr. McGrath paid these first two items and arranged with the undertaker to pay funeral expenses in monthly payments. It appears the understanding at that time was that the children would be delivered to Mr. McGrath the next Sunday. Since his wife had been at Emporia Mr. McGrath and the oldest boy had been making their home with his mother at Garbondale. On the Saturday following this conference Richard came to his fathers home at Carbondale and advised that he thought the Vails would not let his father get Raymond on the next day, as planned. Mr. McGrath also received word indirectly from the Vails that they planned to be away for a few days and would not be at home on Sunday. The following Wednesday this proceeding was instituted in the juvenile court. Mr. McGrath’s mother is sixty-five years of age, in good health, and is anxious that her son have his children with him in her home. No complaint is made of the manner in which Mr. McGrath has reared the oldest son, who had been with him all the time. He finished high.school, attended business college, and we are advised now has employment. Mr. McGrath is financially able to' provide for the child Raymond. Mr. McGrath is situated so he can provide a good home for him, and wants to have him. Raymond is a well-behaved boy, truthful and honorable; has no bad habits; does not associate with vicious or disreputable boys, nor peddle on the street. At the time of the hearing in district court he was being sent to school, but had not gone to Sunday school. He had lived with his mother until her death, with the Vails, and continued to live there — the place where the court found it was proper to leave the child. The child’s father, amply able to
In support of the finding and order of the trial court it is argued that J. B. McGrath never supported the child Raymond; that the $100 which he paid was for the support of Mrs. McGrath only, and by reason of her illness was inadequate for that purpose; that Mr. and Mrs. Vail furnished the child a home, parental care and support, without any assistance from the child's father; that they are a part of the public and hence that the child is and all his life has been dependent on the public for support. The argument may be characterized as being more ingenious than sound. Under the evidence there is room for debate whether the $100 per month was sufficient to maintain Mrs. McGrath and her two children at the Vail home, or whether all of it was consumed in caring for Mrs. McGrath. We shall not indulge in this debate nor detail the evidence relating to it, for, perhaps, the general finding of the court resolved it in favor of the view that it was insufficient to provide maintenance for Raymond. But, if so, there is no intimation that this fact was ever brought home to Mr. McGrath. Neither Mrs. McGrath on her own account, nor the Vails for her, ever asked to have the amount of the payments increased, nor did they complain that the sum was inadequate for the maintenance of Mrs. McGrath and her children, then with her. When Mr.- Vail filed the petition in this case he knew that Mr. McGrath, who was amply able to provide Raymond a home and maintain him, had asked the custody of Raymond in writing, and that he, Mr. Vail, had agreed the child would be delivered to Mr. McGrath by a certain day, and that word was sent the Vails would not be home for a few days; and within that few days he filed the petition in juvenile court. When the father of the child was able and anxious to take him, care for him and support him, there was no justification in a finding that the child lacked parental care and was dependent on the public for support. Perhaps the real reason for this proceeding is that the Vails had become attached to the child and wanted to keep him. Mrs. Vail testified: “I have the child and I want to keep him. We brought this action because we want to hold him and we want to protect him. My husband thinks the child is homeless.”
The rule is well settled that the father of a minor child (the mother
The judgment of the court below is reversed, with directions that the child, Raymond McGrath, be discharged from the jurisdiction of the juvenile court, and that the custody of the child be given to the father, J. B. McGrath.