113 Kan. 521 | Kan. | 1923
The opinion of the court was delivered by
Elizabeth Farnum was born in New York on September 7, 1911. The mother turned the child over to the petitioner, an organization having for its purpose the securing of homes for unfortunate children. The child was brought to Kansas by the petitioner, and under articles of indenture, was left with T. F. Harrington, the father of the respondent. The child was then about two years of age, and from that time until the commencement of this action, was constantly under the care and supervision of the respondent. Fifteen months after receiving the child, T. F. Harrington died. She remained with the respondent until the commencement of this action, when she was by this court placed in the hands of the sheriff of Russell county.
Reports had been made to the petitioner that the child was not receiving proper treatment at the hands of the respondent. A representative of the petitioner went to the home of the respondent and requested the custody of the child. That custody was refused. Complaint was made to the truancy officer, who in turn made complaint to the juvenile court. The child was brought before that court as a dependent and neglected child. After a hearing, that court returned the child to the custody of the respondent. This action was then commenced. .
The court concludes from the evidence that the child will not receive at the hands of respondent the training that should be given a growing girl and that it will be for her best interests to place her in a home where she can be given the training that should be given a girl of her years. i
In Bleakley v. Barclay, 75 Kan. 462, 89 Pac. 906, this court said:
“Where the rights of conflicting claimants to the custody of a child are involved and determined in habeas corpus proceedings the judgment is bind*524 ing and conclusive, and bars subsequent proceedings by a party thereto upon the same state of facts.” (Syl. ¶ 3.)
In that case, there was a contest over the maternity of the child, and that question was a controlling one in the case.
In a proceeding before a juvenile court, the rights of contending parties to the custody of a child are not adjudicated. The petitioner in this action was not a party to the proceeding in the juvenile court although the petitioner’s representative was in the courtroom at the trial. Juvenile courts are not given jurisdiction to determine the rights of contending parties to the custody of children. The jurisdiction of those courts is over dependent, neglected, and delinquent children. (Gen. Stat. 1915, § 3065, as amended by Laws of 1917, ch. 154.) Those courts are given control over such children although there may be no contest concerning their custody. In a proceeding in habeas corpus, any court having jurisdiction may adjudicate the rights of those contending for the custody of a dependent, neglected, or delinquent child, but jurisdiction then depends on the controversy over custody and not on the fact that the child is dependent, neglected, or delinquent. In the present action, there is a contest for the custody of Elizabeth Farnum. In In re King, 66 Kan. 695, 72 Pac. 263, this court said:
“The judgment of a court in a proceeding in habeas corpus with regard to the custody of a child will not prevent another court from afterward making a different order, where the welfare of the child requires it, even though no matei'ial change of circumstances be shown.” (Syl.)
One thing must not be forgotten and that is, in proceedings of this character, that the benefit of the child is of paramount importance. In In re Guber, 105 Kan. 515, 516, 184 Pac. 850, this court said:
“Welfare of the child is always an issue in this class of cases. Rights of parents and claims of grandparents must all yield, under proper circumstances, to the best interest of the child, and in a habeas corpus proceeding the court may award custody accordingly.”
Reference to another principle concerning the jurisdiction of this court may be of some benefit. In In re Petitt, 84 Kan. 637, 114 Pac. 1071, this court said:
“The grant of original jurisdiction to the supreme court in quo warranto, mandamus and habeas corpus comprehends and carries with it authority to exercise superintending control over inferior courts to the extent that it may be exerted by those writs and proceedings.” (Syl. ¶ 1; see, also, Bishop v. Fischer, 94 Kan. 105, 108, 145 Pac. 890; The State, ex rel., v. Howat, 109 Kan.*525 376, 393, 198 Pac. 686; and The State, ex rel., v. Casualty & Surety Co., 111 Kan. 139, 206 Pac. 331.
It is by the court ordered that Elizabeth Farnum be turned over to the petitioner, the New York Foundling Hospital, to be placed in the care, custody, and control of some suitable person to be first approved by this court. The court retains jurisdiction of the cause and of the child for the purpose of approving or rejecting the selection made by the petitioner and for the purpose of making such other orders as may be necessary.