31 So. 2d 834 | La. | 1947
Lead Opinion
This is a habeas corpus proceeding in which the Commissioner of Public Welfare seeks to recover possession of an infant child from the defendants, Mr. and Mrs. Fred Nugent, who are holding the child under a foster home arrangement. *384
The facts of the case are not disputed. The child, Allen Reed, was born in Shreveport on May 27, 1945. He is the illegitimate son of one Sarah Jane Reed who was a minor eighteen years old at the time of his birth. Shortly thereafter, Miss Reed requested the Caddo Parish Department of Public Welfare to care for the child through a boarding arrangement and, on June 5, 1945, she signed an agreement obliging herself to pay $5 per month towards the upkeep of the child, who was placed in the Hephzibah Rescue Home. He remained there uutil December 13, 1945, when he was transferred to the home of Mr. and Mrs. Nugent, who had previously applied to the Caddo Parish Department of Public Welfare for the placing of children in their home under a foster parent arrangement by which they were to be remunerated for the upkeep of their temporary wards. At the time that Allen Reed was received in the Nugent home, Mrs. Nugent signed an agreement with the Department of Public Welfare which provided that the child was to remain in her home "at the discretion of the Department." Mr. Nugent fully understood the arrangement (although he did not sign the agreement) to be that the child was not being placed for adoption and that the Department had the right to remove him at any time it saw fit.
On February 19, 1946, the mother executed a formal surrender of the child to the Department of Public Welfare. This *385
surrender was made before a Notary and two witnesses in compliance with the provisions of Act No.
Soon after the child was placed in their home, Mr. and Mrs. Nugent grew to love him and signified their desire to adopt him. However, the Department of Public Welfare, believing, among other things, that Mr. Nugent was over emotional with regard to the child, let it be known that it did not consider the Nugents to be the best available adoptive parents. When the Nugents acquired this information and realized that the child was to be taken from them, they made inquiry concerning the mother and, upon learning her identity, prevailed upon her to execute a surrender of the child to them, which is identical in form with the surrender previously made by her to the Department of Public Welfare. This surrender is dated June 7, 1946. Five days afterwards, on June 12th, Mr. and Mrs. Nugent filed a petition in the Caddo Parish Juvenile Court praying for the adoption of the child. In accordance with the provisions of Act No.
On the day of the trial of the habeas corpus proceeding, the Nugents appeared and resisted the demand on various grounds (many of which were subsequently abandoned). Following the hearing, the Judge maintained the writ and commanded the Nugents to restore the child to the custody of the Department of Public Welfare. They have prosecuted a suspensive appeal from the adverse decision.
In this court, the Nugents have specified the following alleged errors which they claim require a reversal of the judgment of the court below, viz.:
"(1) That the Department of Public Welfare did not acquire the legal custody of the child under the act of surrender from his mother for the reason that Act No.
"(2) That, at all events, the writ of habeas corpus should not be perpetuated since to do so would be inimical to the welfare of the child."
We find that it is not necessary for us to discuss or pass upon the foregoing contentions (although they appear to be unsubstantial) forasmuch as a casual recitation of the events culminating in the filing of the suit makes it doubtful that the District Court ever acquired jurisdiction of the controversy. Indeed, at the threshold of this case, we find ourselves confronted with a conflict between the jurisdiction of the Caddo Parish Juvenile Court and the First Judicial District Court which must be disposed of before any other matter is considered. This conflict results from the fact that the Nugents filed an adoption proceeding in the Juvenile Court under the provisions of Act No.
The issue in contest is the right to custody of the child, Allen Reed. If, as an incident to his adoption, the Juvenile Court acquire jurisdiction to determine the question of custody, the Civil District Court was without jurisdiction under the well-settled rule that, when two courts *388
have concurrent jurisdiction over the same subject matter, the court which first obtains jurisdiction and possession of the res retains it to the end of the controversy to the exclusion of all others. See Geilinger v. Philippi,
We experience no difficulty in answering the query in the affirmative. By Section 52 of Article VII of the Constitution, as amended by Act No.
Our recent decision in State ex rel. Simpson v. Salter,
The difference between the Simpson case and the instant one is apparent. There, although the jurisdiction of the Juvenile Court attached, it was subsequently divested by the refusal of the mother to give her consent to the adoption proceedings, or rather, the withdrawal by her of the consent previously given. Here, the mother is not in anywise involved. The issue is solely between a state agency and the persons *391 having actual possession of the infant. Therefore, since the jurisdiction of the Juvenile Court was previously acquired and had not been relinquished, the attempt of the Commissioner of Public Welfare to divest that court of jurisdiction (respecting its right to determine where and in whose care the child should be placed as an incident to the adoption case) by application to the First Judicial District Court for a writ of habeas corpus was and is ineffective.
The judgment appealed from is reversed and the suit dismissed.
HAWTHORNE, J., concurs in the decree.
Concurrence Opinion
I thoroughly agree with the conclusion herein that in as much as the child was already in custodia legis and subject to the orders of another tribunal (Juvenile Court of Caddo Parish) the First Judicial District Court was without jurisdiction. But I can not subscribe to the observation made in the opinion that, "Our recent decision in State ex rel. Simpson v. Salter, 163 So. 2d 31, is not in conflict with the views expressed herein." I think that in principle the two cases are indistinguishable.
In the Simpson case (from the decision therein I dissented), the fact that the mother withdrew her previously given consent for the adoption of the child did not *392 of itself divest the juvenile court of jurisdiction which, admittedly, it had already acquired and to which the mother had given recognition by filing in that tribunal an opposition to the adoption. And having acquired jurisdiction the juvenile court alone had the authority to determine any and all questions incidental to the adoption, including the one relating to the effect of the mother's withdrawal of her previously given consent. If this were not true the juvenile court would be completely subservient to the civil district court.