Summary
In Stewart v. McCauley, 178 Neb. 412, 133 N.W.2d 921 (1965), this court came to the obvious conclusion that a county attorney who had represented the natural parents in a child custody dispute was disqualified from acting in a juvenile court proceeding to provide for the welfare of that same child claimed to have been neglected by the parents.
Summary of this case from State v. HatfieldOpinion
No. 35806.
Filed March 12, 1965.
1. Infants: Parent and Child. The jurisdiction of a state to regulate the custody of infants found within its territory does not depend upon the domicile of the parents. 2. ___: ___. The jurisdiction of a state arises out of the power that every sovereignty possesses as parens patriae to every child within its borders to determine the status and custody that will best meet its needs and wants, and residence within the county suffices even though the domicile of the parents may be in another county. 3. Process. The question whether process may be served on a nonresident party may be determined by the nature of the proceedings in which process was issued and its relation to the suit which the party or witness had been attending. 4. ___. The rule that suitors from a foreign jurisdiction are exempt from service of civil process while attending court and for such reasonable time before and after as may enable them to come from and return to their homes does not extend to process in an action or proceeding involving or connected with the subject matter of the litigation during attendance upon which the nonresident suitor is served. 5. Pleading. A motion to strike a petition from the files because the facts pleaded are insufficient is in effect a general demurrer and admits the truth of the facts well pleaded. 6. Courts: Infants. The juvenile court had its origin in the protection that is due the innocent or helpless. It was never intended that the method provided for its operation should be a trap to prevent such protection. 7. ___: ___. The juvenile court is a product of the solicitude of the law for the welfare of infants. Its powers and duties are prescribed more or less in detail in our statutes and because of their humanitarian and beneficient purpose, they should be liberally construed to the end that their manifest purpose may be effectuated to the fullest extent compatible with their terms. 8. Officers. The word "disability" in section 23-1205, R.R.S. 1943, includes a situation where the county attorney by reason of prior employment has disqualified himself to act. 9. ___. Where a county attorney had disqualified himself to act, the district court may appoint some suitable person as acting county attorney. 10. Infants. A child must in fact be dependent and neglected at the time proceedings are instituted to have it declared a neglected and dependent child, or it should be in danger of so becoming in the near future. 11. Courts: Infants. When the court takes jurisdiction of a child, that child becomes a ward of the court, and the court's primary consideration will always be the best interest and welfare of the child.
Appeal from the district court for Dawes County: ALBERT W. CRITES, Judge. Reversed and remanded.
Merril R. Reller and John McArthur, for appellants.
Charles A. Fisher, Charles F. Fisher, Bump Bump, and John B. Henley, for appellees.
Heard before WHITE, C.J., CARTER, SPENCER, BOSLAUGH, and BROWER, JJ., and POLLOCK and SIDNER, District Judges.
This is an action instituted in the district court for Dawes County to bring to the attention of that court as a juvenile court the need to provide for the welfare, custody, and control of a neglected and dependent child, where the county attorney by improperly accepting employment in a civil action has made it impossible to secure the consent of the county attorney which is required by section 43-205, R. S. Supp., 1963, for the filing of a petition.
The child is the same one involved in McCauley v. Stewart, 177 Neb. 759, 131 N.W.2d 174, in which we reversed that portion of the decree which awarded custody of the child to its natural parents. This action was filed the day that case went to trial in the district court for Dawes County. The county attorney was one of the attorneys in that case for Robert McCauley and Bonnie McCauley, the natural parents of the child. For convenience hereinafter they will be referred to as the McCauleys.
The present action was filed by Eugene E. Stewart and Carolyn A. Stewart who were the appellants in McCauley v. Stewart, supra. They will be referred to herein as petitioners. The petition is titled, "In the Matter of Barry Gene McCauley, An Infant." Summons was issued for the McCauleys, Bevin B. Bump, county attorney for Dawes County, and Mabel Knapp, director of the Dawes County division of public welfare and child welfare. The county attorney will hereinafter be referred to by that title. The parties summoned will be collectively referred to as appellees. The McCauleys filed a special appearance which was sustained. The county attorney, on his own behalf and that of the director of public welfare, filed a motion to strike the petition which was also sustained. From the overruling of a motion for a new trial on both orders, the petitioners have perfected an appeal to this court.
The petition referred to the then-pending adoption case, McCauley v. Stewart, supra; the refusal of the county attorney to protect the interests of the child, and his association in the pending action as attorney for the McCauleys; the reasons why the child would be dependent and neglected if the McCauleys obtained custody; and a copy of the written request to the county attorney to take action or to give his consent to some suitable person to do so. The letter itemized in detail those actions of the parents, including the criminal record of the father and demands for money for said child, which made it apparent the child would be a neglected and dependent one.
The jurisdiction of a state to regulate the custody of infants found within its territory does not depend upon the domicile of the parents. It has its origin in the protection that is due to the incompetent or helpless. The jurisdiction of the state arises out of the power that every sovereignty possesses as parens patriae to every child within its borders to determine the status and custody that will best meet its needs and wants, and residence within the county suffices even though the domicile of the parents may be in another county. See Jones v. State, 175 Neb. 711, 123 N.W.2d 633.
The McCauleys filed a special appearance in which they state that they are nonresidents of Dawes County; and that they were personally served with summons in Dawes County while in attendance on an action in Dawes County in which they were parties. Without deciding petitioners' contention that summons was not necessary for the McCauleys but merely a notice of the action because they had never had the custody of the child, we note that the trial they were attending was McCauley v. Stewart, supra, in which they themselves were seeking custody and control of the child involved. This case, therefore, is controlled by Miller v. Miller, 153 Neb. 890, 46 N.W.2d 618, in which we said: "The question whether process may be served on a nonresident party may be determined by the nature of the proceeding in which process was issued and its relation to the suit which the party or witness had been attending.
"The rule that suitors from a foreign jurisdiction are exempt from service of civil process while attending court and for such reasonable time before and after as may enable them to come from and return to their homes does not extend to process in an action or proceeding involving or connected with the subject matter of the litigation during attendance upon which the nonresident suitor is served." The special appearances should have been overruled.
The motion to strike lists three reasons. First, the petition was improperly filed and did not meet the statutory requirements, and the court therefore is without jurisdiction; second, the petition and exhibits attached contain inflammatory language, conclusions of fact and law, repetitions, criminal charges, and other extraneous matters having no legitimate relation to stating a cause of action under the juvenile court act; and third, the petition was filed during the trial of another action between the same parties (McCauley v. Stewart, supra) for the sole purpose of harassing the opposing parties and was an attempt to transfer the custody of the minor child to the juvenile court when that court was hearing litigation of the issues in another matter with the same parties involved. The trial court sustained the motion to strike but gave no reason for its action.
The first reason listed above is the only one that merits extended discussion. As to the other two, we merely observe that at the start of the trial in McCauley v. Stewart, supra, the court ruled that it would not consider the question of fitness and suitability of the natural parents to have the custody, care, and control of the child. It also overruled a motion to appoint a guardian ad litem as well as a request for an investigation of the suitability of the natural parents. The letter to the county attorney, referred to above, was placed in evidence in that case in support of the motion for an investigation. The true question, as we view the record, is whether the petition filed states facts sufficient to state a cause of action. Our answer is in the affirmative.
For the purpose of discussion, we consider the motion to strike as a general demurrer. See Lewin v. Lewin, 174 Neb. 596, 119 N.W.2d 96, in which we said: "A motion to strike a petition from the files because the facts pleaded are insufficient is in effect a general demurrer and admits the truth of facts well pleaded."
No purpose will be served by detailing the allegations made. We merely observe that they were sufficiently descriptive and of so serious a nature as to raise a question as to the motive of the county attorney in not cooperating with the parties to give them an opportunity to prove the allegations made.
This action is an attempt to invoke the jurisdiction of the juvenile court when the conduct of the county attorney made it impossible to comply with section 43-205, R. S. Supp., 1963, and therefore prevented any action to protect the welfare of the minor child. Stated in another form, can an irresponsible parent or one possibly much worse prevent action by a juvenile court to protect the welfare of an innocent child by the mere expedient of hiring the county attorney in a civil action involving that child? The answer must be obvious. When we are dealing with this phase of the juvenile court act, we must not overlook the fact that the act had its origin in the protection that is due the innocent or helpless. Jones v. State, 175 Neb. 711, 123 N.W.2d 633. It was never intended that the method provided for its operation should be a trap to prevent such protection. If it can possibly be avoided, this court should not adopt a construction which would have that effect.
The juvenile court is a product of the solicitude of the law for the welfare of infants. Its powers and duties are described more or less in detail in our statutes, and because of their humanitarian and beneficient purpose, they should be liberally construed to the end that their manifest purpose may be effectuated to the fullest extent compatible with their terms. As was said in State ex rel. Miller v. Bryant, 94 Neb. 754, 144 N.W. 804, the juvenile court law did not create a new court, it merely gave a court with general common law and equity jurisdiction new and additional powers. These powers do not supersede its original jurisdiction but are supplemental to it. Section 43-205, R. S. Supp., 1963, was not intended to make the county attorney the judge with the final decision, but was intended as a check on its indiscriminate exercise by the irresponsible. Inherent in the statute is the thought that every question of a doubt would be resolved by the county attorney in favor of consent.
Section 23-1205, R.R.S. 1943, gives the district court the authority to appoint an acting county attorney in the event of absence, sickness, or disability of the county attorney. As early as Gandy v. State, 27 Neb. 707, 43 N.W. 747, the word "disability" was interpreted to cover situations where the county attorney by reason of prior employment disqualified himself to act in the new case. We question the right of the county attorney to appear herein to file a motion to dismiss. The purpose of sections 23-1205 and 23-1206, R.R.S. 1943, is the protection of the public by making certain that a county attorney's duties shall not be influenced by private interests. See Ress v. Shepherd, 84 Neb. 268, 120 N.W. 1132. Section 23-1205, R.R.S. 1943, should have been invoked because of the disability of the county attorney. The petition in this case should have been construed to be a request for such relief, for it sets out in detail the disqualifications of the county attorney and his refusal to act, and is a request to the court to protect the rights of the infant. As we view this record, the district court should appoint some suitable person as acting county attorney to consider the question of filing the petition or giving consent to some suitable person to file it.
Appellees argue that the child, because it was in the custody of the petitioners, could not be considered to be neglected or dependent at the time the petition was filed, and that the case is analogous to State v. Gross, 173 Neb. 536, 114 N.W.2d 16. In that case, we held that a child may not be declared dependent or neglected for the sole purpose of facilitating adoption proceedings. We do not agree with the construction appellees place on the petition herein. On the facts, this case is more analogous to Jones v. State, 175 Neb. 711, 123 N.W.2d 633, in which we said: "A child must in fact be dependent and neglected at the time proceedings are instituted to have it declared a neglected and dependent child, or it should be in danger of so becoming in the near future." Here, the McCauleys abandoned the child at birth and have never had its custody. From the allegations of the petition, which must be accepted as true, but which we suggest find support in the evidence adduced in the other case, the McCauleys are unfit to have custody of the child. It does not take a strained construction to infer that the McCauleys have been motivated by a desire to be paid for a relinquishment.
What we said in Jones v. State, supra, is applicable to the facts in this case. We determine that Barry Gene McCauley was in danger of becoming a dependent and neglected child in the immediate future if his custody was given to the McCauleys, and that the court should take jurisdiction to protect his interests.
It is a fair inference from the record that the petitioners realized the possibility that the relinquishment in the adoption case was invalid. The McCauleys in that case were attempting to secure the custody and control of the infant and the court had determined that their fitness to have such custody and control could not be litigated in that case. Despite the argument of the McCauleys that this action was initiated solely to facilitate the adoption proceedings, it is apparent to us that it was instituted for the sole purpose of protecting the rights of the infant. When the court takes jurisdiction of a child, that child becomes a ward of the court, and it is the court which will determine what is for the best interest and welfare of the child. It is true the petitioners can show their interest in the child and this may coincide sufficiently with the welfare of the child to determine the issue, but the court's primary consideration will always be the best interest and welfare of the child.
For the reasons given, the special appearance of the McCauleys and the motion to strike the petition should have been overruled. The judgment is reversed and the cause remanded for further proceedings in conformity with this opinion.
REVERSED AND REMANDED.