Allen v. Williams

• Decision Date: 28 February 1918
• Citation: 31 Idaho 309,171 P. 493
• Parties: LAURA ALLEN, Plaintiff, v. J. FRED WILLIAMS, Superintendent, Industrial Training School, Defendant
• Court: Idaho Supreme Court

171 P. 493

31 Idaho 309

LAURA ALLEN, Plaintiff, v. J. FRED WILLIAMS, Superintendent, Industrial Training School, Defendant

Supreme Court of Idaho

February 28, 1918

HABEAS CORPUS-PROCEDURE ON-PLEADING-CONSTITUTIONAL LAW-DUE PROCESS OF LAW-INFANTS-RIGHT TO CUSTODY OF-JUVENILE DELINQUENTS-SUMMARY PROCEEDINGS TO COMMIT.

1. Upon a summary statutory proceeding to commit a delinquent child to an industrial school, under the recognized rules of legal procedure the parents are not bound by the judgment, and none of their legal rights is precluded.

2. The right of the parent to the custody of an infant may be presented and determined upon a habeas corpus proceeding.

3. The parent or guardian of a child removed from his custody is not denied due process of law if an adequate remedy is available by which he may afterward have his rights presented to a proper tribunal and determined.

4. In habeas corpus proceedings, the return takes the place of the complaint, and the answer may traverse the allegations of the return and contain affirmative matter.

[As to matters to be considered in determining the custody of a child on habeas corpus, see note in Ann.Cas. 1914A, 740]

Original proceeding for writ of habeas corpus. Writ issued and return made. Writ quashed and petition therefor denied.

Writ quashed and petition denied.

Edens &amp Anderson, for Plaintiff.

"Parents should not be permanently deprived of the custody of their children and the right to act as their legal guardians even though the custody of the child must for good reasons be temporarily surrendered, except in strict accordance with law and under circumstances where such deprivation is fully warranted." (Ex parte Martin, 29 Idaho 716, 161 P. 573.)

"If the parent is not made a party to the hearing and proceeding under all recognized rules of legal procedure he is clearly not bound by the judgment and none of his rights are precluded." (Ex parte Sharp, 15 Idaho 120, 96 P. 563 565, 18 L. R. A., N. S., 886; Ex parte Becknell, 119 Cal. 496, 51 P. 692; Mill v. Brown, 31 Utah 473, 120 Am. St. 935, 88 P. 609, 614.)

Mere cognizance of the fact that a suit has been brought is not notice in the sense of due process. (23 Cyc. 684.)

Mere actual presence at the hearing will not cure this defect of notice, if no part is taken in the proceedings. (Seifert v. Brooks, 34 Wis. 443; 12 C. J. 1227, 1228, 1234.)

T. A. Walters, Atty. General, A. C. Hindman and J. P. Pope, Assistants, for Defendant.

If the petitioner believed that she had been unlawfully deprived of the custody of her child, and that the probate court had acted irregularly or had in any manner exceeded its authority, her remedy was by appeal. (Ex parte Sharp, 15 Idaho 120, 96 P. 563, 18 L. R. A., N. S., 886.)

"Habeas corpus cannot be resorted to or employed as an appellate remedy, or for the purpose of reviewing or correcting errors." (In re Davis, 23 Idaho 473, 130 P. 786; In re Knudtson, 10 Idaho 676, 79 P. 641; Ex parte Fowler, 5 Cal.App. 549, 90 P. 958.)

All that the court can inquire into in this case is whether the probate court of Bannock county has jurisdiction to commit delinquent children to the Industrial Training School, and whether the order of commitment is regular on its face. (Ex parte Long, 114 Cal. 159, 45 P. 1057; Ex parte Stephen, 114 Cal. 278, 46 P. 86; Ex parte Hollis, 59 Cal. 405.)

RICE, J. Budge, C. J., and Morgan, J., concur.

OPINION

RICE, J.

This is an original proceeding in this court, instituted by Laura Allen to procure the issuance of a writ of habeas corpus directed to J. Fred Williams, superintendent of the State Industrial Training School, by which it is sought to procure an adjudication of the right to the guardianship, custody and control of Viola Boyd, minor child of plaintiff.

The petition alleges that Viola Boyd is illegally detained from petitioner by reason of her commitment to the school by the probate judge of Bannock county, and that the commitment is invalid in that it is in violation of the right of petitioner, as parent and natural guardian of the child, and made without any notice or process to petitioner and without petitioner having her day in court. There are other allegations in the petition, setting forth additional facts intended to show the unlawfulness of the detention.

The plaintiff further avers, as a reason for filing the petition in this court, that, on October 29, 1917, she filed a petition for writ of habeas corpus, based upon practically the same grounds, in the district court of the ninth judicial district of the state, in and for the county of Fremont; that an order was thereupon made issuing a writ returnable November 1, 1917, and that upon the return and the hearing thereon, the court did erroneously and unlawfully decline and refuse petitioner any relief thereon, denying the writ and remanding the child to the custody of the defendant.

The plaintiff further alleges that she is advised that she has no remedy except by application to this court in the manner pursued in this case.

A writ from this court was issued, and the defendant made his return showing that he held the child under and by virtue of a commitment of the probate court of Bannock county, in which court she was adjudged to be a juvenile delinquent. The return also denied that the plaintiff, Laura Allen, the parent and natural guardian of the child, was not present in court at the time said commitment proceedings were had, but, on the contrary, alleged that she had full knowledge of the proceedings and was present in court when said commitment was made.

The statute under which Viola Boyd was committed was before this court in the case of In re Sharp, 15 Idaho 120, 96 P. 563, 18 L. R. A., N. S., 886. The law was there held to be constitutional. It was further held in that case that if a parent is not made a party to the hearing and proceeding, under all the recognized rules of legal procedure he is clearly not bound by the judgment and none of his rights is precluded. (See, also, Farnham v. Pierce, 141 Mass. 203, 55 Am. Rep. 452, 6 N.E. 830.)

Plaintiff demurred to the return, and it is suggested that it is thereby admitted she was present in court when the commitment was made. Conceding this to be true, her presence in court is not sufficient. Provision must be made whereby she may defend her rights if the judgment is to be conclusive as to her. No such provision is made by our statute. The action of the probate court established the status of the child. Plaintiff, never having had her day in court, is entitled to resort to an appropriate remedy in order to have her rights adjudicated. Habeas corpus appears to be an appropriate remedy. (State v. Kilvington, 100 Tenn. 227, 45 S.W. 433, 41 L. R. A. 284.)

In the case of Andrino v. Yates, 12 Idaho 618, 87 P. 787, this court said: "This is not the case of an adult appealing to the aid of habeas corpus to obtain his freedom from illegal restraint, but the writ in this case was granted to inquire whether the plaintiff was entitled to the custody of said minor child. The proceeding is not for the purpose of setting the child free, but to determine whether the petitioner is entitled to its custody, and the correct view or rule is that the jurisdiction of the question of the custody of a child under a writ of habeas corpus is of an equitable nature, and courts are given large discretion in the matter."

In this action the right of the parent to the custody of the infant may be presented and determined. The order of the court in such a case is discretionary, and in the exercise of this discretion, in determining to whom the custody of a child shall be awarded, courts will look both to the present and future interests and welfare of the child. It has been said that this rule is the "pole star" by which courts are guided in such cases.

The commitment of a juvenile delinquent by the probate court, under our statute, does not therefore leave the parent remediless, but, on the contrary, he has ample opportunity to present and have adjudicated his right to the custody of his child. We do not say that a writ of habeas corpus, though an appropriate remedy, is the only one available for a parent in such circumstances.

The plaintiff is proceeding under the impression that due process of law requires that the determination of the parent's rights to the custody of his child must precede any interference therewith. This view cannot be sustained. Our statute was enacted as a matter of protection to the child and for the welfare of the state. The legislature in enacting this law no doubt saw the wisdom of prompt commitment of a child who is upon the high road to becoming a moral degenerate and perhaps a...