Board of Children's Guardians v. Gioscio

• Decision Date: 21 October 1936
• Docket Number: 26598.
• Citation: 4 N.E.2d 199,210 Ind. 581
• Parties: BOARD OF CHILDREN'S GUARDIANS et al. v. GIOSCIO.
• Court: Indiana Supreme Court

4 N.E.2d 199

210 Ind. 581

BOARD OF CHILDREN'S GUARDIANS et al. v. GIOSCIO.

No. 26598.

Supreme Court of Indiana.

October 21, 1936

Petition by Mary Gioscio for a writ of habeas corpus against the Board of Children's Guardians, etc., and others. From a judgment for petitioner, defendants appeal.

Affirmed.

Appeal from Marion Circuit Court; Earl R. Cox Judge.

L. Russell Newgent and Maurice E. Tennant, both of Indianapolis, for appellants.

William B. Miller, Jacob S. Miller and R. L. Ewbank, all of Indianapolis, for appellee.

HUGHES, Chief Justice.

The appellee filed a petition for a writ of habeas corpus, alleging that one Jacqueline Gioscio, a minor child, was unlawfully restrained of her liberty and wrongfully imprisoned. The petition was granted, and from the granting of the writ this appeal was taken.

The petition alleged that the said Jacqueline Gioscio was restrained of her liberty by virtue of a void order made by the judge of the juvenile court of Marion county and that she was confined in the Home of the Board of Children's Guardians; that there was no affidavit, warrant, or charge against said child, and no evidence of any offense against her; that the said Mary Gioscio, appellee, by virtue of an order of the Marion county superior court, room No. 1, cause A.-81646, in the cause of Donald Gioscio v. Lorene Gioscio, was given the care and custody of said minor child and that the said Board of Children's Guardians has refused to surrender said child to her. The petition further alleged that there was no hearing wherein the said minor child was charged with being a dependent or neglected child and no charge filed upon which the said juvenile court could have made an order committing said child to said Board of Children's Guardians. Other charges are made concerning the conduct of the judge of said juvenile court which are not necessary to set out. Upon the petition being filed, a writ was issued and the defendants filed a return thereto.

The return shows that prior to March 18, 1935, there were filed two affidavits in the juvenile court before the said Judge Geckler, one being by the mother of said child, Lorene Gioscio, and one by the father, Donald Gioscio, charging each other with neglect of said child; that on March 18, 1935, the parents appeared in court with said child for trial; that a trial was had and both parents were found guilty of child neglect, each fined $1 and costs and sentenced to serve 30 days in jail. The jail sentence was suspended. It is alleged that as a part of said judgment rendered at said trial the said Jacqueline Gioscio was adjudged and decreed a ward of said court and placed in the Marion County Detention Home until transferred to the Board of Children's Guardians and that said child is now in the custody of said Board of Children's Guardians by virtue of said order. A copy of the affidavits filed by each parent against the other is made a part of the return.

The affidavit filed by Donald Gioscio against Lorene Gioscio is as follows:

‘ State of Indiana

vs.

Lorene Gioscio}

Affidavit for Neglect of Child

‘ Donald Gioscio, being duly sworn, upon oath says that he is informed and believes that Jacquelin Gioscio is a dependent and neglected child under the age of (16)(17) years, and that Lorene Gioscio, who is the parent or person upon whom said child or children are depending for support or having the care, custody, or control, and is responsible for the care custody, control or support of said child _____, did in Marion County and State of Indiana, on or about the 3rd day of Mch., 1935, unlawfully, willfully neglect or contribute to the neglect of said child or children by then and there unlawfully, willfully, neglecting and failing to furnish said child or children with proper and necessary parental care, home food, clothing or support; said defendant then and there being able by personal service and labor so to do, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State of Indiana.

‘ X Donald Gioscio.’

To the return the plaintiff filed exceptions as follows:

‘ 1. That the return is not complete in that it fails to show on its face that the court (Juvenile Court) had jurisdiction of Jacqueline Gioscio against whom an order was made.

‘ 2. That the return and answer to said writ shows on its face that no proper petition or proceedings were held against the child, Jacqueline Gioscio, for and on whose behalf, the writ of habeas corpus was issued, and that by reason of the failure to have either a petition or proceeding against said minor child, said return is not complete.’

The court sustained the exceptions. The appellants, defendants below, refused to plead further and elected to stand upon their verified return. Evidence was then submitted and a finding made for appellee.

The sustaining of the exceptions did not preclude the appellee from submitting evidence upon her petition. When the exceptions were sustained and the defendants, appellants here, refused to make further return to the writ, it was equivalent of an admission,...