Frank, In re

• Decision Date: 09 October 1952
• Docket Number: No. 32280,32280
• Citation: 248 P.2d 553,41 Wn.2d 294
• Court: Washington Supreme Court
• Parties: In re FRANK. STATE ex rel. FRANK, v. SUPERIOR COURT FOR KING COUNTY et al.

Page 294

41 Wn.2d 294

248 P.2d 553

In re FRANK STATE ex rel. FRANK, v. SUPERIOR COURT FOR KING COUNTY et al.

No. 32280.

Supreme Court of Washington, Department 1.

Oct. 9, 1952.

Colvin & Williams, R. Wayne Cyphers, Seattle, Edmund J. Jones, Seattle, for appellant.

Ervin F. Dailey, Seattle, for respondent.

MALLERY, Justice.

Robert Milton Frank was born May 23, 1944. His mother and father were divorced in 1945, when he was thirteen months old. The mother was given his custody with visitation privileges given to the father. There was no finding in that action or subsequently that the father was an unfit person to have custody of the child. The mother and child lived with the maternal grandmother, Nellie White. The mother died on April 3, 1952, and the maternal grandmother brought the present action on April 10, 1952, seeking to have the child declared to be a dependent child so that his custody could be given to her, and the father restrained from claiming it. The father appeared and contested the action.

The court below found the child to be a dependent child, and gave his custody to the maternal grandmother during the school year, and to the father during the summer months. This order is brought here for review on a writ of certiorari.

The relator's assignment of error No. 1(f) challenges the jurisdiction of the juvenile court over the person of the minor, upon the ground that the evidence does not support any statutory ground for a declaration of dependency. Of course, the court below can concern itself with the welfare of this child only after finding it to be a dependent child as defined by the statute. Rem.Rev.Stat. § 1987-1. This is jurisdictional. In the case of In re Warren, Wash., 243 P.2d 632, 633, we cited In re a Minor, 39 Wash.2d 744, 238 P.2d 914, with approval, as follows:

"The juvenile court does not have jurisdiction over all juveniles, nor is every child a ward of the court, its jurisdiction being limited to delinquent or dependent children.' * * *'

We find the assignment of error well taken.

The child is now eight years of age, and has an impediment in his speech. It was upon this factual basis that the trial court found the father had neglected to provide medical treatment for the child, and concluded that, therefore, he was a dependent child.

Dependency of a child cannot be based upon such a finding. In In re Hudson, 13 Wash.2d 673, 126 P.2d 765, 768, we said:

'The superior court judge, sitting as juvenile court judge, expressed the opinion that, in the light of the liberal construction provision in Rem.Rev.Stat. § 1987-14 [P.C. § 606], the definitions of 'dependency' in Rem.Rev.Stat. § 1987-1 [P.C. § 593] are broad enough to include therein a child who is not receiving proper medical or surgical attention; * * *.'

We answered that contention by saying:

'* * * The juvenile court law, Rem.Rev.Stat. § 1987-1 et seq., does not contain any provision respecting the furnishing of necessary medical or surgical care.

'* * * The juvenile cour law excludes from its provisions a requirement to furnish medical or surgical care, while in the penal section medical attendance is included.'

The maternal grandmother is in an equivocal position. She must secure a finding of dependency to give the court jurisdiction to take the child from its father. To do this she must show neglect of the child while he was in the care of her deceased daughter and herself.

Since the trial court's finding of dependency of the child cannot be sustained, it is without jurisdiction to deprive the father of his custody. In the case of In re Neff, 20 Wash. 652, 56 P. 383, 384, we said:

'* * * The parents are the natural guardians, and entitled to the care, control, and society, of their children; and when, unfortunately, the marital union is...