Hancock v. Dupree

• Decision Date: 05 August 1930
• Citation: 129 So. 822,100 Fla. 617
• Parties: HANCOCK v. DUPREE et al.
• Court: Florida Supreme Court

129 So. 822

100 Fla. 617

HANCOCK v. DUPREE et al.

Florida Supreme Court

August 5, 1930

Commissioners' Decision.

Error to Circuit Court, Okeechobee County; Elwyn Thomas, Judge.

Habeas corpus proceeding by Edna Dupree and her husband against Mrs W. M. Hancock to recover custody of minor children. Judgment for plaintiffs, and defendant brings error.

Affirmed.

COUNSEL G. C. Durrance, of Okeechobee, for plaintiff in error.

OPINION

DAVIS C.

This case is here upon writ of error to the judgment of the circuit court, Okeechobee county, wherein the circuit judge upon a return of a writ of habeas corpus sued out at the instance of the mother of minor children, a warded the care and custody of such children to the mother and her husband.

The transcript reveals the filing in the court of the county judge of a petition by the probation officer of the county of Okeechobee wherein it was represented that the said children (of the age of two years) were dependent children within the meaning of chapter 6216, Laws of Florida 1911, in that they had been abandoned by their mother; that they had no known father; and that they were in the immediate care of one Mrs Ollie Yates and Edna Thomas. The transcript further shows that upon the return of a citation to Edna Thomas, who was the mother of the children, the county judge sitting as judge of the juvenile court, on May 31, 1928, adjudged and decreed that the said children were dependent children within the meaning and intent of the law and committed them into the custody of plaintiff in error, until they shall have attained the age of 21 years or until regularly discharged therefrom. In the petition for the writ of habeas corpus it is alleged that neither the said petition, the citation, nor the commitment order were properly filed and recorded; that the order is void; that since the making of the order, the mother married C. D. Dupree; and that she is a fit and proper person to have the care and custody of her children.

It is contended here by the plaintiff in error that the statute vested in the county judge jurisdiction of dependent and delinquent children; that the circuit court in such cases has appellate jurisdiction only; and that the circuit judge obtains jurisdiction by writ of habeas corpus only when minor children are unlawfully restrained of their liberty.

'When any child less than seventeen years of age shall be found to be dependent, within the meaning of this Chapter, the county judge may make an order committing the child to the care of some suitable State or county reformatory or institution, which is now or may hereafter be provided or to the care of some suitable citizen of good moral character, or to the care of some suitable private institution or association willing to receive it, and embracing in its object the purpose of caring for or obtaining homes for dependent or neglected children. The judge may hereafter set aside, change, or modify such order of commitment, in his discretion. The judge may, when the health or condition of the child requires it, cause the child to be placed in a public hospital or institution, for physical treatment or special care, or in a private hospital or sanitarium which is willing to receive it, for the like purpose, without charge.' Section 3702(2331), Compiled General Laws of Florida 1927.

Under the above provision of the statute, the jurisdiction of county judges over delinquent and dependent children is not doubted. Hillsborough County v. Savage, 63 Fla. 337, 58 So. 835.

It has been said that 'the right of parental control is natural but not an unalienable one.' It is subject to the paramount right of the state as parens patriae. It was not the purpose of the quoted provisions of the statute to punish children by confinement or to deprive them of their liberty, but to provide proper custody for those who are in need of it, because of the death or unfitness of parents. Farnham v. Pierce, 141 Mass. 203, 6 N.E. 830, 831, 55 Am. Rep. 452.

The organic law of this state vests power in circuit judges to issue writs of habeas corpus. Section 11, of article 5, Constitution of Florida. The statute provides as follows: 'Whenever any person detained in custody, whether charged with a criminal offense or not, shall, by himself or by some other person in his behalf, apply to * * * any circuit judge, etc.' Section 5435(3571), Compiled General Laws of Florida 1927.

Under the provisions of our law, it is not unusual for circuit judges to settle contests over the custody of minor children by habeas corpus proceedings. McCann v. Proskauer, 93 Fla. 383, 112 So. 621; State v. Bollinger, 88 Fla. 123, 101 So. 282; Witt v. Burford...