In re George L. Hosford
| Decision Date | 05 June 1920 |
| Docket Number | 22,701 |
| Citation | 107 Kan. 115,190 P. 765 |
| Parties | In re GEORGE L. HOSFORD, Petitioner |
| Court | Kansas Supreme Court |
Decided January, 1920.
Original proceeding in habeas corpus.
Petitioner discharged.
SYLLABUS BY THE COURT.
MINOR--Neglected Child--Committed to Children's Aid Society--Jurisdiction of District Court. Where the juvenile court has, in accordance with the statute, committed a dependent and neglected child to the care of a children's aid society, a court which had previously granted a divorce to the parents of the child thereby loses jurisdiction to control its custody, and in a hearing of the application of one of the parents in relation thereto cannot require an officer of the aid society to disclose its whereabouts.
E. L. Foulke, of Wichita, for the petitioner.
John Madden, C. E. Cooper, and John Madden, jr., all of Wichita, for the respondent.
George L. Hosford refused to answer a question asked of him as a witness in the district court of Sedgwick county, and was adjudged guilty of contempt and ordered committed to the county jail. He asks relief of this court by habeas corpus, on the ground that the order was made without jurisdiction. The matter is submitted upon the papers.
The district court ordered the petitioner to be committed until he should signify his willingness to answer the question, or until the expiration of six months, but stayed the execution of the order until the next day to allow time for the matter to be presented here. Within that period this court took jurisdiction, and by reason of these facts the sheriff was enabled to make a return, which he did, to the effect that he was not restraining the petitioner. While that is technically true, the merits of the legal questions upon which the validity of the order of commitment depends have been fully argued, and it would be futile to withhold action until a physical restraint should be imposed.
The petitioner is the general superintendent of the Christian Service League--a "children's aid society" as defined in the statute (Gen. Stat. 1915, § 6373)--to which has been intrusted by the juvenile court of Sedgwick county the custody of Ethel Hook, minor daughter of George Hook and Myrtle Hook, who had been divorced by a decree of the district court of that county in April, 1918, the custody of the child having been awarded to the father. In February, 1919, the juvenile court made a finding that the child was dependent and neglected, and gave her to the care of the league. In November, 1919, the child's mother applied to the district court asking that the order made in the divorce case be modified, and that she be granted the custody of the child. Neither the league nor any one representing it was a party to the proceeding, but its superintendent, the petitioner, was present and testified that the child had been placed by the juvenile court with the league for adoption. The judge asked him where the child was, and he declined to answer, on the ground of privilege and want of jurisdiction in the court, such refusal being the basis of the order adjudging him to be in contempt. The court awarded the custody of the child to the mother, but made no order in that respect upon the petitioner or the league.
The petitioner represents that the usefulness of such societies as that which he represents will be seriously impaired if parents of children committed to their care are permitted as a matter of right to be advised of their whereabouts. He contends that the continuing jurisdiction of the district court to control the custody of a minor child of the parties to a divorce suit ceases when the action of the juvenile court is properly invoked with respect to it; that the power exercised in such a case by the juvenile court is one specially delegated to it by the state in its capacity as supreme guardian of all minors, and supersedes even that of another court which had already acquired jurisdiction to determine the most suitable custodian of a child, whether depending upon the conflicting claims of its parents or upon its own welfare. So far as the matter is affected merely by the claims of father or mother little difficulty is presented.
"The most striking demonstration of the supremacy of the guardianship of the state over that of the parent is furnished by the statutes under which children cruelly treated, abandoned or being brought up in ways of vice are taken from the parents by administrative proceedings instituted by the state, and committed to public or charitable institutions." (20 R. C. L. 600.)
In 1901, prior to the enactment of the juvenile court law, the legislature authorized dependent or neglected children to be placed under the care of children's aid societies, and made provision against subsequent interference by the parents, in these words:
"No parent or guardian or other person who by instrument of writing surrenders or has heretofore surrendered the custody of a child to any children's aid society, or institution shall thereafter, contrary to the terms of such instruments, be entitled to the custody of or any control or authority over or any right to interfere with any such child, and these same conditions shall prevail where a child is or has been delivered to such children's aid society or institution by action of any proper court." (Gen Stat. 1915, § 6378.)
Although the provision of the statute giving the district court power to modify an order made in a divorce case regarding the custody of the children (Gen. Stat. 1915, § 7580) is a part of the revised code of civil procedure adopted in 1909, it is a reenactment of a section of the original code (Gen. Stat. 1868, ch. 80, § 645) and is to be regarded as a continuation thereof , yielding so far as there may be any conflict to the later expression of the legislative will.
The continuing jurisdiction of a court which has granted a divorce to supervise the custody of minor children of the parties cannot be interfered with by another court which except for such retained jurisdiction would have authority under a writ of habeas corpus to make the same inquiry and grant the same relief. (In re Petitt, 84 Kan. 637, 114 P. 1071.) The juvenile court, however, stands upon a very different footing. It is specifically given jurisdiction "of all cases concerning dependent, neglected and delinquent children." (Gen. Stat. 1915, § 3065.) The conditions under which it may take control of a child and the manner in which it may exercise it are quite different from those existing in the case of any other tribunal. It is of course inferior to the district court, to which an appeal in some instances may be taken from its rulings (Gen. Stat. 1915, § 3076), and which may exercise supervision and control over it to prevent and correct errors and abuses. (Gen Stat. 1915, § 2957.) But this appellate and supervising power must be exercised directly and according to some prescribed method. The district court has no authority, merely by reason of its broader powers, to disregard the action of the juvenile court. If, for instance, a boy whose custody had been awarded by the district court to his father should by reason of some serious delinquency be regularly committed by the juvenile court to the state reformatory, assuming that to be authorized by the statute (Gen. Stat. 1915, § 3073), or--as often happens--to the state industrial school, it would seem quite out of keeping with the general plan of administering such matters if the duration of his stay there could be controlled by the district court in virtue of its reserved jurisdiction, and that situation would not be essentially different from the one here presented, so far as relates to the jurisdiction of the district court, for even such a commitment would not be for the purpose of punishment, but for the welfare of the child. (In re Turner, 94 Kan. 115, 145 P. 871.)
It is not necessary to the protection of a minor that its control when regularly assumed by a court having only specially conferred powers, or by an administrative body, shall be...
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Spaulding v. Children's Home Finding & Aid Soc. of North Idaho, Inc.
...court in awarding the custody of a child is fundamentally different than that exercised by a juvenile court. In re Hosford, 107 Kan. 115, 190 P. 765, 766, 11 A.L.R. 142, 144 (1920), recognized such a distinction when it said: 'The juvenile court, however, stands upon a very different footin......
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...of a child is fundamentally different from that exercised by a juvenile court. The precise question was raised in In re Hosford, 107 Kan. 115, 190 P. 765, 766, 11 A.L.R. 142 in which the court said: 'The juvenile court, however, stands upon a very different footing. It is specifically given......
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... ... However, there are some decisions that throw light upon the question. The case of In re George Hosford, 107 Kan. 115, 190 P. 765, 11 A. L. R. 142, was decided upon statutes similar to our divorce and juvenile court statutes. In that case it ... ...
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