In re Hook

• Citation: 115 A. 730,95 Vt. 497
• Parties: IN RE EMMA BAGLEY HOOK
• Decision Date: 05 January 1922
• Court: United States State Supreme Court of Vermont

115 A. 730

95 Vt. 497

IN RE EMMA BAGLEY HOOK

Supreme Court of Vermont

January 5, 1922

Special Term at Rutland, November, 1921.

ORIGINAL PETITION to the Supreme Court of Orange County by Eugene D. Hook for a writ of habeas corpus to secure the discharge of Emma Bagley Hook, an infant, from the Vermont Industrial School. The opinion states the case.

It is adjudged that the said Emma Bagley Hook is illegally restrained in the Vermont Industrial School, and she is discharged from that restraint and remanded to the care and custody of the board of charities and probation, agreeably to the order of the Hartford juvenile court.

Hale K. Darling and Shields & Conant for the petitioner.

Millward C. Taft, State's Attorney, for the State.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

POWERS

Emma Alice Bagley, a child thirteen years of age, was committed by the Hartford juvenile court to the custody of the State Board of Charities and Probation, as a neglected and dependent child. She was placed by the board in a family in the town of Concord, where she remained a week or two, and until May 18, 1921. On that day, in the company of her father and the petitioner, she voluntarily and clandestinely left Concord and went to Chelsea. On the next day, in consummation of a previous engagement, she was married to the petitioner by a duly authorized minister of the gospel. This marriage was performed under a license regularly issued by the clerk of Chelsea, the town of the petitioner's residence--the father of Emma, as surviving parent, consenting thereto in writing. Later in the same day the probation officer caused the said Emma to be brought before said court on a petition alleging, in effect, that she was insubordinate, in that she ran away from the place where she was being cared for by said board, with a man whom she claimed to have married. Thereupon she was adjudged to be a delinquent child, and was ordered to be committed to the Industrial School during the remainder of her minority, and was committed accordingly.

This petition for a writ of habeas corpus is brought to secure the release of the child from that commitment, and is based solely upon the marital rights alleged to result from the marriage aforesaid. The facts are not in dispute. The right of a husband to prefer such a petition is not challenged; the validity of this marriage is not called in question; and the legality of the original order committing the child to the board of charities and probation is not denied. Chapter 319 of the General Laws, being passed for the protection of a class of minors unable adequately to protect itself, was enacted in a valid exercise of the police power of the State. Tiedeman, § § 52, 196 A; Ex parte Januszewski, 196 F. 123; State v Issenhuth, 34 S.D. 218, 148 N.W. 9; In re Johnson, 173 Wis. 571, 181 N.W. 741. In none of its aspects is it criminal. House of Refuge v Ryan, 37 Ohio St. 197; State v. Bryant, 94 Neb. 754, 144 N.W. 804; Farnham v. Pierce, 141 Mass. 203, 6 N.E. 830, 55 A. R. 452; Ex parte Januszewski, supra; In re Antonopulos, 171 A.D. 659, 157 N.Y.S. 587; In re Turner, 94 Kan. 115, 145 P. 871, Ann. Cas. 1916E, 1022. It is not penal, but protective. It does not seek to punish the child or its parents for misdeeds or shortcomings. It steps in merely to save the child from the evil tendencies of its situation, and to give it more efficient care and training, to the end that it may become a more worthy and useful member of society. It is to be liberally construed. G. L. 7337. The welfare of the child lies at the very foundation of the statutory scheme, and, from the moment that the court determines that a child comes within the classes specified therein, he becomes a ward of that court, and so continues until he attains his majority, unless sooner "discharged" as provided in said chapter. G. L. 7323.

When a child is awarded to the care of the board of charities and probation, he becomes a ward of that board (G. L. 7330), and is "discharged" within the meaning of G. L. 7323. That is to say, he passes out of the immediate control of the court. But the term "discharged," as used in the latter section, does not mean an absolute and permanent release from the court's control. The award to the board is so far conditional that the court retains jurisdiction to make such further orders as future conditions may require; and to this extent the guardianship of the board is subservient to the paramount authority of the court. Any other construction would tend to subvert the fundamental purpose of the statute. This authority of the court is not lost or exhausted, though the child be committed to a person or institution outside its territorial jurisdiction. In re Chartrand, 103 Wash. 36, 173 P. 728.

When it appears to the board, then, that it cannot adequately care for a child so awarded to it, it may apply to the court for a further order, and though the child be not delinquent, but only dependent or neglected, the court may thereupon commit him to "some suitable state institution." G. L. 7328. The Vermont Industrial School is such an institution. Of this we take judicial notice. Our interpretation of this section finds support in No. 207, Acts of 1919, which provides that no dependent child shall be committed to this school, without the approval of said board. Here, if important, it must be taken that the board did approve, since the order was made on the application of the executive officer of the board, and because under No. 208, Acts of 1919, it would be a criminal offence to receive this child into that school without the written approval of such board.

When this marriage took place, then, this child was the ward of the board of charities and probation, and subject to the control of the Hartford juvenile court. Did her marriage, in and of itself, release her from this situation? The importance of this question is fully appreciated. It involves, on the one hand, the power and authority of the State, under Chapter 319, while acting as parens patriae in the discharge of most serious and essential civic obligations, and, on the other, of interests vitally affecting the most sacred and important of the domestic relations. The petitioner insists that this guardianship of the State was and could be of no higher character than one created by appointment of the probate court, or one arising from the parental relation, either of which would be discharged by the marriage--the one by force of G. L. 3718, and the other by force of Sherburne v. Hartland, 37 Vt. 528, and other cases.

With this contention we cannot agree. On the contrary, we think that when the State once assumes control of such a child as the statute describes its authority is and continues to be superior to any other, no matter what the latter may be--even that under a retained jurisdiction of another court in prior divorce proceedings between his parents. In re Hosford, 107 Kan. 115, 190 P. 765, 11 A. L. R. 142, and note. The welfare and best interests of the child become the paramount and controlling consideration and, before the State can be compelled to relinquish its control, it must be made to appear in some legal way that these considerations require it.

The authorities on the question under consideration are not in full accord. In State v. District Court, 118 Minn. 170, 136 N.W. 746, it was held that an injunction issued by the juvenile court of Minneapolis forbidding the marriage of a fifteen year old girl who was under bail in delinquency proceedings before that court was of no force. The decision is put upon the ground that, at the time the injunction issued, no adjudication of delinquency had been made, and the girl was not within the control of the court. And attention is called to the fact that it is not decided what the situation would be if the court had committed her to the custody of some of its officers, instead of discharging her on bail.

In Ex parte Lewis, 3 Cal.App. 738, 86 P. 996, which was a petition for a writ of habeas corpus by a husband to secure the release of his wife, a minor, who had been committed to the Whittier State School, it was held that her marriage took the infant out of the class known under the statute as children and minors, and terminated the jurisdiction of the court over her, and she was discharged. This was in 1906.

In 1916, however, in Ex parte Willis, 30 Cal.App. 188, 157 P. 819, it was held that one who had, while a minor, been adjudged by a juvenile court to be a delinquent person and placed on probation until she became twenty-one years of age, and who had, during her probation, married without the consent of the court, was not entitled to discharge on arriving at the age of her majority.

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