In re Owen
| Decision Date | 05 March 1930 |
| Docket Number | 30433 |
| Citation | 127 So. 619,170 La. 255 |
| Court | Louisiana Supreme Court |
| Parties | In re OWEN et al |
Rehearing Denied March 31, 1930
Appeal from Second District Court, Parish of Claiborne; John S Richardson, Judge.
Proceedings to take Mary Ellen Owen and another, minors, from custody of father, Eber Owen. From the judgment, the father appeals.
Affirmed
J. R Goff, of Arcadia, for appellant.
W. D Goff, Dist. Atty., of Arcadia, and Lamont Seals, of Homer, for appellees.
This is a proceeding to take away from the father two children, a girl two years old and a boy one year old, and to place them in some institution or with some private family where they may receive proper care, attention, and education.
The proceeding was initiated by an affidavit made jointly by W. E. Kelley and Mrs. O. L. Dawson, and on this affidavit the judge issued an order to the father to show cause why the two children should not be taken from his possession, custody, and control permanently and placed in the care, custody, and control of some institution or private family.
The defendant in rule appeared and excepted to the jurisdiction of the court on the ground that the facts set out in the affidavit did not show that the children were neglected or delinquent within the meaning of Act 83 of 1921 creating the juvenile court. Following this exception the defendant answered alleging that he had not contributed to the delinquency or neglect of his children; that he is a hard-working man, devoted to his children, and, while he is a poor man, he can and will take care of his children and educate them.
The plea to the jurisdiction was overruled, and, after a trial on the issues joined, the court ordered that the girl be committed to the care, custody, and control of O. L. Dawson and his wife, and that the boy be committed to the control, care, and custody of W. E. Kelley and his wife; the said minors to remain in keeping of the respective parties indefinitely, subject to the further orders of the court.
The Constitution of 1921 provided that in parishes other than Orleans the judge of the district court shall be ex-officio judge of the juvenile court in the parish or parishes located in his district.
It was provided that the said courts shall have jurisdiction of the trial of all children under seventeen years of age who may be charged in said courts as neglected or delinquent children, and of all persons charged with contributing to such neglect or delinquency, and of all cases of desertion or non-support of children by either parent.
The Legislature was directed at its next session to prescribe the method of procedure in said courts, which may be by affidavit instead of by indictment or information.
It was further provided by the Constitution that appeals from the said courts shall be allowed upon matters of law only, and shall be to the Supreme Court.
In obedience to the constitutional mandate, the Legislature of 1921 passed Act No. 83, approved November 18, 1921, creating juvenile courts throughout the state, except in the parishes of Orleans and Caddo, and defining their jurisdiction. The act followed the Constitution in the matter of jurisdiction, and provided that all proceedings in said courts against adults shall be by affidavit, information, or indictment.
As the children in this case are not charged as being delinquent, and as the father is not charged with contributing to their delinquency, we shall not refer to that portion of the statute which defines the meaning of that term.
In section 6 of the act the term "neglected" child is defined tobe any child seventeen years of age and under found destitute, or dependent on the public for support, or without proper guardianship, or whose home, by reason of the neglect, cruelty, depravity, or indigence of its parents, guardians, or other persons, is an unfit place for such child, etc.
It appears clear from the language of the statute that the juvenile courts are given jurisdiction to inquire into the facts presented in a charge before them as to whether a child under the given age is a "neglected" child within the meaning of the statute and also jurisdiction of all persons who may be charged with contributing to such neglect or who may be charged with desertion or non-support of their children.
The question recurs, therefore, whether the facts set forth in the affidavit are sufficient to bring the children and their father within the purview of the statute.
It appears from the affidavit that the mother of the children died at "The Pines," a hospital located at Shreveport on December 8, 1929, and the affidavit under consideration was made on the second day after the mother's death. In this affidavit it is specifically stated that Eber Owen, the father of the two children, is not able financially or otherwise to take care of and give the said two minor children the care and attention which they should have and are entitled to, and that he is actually and in fact neglecting the children in many ways; that he does not provide them proper clothes, food, and sustenance, and that said children appear undernourished, are apparently ill and in need of medicine and medical attention and the care of some person or persons who will serve and act as and instead of a mother to said children; that said Owen has not the means or financial ability to properly take care of said minors and provide for them as he should, and on account of this neglect the said children should be placed in some proper institution or home or in some private family where they may receive the care and attention and education to which they are justly and legally entitled.
These charges could perhaps have been more specifically set out, but the affidavit considered as a whole is sufficient in law to inform the defendant of the nature and cause of the accusation against him, and the facts alleged, if proven to be true, make the accusation one which clearly comes within the jurisdiction of the juvenile court.
It is distinctly charged that the defendant as the father of the children is actually and in fact neglecting them; that he does not provide them proper clothes, food, and sustenance; that he fails to provide the children with medicine and medical attention; that the children are undernourished, and are apparently ill for lack of proper food and medical attention.
It is further charged that the defendant has not the means or financial ability to properly take care of the children and provide for them as he should do.
The affidavit substantially, if not almost literally, follows the terms of the statute, and clearly presents a case against the defendant of not only contributing to the neglect of his children but a case of actual and positive neglect to give them the proper nourishment and clothing and to provide medical attention when sick.
The case as presented by the affidavit must therefore be regarded as one which the lawmaker had in contemplation when creating the juvenile court, and falls within the terms of that statute.
The case of State v. Rose, 125 La. 1080, 52 So. 165, cited by counsel for appellant, has no application to the case we have here.
In that case the defendant was prosecuted in the juvenile court of New Orleans for willfully and unlawfully permitting minors to perform on a stage.
The juvenile court for the parish of Orleans was created by Act 83 of 1908. That court, as the present juvenile courts of the other parishes of ...
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