Jensen v. Hinckley

• Decision Date: 01 December 1919
• Docket Number: 3410
• Citation: 55 Utah 306,185 P. 716
• Court: Utah Supreme Court
• Parties: JENSEN v. HINCKLEY, Superintendent of State Industrial School

185 P. 716

55 Utah 306

JENSEN v. HINCKLEY, Superintendent of State Industrial School

No. 3410

Supreme Court of Utah

December 1, 1919

Appeal from District Court of Salt Lake County, Third District; Wm H. Bramel, Judge.

Habeas corpus by Louise Jensen against E. S. Hinckley Superintendent of the Utah State Industrial School.

From judgment quashing the writ and remanding petitioner's son to custody, petitioner appeals.

Judgment remanding the son to custody VACATED and ANNULLED and release and restoration of custody to petitioner ordered.

A. A. Duncan, of Salt Lake City, for appellant.

Dan B. Shields, Atty. Gen., and O. C. Dalby, James H. Wolfe, and H. Van Dam, Jr., Asst. Attys. Gen., for respondent.

FRICK, J. CORFMAN, C. J., and WEBER, GIDEON, and THURMAN, JJ., concur.

OPINION

FRICK, J.

The plaintiff, hereinafter called petitioner, filed her petition in the district court of Salt Lake county alleging in substance that Gunnard Jensen, her son, a minor fourteen years of age, is unlawfully restrained of his liberty by the defendant as superintendent of the state industrial school, setting forth the facts respecting the illegality of the detention and praying that a writ of habas corpus issue on behalf of said minor. A writ was duly issued by said court to which the defendant made due return, and, upon a hearing upon the petition and return, the writ was quashed, and the minor was remanded to the custody of the defendant, where said minor now is

The petitioner appeals from the judgment of the district court remanding said minor as aforesaid.

The facts, all of which are conceded, in substance are: That on July 31, 1919, a complaint was duly filed in the juvenile court of Salt Lake county in which said minor was charged with an act of delinquency, to wit, the taking and driving away of an automobile belonging to another without the knowledge or consent of the owner; that on August 5, 1919, a hearing was had on said charge; that at said hearing the minor admitted the facts charged; that the petitioner, who is the mother of said minor, appeared in the juvenile court at said hearing and gave testimony under oath; that the juvenile court found that the minor was a delinquent within the purview of our statute, and also found that his parents "are unfit to have and continue in the custody of said minor child by reason of the fact that the boy is not amenable to the wishes of his parents and the parents have been unable to give him the training which would keep him away from such offenses."

The juvenile court therefore entered an order or judgment committing the minor to the industrial school aforesaid, and by virtue of that order he was placed into and now is in the custody of defendant.

The record discloses the fact that the notice provided by Comp. Laws Utah 1917, section 1818, was not served on the parents of the minor nor upon either one of them. That section reads as follows:

"Upon filing such complaint, the clerk or court shall set the same for hearing; notice of said hearing shall be served by the probation officer, or sheriff or any peace officer, on the parents, parent, custodian, or legal guardian of said child residing within the state of Utah, which notice shall be substantially in the following form, to wit:

"(Title of court and cause.)

"To (here designate relationship): You are hereby notified to appear within two days after the service of this notice upon you, if served within the county wherein the above proceeding is pending, otherwise within five days, and assert and defend any rights to custody, control, or guardianship you may have or claim over or in the above named child; otherwise your default will be entered and the court will proceed to hear and determine your said rights or supposed rights in accordance with the law and the evidence.

"The return of the officer showing such service shall be conclusive."

Comp. Laws Utah 1917, section 1815, defines the jurisdiction of the juvenile courts of this state. That section reads:

"The juvenile court shall have jurisdiction in all cases relating to the custody, detention, guardianship of the person, probation, neglect, dependency, delinquency, examination, trial, and care of children who are under eighteen years of age, and also have jurisdiction over adult persons for all misdemeanors committed by them relating to the custody, detention, guardianship, probation, neglect, dependency, delinquency, and care of children who are under eighteen years of age, as is now or may be provided by law. In any case in which the court shall find a child neglected, dependent, or delinquent, it may, in the same or in any subsequent proceedings, upon the parents of said child or either of them being duly summoned or voluntarily appearing, proceed to inquire into the ability of such parent or parents to support the child or contribute thereto. The court may enter such order or decree as shall be according to equity in the premises, and may enforce the same in any way in which a court of equity may enforce its orders or decrees."

Counsel for the petitioner contends that in view that the notice provided for in section 1818 supra, was not served upon the parents of the minor, nor upon either one of them, therefore the juvenile court exceeded its power or jurisdiction in entering judgment that the parents of such minor were unfit to retain the custody of him. In that connection counsel contends that under the decision of this court in Mill v. Brown, 31 Utah 473, 88 P. 609, 120 Am. St. Rep. 960, it is necessary for the juvenile court to find: (1) That the minor is a delinquent within the purview of our statute, and (2) that the parents are morally unfit to continue in the custody of the child. He further insists that, in order to determine and adjudicate the right to the custody of the parents, it is essential that they be served with the statutory notice or that they voluntarily appear and waive such notice. He vigorously insists that the finding of both of the foregoing facts is essential to the jurisdiction of the juvenile court. Upon the other hand, the Attorney General, who appears on behalf of the defendant, while conceding that the notice is jurisdictional and that the facts must be found as stated in the case of Mill v. Brown, supra, nevertheless, contends that, inasmuch as the petitioner appeared in the juvenile court did not exceed its jurisdiction in adjudicating that the parents of said minor were unfit to continue in the custody of him. In support of his contention the Attorney General cites and relies on the following cases: De Kay v. Oliver, 161 Iowa 550, 143 N.W. 508; King v. Sears, 177 Iowa 163, 158 N.W. 513; Heber v. Drake (Ind. App.) 118 N.E. 864; Juvenile Court of Shelby County v. State, 139 Tenn. 549, 201 S.W. 771, Ann. Cas. 1918D, 752.

We shall again refer to those cases.

It will be observed that in section 1818, supra, it is required that the notice be served as there provided, or that a voluntary appearance be made as provided in section 1815. That such a notice is necessary to confer jurisdiction upon the juvenile court to determine and adjudicate the fitness or unfitness of the parent, guardian, or custodian of the minor child to have custody of such child, is assumed rather than decided by this court in the case of Stoker v. Gowans, 45 Utah 556, 147 P. 911, Ann. Cas. 1916E, 1025. We are clearly of the opinion, however, and now hold, that the service of such notice or voluntary appearance amounting in legal effect to a waiver thereof is necessary to confer jurisdiction upon the juvenile court for the purpose of determining and adjudicating the parent's or guardian's right to custody of a delinquent child. Lest we be misunderstood, however, we desire to state here that the service of such a notice is not necessary to confer jurisdiction upon the juvenile court in order to determine and to adjudicate the delinquency of the child. That fact may be determined by the juvenile court upon a hearing on the charge preferred against the child without notice to the parents. That court may, however, not go farther and also adjudge the parent's or guardian's right to the custody of the child, as the case may be, without serving the notice aforesaid, or, in lieu thereof, making a finding upon proper evidence that the parent, etc., voluntarily appeared and by that means waived notice. This case affords a striking illustration of the injustice that might result to parents especially if they...