Kennedy, In re
| Decision Date | 10 August 1961 |
| Docket Number | No. 7944,7944 |
| Citation | 110 N.W.2d 365 |
| Parties | In the Matter of Michael John KENNEDY, Mary Ann Kennedy, Jane Kathleen Kennedy, Darlene Kennedy, LeRoy Kennedy, and Patrick James White, Children Under the Age of Eighteen Years. Mary Kennedy WHITE, Appellant, v. Mable E. CALLAHAN, Juvenile Commissioner, Respondent. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. The district court, acting as a juvenile court, has only such powers as are given to it by law.
2. Any proceeding commenced before the juvenile court is deemed pending from the time the judge endorses his order for hearing until he shall order the matter closed. Once the court acquires jurisdiction of a juvenile matter, the court acquires continuing jurisdiction to provide for the temporary care, custody, and control of the child involved.
3. In a proceeding under the juvenile law, a parent is entitled to notice of hearing to permanently terminate parental rights and an opportunity of appearing before the court at the hearing at which the termination of parental rights is considered. An order terminating parental rights shall be made only after a special hearing, on proper notice.
Day, Stokes, Vaaler & Gillig, Grand Forks, for appellant.
Carlton G. Nelson, State's Atty., Grand Forks, for respondent.
Nilles, Oehlert & Nilles, Fargo, amicus curiae.
This is an appeal from an order denying the appellant's motion to vacate and set aside a judgment of the trial court terminating the parental rights of the appellant in and to the minor children named therein.
The facts, so far as they are pertinent to this appeal, are as follows:
The appellant is the mother of six minor children. The older two are children of a former husband from whom the appellant is divorced; the next two are children born out of wedlock and for whom paternity has never been legally established; and the two younger children are those of a subsequent marriage. At the time of the events leading up to the judgment terminating her parental rights to the children, the present husband of the appellant was serving time in the State penitentiary in Bismarck.
In December of 1958, a petition was filed in the juvenile court of Grand Forks County praying that the court declare such minor children to be dependent, neglected, and abandoned children, and that their care, custody, and control be transferred to the director of the division of child welfare of the Public Welfare Board of the State of North Dakota, to a licensed children's placing agency, or to some suitable adult persons to be designated by the court, and that the parental rights of the parents, including the appellant, be terminated. Judge Olger B. Burtness, in writing, ordered that such petition be filed; that an investigation be made into the matter and that a hearing be had on such petition, fixing the time for such hearing at 10 a. m. on February 3, 1959.
The order fixing time and place for hearing such petition was personally served on the appellant by the sheriff of Grand Forks County, as is shown by the return of service on file in this action.
On February 3, at the time set for such hearing, it appeared that the factor of the appellant had just passed away and was to be buried on the very day set for hearing. The court thereupon, with the consent of the attorney for the appellant, continued the hearing to February 10, 1959, at 10 a. m.
On February 10, 1959, the matter came on for hearing, with the appellant and her attorney both being personally present in court. Evidence was introduced in support of and in opposition to the petition. We do not believe it is necessary to discuss this evidence in detail, and will only say that it overwhelmingly supported the allegations of the petition. At the hearing on February 10, it was agreed that the matter be continued to the following day to enable the mother of the appellant to appear and testify.
On the following day, the appellant and her attorney both were present in court throughout the hearing. The court, at the close of the hearing, took the matter under advisement and announced that he would render his decision at a later date.
On February 16, 1959, at 3:30 p. m., with the appellant and her attorney again being present in court, the court stated that he was finding it extraordinarily difficult to reach a decision and therefore he was continuing the matter to April 7, 1959, at 10 a. m.; that, in the meantime, the temporary order previously entered would remain in full force and effect.
At 10:15 a. m. on April 7, 1959, the matter again came on for hearing, with the appellant being personally present but without her attorney. Further evidence was introduced to show that the children were being neglected and improperly cared for. The court, however, still was reluctant to terminate the appellant's parental rights and again continued the hearing, this time to 10 a. m. on August 19, 1959. This continuance was ordered with a view of giving the appellant a further chance to show that she could properly care for her own children. The court stated that if, in the meantime, the children were not being given proper care, attention, and supervision, the matter could be brought before the court on a date prior to the date to which the hearing was being continued.
Thereafter, on June 27, 1959, the court was informed that the children had been found abandoned in an unfurnished house; that there was evidence that the appellant had wholly failed to provide a proper home for the children following the hearing on April 7; that the furniture which she had obtained for the use of the family following the prior hearing had all been sold with the exception of one davenport, and that such furniture had been removed from the home.
The record further shows that the court thereupon set the matter for hearing on July 2, 1959, at 10 a. m., and that notice thereof was attempted to be given by sending to the appellant a copy of such notice, addressed to her at her last-known address. She did not appear at the hearing.
As the hearing on July 2, it appeared that the notice of the advanced date of hearing had been mailed to the appellant at her last-known address. The record shows, in support of the petition to terminate parental rights, that the appellant had had numerous gentlemen-callers, as many as thirty-two having called on her on one Sunday, and that at the time the matter was brought to the attention of the court, on June 27, the appellant had been absent from the home and the children for a period of at least two days, during which time the children had been left alone; that the children thereupon were taken to the police department for care.
On this record, the court terminated the parental rights of the appellant to the minor children, and the custody of all but the oldest was given to the Public Welfare Board of the State of North Dakota. Judgment terminating parental rights of the appellant subsequently was entered. No appeal was taken from such judgment, but some eleven months after the entry of judgment the appellant moved to vacate and set the same aside on the ground that the trial court was without jurisdiction to enter judgment following the hearing on July 2, 1959.
The trial court denied the motion to vacate the judgment, and this appeal thereupon was taken from such order.
In support of her appeal, the appellant specified numerous errors. We have examined the specifications of error and find that most of them are without any merit whatsoever. The contention of the appellant, however, that the trial court was without jurisdiction to order a termination of the appellant...
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