Mitchell v. Davis

• Decision Date: 17 October 1947
• Docket Number: No. 13859.,13859.
• Parties: MITCHELL v. DAVIS et al.
• Court: Texas Court of Appeals

205 S.W.2d 812

MITCHELL v. DAVIS et al.

No. 13859.

Court of Civil Appeals of Texas. Dallas.

October 17, 1947.

Rehearing Denied November 14, 1947.

Appeal from District Court, Dallas County; Wm. M. Cramer, Judge.

Suit by Sam Davis, Chief Probation Officer, and others against Leroy Mitchell, by next friend, wherein the jury found defendant to be a neglected child and awarded custody to the probation officer. Upon application, the judgment was superseded and an appeal was prosecuted by the minor through next friend.

Affirmed.

Louis Wilson, of Dallas, for appellant.

Will R. Wilson, Dist. Atty., and Chas. E. Long, Jr., Asst. Dist. Atty., both of Dallas, for appellees.

YOUNG, Justice.

The suit involves appellant minor under Art. 2330 et seq., Vernon's Ann.Civ.St. (laws relating to dependent and neglected children), and, upon jury answer to special issue, the court found appellant to be a neglected child, awarding custody to Sam Davis, Chief Juvenile Officer of Dallas County, in order that said child, age twelve, "may receive proper medical care, education and maintenance * * * subject to the further orders of this court." Upon application, the judgment was superseded and appeal prosecuted by the minor through next friend.

Pertinent allegations of appellees' petition were "that the father, William Aaron Mitchell, is deceased; that the mother, Mittie Lee Mitchell, neglects the child and refuses to provide medical treatment for him when he is seriously ill; that the child has been ill since Fall, 1946 and his life is now in danger." The issue, answered affirmatively, was: "Do you find from a preponderance of the evidence that the minor child, Leroy Mitchell, is a neglected child as that term is herein defined to you?"; the following instruction being given in such connection: "The term `dependent or neglected child' as used in this charge, means a child who has not proper parental care or guardianship. The term `proper parental care or guardianship' as used in this charge, means such care as an ordinarily prudent parent would exercise over the child for its physical welfare, under the same or similar circumstances."

Points of appeal, thirteen in all, complain in substance of (1) insufficient pleading to state any offense under above statute and a like insufficiency of evidence to warrant any change of custody; (2) error of court in failing to proceed under Art. 2338 —1 (Juvenile Delinquency Act) instead of Art. 2330 et seq., as stated; (3) further error in defining the phrase "dependent or neglected" in the disjunctive; (4) challenging, in effect, authority of the juvenile officers to maintain the instant proceedings in view of specified laws, both State and Federal; (5) appellant's right of religious worship was thereby infringed.

It may first be pointed out that the action alleged by appellee is predicated upon dependency or neglect articles of the statute, to which the Child Delinquency Act (Art. 2338—1) has no application; distinction between the two procedures having been heretofore clearly demonstrated by the courts. See Oldfield v. Lester, 144 Tex. 112, 188 S.W.2d 982; Nelson v. Clifton, Tex.Civ. App., 202 S.W.2d 471, 473.

The words "dependent or neglected child," under Art. 2330, include "any child under sixteen years of age * * * who has not proper parental care or guardianship * * *"; appellant through several points arguing that a failure on part of the mother to provide him with medical treatment when seriously ill, was insufficient to raise the issue of improper parental care within meaning of the statute. Contrary to the contention made, appellees' petition is seen to disclose a statutory cause of action. Medicines, medical treatment and attention, are in a like category with food clothing, lodging and education as necessaries from parent to child, for which the former is held legally responsible. 23 Tex. Jur. 719; and proof that the parent is failing to provide any of these legal necessities to minor constituents of the family would, in our opinion, sustain a charge of parental neglect. "It is the right and duty of parents under the law of nature as well as the common law and the statutes of many states to protect their children, to care for them in sickness and in health, and to do whatever may be necessary for their care, maintenance, and preservation, including medical attendance, if necessary. An omission to do this is a public wrong which the state, under its police powers, may prevent." 39 Am.Jur., sec. 46, p. 669.

In the court's charge the words "dependent or neglected child" were properly given their statutory meaning, the term "proper parental care or guardianship" being in turn correctly defined. 39 Am.Jur. 780. Also properly left for determination by the jury was the fact question of neglect relative to appellant. "Whether a child is a neglected child under the law is a fact question. 43 C.J.S., Infants, § 98. page 230. The court having submitted such question to the jury under appropriate instructions and the jury having found that the children were neglected children, such finding being supported by ample evidence, is binding upon this court." Nelson v. Clifton, supra. Likewise we must overrule the several points charging that appellees' petition is insufficient even under Art. 2330. These allegations, though short, were to the effect that the parent was failing and refusing to provide medical treatment for the child in its serious and continuing illness. "The Commission of Appeals has held that pleadings are of little importance in a child custody hearing and that the trial court's efforts to exercise broad, equitable powers in determining what will be best for the future welfare of the children should be unhampered by narrow technical rules. Williams v. Perry, Tex.Com.App., 58 S.W.2d 31; Tunnell v. Reeves, Tex.Com.App., 35 S.W. 2d 707." Sawyer v. Bezner, Tex.Civ.App., 204 S.W.2d 19, 21. "Any pleading which shows upon its face that the welfare of a minor...