Murphy, In re

• Decision Date: 12 November 1959
• Citation: 346 P.2d 367,218 Or. 514
• Parties: In the Matter of Roger Paul MURPHY, Alleged a Dependent Child. Perry O. BELMONT, Respondent, v. Otto E. BLACK, Royda Cole, James Olson, Malvin Olson, Mattie Olson, Howard Olson, Earl Olson, Axel Olson, Shirley Anderson and Selma Williams, Appellants.
• Court: Oregon Supreme Court

Page 367

346 P.2d 367

218 Or. 514

In the Matter of Roger Paul MURPHY, Alleged a Dependent Child.

Perry O. BELMONT, Respondent, v. Otto E. BLACK, Royda Cole, James Olson, Malvin Olson, Mattie

Olson, Howard Olson, Earl Olson, Axel Olson,

Shirley Anderson and Selma Williams, Appellants.

Supreme Court of Oregon, In Banc.

Submitted On Brief Of Appellants July 1, 1959.

Decided Nov. 12, 1959.

Tanner & Carney and Tolbert H. McCarroll, Portland, for appellants.

LUSK, Justice.

This is an appeal from an order of the circuit court declaring Roger Paul Murphy a minor child, to be 'a dependent ward of the Clackamas County Juvenile Court.' The proceeding was commenced by a petition filed by Perry O. Belmont on December 26, 1958, with the Juvenile Department of the Circuit Court for Clackamas County, alleging that Roger Murphy, a minor, is a dependent child in that he is 'without parental care.' On January 15, 1959, the court entered an order declaring the minor to be 'a temporary dependent ward of the Clackamas County Juvenile Court,' and ordering that he be 'placed under the temporary care, custody and supervision of the Clackamas County Juvenile Counselor pending further investigation and until further order of the court.' On January 21, 1959, Otto E. Black, the appellant, filed a motion for an order vacating the order of January 15, 1959, on the ground that it was entered without any notice or opportunity to be heard by the said Otto E. Black, and deprived him of said child without due process of law. An affidavit in support of the motion, executed by Black, stated in substance that on April 4, 1956, he had married Theda Murphy, the mother of Roger; that prior to their marriage he had covenanted with Theda Murphy to provide for the support of Roger, who was then six years of age, and whose father had died in April, 1953; that on November 5, 1957, the affiant's wife was killed in an automobile accident, and ever since then as well as before he had faithfully kept his promise to provide for the boy 'in the same manner as if said boy were my own flesh and blood.'

No order was ever entered upon this motion, but on January 23, 1959, citation was issued to Royda Cole and Lee Cole, a half-sister and brother-in-law of Roger, and with whom the boy was living at the time, to appear and show cause why he should not be declared a dependent child. On February 4, 1959, a hearing was held at which Otto E. Black and Perry O. Belmont appeared and were represented by counsel, and the State of Oregon was represented by a deputy district attorney for Clackamas County.

In the meantime, Perry O. Belmont, who was a brother of the minor's father, had filed a petition to be appointed guardian of the person and estate of Roger, and Otto E. Black had filed a petition that he be appointed such guardian. Royda Cole joined in the latter petition, and in the alternative asked that if it should be denied she herself be appointed guardian. ¹

All these matters were considered by the court at the hearing. At its conclusion, the judge rendered an oral opinion in which he stated that he felt that the boy needed the court's supervision to assure that he was properly cared for, although he did not mean to infer that he had been improperly cared for up to that point. The judge repeated, 'I find no fault with the manner in which the child is being cared for at this point,' but he thought that 'the youngster this age needs the security and affection of a home in which a close relative is supervising, particularly a youngster who has gone through the traumatic experiences that he has had, the loss of both parents.' The court denied the petitions for appointment of a guardian of the person of the minor, but appointed Mrs. Cole guardian of his estate and directed that until further order of the court the boy should remain in the home of Mr. and Mrs. Cole as agents of the court. As above stated, this appeal is from the order adjudging Roger Paul to be a dependent child. The guardianship matter is not before us.

The only appearance in this court is by brief on behalf of Otto E. Black, Royda Cole and the other relatives above referred to. The district attorney of Clackamas County has advised the clerk of this court by letter that his office 'has no interest in this matter, and does not intend to file a brief.' Why he has lost his interest does not appear.

In 1956, Otto E. Black married the widowed mother of the minor, Roger Paul Murphy, who was then six years of age. Mrs. Black was killed in an automobile accident in November, 1957, and ever since then Black has acted as the boy's father. He is a bus driver for the Greyhound Lines and, being unable on account of his occupation to maintain a home for the boy, arranged for him to live in the home of Mrs. Royda Cole, Roger's married half-sister. Each month, Black receives from the United States government for Roger's benefit a Social Security payment, the amount of which at first was $73, and was later increased to $78.90. Of this, he has been paying $50 a month to Mrs. Cole for keeping Roger in her home, and the balance he has expended, according to his testimony, for other necessaries for the boy, such as clothes and medical and dental expenses.

There is no suggestion in the record that Roger has not been properly cared for in a good home. Obviously, the trial judge so determined, for he ordered the boy to be left there. All the testimony on the subject demonstrates the existence of a strong bond of affection between Roger and his stepfather. There was no attempt to show anything to the contrary. Mr. Black spends all the time with Roger that his employment will permit. Mrs. Cole, who is the mother of two children, testified:

'He loves Ed and Ed loves him. He has accepted Ed as his father just the same as I accepted my step-dad as my real father. To me it's very plain to see. I know it isn't for other people, but Roger loves Ed more than anything and he has the feeling that Ed married Mama because he loved her, but he also married Mama because he loved Roger. He would never have married her if he didn't want to have Roger, too, because he knew, of course, that Roger was part of the family and he has accepted the fact and Roger has accepted the fact, and Roger loves him very much, and it would hurt him very, very deeply if he should ever have to be taken away from Ed. * * *.'

There is not only no direct contradiction of this testimony, but there is nothing in the entire record which gives any reason for questioning it.

Mr. Black is 34 years old. He has been a bus driver for Greyhound Lines for 8 1/2 years. In 1957 his wages were $5,600; for 1958, he thought that they would be between $4,800 and $5,000.

It was brought out in the testimony that Black is a divorced man and has a daughter by his former wife, who has remarried and now lives in Yakima, Washington, and that at the time of the hearing he was apparently delinquent three months in the payment of support money to his former wife as ordered by the court. It was also shown that he had kept no track of his expenditures of the Social Security money over and above the $50 a month which he paid to Mrs. Cole. Further, there was some evidence that he was considering at one time moving to California, but he testified, and we have no reason to disbelieve him, that he had abandoned that idea.

In our judgment, Mr. Black's delinquencies in not fully complying with the court's order for the support of his daughter by his former marriage and his failure to keep account of his expenditures of the Social Security moneys are not, in view of all the evidence, sufficiently grave faults to justify holding that Roger is not receiving parental care. He testified generally that the amounts expended exceeded the receipts. And we need not decide whether the court would be warranted in interfering if it had been established that Black was about to take the boy to another jurisdiction. We should suppose that, unless it appeared that such a move constituted an immediate threat to the boy's welfare, the statute could not be properly invoked to prevent the exercise of the right of a citizen of this country to move from one place to another. But we pass the question, as we think that the evidence shows that Black intends to remain in this state.

The measure of the court's authority in this kind of a case is to be found in the statute. State v. Young, 180 Or. 187, 194, 174 P.2d 189. The procedure, and the extent of the court's jurisdiction, are set forth in ORS 419.102 and 419.502 to 419.522. Child dependency is defined in ORS 419.102. It includes 'persons of either sex under the age of 18 years' who 'have not parental care or guardianship.' This is the only part of the statute applicable to this case, because want of 'parental care' is the only respect in which the petition of Perry O. Belmont alleges that Roger Paul Murphy is a dependent child. We observe in passing, however, that there is no evidence that he is a dependent child within any other definition of the term contained in the statute. The entire section is set out in the margin. ²

It is obvious that the legislature did not intend that children without parents or guardians should be declared dependent for that reason alone, for the statute impliedly recognizes that children in the care and custody of others than their parents or guardians are not to be deemed dependent unless the particular conditions set forth are found to exist, as, for example, the case of a child 'whose home by reason of neglect, cruelty, drunkenness, or depravity on the part of parents, guardians, or other persons in whose care they may be, is an unfit place for such children.' (Italics added.) This court has recognized that within the meaning of this statute 'parental care' may be provided by persons who are not parents or guardians, and that children receiving such care are not dependent. State v. Young, supra, 180 Or. at page 194,...