Shaw, In re

• Decision Date: 16 December 1969
• Docket Number: No. 33420,33420
• Citation: 449 S.W.2d 380
• Parties: In the Matter of Baby Boy SHAW, a Minor. Anthony DeMARINIS, Next Friend for Baby Boy Shaw, Appellant, v. Ralph L. SMITH, Juvenile Officer of St. Louis County, Respondent.
• Court: Missouri Court of Appeals

Page 380

449 S.W.2d 380

In the Matter of Baby Boy SHAW, a Minor.

Anthony DeMARINIS, Next Friend for Baby Boy Shaw, Appellant, v. Ralph L. SMITH, Juvenile Officer of St. Louis County, Respondent.

No. 33420.

St. Louis Court of Appeals, Missouri.

Dec. 16, 1969.

Motion for Rehearing or to Transfer to Supreme Court Denied

Jan. 14, 1970.

Edwards & Schiff, Martin Schiff, Jr., Clayton, for appellant.

Corinne R. Goodman, Clayton, for respondent.

CLEMENS, Commissioner.

At § 211.031 V.A.M.S. the Juvenile Code declares a juvenile court shall have exclusive original jurisdiction in proceedings involving any child who may be within the county who is alleged to need care and treatment. The threshold question here: Did the Juvenile Court of St. Louis County err in declining to assume jurisdiction over an abandoned, illegitimate child who resided in a foster home in the Cuty of St. Louis but whose mother resided in St. Louis County?

Baby Boy Shaw was born out of wedlock July 25, 1967. With his mother's informal consent he was transferred from the maternity hospital to a foster home in the City of St. Louis. This transfer was made by representatives of Family and Children's Service of Greater St. Louis (hereafter called the agency). They anticipated that Baby Bow Shaw would soon be adopted. The mother resided in St. Louis County from the time of birth to the time of hearing, but Baby Boy Shaw at all times resided in one of the agency's foster homes in the City of St. Louis and for his care the agency paid $66 a month and furnished clothing and medical services. For a while the mother paid some money to the agency to partly defray the cost of maintenance for the child but she had never seen him since leaving the maternity hospital.

It soon became apparent to the agency that Baby Boy Shaw's physical and mental development was retarded and he might never be adoptable. Thereafter the mother signed documents consenting to termination of parental rights and entering her appearance to termination proceedings under § 211.411 et seq., V.A.M.S. (No such termination proceeding appears to have been instituted.) On October 1, 1968 the Juvenile Court of St. Louis County authorized its Juvenile Officer to file the petition giving rise to this appeal. Apparently this was done at the agency's instance. We say apparently because the agency's representative testified 'it was our thinking that this child should be under public auspices * * * because it is long-term care and there is public money for this.' The Juvenile Officer's petition, filed in accordance with § 211.091, alleged Baby Boy Shaw 'is within the County of St. Louis' and 'is without proper care, custody and treatment.'

At a hearing held October 8, 1968 testimony supported the above facts, particularly that Baby Shaw was not and had never been in St. Louis County. On October 22, 1968 the Juvenile Court filed a memorandum finding, among other things: Baby Boy Shaw was born out of wedlock; the mother voluntarily surrendered his custody to the agency; he was then placed in a foster home in the City of St. Louis; he continued to reside there and to receive proper support and care from the agency. Further, the Juvenile Court ruled 'that said child is not within the jurisdiction of this court.' The petition was dismissed.

Thereafter, the Juvenile Court appointed Anthony DeMarinis, the agency's Executive Director, as next friend for post-trial proceedings on behalf of Baby Boy Shaw and he perfected this appeal. We will refer to the appellant as the agency. Ralph L. Smith, Juvenile Officer of St. Louis County, seeks to uphold the dismissal of his petition and is here considered the respondent.

The agency contends Baby Boy Shaw was 'within the county' since that was his mother's residence, and therefore his--that the child was, constructively, within St. Louis County, citing Beckmann v. Beckmann, 358 Mo. 1029, 218 S.W.2d 566(5, 8), 9 A.L.R.2d 428. This is true in a divorce case where the parents are the litigants, but Beckmann is not in point here where the child's status is the primary question before the court. The Juvenile Code is a complete law within itself and jurisdiction over the child is determined by that code. State ex rel. White v. Swink, Judge, 241 Mo.App. 1048, 256 S.W.2d 825(11).

This constructive presence of the child in St. Louis County, says the agency, was sufficient under the previous juvenile code and the legislature did not intend to restrict the jurisdiction given by the prior law. We do not so read prior juvenile codes.

Missouri's first juvenile code was enacted in 1903; it did not specify territorial jurisdiction as such but authorized a petition to be filed by a person having knowledge or information of a child within the county who appeared to be neglected. ¹ That clause was dropped in 1909 but the code required the petitioner to be a resident of the county. ² In 1913 that requirement was retained and it was further declared the act applied to children under 17 in such counties. ³ When the juvenile code was extended to class III and IV counties in 1945 it declared it applied to children in such counties and provided for filing complaints concerning any child in the county. ⁴ Our examination of several previous juvenile codes fails to show a single provision extending a juvenile court's jurisdiction to children outside its county. ⁵

It is interesting that in 1947 H.B. 122 of the Sixty-fourth General Assembly provided for juvenile court jurisdiction if the child was living within the county or if the child or his parents were found within the county. This would have extended territorial jurisdiction to children only constructively present in the county, but the bill failed to pass. We conclude that the previous statutory provisions did not extend a juvenile court's territorial jurisdiction to children only constructively present in the county by virtue of parental residence. Thus the present Juvenile Code does not, as the agency contends, restrict jurisdiction given by previous juvenile codes.

To expand a juvenile court's jurisdiction to include children outside the court's territorial boundaries would contravene a general principle of jurisprudence. State ex rel. Minihan v. Aronson, Judge, 350 Mo. 309, 165 S.W.2d 404(9), declared: 'It is also generally true that a court's jurisdiction 'in personam is confined to persons within the territorial jurisdiction of the court' * * *.' This is elementary. State ex rel. Gardner v. Hall, Judge, 282 Mo. 425, 221 S.W. 708(13). Applied to Baby Boy Shaw, this principle means his presence outside the territorial jurisdiction of the Juvenile Court of St. Louis County precludes that court from adjudicating his status.

As said, the agency contends for jurisdiction since the child's legal domicile was with his mother and that he was constructively within St. Louis County; that the statutory words 'any child who may be within the county' are satisfied by this constructive presence. As precedent the agency relies on two cases ruling the question of a juvenile court's territorial jurisdiction. We must bear in mind that both cases were decided before the words 'exclusive original jurisdiction * * * involving any child who may be within the county' was made a part of the existing Juvenile Code.

State ex rel. Emory v. Porterfield, Judge, 211 Mo.App. 499, 244 S.W. 966, a prohibition case, was decided in 1922 when the juvenile code's only specific jurisdictional requirement was that the petitioner be a resident of the county in which the action was brought. ⁶ In Porterfield the children lived with their divorced father in Clay County. The mother, a resident of Jackson County, filed a 'neglect petition' in the Juvenile Court of Jackson County. In granting prohibition against that court the appellate court ruled that since the children were with their father in Clay County they were not within the respondent's jurisdiction in Jackson County. In its rationale the appellate court said 'under (the Juvenile Code) and the general principles of law the juvenile court of one county has no jurisdiction over children before it who are not residents of, and are not in, the county of the juvenile court's jurisdiction.' The agency seizes on the word 'residents', suggesting that Porterfield ruled jurisdiction may rest on either residence or physical presence. We cannot agree. At most,...