Spaulding v. Children's Home Finding & Aid Soc. of North Idaho, Inc.

• Decision Date: 14 May 1965
• Docket Number: No. 9474,9474
• Citation: 402 P.2d 52,89 Idaho 10
• Parties: Application of David Rex Spaulding for a Writ of Habeas Corpus. David Rex SPAULDING, Plaintiff-Respondent, v. CHILDREN'S HOME FINDING AND AID SOCIETY OF NORTH IDAHO, INC., and Spencer B. Wheatley, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 52

402 P.2d 52

89 Idaho 10

Application of David Rex Spaulding for a Writ of Habeas Corpus.

David Rex SPAULDING, Plaintiff-Respondent, v. CHILDREN'S HOME FINDING AND AID SOCIETY OF NORTH IDAHO, INC., and Spencer B. Wheatley, Defendants-Appellants.

No. 9474.

Supreme Court of Idaho.

May 14, 1965.

Randall & Bengtson, Roy e. Mosman, Lewiston, for appellant.

Owen L. Knowlton, Lewiston, for respondent.

SMITH, Justice.

Appellants, Children's Home Finding and Aid Society of North Idaho, Inc., a charitable association, and Spencer B. Wheatley, the superintendent, are hereinafter sometimes referred to as the Children's Home.

Appellant Children's Home has appealed from an order of the district court granting respondent a writ of habeas corpus, which proceeding, upon hearing, resulted in an order of the court removing the custody of respondent's two minor children, Michael David and Donald Keith Spaulding, from the Children's Home and granting their custody to respondent.

The facts, which are not in dispute, are set forth in some detail in order to clarify the issues.

The district court in Nez Perce County, in civil case No. 14146, on December 3, 1955, granted a decree of divorce to Jean W. Spaulding, the plaintiff in said action, from her husband David Rex Spaulding, the defendant therein, who defaulted in the action. The court, by the decree, awarded custody of the two minor children, Michael David and Donald Keith, issue of the marriage, to their mother, Jean.

December 6, 1962, one Rose M. Wahl petitioned the Nez Perce County probate court alleging that the mother had abandoned the children and that they were dependent upon the public for support; that the children fell within the provisions of I.C. § 16-1601(2)(b), to the effect that a charitable society orgnized for the purpose of improving the condition of homeless, neglected or abused children may take custody of minor children when they have been abandoned by their parents, and are dependent on the public for support. The court thereupon entered on order of temporary commitment, placing the children in the possession and charge of the Children's Home.

May 7, 1963, one Harold R. Hanson filed a similar petition in the Nez Perce County probate court alleging that the children's parents had wilfully failed to take reasonable care of the children and would probably continue in failing to care and provide for them; and that the children should be placed with a suitable guardian or a children's aid society. Notice of a hearing of the proceeding was mailed to both the father, who then resided in Billings, Montana, and to the mother, who then had married one Dowdy, and whose last known address was in Spokane, Washington; also was published in a newspaper of general circulation in Lewiston, Nez Perce County. The hearing was held as noticed, June 6, 1963, in the Nez Perce County probate court. Respondent, although present in the courtroom at the time of the hearing, was not represented by counsel, was not called as a witness, and took no part in the proceeding. The probate court file in such proceeding does not contain any record of evidence adduced thereat.

At the conclusion of the hearing the probate court found that the two minor children had been wilfully 'neglected for six months by their parents,' are dependent upon the public for support, and that the parents will probably continue in failing to care and provide for them. Then followed the court's order, dated June 6, 1963, shown filed July 18, 1963, that the children be 'removed from the custody of and control of their parents, David Spaulding and Jean Dowdy, and committed to the care and custody of the Children's Home * * * subject to the provisions of Idaho Code, Section 16-1608, which prohibits the making of an order for permanent adoption until after the expiration of three (3) months after the date of this order.'

Thereafter on October 7, 1963 respondent filed in the Nez Perce County district court, a petition for modification of the divorce decree in civil case No. 14146, praying that he be awarded the custody of the minor children. On the same date and in the same action, respondent filed a petition for a writ of habeas corpus, directed to the Children's Home, in aid of compelling it to deliver the custody of the children to respondent. In both his petitions, respondent particularly alleged material and substantial changes in conditions of the parties since the time of entry of the decree of divorce, i. e., that the mother, who by the decree was awarded the custody of the children, had abandoned them, and that respondent, the natural father of the children, is a fit and proper person and is entitled to their custody; he also alleged that the children are not neglected or delinquent, and that the Children's Home unlawfully detains them.

The district court issued the writ, setting a return day, for the purpose of inquiring into the 'cause of detention and fully inquiring into the custody and restraint of the said minors.' Appellant Children's Home, in its return, alleged that it had custody of the children under the probate court's order of June 6, 1963, and that the children had been committed to it prior to the issuance of a writ of habeas corpus.

Respondent, in his traverse to the return, alleged that the mother was awarded the custody of the children by the divorce decree entered December 3, 1959; that thereafter unknown to respondent she had abandoned the children; that unknown to respondent the children were placed with the Children's Home; that the Home did not, nor did its superintendent, inform respondent that the children had been deserted, or were neglected, or were public dependents; that immediately upon learning the whereabouts of the children, respondent traveled to Lewiston to take the children with him, but that the Home refused to allow him to take the children on the ground 'that the custody of the children was in the mother and that he had no rights over the children'; that upon subsequent occasions respondent sought to take the children with him but was refused, and that upon his last visit, was refused permission to see them; also that his petition, for modification of the divorce decree requesting custody of the children, was pending in the district court. Respondent additionally alleged that although he was present during the hearing held June 6, 1963, in the probate court, he was not aware of the nature of the proceeding and did not understand that an order could be entered depriving him of the custody of his children. He then alleged that at all times since learning of the abandonment of the children he has been ready, willing and able to care for and support them; that the children are not neglected, dependent or delinquent, and that as their father, he is a fit and proper person to be awarded their custody.

The Children's Home then filed its motion to quash the writ on the ground that the district court was without jurisdiction of the subject matter, and that its jurisdiction had been terminated by the order of the probate court, dated June 6, 1963, shown filed July 18, 1963.

Trial was had before the district court on December 3, 1963, on both the petition for modification and the writ of habeas corpus. Both parties were represented by counsel.

Respondent testified that he lived in Billings, Montana, where he had employment. He continued living there after his wife obtained the divorce. He knew Mrs. Spaulding was living in Lewiston, Idaho, with the children in December, 1959, because she telephoned, 'to send her some money to come home.' Respondent testified that he sent her more money than she requested, and then stated, '* * * she didn't show up at home when she promised to. Then I started to trying to find out where she was and where the children was through the sheriffs' departments of three states.' In December, 1961, he located the children in the Children's Home in Lewiston, and visited with them; also talked with Mrs. Wahl at the Home. He wanted to take the children with him 'to take them home,' but Mrs. Wahl would not let him do so; 'she thought the mother would straighten out and take care of the children.' The Home 'apparently recognized the custody as still being in the mother.' Respondent then stated that as of December, 1963, he had made five trips to Lewiston and to the Children's Home. Those in charge of the Home permitted him to see the children on his first two trips; but not after the second trip during April, 1962.

Respondent further testified that although he was present in the courtroom at the time of the hearing in the probate court, he was not represented by counsel, and did not understand the nature of the proceedings. He did not hear testimony concerning himself, or about alleged refusal on his part to take the children and care for them; nor was he questioned by anyone at the hearing.

Appellant's only evidence offered and received in the district court consisted of the probate court file relating to the children, as 'the official record of said proceedings in the probate court of Nez Perce County,' to and including the order of the probate court dated June 6, 1963, placing the custody of the children in the Home. Such probate court record fails to show any record of any evidence, either oral or documentary, taken in the probate court in support of appellant's unverified allegation that the parents had wilfully neglected to take reasonable care of the children for a period of six months, and attacking the fitness of the parents to have their custody. Simply stated the record of the probate court is devoid of any evidence to support its findings that respondent wilfully neglected the children for a period of six months prior to June 6, 1963, the date of the hearing; or that the children were dependent upon the public for support; or that respondent father is failing and probably will continue to fail to provide for the...