State ex rel. Smith v. Superior Court for King County

• Court: Washington Supreme Court
• Writing for the Court: MILLARD, Justice.
• Citation: State ex rel. Smith v. Superior Court for King County, 161 P.2d 188, 23 Wn.2d 357 (Wash. 1945)
• Decision Date: 23 July 1945
• Docket Number: 29626.
• Parties: STATE ex rel. SMITH v. SUPERIOR COURT FOR KING COUNTY et al.

161 P.2d 188

23 Wn.2d 357

STATE ex rel. SMITH v. SUPERIOR COURT FOR KING COUNTY et al.

No. 29626.

Supreme Court of Washington

July 23, 1945

Department 1.

Original proceeding by the State, on the relation of Judd Paul Smith against the Superior Court of the State of Washington for King County, Honorable Chester A. Batchelor, Judge, and Leona Marie Sparks and husband, to review by certiorari an order wherein such court found minor children to be dependent and placed them in the custody of Leona Marie Sparks.

Order affirmed.

Rummens and Griffin, of Seattle, for relator.

Catlett Hartman, Jarvis & Williams and Paul D. Coles, all of Seattle for respondents.

MILLARD Justice.

The present proceeding was commenced in this court by the putative father of two minor children to review, by writ of certiorari, an order wherein the superior court for King county, exercising its jurisdiction in juvenile cases, found the minors (aged three and five years) to be dependent children within the meaning of the juvenile court statute (Laws of 1913, chapter 160, § 1), made the minors wards of the court and placed them in the custody of Leona Marie Sparks, their maternal aunt.

The matter originated in the superior court on petition of Leona Marie Sparks, who alleged that she was the maternal aunt of the two minor children, Elizabeth Ann Waldroff and Patricia Jane Waldroff (known as Elizabeth Ann Smith and Patricia Jane Smith), who were born December 8, 1938, and August 21, 1940, respectively, in La Grande, Oregon, and that they are dependent children and in need of guardianship by the court in that the mother of the said children, Agnes Helen Waldroff, was not married; that the said mother, Agnes Helen Waldroff, died in La Grande, Oregon, September 8, 1944, and that the alleged natural father, Judd Paul Smith, resides in La Grande, Oregon.

Petitioner Sparks further alleged that the said children reside with her and her husband, Wm. E. Sparks, in Seattle, Washington, and that it is their desire to adopt the two children. Petitioner prays the court to inquire into the condition of the said children and to enter such an order in the premises as should be for their welfare.

In his return to the order to show cause directed against him, relator Smith denied that the children were dependent, denied that the mother of the children was unmarried and alleged that he and the mother of the children were married and that the said children were the issue of that marriage.

Trial of the cause on the merits to the court resulted in finding that the two minors involved herein are dependent children within the neaning of the juvenile court statute; that these children should remain and will be wards of the court; that relator Smith is not a fit and proper person to be awarded the custody, care and control of the children; and that it is in the interests of the two minor children that they be placed in the custody of their maternal aunt. Consistent with the foregoing, the court entered an order (which is Before us on petition of relator Smith for review and reversal thereof) placing the two minor children in the care, custody and control of their maternal aunt and her husband, subject to further order of the court, with permission to relator Smith to visit the children at reasonable times; and, in the event any proceeding is instituted for adoption of the two minors, a notice of pendency of such proceeding shall be served on relator Smith and the juvenile department of the superior court for King county.

Counsel for relator contend that (1) the two minor children in this action are not dependent children within the meaning of the juvenile court statute (Laws of 1913, chapter 160, § 1, Rem.Rev.Stat. § 1987-1); that (2) as the deathbed statement of the mother of the two minor children in question was self-serving and hearsay it was not admissible in evidence; that (3) the trial court erred in adjudging that relator and the mother of the two minors involved herein were not legally married; and (4) that the trial court erred in adjudging relator was not a fit person to have care, custody and control of the two children.

The ages of the two children in the case at bar are three and five years. The juvenile court statute (Laws of 1913, chapter 160) applies to all minor children under the age of eighteen years who are 'delinquent' or 'dependent.' A 'dependent' child is one under the age of eighteen years----

'Who has no parent or guardian; or who has no parent or guardian willing to exercise, or capable of exercising proper parental control; or (6) Who is destitute; or (7) Whose home by reason of neglect, cruelty or depravity of its parents or either of them, or on the part of its guardian, or on the part of the person in whose custody or care it may be, or for any other reason, is an unfit place for such child; * * *.'

The petition alleging 'dependency' shall be verified and shall contain a statement of facts constituting such dependency as is defined in section 1 of the statute.

We have consistently given a liberal construction of the juvenile court statute and have habitually made the welfare of the minor children the primary consideration. The petition was sufficient to bring Before the court the two minor children, alleged to be 'dependent,' for the purpose of determining the question of their dependency under the juvenile court statute. See In re Day, 189 Wash. 368, 65 P.2d 1049.

If, under the evidence, it is established that the putative father is not a fit and proper person to be awarded the care, custody and control of the two minor girls and it is in the interest and welfare of those two minors that they be placed in the care and custody of their maternal aunt, the order of the trial court to that effect should be affirmed.

It is insisted, on behalf of relator, that if the deathbed statement of the mother of the two minors be excluded there is no evidence to sustain the findings and order of the trial court. Relator, who was not compelled to testify, argues that by reason of the consideration in evidence of the deathbed statement he deemed it advisable to become a witness and testify fully as to the relationship existing between him and the deceased mother of the two minors, whose custody their maternal aunt seeks.

It fairly appears from the record Before us--excluding the deathbed statement and considering only the other evidence, which includes the testimony of relator Smith--that in the fall of the year 1937 relator Smith and Agnes Helen Waldroff started out from La Grande, Oregon, for California. On arrival in San Francisco they lived together as man and wife. They returned to Oregon and resided in the house of relator at Maypark near La Grande.

The deceased represented to her family she had been married to relator Smith in Crescent City, California. Her first daughter, Elizabeth Ann (registered as Elizabeth Ann Smith), was born in La Grande, Oregon, December 8, 1938. A second child (registered as Patricia Jane Smith) was born to these parties August 21, 1940.

Agnes Helen Waldroff died September 8, 1944, as the result of injuries sustained in an automobile accident August 6, 1944. While in the hospital she dictated to her sister a statement which she subsequently read and signed, which statement was witnessed by Chas. H. Reynolds, Mrs. Gordon D. Wilson and William C. Waldroff. In that statement, which relator contends was not admissible in evidence, is a recital of reason given by Agnes Helen Waldroff for accompanying relator Smith to California, returning with him to Oregon and remaining with him, and representing to the world that she was his wife although all of that period of time the parties were not married to each other. Prior to the death of the mother of the two children, the two sisters of the deceased went to the children's home, gathered together their clothes and toys and with relator's approval and consent took the children to Portland and later to Seattle, where all of the time thereafter they have been in the care of their maternal aunt, Leona Marie Sparks. In the spring of 1945, Smith came to Seattle and stated to Mrs. Sparks that he intended to remove the children from her home and take them back with him to Oregon. Mrs. Sparks, who believed this was contrary to the promises to the mother of the two children and convinced that he was not a fit and proper person to care for the two children, signed a petition upon which the order was issued declaring the children to be dependent children within the meaning of the juvenile court statute.

Smith and Agnes Helen Waldroff lived and cohabited together as husband and wife and lived at his farm two and one-half miles from La Grande, Oregon, for a period of time commencing about one year prior to the birth of the elder child until the time of the death of Miss Waldroff, a period of more than six years.

Relator Smith testified: He and deceased commenced cohabiting together early in 1938. He was then divorced but Agnes Helen Waldroff was unmarried. Later it became evident that she was pregnant. He had lived in La Grande all of his life and everyone there was acquainted with him. He owns and operates a fruit farm and for many years owned and operated a beer tavern as a side line. Agnes Helen Waldroff had lived in La Grande for sometime and had an extensive acquaintance. They were generally known as husband and wife. Not even members of his or her families had the slightest suspicion that they were not married. If they were married in Oregon such fact would be made public and their former illicit cohabitation would be disclosed, which publicity he and Miss Waldroff wanted to avoid. He further testified that they both knew that a common law marriage contracted by...