State ex rel. Terry v. Nugent

• Decision Date: 26 May 1947
• Docket Number: 38349.
• Citation: 212 La. 382,31 So.2d 834
• Court: Louisiana Supreme Court
• Parties: STATE ex rel. TERRY v. NUGENT et ux.

31 So.2d 834

212 La. 382

STATE ex rel. TERRY v. NUGENT et ux.

No. 38349.

Supreme Court of Louisiana

May 26, 1947

Appeal from First Judicial District Court, Parish of Caddo; Robert J. O'Neal, Judge.

Simon Herold, of Shreveport, for defendants-appellants.

Fred S. LeBlanc, Atty. Gen., and Horace G. Pepper, Atty. for Department of Public Welfare, of Baton Rouge, for plaintiff-appellee.

McCALEB Justice.

This is a habeas corpus proceeding in which the Commissioner of Public Welfare seeks to recover possession of an infant child from the defendants, Mr. and Mrs. Fred Nugent, who are holding the child under a foster home arrangement.

The facts of the case are not disputed. The child, Allen Reed, was born in Shreveport on May 27, 1945. He is the illegitimate son of one Sarah Jane Reed who was a minor eighteen years old at the time of his birth. Shortly thereafter, Miss Reed requested the Caddo Parish Department of Public Welfare to care for the child through a boarding arrangement and, on June 5, 1945, she signed an agreement obliging herself to pay $5 per month towards the upkeep of the child, who was placed in the Hephzibah Rescue Home. He remained there until December 13, 1945, when he was transferred to the home of Mr. and Mrs. Nugent, who had previously applied to the Caddo Parish Department of Public Welfare for the placing of children in their home under a foster parent arrangement by which they were to be remunerated for the upkeep of their temporary wards. At the time that Allen Reed was received in the Nugent home, Mrs Nugent signed an agreement with the Department of Public Welfare which provided that the child was to remain in her home 'at the discretion of the Department.' Mr Nugent fully understood the arrangement (although he did not sign the agreement) to be that the child was not being placed for adoption and that the Department had the right to remove him at any time it saw fit.

On February 19, 1946, the mother executed a formal surrender of the child to the Department of Public Welfare. This surrender was made before a Notary and two witnesses in compliance with the provisions of Act No. 91 of 1942, which permits unmarried mothers to surrender their children to agencies or institutions approved by the Department of Public Welfare or to the Juvenile Court for purposes of adoption.

Soon after the child was placed in their home, Mr. and Mrs. Nugent grew to love him and signified their desire to adopt him. However, the Department of Public Welfare, believing, among other things, that Mr. Nugent was over emotional with regard to the child, let it be known that it did not consider the Nugents to be the best available adoptive parents. When the Nugents acquired this information and realized that the child was to be taken from them, they made inquiry concerning the mother and, upon learning her identity, prevailed upon her to execute a surrender of the child to them, which is identical in form with the surrender previously made by her to the Department of Public Welfare. This surrender is dated June 7, 1946 Five days afterwards, on June 12th, Mr. and Mrs. Nugent filed a petition in the Caddo Parish Juvenile Court praying for the adoption of the child. In accordance with the provisions of Act No. 154 of 1942, the Department of Public Welfare was made a party to the adoption proceedings for the purpose of making an investigation and reporting to the court at the hearing, which was fixed for July 26, 1946. However, prior to the date fixed for the hearing in the Juvenile Court, specifically, on June 22, 1946, the Commissioner of Public Welfare, as the representative of the State Department, filed the instant habeas corpus proceeding against Mr. and Mrs. Nugent in the First Judicial District Court praying that the Nugents be commanded to turn over the care and custody of the child to the Department. The District Court issued an alternative writ returnable on July 24, 1946, or two days before the adoption proceeding was set for hearing in the Juvenile Court.

On the day of the trial of the habeas corpus proceeding, the Nugents appeared and resisted the demand on various grounds (many of which were subsequently abandoned). Following the hearing, the Judge maintained the writ and commanded the Nugents to restore the child to the custody of the Department of Public Welfare. They have prosecuted a suspensive appeal from the adverse decision.

In this court, the Nugents have specified the following alleged errors which they claim require a reversal of the judgment of the court below, viz.:

'(1) That the Department of Public Welfare did not acquire the legal custody of the child under the act of surrender from his mother for the reason that Act No. 91 of 1942 does not authorize the Department to accept the surrender of the legal care, custody and control of children of unmarried mothers. Rather, the statute restricts the right of acceptance to a Juvenile Court or to institutions or social agencies approved by the Department of Public Welfare, and

'(2) That, at all events, the writ of habeas corpus should not be perpetuated since to do so would be inimical to the welfare of the child.'

We find that it is not necessary for us to discuss or pass upon the foregoing contentions (although they appear to be unsubstantial) forasmuch as a casual recitation of the events culminating in the filing of the suit makes it doubtful that the District Court ever acquired jurisdiction of the controversy. Indeed, at the threshold of this case, we find ourselves confronted with a conflict between the jurisdiction of the Caddo Parish Juvenile Court and the First Judicial District Court which must be disposed of before any other matter is considered. This conflict results from the fact that the Nugents filed an adoption proceeding in the Juvenile Court under the provisions of Act No. 154 of 1942 prior to the time the Commissioner sought to obtain relief by writ of habeas corpus.

The issue in contest is the right to custody of the child, Allen Reed. If as an incident to his adoption, the Juvenile Court acquire jurisdiction to determine the question of custody, the Civil District Court was without jurisdiction under the well-settled rule that, when two c...