State v. Best
| Decision Date | 09 March 1962 |
| Docket Number | No. 35135,35135 |
| Citation | 113 N.W.2d 650,173 Neb. 483 |
| Parties | The STATE of Nebraska, Appellee, v. Teressa BEST, Allen Best, Linda Best, Colleen Best and Randall Best, neglected and dependent children, Appellants. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. By statute, a dependent child is defined as any child under the age of 18 years, who is homeless or destitute, or without proper support through no fault of his parent, guardian, or custodian.
2. By statute, a neglected child is defined as any child under the age of 18 years who is abandoned by his parent, guardian, or custodian; who lacks proper parental care by reason of the fault or habits of his parent, guardian, or custodian; or whose parent, guardian, or custodian neglects or refuses to provide proper or necessary subsistence, education, or other care necessary for the health, morals, or well-being of such child.
3. By statute, upon the filing of a complaint, a summons shall issue requiring the person having custody or control of the child, or with whom the child may be, to appear with the child at a place and time stated in the summons. The parents of the child, if living, and if their residence is known, shall be notified of the proceedings.
4. By statute, in case of a neglected or dependent child, the court may continue the hearing, from time to time, and may commit the child to the care or custody of a probation officer, and may allow said child to remain in its own home, subject to the visitation of the probation officer, such child to report to the probation officer as often as he may be required, and subject to be returned to the court for further or other proceedings whenever such action may appear to be necessary.
5. An appeal from a finding and adjudication of the district court by authority of section 43-202, R.R.S.1943, that a child is neglected or dependent is disposed of in this court by trial de novo upon the record.
6. This court on the trial of a cause de novo takes cognizance of only legal evidence in the record and gives no consideration to incompetent or irrelevant matters therein.
7. A failure to assert a defect or irregularity by a timely and appropriate plea or motion is usually regarded as a waiver.
8. Defects in process or service may be waived by defendant's participation in the trial on the merits of plaintiff's cause of action, and also where by stipulation of the parties the defendants are considered to have filed an answer to the plaintiff's petition.
9. A long-established rule in this state is that, when timely objection is not made, pleadings, when possible, will be sustained.
10. The courts may not properly deprive the parents of the custody of their children unless it be shown that such parents are unfit to perform the duties imposed by the relation or that they have forfeited that right.
11. This court has never deprived a parent of the custody of a child merely because, on financial or other grounds, a stranger might better provide.
C. Morris Gillespie, Kenneth H. Dryden, Kearney, for appellants.
Robert A. Munro, Kearney, Clarence A. H. Meyer, Atty. Gen., Mel Kammerlohr, Asst. Atty. Gen., for appellee.
Heard before CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.
This is an action brought by the county attorney of Buffalo County, charging the five minor children of Lavern and Grace Best with being neglected and dependent children, and praying that such children be committed to the Nebraska Home for Children or some suitable place or home as might be determined by the juvenile court. The action was brought in the county court of Buffalo County on January 16, 1961. On January 31, 1961, hearing was had in the county court of Buffalo County. The following persons were present in court: Teressa Best, born April 13, 1950; Allen Best, born September 29, 1953; Linda Best, born August 5, 1955; Colleen Best, born July 26, 1956; Randall Best, born October 10, 1959; Lavern Best, the father of the children; Grace Best, the mother of the children; the attorneys for the parents of the children; the persons having the temporary custody of the children; and other persons presumably witnesses. No record of the testimony was made in the county court. Hearing was had, and the court found that proper service had been had on all interested parties, and from the evidence that the allegations of the petition were true; that the children were neglected and dependent under the laws of the State of Nebraska; and that it was to the best interests of the children that custody be taken. The children were committed to the Board of Control, with full rights of placement and adoption. The court ordered that the children be taken to the Nebraska Home for Children at Lincoln, Nebraska. This commitment was filed January 31, 1961.
A mittimus was issued out of the county court of Buffalo County, and the return on the mittimus shows that Teressa Best and Allen Best were delivered to the Home for Children, and Linda Best, Colleen Best, and Randall Best were delivered to the foster care unit. This return was filed in the county court on February 2, 1961. Lavern Best, father and natural guardian of the children, for himself and his wife Grace Best, appealed to the district court for Buffalo County.
The cause was tried in the district court on June 1 and 2, 1961. On June 22, 1961, the trial court found that all five children were, on the date of the filing of the complaint in the county court of Buffalo County, neglected and dependent children; and that the court retained custody in itself of the following children: Teressa Best, Allen Best, and Linda Best. The court temporarily placed the custody of these children with the parents, Lavern Best and Grace Best, based upon the following conditions: That the parents agree in writing that they would stay out of the Veterans of Foreign Wars Club in Kearney, Nebraska; that they would allow Mrs. Bess Simmerman, or a caseworker for the Buffalo County assistance office, to enter their home at any time, day or night, to make an investigation on behalf of the court to see that said children were properly cared for; and that if it appeared that these children had been well taken care of for a period of 2 years, then the court would at that time review whether or not the children should be permanently removed from the list of neglected and dependent children. With respect to Colleen Best and Randall Best, the district court found that the order of the county court placing them in the custody of the Nebraska Board of Control should be approved and said board should be directed to place said children out for adoption. Judgment was rendered in accordance with the findings.
Lavern Best and Grace Best, as parents of Teressa, Allen, and Linda Best, approved and consented to the findings and order of the court pertaining to the above-named children. Such order of the court has heretofore been mentioned. Lavern Best and Grace Best stated that they understood that this consent had no bearing on the court's findings and order pertaining to the other two children, Colleen and Randall Best.
A motion for new trial was filed in behalf of the children, but there was no ruling on the motion.
For convenience we will refer to the State of Nebraska as the plaintiff, to the children as defendants or by their names as required, and to the parents by their first names.
The defendants set forth the following assignments of error: That the trial court erred in assuming jurisdiction of defendants or other interested parties without proper service of process; that the trial court erred in rendering judgment on an insufficient petition based on conclusions; that the trial court erred in making its order and judgment contingent upon the consent of the parents of the defendant children; and that the findings and judgment of the trial court are inconsistent in themselves, and not substantiated by the pleadings and evidence.
Section 43-201, R.R.S.1943, provides in part: 'As used in sections 43-201 to 43-221 unless the context otherwise requires: * * * (2) Dependent child shall mean any child under the age of eighteen years, who is homeless or destitute, or without proper support through no fault of his parent, guardian, or custodian; (3) Neglected child shall mean any child under the age of eighteen years (a) who is abandoned by his parent, guardian, or custodian; (b) who lacks proper parental care by reason of the fault or habits of his parent, guardian, or custodian; (c) whose parent, guardian, or custodian neglects or refuses to provide proper or necessary subsistence, education, or other care necessary for the health, morals, or well-being of such child; * * * (5) Parent shall mean one or both parents.'
Section 43-206, R.R.S.1943, provides in part:
Section 43-210, R.R.S.1943, provides in part: 'In the case of a delinquent, neglected or dependent child, the court may continue the hearing, from time to time, and may commit the child to the care or custody of a probation officer, and may allow said child to remain in its own home, subject to the visitation of the probation officer, such child to report to the probation officer as often as he may be required, and subject to be returned to the court for further or other proceedings whenever such action may appear to be necessary; * * *.'
The foregoing sections of the statutes are applicable to the case at bar. The following are also applicable.
In Krell v. Sanders, 168 Neb. 458, 96 N.W.2d 218, it is said: 'An appeal from a finding and adjudication of the district court by authority...
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