State v. Hyman

• Decision Date: 24 May 1950
• Docket Number: No. 6911,6911
• Citation: 230 S.W.2d 504
• Parties: STATE v. HYMAN et al.
• Court: Missouri Court of Appeals

Page 504

230 S.W.2d 504

STATE v. HYMAN et al.

No. 6911.

Springfield Court of Appeals, Missouri.

May 24, 1950.

Max A. Patten, Jr., Joplin, for appellants.

Dale Tourtelot, Pros. Atty., Joplin, Russell Mallett, Ass't Pros. Atty., Joplin, for respondent.

McDOWELL, Judge.

This appeal is from a judgment rendered in the Juvenile Division of the Circuit Court of Jasper County, Missouri, finding Charlie, Leroy, Gloria, Walter and Carlo to be neglected children within the meaning of the statutes, and making them wards of the court. The judgment restrained the parents from seeing or molesting them in the homes in which they were placed. This appeal is demanded and prosecuted by the parents of the children involved.

The record discloses that William Kelley, probation officer of Jasper County, filed a neglected child information in the Juvenile Division of the Circuit Court on the 19th day of November, 1948, charging Charlie, Leroy, Gloria, Walter and Carlo Hyman with being neglected children, under the age of seventeen years, because they lived with vicious persons and were suffering from the cruelty or depravity of their parents or other persons in whose care they were. This neglected information so filed was not verified by affidavit as required by Section 9675, R.S.Mo.1939, Mo.R.S.A.

On November 23, 1948, after a hearing by the court, upon the information so filed, the court found said children to be neglected within the purview of the statutes and placed temporary custody with the parents under supervision of one, Mrs. Dora Smith.

On December 7, 1948, the court continued the same arrangement as made in its order of November 23rd.

On March 22, 1949, a neglected child information was filed in the Juvenile Court of Jasper County, Missouri. This information informed the court that Charlie, Leroy, Gloria, Walter, Carlo and Woodrow Hyman, Jr., were, on the 19th day of March, 1949, neglected children because they lived with a vicious person and suffered from the depravity of their parents or other persons in whose care they were. This information was verified by affidavit as required by law.

The information filed March 22, 1949, was, by the court, heard on March 22, 1949, and the court entered the following judgment (caption omitted):

'Now comes the Probation Officer and files information of neglect, adding the name of Woodrow Hyman, J., as an additional neglected child. After hearing further evidence it is ordered by the Court that the Probation Officer take immediate custody of all of these children and place them in suitable homes pending a further hearing of this matter on April 5, 1949.

'It is further ordered by the Court that Woodrow Hyman and Lucy Hyman, parents of the above named children, be and they are hereby restrained and prohibited from interfering with or molesting said children or the parties with whom they are placed by the Probation Officer; that said parents shall not visit or approach said homes nor cause any trouble thereat; and a violation of this order shall be deemed contempt of court and punished accordingly.'

This cause was again taken up April 5, 1949, and the court made the following order (caption omitted):

'After hearing further evidence it is ordered by the Court that this matter remain in its present status under the order of March 22nd, and that the restraining order remain in full force and effect.

'It is further ordered that the father Woodrow Hyman pay to the Probation Officer the sum of $100.00 per month for the support and maintenance of these children, payable as follows, $50.00 to be paid on this date, and the sum of $50.00 to be paid on April 26th, 1949, and that this cause be set for further hearing on May 10, 1949.'

The record shows that on May 17, 1949, being the 9th day of the April Term, the court entered the following order (caption omitted): 'It is ordered by the court that this cause be continued under the same arrangement as per order of the 5th of April, 1949.'

On August 15, 1949, the parents, Woodrow Hyman and Lucy Hyman, filed a motion for rehearing and modification, which motion (omitting the caption) is as follows: 'Comes now Woodrow Hyman and Lucy Hyman, the father and mother respectively of the above named children, and move the court to modify the decree and grant to them the care and custody of said children, as their condition is now changed and they are in a position to school said children and support and maintain them.'

September 13, 1949, this motion for rehearing and modification was, by the court, taken up. At this hearing the parents appeared in person and by attorney, Mr. Max Patten.

At the very beginning of this hearing Mr. Patten, in an opening statement to the court, informed the court that the first information filed by William Kelley, probation officer, was not verified by affidavit as required by statute and was of no legal force or effect and then he made the statement that the information filed on the 22nd day of March was evidently on the theory that the first information was of no legal effect and he stated to the court that the information now before the court had never been passed on or a judgment rendered; that there never had been a finding of neglect, only temporary orders made by the court.

In this opening statement appellants' attorney informed the court that there had been a reconciliation of appellants and that they had purchased property in the city of Joplin and now desired to reunite their family and send their children to school as they did when they were in Webb City.

Appellants assumed the lead in the case and offered their evidence first. Their evidence offered tended to disprove the charge of neglect as set out in the neglected information, and all through the appellants' side of the case the issue tried was whether or not these six children were neglected children. At the end of appellants' testimony the court stated that when he set this matter for hearing, he didn't understand the witnesses were to be brought in, therefore, the probation officer didn't bring in any testimony as to the circumstances surrounding the taking of the children, nor was he able to obtain any testimony of witnesses who would testify as to certain actions of the Hymans during July of this year. The court further stated that the case had been heard and no records made by the reporter of the testimony; that the parties had not been represented by attorney except at various intervals. At this point Mr. Patten, attorney for appellants, made this statement: 'Of course, I think this, that it would be the burden of the State to go forward with this motion first, rather than myself, so far as that is concerned.' Then the court stated that the first hearings were had on an information not sworn to and that, anyway, one of the children was not involved in the first information, not yet having been born. Then Mr. Patten stated: 'I think the Court will agree with me there has never been any judgment entered in this case.' He stated the orders made were only temporary. The case was then continued until September 20, 1949. At that time the cause was taken up and evidence introduced to sustain the issues set out in the neglected child petition. However, the court made this statement: 'It is the matter of the custody on a motion for modification of the ----.' He did not say what and then Mr. Patten stated: 'This is not a modification. This is the trial on the meat of the case, which is a jurisdictional fact as to whether they were neglected children or not, and the State of Missouri is the party.' The court then stated: 'It is being heard upon your motion for a re-hearing.' The attorney for appellants continued to state to the court that this was really a trial on the merits of the case.

The judgment of the court (omitting caption) is as follows:

'Now at this day this cause comes on for final determination, the parents Woodrow Hyman and Lucy Hyman appear in person and by their attorney Max Patten, the Court having heretofore heard all the evidence and being now well and fully advised in the premises, finds said children to be neglected within the meaning of the statutes, in that said parents have left children alone, that they have failed to keep children clean and properly fed and clothed, that they have not provided a proper home, that they have not properly cared for said children, and allowed them to contract skin diseases and not furnished medical attention, and that the parents have fought and beaten each other continuously for more than a year.

'Whereupon it is ordered and adjudged by the Court that Charley Hyman, Gloria Hyman, Walter Hyman, Leroy Hyman and Carlo Hyman are made wards of the court and placed in the care, custody and control of the Juvenile Officer.

'It is further ordered by the Court that all prior orders of the Court be and they are by the Court in all things affirmed.

'It is further ordered by the Court that the parents Woodrow Hyman and Lucy Hyman be and they are hereby restrained and enjoined from interfering with, molesting or visiting the said children in the homes where they are maintained.'

It is somewhat confusing just what the trial court was attempting to do. Whether he actually attempted to try the motion for modification filed by appellants or whether or not the trial actually was upon the neglected child information filed by the Probation Officer March 22, 1949.

We hold that the parties tried this case upon the neglected child information filed March 22, 1949, and, while it is true appellants filed a motion for rehearing and modification August 15, 1949, and assumed the burden of proof and offered their testimony first, yet, in their testimony, they attempted to disprove the fact that the children were neglected as charged in the information.

We hold there had never been a final judgment rendered on said charge of neglect. The order of the court made after hearing on the neglected information ...