State v. Kelber (In re Kelber)

• Decision Date: 06 November 1924
• Citation: 200 N.W. 786,51 N.D. 698
• Parties: In re KELBER et al. STATE v. KELBER et al.
• Court: North Dakota Supreme Court

51 N.D. 698

200 N.W. 786

In re KELBER et al.STATE

v.KELBER et al.

Supreme Court of North Dakota.

Nov. 6, 1924.

Syllabus by the Court.

In a proceeding under the Juvenile Court Act to take from parents the custody of children on the ground of neglect, it is held, for reasons stated in the opinion, that the children were not neglected, within the intent and meaning of the law, and that it was error to permanently deprive the parents of their custody.

Appeal from District Court, Richland County; Chas. E. Wolfe, Judge.

Proceeding by the State against Henry Kelber and others. From an order refusing to set aside a former order decreeing custody of Margaret Helena Kelber and others, defendants appeal. Reversed, and remanded with instructions.W. E. Purcell, of Wahpeton, for appellants.

W. L. Divet, State's Atty., of Wahpeton, and John Thorpe, Asst. Atty. Gen., for the State.

JOHNSON, J.

This is an appeal from an order of the district court of Richland county made on the 3d day of March, 1924, refusing to vacate and set aside a former order of the court made on December 20, 1923, wherein it was adjudged and decreed that the three minor children of the defendants, Margaret, Helen, and Violet, are neglected children, within the meaning of the laws of this state, and appointing Frank D. Hall, superintendent of the North Dakota Children's Home Society, as guardian of said children, and directing and authorizing him to take them from the custody of their parents and place them in a family home, or in such other suitable place as may be provided. Hall was also authorized to consent to the legal adoption of the children within the state. The order, in effect, takes the children from their parents permanently and appoints a guardian for them, who is authorized to consent to their permanent adoption into any suitable family within the state. The appellants challenge the legality of this order, and contend, upon the merits, that the court exceeded its authority in taking the children from them and in authorizing a guardian, appointed by the court without the parents' consent, to arrange for their legal adoption.

The defendants, Henry Kelber and Bertha Kelber, were married in Iowa in 1911, and during substantially all of the intervening time have lived on a rented farm of 160 acres in Richland county. The record shows that Kelber had stock on the farm, consisting of horses, cows, hogs, chickens, turkeys, and geese, and that he had adequate farm machinery for his needs. The oldest child, Margaret, was, when these proceedings were commenced, 7 years old; the second child, Helen, was 4 years old; and the youngest, Violet, was 10 months old. The house in which the family lived was apparently a small farmhouse, partitioned into two rooms, with two beds in one of the rooms. The record shows that the wife and the children occupied one bed and the husband a lounge or couch.

One Adelaide Price, school nurse of Richland county, some time in the fall of 1923, visited the home of the Kelbers. There had been some difficulty between the Kelbers, husband and wife, owing to her lack of tidiness. It seems that Mr. Kelber was not satisfied with the manner in which she kept house, and that this occasioned domestic discord, which had culminated in a resolution on the part of Mrs. Kelber to leave the home and procure a divorce. It is this domestic situation which, at least to some extent, explains the request made by the father to the visiting nurse to advise him where the children could be cared for. The father maintained that he always understood that this arrangement would be only temporary, and that the children would be restored to him. It appears that he offered and desired to pay whatever was reasonably necessary to care for the children until other arrangements could be made by him.

It is upon the testimony of Adelaide Price that the conclusion of the trial court largely rests. He also saw the family. It will be necessary to consider her testimony in some detail. She testifies that for more than six years she has been the school nurse of Richland county; that more than two years ago she received a letter from some society urging that she investigate conditions in the Kelber home; that she went to the Kelber home in October or November, 1923; that she did not go into the house that day, but was in the door, and looked into the house and was able to see some of the interior. On being asked as to conditions, she says:

“It was the worst place that I have ever entered. It was very, very dirty, not only the floor, but the beds and bedding, the table and food that was around. Every part of the house was indescribably dirty.”

The furniture she described as follows:

“One pullout cot or bed lounge, not full size; in the kitchen, or one of the rooms, I would say, a very small kitchen table, not regular size; a heater, a cream separator, an oil stove, and two chairs in the room. In the next room were a sort of cupboard and a bed.”

She testifies, further, that on the first visit she discussed the condition of Margaret's eyes and asked him what he proposed to do to “better the condition of the children.” The witness says that the father told her that he intended to take Margaret to his sister, and that he asked her what he should do about the other children, to which the witness said she answered that she would “try to find out.” The witness further testifies:

“He said Mrs. Kelber said she was going to leave him, and he asked me and urged me to find out if there was some place where the children could be taken care of. I told him that I did not know, without it would be the Fargo Home, that I did not know the law, and did not know the method of getting children into that home, but I would find out for him.”

As to whether the Kelbers could get their children back, this witness said she informed them that she did not know anything about the law on that point. The witness further testified that the father told her he intended to bring his sister to keep house for him. This is virtually all of the testimony of the state's witness on direct examination. On cross-examination she testified that she went into the bedroom, but did not touch the bedclothes, and did not lift them up or lift up any part of the bed. Neither did she touch the baby. She says, on cross-examination, that “the baby was in a bundle of filthy rags.” She did not examine the older child, Helen, who was at home when she made the investigation, nor did she inspect the child's clothing. She says that “her outside clothing” was torn and hanging down, and she says that she based her conclusion that the children were neglected on what she saw on that occasion. The complaining witness, on cross-examination, stated that she did not think at all of the suggestion by the father that his sister would come and keep house for him and that she “didn't look into that part of it.” On being examined by the court, the complaining witness stated that at the first hearing, on December 20, 1923, the Kelbers, and particularly the father, understood from the conversation that, if the children were taken into the home in Fargo, he could not get them back, and that he assented to that arrangement, apparently with a full understanding that he could see the children so long as they were in the home, but, if they had been adopted or placed in family homes, he could not see them. She also told the court that at the hearing it appeared that the Kelbers had quarreled, that Mrs. Kelber was going to her father, and that she would have done better as a housekeeper if her husband had left her alone.

Frank D. Hall was called as a witness for the state. He is the superintendent of the North Dakota Children's Home Society and was present at the hearing on December 20, 1923. At that hearing the Kelbers were not represented by counsel. The witness Hall corroborated the testimony of the nurse as to the conversation at the time of the hearing. The witness said he advised the father that the home did not board children, and could not take them in on such terms. The witness advised Kelber that he could visit the children so long as they were in the home, but, if they were placed, the names and residence of adoptive parents would not be divulged, and he would not be permitted to see them. The witness did not recall that anything had been said about the children being better off, if taken from their parents. The court then examined the witness as to the appearance of the children at that hearing. The witness said:

“Well, I don't know that I can describe the dresses in particular, but they were very dirty, very dirty, and Mrs. Kelber's dress was dirty. They were not in the same clothing in which they appeared here to-day, by a long ways, either of them. I gained the impression that Mr. Kelber was perfectly sincere and honest in his attempts to have the children better taken care of, and I believe he did all he was capable of doing. I believe he loves these children, and I don't blame him at all for wanting them back. At the same time, I don't feel that it would be the wise thing to do. That is a matter for the court to decide, and not me.”

The witness then said that the shoes and stockings were in “bad condition”; that he had inquired of the mother about keeping the baby clean, and had been informed that the baby had been bathed the day before. “I saw from that that she was taking the best care she could of the baby.” It appears that the mother told him on that occasion that she had not given the other two girls a bath...