State v. Pogue

• Decision Date: 01 October 1955
• Docket Number: No. 7344,7344
• Citation: 282 S.W.2d 582
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Steven Wayne POGUE and Stanley Pogue, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 582

282 S.W.2d 582

STATE of Missouri, Plaintiff-Respondent, v. Steven Wayne POGUE and Stanley Pogue, Defendants-Appellants.

No. 7344.

Springfield Court of Appeals, Missouri.

Oct. 1, 1955.

Cope & Ponder, Poplar Bluff, for defendants-appellants.

Rex A. Henson, Poplar Bluff, for plaintiff-respondent.

STONE, Judge.

In these statutory neglect proceedings in Butler County, a Class 3 county, under the Juvenile Act [Sections 211.310 to 211.510, incl.], Steven Wayne Pogue and Stanley Pogue, now four and two years of age, respectively (hereinafter sometimes jointly referred to as the minors), by their parents and natural guardians, Kenneth N. and Mrs. Janice B. Pogue (hereinafter sometimes jointly referred to as the parents), appeal from an order entered on April 13, 1954, overruling what the circuit court and counsel, and accordingly this court, refer to and treat as a motion to modify judgments theretofore entered in separate proceedings (consolidated on the motion to modify and on this appeal) on October 1 and 17, 1953, finding that the minors had been abandoned by their parents and placing the minors in the custody of Mr. and Mrs. Ben Boxx of Poplar Bluff, foster (but not adoptive) parents of Mrs. Pogue. (All statutory references herein are to RSMo 1949, V.A.M.S.)

The minors first complain that the circuit court was without jurisdiction to enter the judgments of October 1 and 17, 1953, (a) because there was no showing that any complaint had been filed with the prosecuting attorney or that he thereafter had investigated the facts and had reported in writing to the juvenile court as required by Section 211.360, (b) because no summonses were issued for the persons having custody or control of the minors, i. e., the Boxxes, as required by Section 211.370, and (c) because the parents were not notified of the neglect proceedings.

Referring seriatim to these points, it is apparent, from the plain language of Section 211.360, that the prosecuting attorney is to act 'when any reputable person, being a resident of the county, shall file a complaint,' and that the complaint contemplated by the law is a written one since an oral complaint cannot be filed. McEneny v. S. S. Kresge Co., 333 Mo. 817, 62 S.W.2d 1067, 1069(2), affirming Mo.App., 53 S.W.2d 1075, 1076(2); Murphy v. Burlington Overall Co., 225 Mo.App. 866, 34 S.W.2d 1035, 1037(2). See also George v. School Dist. No. 24 of Red Willow Co., 157 Neb. 791, 61 N.W.2d 401, 404(3); Board of Registration Comm'rs v. Campbell, 251 Ky. 597, 65 S.W.2d 713, 718(13); Thompson v. Southern Express Co., 147 N.C. 343, 61 S.E. 182; Ritter v. United States, 3 Cir., 28 F.2d 265, 267(3). It is true that the transcript in the instant case does not show affirmatively that any complaint was filed with the prosecuting attorney or that he thereafter investigated and reported in writing to the juvenile court. But, '(t)here is not one scintilla of evidence in the record that this procedure was not strictly followed' [Neidert v. Terrill, Mo.App., 215 S.W.2d 745, 749(1)]; and, absent any proof to the contrary [contrast State ex rel. De Weese v. Morris, 359 Mo. 194, 221 S.W.2d 206, 208-209(2)], we must indulge the presumption that the prosecuting attorney discharged his official duties faithfully and in accordance with the law. Wymore v. Markway, 338 Mo. 46, 89 S.W.2d 9, 11(2), 14(12); State ex rel. Missouri State Life Ins. Co. v. Hall, 330 Mo. 1107, 52 S.W.2d 174, 178(8); State ex rel. Ball v. State Board of Health, 325 Mo. 41, 26 S.W.2d 773, 777(6); Norton v. Lynds, Mo.App., 24 S.W.2d 183, 186(12). Certainly, improper action on his part cannot be presumed. In re Moynihan, 332 Mo. 1022, 62 S.W.2d 410, 419(12), 91 A.L.R. 74; Waterman v. Chicago Bridge & Iron Works, 328 Mo. 688, 41 S.W.2d 575, 578 (7, 8); Hurtgen v. Gasche, Mo.App., 227 S.W.2d 494, 497(1).

In view of the fact that the Boxxes voluntarily appeared in court at the hearings on October 1 and 17, 1953, prior issuance and service of summonses on them obviously was not a prerequisite to rendition of valid judgments. Section 211.370. Cf. State v. Wickliff, Mo.App., 114 S.W.2d 158, 160(2).

In recognition of the fundamental and abiding truth that reasonable notice to those whose rights are to be affected by a summary proceeding is a veritable cornerstone in our judicial system [Hoppe v. St. Louis Public Service Co., 361 Mo. 402, 235 S.W.2d 347, 350(7), 23 A.L.R.2d 846], the legislature has provided wisely that, in statutory neglect proceedings, 'the parents of the child, if living and their address known, * * * shall be notified of the proceedings.' Section 211.370. And, our Supreme Court has said that the rule that "where a court of general jurisdiction proceeds to the exercise of special powers, wholly derived from the statute, and not exercised according to the course of the common law, or not pertaining to its general jurisdiction, its jurisdiction must appear in the record" is applicable in proceedings of this character [State ex rel. Dew v. Trimble, 306 Mo. 657, 269 S.W. 617, 622(3)], although it should be noted that the judgment itself need not recite all jurisdictional facts, it being sufficient if such facts appear from any part of the record. Ex parte Schrier, 328 Mo. 726, 41 S.W.2d 178, 179(1).

As to the jurisdictional fact under discussion here, the court expressly found in the first judgment on October 1, 1953, 'that the whereabouts of the parents are unknown.' Since the evidence taken at the hearing immediately preceding this finding is not preserved in the transcript on appeal, since counsel for the minors and their parents state with commendable frankness that 'we believe the court was justified in finding in his orders that the address of the parents at that time was unknown to the court,' and since the court undoubtedly had authority to determine this jurisdictional fact, the quoted determination should, on this review of the order overruling the motion to modify, be regarded as conclusive. State ex rel. Dew v. Trimble, supra, 269 S.W. loc. cit. 622(2); State ex rel. Compagnie Generale Transatlantique v. Falkenhainer, 309 Mo. 224, 274 S.W. 758, 760(3); Hadley v. Bernero, 103 Mo.App. 549, 78 S.W. 64, 66. Thus concluding that want of notice to the parents did not vitiate the proceedings, we proceed to consideration of the case on its merits.

After the marriage of Kenneth and Janice on May 18, 1949, they lived for a short time in Poplar Bluff and then moved to St. Louis. Janice was with her foster parents in Poplar Bluff for about four months before, and about one month after, Steven's birth in July, 1951. Within a few weeks after Janice took Steven to St. Louis, the Boxxes visited there. Janice admitted that she then told the Boxxes that, although she did not want to be separated from Steven, 'they (the Boxxes) would have to take him because (Kenneth) wanted them to.' However, it was not long before the parents came to Poplar Bluff for Steven, whom the Boxxes refused to surrender because he was sick and under medical treatment. As Mrs. Boxx stated it, 'I said just leave him, he can't go--when he gets well, he can go and we will write.' Shortly after Christmas, 1951, the Boxxes wrote Janice and 'she came and got' Steven.

During 1952, Kenneth and Janice moved to Des Moines, Iowa, where Kenneth's father and stepmother lived. Janice, bringing Steven with her, visited in the Boxx home on several occasions from two to five months at a time, as Mrs. Boxx said. 'She come and stayed with him (Steven) * * * and we supported the baby and her too.' Janice came to Poplar Bluff in January, 1953, remained at the Boxx home until April or May, returned to Kenneth in Des Moines for about one week, and apparently visited again in the Boxx home before Stanley, the younger child, was born in Des Moines on June 11, 1953. In response, as Janice said, to a telegraphed invitation from the Boxxes, she and Kenneth brought both children to Poplar Bluff about July 4, 1953; and, when the parents returned to Des Moines, they left Steven with the Boxxes. About three weeks later, i. e., during the latter part of July, 1953, Janice with Stanley, the baby, again came to Poplar Bluff and stayed in the Boxx home until about September 4, 1953.

Although Mrs. Boxx stated that Janice had not wanted to have either child, had said that she 'hated' Stanley, and had suggested that she might do away with him by an overdose of paragoric, apparently Mrs. Boxx did not take these comments too seriously and did not regard Janice as unfit to rear the children, for she (Mrs. Boxx) further testified that, when Janice returned to Des Moines about September 4, 1953, 'I tried to get her to take' both children. 'I said 'Janice, this is the thing for you to do, is to take them back with you''--'I begged her to take these children with her.' According to Mrs. Boxx, Janice said that she did not want to take the children because, 'if I take them, it will be the same thing with Kenneth.' On the other hand, Kenneth said that 'they (the Boxxes) wanted us to leave the children,' while Janice said that her foster parents had wanted Steven, the older child, and that she finally had agreed to leave both children--'I wouldn't separate them.' 'I was going back to work and thought maybe we could get a place for the boys to live' but 'I got up there and got sick and couldn't.' Both parents specifically denied any intention to abandon their children.

Before the parents left for Des Moines about September 4, 1953, there was an understanding that they would send money, apparently $20 per week, to the Boxxes for the children's care, but nothing actually was contributed thereafter by the parents. In October, 1953, 'after * * * the court order on Steve,' Boxx reached Kenneth over long distance at his place of employment in Des Moines. Boxx asked 'why haven't we heard from you, and (Kenneth) said we didn't have any money to send you.' Kenneth inquired 'how is the boys and I (Boxx)...