Watson v. Department of Public Welfare of Harrison County

• Decision Date: 16 March 1960
• Docket Number: No. 1,No. 19131,19131,1
• Parties: Clifford WATSON, as Father and Next Friend of Vicki Gaile Watson, Clifford Watson, Individually, Appellants, v. DEPARTMENT OF PUBLIC WELFARE OF HARRISON COUNTY, Indiana, Anna M. Davis, Director of Department of Public Welfare of Harrison County, Indiana, State of Indiana, Appellees
• Court: Indiana Appellate Court

Page 770

165 N.E.2d 770

130 Ind.App. 659

Clifford WATSON, as Father and Next Friend of Vicki Gaile Watson, Clifford Watson, Individually, Appellants, v. DEPARTMENT OF PUBLIC WELFARE OF HARRISON COUNTY, Indiana Anna M. Davis, Director of Department of Public Welfare of Harrison County, Indiana State of Indiana, Appellees.

No. 19131.

Appellate Court of Indiana, Division No. 1.

March 16, 1960.

Dissenting Opinion March 29, 1960.

Rehearing Denied April 28, 1960.

Lorch & Lorch, Chester V. Lorch, Basil H. Lorch, Jr., New Albany, for appellants.

Eugene Feller, Corydon, Edwin K. Steers, Atty. Gen., Frank E. Spencer, Asst. Atty. Gen., for appellees.

AX, Judge.

This action was brought under the authority of Burns' Ind.Stat. §§ 9-3201 through 9-3210 [Acts 1945, ch. 356], governing the actions of juvenile courts, and as an aid in the determination of this case, we have noted particularly the purpose and basic principle of said act as set out in Burns' § 9-3201:

'Purpose and basic principle.--The purpose of this act [§§ 9-3201-9-3225] is to secure for each child within its provisions such care, guidance and control, preferably in his own home, as will serve the child's welfare and the best interests of the state; and when such child is removed from his own family, to secure for him custody, care and discipline as nearly as possible equivalent to that which should have been given by his parents.

'The principle is hereby recognized that children under the jurisdiction of the court are subject to the discipline and entitled to the protection of the state, which may intervene to safeguard them from neglect or injury and to enforce the legal obligations due to them and from them. [Acts of 1945, ch. 356, § 1, p. 1724.]'

Anna M. Davis, Director of Public Welfare for Harrison County, filed a petition in the Harrison Circuit Court, performing the function of Probation Officer pursuant to the provisions of the Acts of 1936 (Spec. Sess.), ch. 3, § 21, as found in Burns' Ind.Stat. § 52-1120, and pursuant to the authorization of the Harrison Circuit Court. Said petition alleged that Vicki Gaile Watson, a four-year-old minor child, did not have proper parental care or guardianship, and prayed that the child be adjudged neglected. Trial was had and judgment was entered declaring said child a neglected child, and making said child a ward of the Department of Public Welfare of Harrison County.

The appellant, Clifford Watson, brings this appeal as father and next friend of Vicki Gaile Watson, and in his individual capacity; appellee, State of Indiana, contends that since Clifford Watson did not move for a new trial in the capacity of next friend, but that he filed said motion as father and natural guardian, he cannot perfect an appeal in such capacity. Appellee further states that it is unable to perceive of any authority by which Clifford Watson appears in this proceeding. Burns' Ind.Stat. § 9-3208, specifically provides that the parents shall be named in the petition to be filed by the county probation officer. Burns' Ind.Stat. § 9-3209 specifically provides that the parents shall be summoned. Without deciding whether the appellant is properly before this court as a next friend to his daughter, it appears sufficient to say that questions raised by this appeal may be brought by him as a parent. It is apparent that Clifford Watson is the father of Vicki Gaile Watson, and that whether he is in the action as 'friend' or as father or as natural guardian is immaterial, since the ending after his name is merely descriptive personae. Weiland v. Scheuch, 1953, 123 Ind.App. 633, 105 N.E.2d 829 and 109 N.E.2d 618.

Although not presented in the briefs, a question concerning the right of the State of Indiana to be a party to this appeal was raised at the oral argument of this cause, and was discussed at great length. Because of this, we deemed it advisable to answer this question.

The county departments of public welfare were created in 1936, under the Public Welfare Act, Burns' Ind.Stat. § 52-1101 et seq. Under these statutes the state board of public welfare, state department of public welfare, and county boards and departments of public welfare were created. The state department is charged with the administration and supervision of welfare activities of the state under § 52-1104, Burns' Ind.Stat. Included in this section under subsection (c) are all public child welfare services. The county boards are appointed by the circuit or juvenile court judges. The county director is selected by the county board from lists of eligible persons established by the Indiana personnel board, § 52-1119, Burns' Ind.Stat. This latter section also provides for removal of the county director by the state board and for appointment of the county director by the state board if the county board fails to follow the statute. Burns' Ind.Stat. § 52-1120, as will be pointed out, provides for the performance of the functions of the probation officer by the county director. As can be seen by the statutes concerning public welfare, the state and county departments are rather closely interwoven and the state has a definite interest in the disposition of all cases handled by the county departments.

Burns' Ind.Stat. § 49-1902, provides for the general duties of the attorney general. These duties include the attendance to interests of the state in all suits, actions or claims which the state is or may become interested in in the Supreme Court of the state.

It must be further observed that the appellant specifically named the State of Indiana as an appellee in his assignment of errors. The state made no objection then or later. It submitted a brief and appeared at the oral argument.

The state, however, appears to have a further prerogative to appear in an action involving a minor child. The case of State ex rel. Johnson v. White Circuit Ct., 1947, 225 Ind. 602, 608, 77 N.E.2d 298, 301, points out that the state has inherent power in such cases. In that case the court stated:

'The history of juvenile jurisdiction reveals that the state assumed this authority as parens patriae for the welfare of all infants. 11 C.J. page 285; 14 C.J.S. Chancellor page 393.

"Under the ancient common law, the king, as parens patria, was deemed to have charge of all persons who, by reason of their youth and inexperience, were unable to care for themselves, or protect their estates. In the exercise of this supervision, the chancellor, who was originally an ecclesiastic, and the keeper of the king's conscience, was the guardian of all infants. 9 Enc.Pl. & Prac. 890; Black, Law Dict. tit. Chancellor; 1 Chit.Bl. * 462, note 8; 2 Story, Eq.Jur. § 1332. Butterick v. Richardson, 1901, 39 Or. 246, 64 P. 390, 391.'

'The State of Indiana, acting by its General Assembly, has continued and extended this jurisdiction under the various juvenile acts.

'The power conferred upon the juvenile court under this is of the same character as the jurisdiction exercised by courts of chancery over the person and property of infants, and flows from the general power and duty of the state parens patriae to protect those who have no other lawful protector. Dinson v. Drosta, 1907, 39 Ind.App. 432, 434, 80 N.E. 32, 33.'

For these various reasons, we are of the opinion that the State of Indiana, represented by the Attorney General, was a proper party appellee to this proceeding.

The assignment of errors filed in this action stated:

(1) That the Court erred in overruling the appellants' Motion for a New Trial.

(2) That the trial court did not have jurisdiction over the subject matter of the action.

The motion for a new trial contained the following specified grounds: (1) Irregularities in the proceedings of the court by which said father and natural guardian was prevented from having a fair trial, to wit:

(a) the Court erred in commencing the hearing on said petition the day following the filing of the petition,

(b) Appellant was not given proper notice or time to prepare his defense,

(c) the petition was filed on May 31, 1957, summons issued the same day and hearing began on June 1, 1957, at 9:30 A.M.;

(2) The decision of the court is not sustained by sufficient evidence;

(3) The decision of the court is contrary to law.

The first question under this motion for new trial which we will determine is whether the alleged irregularities in the court below prevented appellant from having a fair trial. The record shows that Anna M. Davis, Director of Public Welfare of Harrison County, performing probation functions for the Harrison Circuit Court, there being no regular probation officer for the Harrison Circuit Court due to lack of appropriation therefor, filed a petition, as required by Burns' Ind.Stat. § 9-3208, in the Harrison Circuit Court, on May 31, 1957. On the same day a summons was issued, commanding Mr. & Mrs. William Housel, Mr. & Mrs. A. S. Deakins, Mr. & Mrs. Wayne Housel, Mrs. Marvin Cole, Cecil Snyder, Clifford D. Watson, and Mrs. Kelso Housel to appear and answer the complaint stated in the petition to declare the child delinquent. The return states that the summons was read to the above mentioned parties on May 31, 1957. The parties were ordered to appear on the following day which was June 1, 1957. The cause, 'In the Matter of Vicki Gaile Watson, a Child Under the Age of Eighteen (18) Years', was tried on the 1st day of June, 1957. The record states that the Court, after investigation, authorized the Director of Public Welfare to perform the function of probation officer because the county had no appropriation for such officer. The record then states, 'Comes now the petitioner in person and together with Vicki Gaile Watson in person and comes also the father, Clifford Watson and together with his attorney C. Bliss Eskew who enter his appearance for the father, Clifford Watson.' (Our emphasis). The trial was recessed and later concluded on June 4, 1957. The court took the matter under advisement...