Price v. Price , 1977 Okla. LEXIS 760 ( 1977 )

WILLIAMS, Justice.

Appellees, paternal grandparents, filed a petition seeking to have the minor children here involved declared dependent and neglected and asking for their custody. The court adjudicated the children to be dependent and neglected and in the same order granted grandparents’ request for custody. The natural father appeals to this court.

In 1973, the father and mother were divorced. The decree of divorce gave the mother custody of the children, with reasonable visiting rights granted to the father. Within a month after the divorce, the mother voluntarily relinquished custody and the father took the children to his parents (grandparents) requesting they care for them temporarily while he was working in another state. Generally he visited his children a couple of times a month, and took them on outings and to lunch and bought them gifts. There is no evidence he abandoned the children.

In January of 1976, father notified grandparents he was remarrying and would have a home in which to care for his children and that he intended to move them as soon as possible. Soon after, grandparents filed their petition alleging neither the father nor mother had contributed any funds for the children’s support, that they did not provide proper parental care and were unfit to provide the same. After the petition was filed but before the hearing the natural mother died.

The trial court conducted one hearing, overruled father’s demurrer to the evidence, declared children to be dependent and neglected, made them wards of the court and gave custody to the grandparents.

Father’s appeal consists of two basic propositions: first the court erred in finding evidence sustained allegations of dependence and neglect in that grandparents failed to present a prima facie case and second, the court erred in the disposition by placing them in the grandparents’ custody. We agree with both propositions.

A “dependent or neglected child” is defined by 10 O.S.1976 Supp. § 1101(d), which is part of the Delinquent, Dependent and Neglected Children Act. Dependent or neglected child is synonymous with “deprived child” as used in other acts and statutes.¹ Section 1101(d) provides:

“(d) The term “dependent or neglected child” means a child who is for any reason destitute, homeless or abandoned; or who is dependent upon the public for support; or who has not the proper parental care or guardianship: or whose home, by reason of neglect, cruelty, or depravity on the part of his parents, guardian or other person in whose care it may be, is an unfit place for such child; or who is in need of special care and treatment because of his physical or mental condition, and his parents, guardian or legal custodian is unable to provide it; or whose parent or legal custodian for good cause desires to be relieved of his custody; or who is without necessary care or support through no fault of his parents, guardian or custodian. Provided, however, no child who, in good faith, is being provided with treatment and care by spiritual means alone in accordance with the tenets and practice of a recognized church or religious denomination by a duly accredited practitioner thereof shall, for that reason alone, be considered to be a dependent or neglected child under any provision of this act.” (Underlining supplied).

Grandparents are claiming the children are dependent and neglected by virtue of the underlined phrase. This allegation is based primarily on the fact father contributed no money to the grandparents for the support of the children.

The divorce decree gave custody of the children to their natural mother. Upon her death, the children stood, in relation to the father and all the world, as if no decree of divorce had been entered. Custody inured to the father, the surviving parent.² Before this legal custody may be interfered with it must be affirmatively shown that the children come within the scope of the above mentioned act, in this case, by a finding the children are dependent or neglected as defined by the statute.

In re Sweet, 317 P.2d 231 (Okl.1957) held in determining the custody of children it is not the past history of the case, but the present considerations which control. Whether these children were dependent or neglected at the time father deposited them with grandparents is not material. The trial court must decide whether they are dependent or neglected at the time the grandparents filed their petition. Sweet reiterates the Oklahoma rule of law that to justify depriving a father of custody of his children by declaring them dependent or neglected, it is not enough to show he had bad habits or faults of character. The mere fact that a child might be cared for better by the grandparents is not sufficient to deprive the father of his right to custody of the children.³

In determining whether a child is “neglected”, the word, neglect, is defined as the disregard of duty, owing to indifference or wilfulness.⁴ In In re Vilas, 475 P.2d 615 (Okl.1970) the mother of the child placed her with friends purely as a result of a long and close personal relationship between the family and these friends. This court, in reversing the trial court’s finding of dependency and neglect, stated this could not be construed as a renunciation of the child, or as evidencing a lack of interest in her welfare.

Grandparents cite us to several factually distinguishable cases. In re Davis, 206 Okl. 405, 244 P.2d 555 (1952), involved a child who was dependent on the public for support at the time he was declared to be dependent and neglected. Except for the charity provided by the State of Oklahoma the child was destitute, homeless and abandoned. This is not true in the present case. Grandparents further rely on Russell v. Russell, 208 Okl. 41, 253 P.2d 136 (1953). This case was not an action to declare children dependent or neglected but rather an action to modify a divorce decree, wherein court had previously awarded child to grandparents.

Ordinarily in any type of custody proceeding the opinion of the trial judge who saw the witnesses and observed their demeanor while testifying is entitled to great weight.⁵ But in a case of equitable cognizance, the Supreme Court may weigh the evidence and enter such judgment as trial court should have rendered.⁶

Here the issue is whether trial court was correct in finding the children were not receiving proper parental care. Evidence of neglect of the father to make suitable provision for the children’s welfare and his general fitness to care for the child are elements for consideration in determining this issue.⁷ The mere circumstance that the children were enjoying proper care in the home of another and were not therefore homeless, does not necessarily mean they were receiving proper parental care. However, the fact children were placed by the father in the home of his parents, part of the family, rather than with third parties as in In re Reed, 189 Okl. 389, 117 P.2d 503 (1941), certainly is evidence of parental concern. The evidence presented by the grandparents was generally aimed at a showing they were fit parties to have custody of the children. This is properly a part of the dispositional phase of such a hearing and is not material to a determination of dependency or neglect.

Father’s evidence showed he was interested in his children. He visited them, took them out for meals and bought them gifts. He has ample income to support them where they will not become dependent on the state. He has a home and a wife. He was assured of the children’s care when he left them in the hands of his parents. Surely, this type of concern for their lives is not a sign of neglect. Although he never gave the grandparents financial help, they never requested any. We think the evidence as a whole was insufficient to show the children were dependent or neglected. We, therefore, reverse the trial court’s finding that the children were dependent and neglected as defined by the act.

REVERSED AND REMANDED WITH DIRECTIONS TO DELIVER THE CHILDREN TO THEIR FATHER.

HODGES, C. J., LAVENDER, V. C. J., and DAVISON, IRWIN, BERRY and BARNES, JJ., concur. SIMMS and DOOLIN, JJ., concur specially.

1 . See 10 O.S.1976 Supp. § 1101B.

2 . Ingles v. Hodges, 562 P.2d 845 (Okl.1977).

3 . Marshall v. Marshall, 555 P.2d 598 (Okl.1976).

4 . In re Vilas, 475 P.2d 615, 617 (Okl.1970); In re Sweet, 317 P.2d 231 (Okl.1957).

5 . Gibson v. Dorris, 386 P.2d 186 (Okl.1963).

6 . Matter of Reyna, 546 P.2d 622, 625 (Okl.1976).

7 . In re Reed, 189 Okl. 389, 117 P.2d 503 (1941).