In Re Borcherding's Custody , 196 Okla. 19 ( 1945 )

I cannot agree with the majority opinion, because the application for the writ, in my judgment, does not state facts sufficient for the trial court to entertain jurisdiction of the cause. Proper and timely objection to jurisdiction was raised in the trial court.

This is an appeal by the maternal grandparents of Louis Winton Borcherding, a minor, from a judgment of the district court of Carter county in a habeas corpus proceeding awarding custody of said minor to its paternal grandparents.

It is alleged in the application for the writ, in substance: That C.H. Borcherding and Phoebe J. Borcherding are the paternal grandparents of Louis Winton Borcherding, a boy ten years of age, and they are entitled to his custody.

That he is in the custody of Mr. and Mrs. John Venters, his maternal grandparents, but it is not to the best interest of said minor that he remain in their custody for the reason they are unfit persons for him to live with.

That the father of said minor is deceased and the mother has abandoned and deserted him.

Under section 1331, Title 12 O. S. 1941, it is provided:

"Every person restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus to inquire into the cause of the restraint, and shall be delivered therefrom when illegal."

Under section 1332 of Title 12 of the Statutes, supra, it is provided:

"Application for the writ shall be made by petition, signed and verified either by the plaintiff or by some person in his behalf, and shall specify:

"First: By whom the person in whose behalf the writ is applied for is restrained of his liberty, and the place where, naming all the parties, if they are known, or describing them, if they are not known.

"Second: The cause or pretense of the restraint, according to the best of the knowledge and belief of the applicant."

Section 1354 is as follows:

"Writ of habeas corpus shall be granted in favor of parents, guardians, masters, husbands and wives; and to enforce the rights and for the protection of infants and insane persons; and the proceedings shall, in all such cases, conform to the provisions of this article."

This court is called upon for the first time to determine whether habeas corpus proceedings will lie in favor of grandparents under section 1354, supra.

In re Stuart et al., 138 Wash. 59, 244 P. 116, wherein the grandparents were trying to get custody of their grandson, the Supreme Court of Washington construed an almost identical statute to section 1354, supra, to wit:

"In view of Rem. Comp. Stats. § 1064, grandparents held not entitled to writ of habeas corpus for discharge of minor from custody and control of mother, on ground that its best interest and welfare required that they be granted control.

"Appellants contend that in this kind of an action the welfare and best interests of the child are always controlling.

"Our statute (section 1064, Rem. Comp. Stats.) provides:

" 'Writs of habeas corpus shall be granted in favor of parents, guardians, masters, and husbands, and to enforce the rights and for the protection of infants and insane persons. . .'

"Under a similar statute in Indiana, the Supreme Court of that state, in McDonald v. Short, 130 N.E. 536, 190 Ind. 338, held that the procedure relating to the discharge from restraint or custody of a minor child was governed by the statute; and that, while parents might have the benefit of such writ to obtain possession of their child, even parents must by their application exhibit evidence showing that they are entitled to this extraordinary remedy, which is not regarded as a civil action. It was there observed that —

" 'As generally understood, the writ of habeas corpus is a writ of liberty, and its original purpose was the release of persons illegally or forcibly imprisoned.'

"In all cases and texts that have been cited and that we have examined, it is uniformly held that writ of habeas corpus will only be granted, in the case of an infant, where the applicant shows a prima facie legal right to the custody of the infant. Bailey on Habeas Corpus, § 148; Church on Habeas Corpus, § 440; 29 C. J. § 102; In re Poole, 2 MacArthur (9 D.C.) 583, 29 Am. Rep. 628; Re Allen, 56 S.E. 786, 76 S.C. 151, 9 L. R. A. (N. S.) 1173; In re Harper, 2 Irish Rep. (1925) 571. We have ourselves held in Morin v. Morin, 119 P. 745, 66 Wash. 312, 37 L. R. A. (N. S.) 585, that the grandparents of a child have no natural or inherent right to the custody of the child.

"Since our statute gives the right of action to enforce the rights and for the protection of infants and insane persons only to parents, guardians, masters, and husbands, in the case before us the grandparents could not show a prima facie right to the custody of the child."

"Any person entitled to the custody of an infant may maintain habeas corpus proceedings to obtain it. Thus a parent or a guardian may avail himself of the writ." 39 C. J. 579, sec. 42.

"In order to invoke the aid of habeas corpus for the purpose of determining the right to the custody of an infant, the applicant for the writ must show that he has a prima facie legal right to such custody." 25 Am. Jur. 204 § 79.

Section 1354, supra, provides that parents, guardians, masters, husbands and wives have the right to make application for the writ, but does not designate grandparents; they are therefore excluded.

I find in 59 C. J. 984, sec. 582:

"In acordance with the maxim, 'expressio unius est exclusio alterius,' where a statute enumerates the things upon which it is to operate, or forbids certain things, it is to be construed as excluding from its effect all those not expressly mentioned; and where it directs the performance of certain things in a particular manner, or by a particular person, it implies that it shall not be done otherwise nor by a different person. . . ."

Under an interpretation that the statute does not exclude all persons not expressly mentioned therein, obviously the purpose of the statute would be destroyed, and any person, even a stranger, would have the same right to maintain such action as a parent or any other enumerated person has to maintain the action.

I am not cited to any authority in the absence of illegal restraint holding that grandparents can maintain habeas corpus proceedings to obtain custody of their minor grandson on the grounds that the place he is staying is an unfit place for him to live, or that he is abandoned by his mother.

If the minor is being kept in an unfit place or abandoned by its mother, as alleged in this application for the writ, a remedy is provided by Title 10, chapter 5, O. S. 1941, which in part is as follows:

"This article shall apply to any child under the age of sixteen years not an inmate of a state institution incorporated under the laws of this state. For the purpose of this article the words 'dependent child' and 'neglected child' shall mean any male child under the age of sixteen years and any female child under the age of eighteen years who for any reason is destitute, homeless or abandoned; or dependent upon the public for support; or has not the proper parental care or guardianship; . . ."

Section 102 of this act, supra, provides:

"The county courts of the several counties in this state shall have jurisdiction in all cases coming within the terms and provisions of this Article. . . ."

The authorities cited by the majority opinion are not applicable to the facts in this case. They are cases wherein the proper person brought the action as he had a natural inherent right or a prima facie legal right to the custody of the child.

The majority opinion does not cite any authority, nor am I able to find any, holding that the district court has jurisdiction upon an application by grandparents for a writ of habeas corpus wherein it is only alleged that the place where the child is staying is an unfit place for him to live and that he has been abandoned.

Under the facts in this case the district court of Carter county was without jurisdiction to maintain the action.

I respectfully dissent.