Jensen v. Sevy , 103 Utah 220 ( 1943 )

I concur in the result reached in the foregoing opinion and with the holding that the judgment of the District Court in the habeas corpus proceeding ought not to be construed as a refusal to hear the matter. I think it reasonably clear that what the court did was to hear the habeas corpus matter and, finding that the child involved had been taken into the custody of the Juvenile Court, because of neglect or misconduct of the father (petitioner) and that the juvenile court had retained jurisdiction of the matter, the district court concluded, and I think rightly, that it had no jurisdiction to take the child from the custody of the juvenile court or to determine the question of the father's fitness to have his child returned to him. I also think the petitioner was mistaken in his assumption that he could not go into the juvenile court for a hearing of the question as to whether he had complied with the requirements of the former order of the juvenile court. The fact that he had appealed from that order and that the appeal was pending, undecided, before the supreme court, would not prevent him from applying to the juvenile court for custody of his child upon a showing of change of circumstances and compliance with the conditions which that court had prescribed as prerequisite to having the child returned to him. Sec. 14-7-34 provides that an appeal shall not discharge a child from custody of the juvenile court. It was said in Stoker v.Gowans, 45 Utah 556, 562, 147 P. 911, 913, Ann. Cas. 1916E, 1025:

"We thus have an act which practically confers parental powers and duties upon the juvenile court."

Also:

"The juvenile court, after the original notice, always retained jurisdiction of Fern, and, in view that it had found that the mother was an unfit person to have custody and control of her, and had thus substituted itself as her custodian, under the law (Mill v. Brown, 31 Utah 473, 88 P. 609, 120 Am. St. Rep. 935), we cannot see how the court exceeded its power or jurisdiction" (in acting thereafter without again giving notice to the mother).

I do not agree with the apparent holding in the opinion of Mr. Justice LARSON that the district court merely decided that "said matter ought in wisdom to be left to the determination of the juvenile court." I think it was the intention of the district court to hold that it had no jurisdiction to 13, 14 hear and determine the question of the father's fitness and qualification to have his child returned to him. I cannot agree with the holding inferable from the opinion that the district court could have proceeded to hear and determine that question. In my opinion it was not a matter of discretion. I think the legislature intended to confer exclusive original jurisdiction upon the juvenile court to determine such questions in every case wherein the state had become a party by the juvenile court taking custody of a child because of neglect or delinquency. The provisions of subsection 4 of section 14-7-4 R.S. relating to powers of courts to determine questions of custody in habeas corpus proceedings should not, in my opinion, be construed to apply to cases in which the state has become a party by intervention of the juvenile court. Unless we so construe it we cannot reasonably give effect to the provision of subsection 3 of section 14-7-4 that

"When jurisdiction shall have been acquired by the court in the case of any child, such child shall continue for the purposes of such case under the jurisdiction of the court until he becomes twenty-one years of age, unless discharged prior thereto or unless he is committed to the state industrial school or to the district court as hereinafter provided."

The legislature has power to give to the juvenile court exclusive jurisdiction of cases of neglect or 15 delinquency of children.

"In this country the several states stand, with reference to the persons and property of infants, in the situation of parens patriae. The state as parens patriae is authorized to legislate for the protection, care, custody, and maintenance of children within its jurisdiction." 27 Am. J. 823.

"Resident minor children are wards of the state in whom the government is interested." Geary v. Geary, 102 Neb. 511,167 N.W. 778, 779, 20 A.L.R. 809.

"While there are certain limitations in respect to certain powers as applied to certain courts, the Constitution wisely refrains from conferring exclusive original jurisdiction upon any of the courts, but vests such original jurisdiction in all the courts to be apportioned and exercised as the Legislature may direct. There can be no valid reason, therefore, to dispute the right of the Legislature to create a court or courts wherein juvenile offenders or delinquents may be dealt with although they were formerly dealth with in other courts. Nor does the fact that in cities of the first and second classes juvenile courts are given exclusive jurisdiction over juvenile offenders in any way offend against any constitutional provision." Mill v. Brown,31 Utah 473, 88 P. 609, 611, 120 Am. St. Rep. 935.

The right to the writ of habeas corpus is in no way infringed by legislation giving the juvenile court exclusive jurisdiction in all cases relating to the delinquency or neglect of children. It is a sufficient answer to a writ of habeas corpus to show that a child is held pursuant to 16 the terms of a valid order made after due notice and hearing by the juvenile court in a case in which the juvenile court had jurisdiction. The petition in this case, which, under the proceedings in the habeas corpus case must be considered as having been adopted by the parties as an agreed statement of facts, showed affirmatively that the juvenile court had taken and retained jurisdiction of the case relating to the neglect of the petitioner's child. That case definitely involved and included the question of the father's fitness to have the child returned to him. The petitioner alleged that he had now complied with the requirements of the juvenile court order and that he was thereby entitled to take his child from the defendants. Such an allegation did not overcome the recital that the juvenile court had taken custody of the child because of his former neglect. His petition showed affirmatively that the district court did not have jurisdiction to award him custody of the child. To hold otherwise is to hold that by reason of subsection 4 of Section 14-7-4, R.S. the district courts have concurrent jurisdiction with the juvenile courts in cases of alleged neglect of children. I cannot believe that it was so intended.