Higgins v. Missouri Division of Family Services

ANDREW JACKSON HIGGINS, Special Judge. Original proceeding in habeas corpus to obtain juvenile from custody of Division of Family Services. Petitioners, husband and wife, reside in St. Charles County, Missouri. They applied to the Division to become foster parents November 28, 1976, and were approved as such February 3, 1977. Baby Girl Jane Doe was born and abandoned August 19,1977, in St. Charles County, Missouri. She was taken to St. Joseph Hospital in St. Charles; and a proceeding, “In Interest of Baby Girl Jane Doe,” was initiated by the Juvenile Officer in the Juvenile Division of the Circuit Court of St. Charles County August 19,1977. The Juvenile Court, Honorable Fred Rush, entered an Order August 19, 1977, which recited that complaint had been made by the Juvenile Officer that said child came within the purview of applicable provisions of Section 211.031 RSMo by reason of “abandonment,” and that the Juvenile Court had made preliminary inquiry to determine interests of the public and the child; and directed the Juvenile Officer “to place said child in temporary custody of the Division of Family Services * * * pending hearing and further Order” of the court. The Juvenile Officer filed the petition envisioned by Rule 114 August 23, 1977, and recited that Baby Girl Jane Doe was in need of care and treatment by the Court within the purview of Section 211.031 RSMo because of her abandonment, and that the child was in the temporary custody of the Division of Family Services. He prayed for the Court’s jurisdiction and such orders, judgments and decrees with respect to her care, custody, maintenance, treatment and education as may be in accordance with law and for the best interest of the child and the public good. Baby Girl Jane Doe was taken from the hospital by the Division of Family Services and placed in the licensed foster home of Mr. and Mrs. Higgins August 24, 1977, where she received foster care until June 23, 1978, for which Mr. and Mrs. Higgins were paid at the rate of $106 per month. The Division of Family Services advised Mr. and Mrs. Higgins that Baby Girl Jane Doe would be removed from their foster home June 7, 1978, for placement elsewhere. A representative of the Division went to the Higgins home to get the child June 7,1978, and was advised that Mrs. and Mrs. Higgins were not at home and had taken the child. Mr. and Mrs. Higgins filed a petition for transfer of custody and to adopt Baby Girl Jane Doe June 7, 1978; and secured a temporary injunction against removal of the child by the Division of Family Services from the Magistrate Court of St. Charles County. The Circuit Court, Honorable William M. Turpin, entered an order June 23, 1978, which dissolved the temporary injunction issued June 7, 1978. Subsequently, on June 23, 1978, the Division of Family Services removed Baby Girl Jane Doe from the home of Mr. and Mrs. Higgins. Mr. and Mrs. Higgins petitioned the Missouri Court of Appeals, St. Louis District, June 26,1978, for Writ of Habeas Corpus to be directed to the Division of Family Services. The writ issued June 27, 1978, and was quashed June 29, 1978. Mr. and Mrs. Higgins filed their petition in this court December 1, 1978, and subject Writ of Habeas Corpus issued December 18, 1978. After pleadings and briefs were settled, the matter came on for hearing April 23, 1979. Petitioners contend the removal and detention of Baby Girl Jane Doe by the Division of Family Services to be illegal and without color of law; and that the child should be discharged from custody of the Division and placed in custody of the petitioners for adoption. Respondents contend the writ should be quashed because petitioners fail to show any illegality in the custody exercised by the Division of Family Services. The applicable law is stated, In re L.G., 502 S.W.2d 33, 35 (Mo.App.1973): “The writ of habeas corpus may be em [302] ployed to exercise the right of lawful custody, but it may not be employed to interfere with the inherent right and jurisdiction of the circuit courts to determine and award custody of the minor child in cases where they have proper jurisdiction, and in which they have exercised that jurisdiction by making a custody award.” See also In re Wakefield, 283 S.W.2d 467, 471-472[5, 6] (Mo. banc 1975). The Circuit Court (Juvenile Court) of St. Charles County had jurisdiction of the proceedings involving Baby Girl Jane Doe. She was in St. Charles County “in need of care and treatment” because her parents abandoned her. § 211.031 RSMo. The circuit court (juvenile court) exercised that jurisdiction when it ordered and placed temporary custody of Baby Girl Jane Doe in the Division of Family Services until further order of the court. Such is the only order with respect to “legal custody,” Rule 110.05a(13), of Baby Girl Jane Doe. Petitioners received Baby Girl Jane Doe from her custodian, Division of Family Services, for foster care for which they were paid, and their Petition for Transfer of Custody preliminary to proposed adoption acknowledges such limitation on their relationship to Baby Girl Jane Doe. Accordingly, the writ of habeas corpus issued December 18, 1978, is quashed. BARDGETT, DONNELLY, SIMEONE and WELLIVER, JJ., concur. SEILER, J., dissents in separate dissenting opinion filed. RENDLEN, J., dissents and concurs in separate dissenting opinion of SEILER, J. MORGAN, C. J., not sitting.