Bowers v. Grant

Opinion by Mr. Chief Justice Moore. 1. Habeas corpus proceedings, instituted to secure the discharge of children from alleged illegal restraint, though somewhat analogous to the ordinary application of a party to be relieved from a criminal charge, is usually a controversy between the parents of such child, or between one or both of them and a stranger,^ in which case the real inquiry is not limited to the sole — 395 — question of jurisdiction as in criminal actions, but extends to a consideration as to which of the contestants is better qualified to have the custody and control of the minor, so as to promote his best interests: In re North Pacific Presbyterian Board of Missions v. Ah Won, 18 Or. 339 (22 Pac. 1105); Rivers v. Mitchell, 57 Iowa, 193 (10 N. W. 626). The state, as parens patriae and successor to the king in England, exercises by equitable proceedings a general supervision over, and is in theory the guardian of, all minors who are neglected by their parents. “The right of the state to exercise guardianship over a child,” says Mr. Justice Chadwick in Weber v. Doust, 84 Wash. 330, 333 (146 Pac. 623, 624), “does not depend on a statute asserting that power. Such statutes are only declaratory of the power already and always possessed by courts of chancery, and they will even now exercise that power concurrently or in aid of a statute. ’ ’ 2. Legislation creating Juvenile Courts is of modern origin. An enactment of that kind was not designed as a means to try, convict and punish youths charged with the commission of crimes. The tribunals so constituted are agencies of the state to direct and control the training of neglected children, placing them under favorable surroundings, in order that they may be saved from evil lives and grow up good citizens: State v. Eisen, 53 Or. 297 (99 Pac. 282, 100 Pac. 257); State v. Dunn, 53 Or. 304 (99 Pac. 278, 100 Pac. 258). The act of a Juvenile Court in awarding to any person the custody of a dependent minor, who is too young properly Jo select a guardian, is not a judgment in a criminal action; and the keeping of such child, pursuant to an order of that kind, is not a restraint of its, liberty, but constitutes such parental care as is re — 396 — quired and as should be exercised in behalf of young-children. Mr. and Mrs. Grant have no children of their own. They have cared for Marion Bowers as though she were their own offspring, and they are able, ready and anxious to continue properly to support, maintain, and educate her. The Circuit Court evidently considered and undertook to promote the best interests of the child when it dismissed the writs of habeas corpus and committed the custody of the minor to the defendant until further ordered. If the County Court of Polk County, as a juvenile tribunal, had jurisdiction of the subject matter September 25, 1914, and was authorized to order Marion Bowers returned to the custody of Mr. and Mrs. Grant as set forth in the journal entry hereinbefore quoted, the determination of the trial court would be entitled to great consideration. 3. The statute defines a “dependent child” to mean any person under the age of 18 years who, for any reason, is destitute, homeless or abandoned: Section 4406, L. O. L. Formerly the Circuit Court of Multnomah County, which contained more than 100,000 inhabitants, had original jurisdiction as a Juvenile Court: Section 4407, L. O. L. Such was the law when Marion Bowers was adjudged by that court to be a dependent child. By the amendment of that section the County Courts of the several counties of this state now have original jurisdiction in all cases, coming within the terms of the act: Gen. Laws Or. 1915, c. 147. Any reputable person, being a' resident of the county and having knowledge of a child therein who appears to be dependent, may file with the clerk of the court having- jurisdiction in the matter a written verified petition, setting forth the facts constituting such de — 397 — pendency: Section 4409, L. O. L. Upon the filing of the petition a citation must be issued, requiring the person having the custody or control of the child to appear with such child at a time and place specified in the notice: Section 4410, L. O. L. When any child under the age of 18 years shall be found to be dependent or neglected, the court may make an order committing the child to the care of some" reputable citizen of good moral character, and may thereafter set aside, change, or modify such order: Section 4414, L. O. L. In any case where the court awards a child to the care of any individual, according to the provisions of the juvenile law, the child shall, unless otherwise ordered, become a ward and be subject to the guardianship of the individual to whose care it is committed: Section 4415, L. O. L. These provisions confer upon the County Court, which first secures original jurisdiction of the matter of a dependent child, the sole power to hear and determine the question. The petitioner, Mollie Bowers, and her daughter, the ward, Marion, were before the County Court of Polk County, September 25, 1914, when the order was made that the child remain in the care of Mr. and Mrs. Grant. This appearance may have conferred jurisdiction of the person of the mother and her daughter, but not of the subject matter, the right to dispose of the ward, which power remained in the Juvenile Court of Multnomah County. Courts of that kind find homes for dependent children in various counties of the state, and to permit another court to interfere with a ward when duly adjudged to be such would create interminable difficulties. An alleged dependent infant, who has, pursuant to a duly verified written petition setting forth the necessary facts, been brought before a juvenile tribunal and — 398 — found to be in need of a guardian, wbo is appointed, thereby becomes a ward of the court and is bound by its determination until the order has been set aside: 3 Pomeroy, Eq. Juris. (3 ed.), § 1305; McGowan v. Lufburrow, 82 Ga. 523 (9 S. E. 427, 14 Am. St. Rep. 178); Lloyd v. Kirkwood, 112 Ill. 329. In a note to the case of Sharon v. Terry, 1 L. R. A. 572, 573, it is said: “Between courts of concurrent jurisdiction, the court first acquiring jurisdiction will retain it, and will not be interfered with by another court.” This rule is so elementary as to require no further citations of authority supporting the legal principle. The Juvenile Court of Multnomah County having first secured jurisdiction of the subject matter and never having dismissed the proceedings or released the ward, the County Court of Polk County, a tribunal of concurrent power, had no authority to intermeddle with the custody of the child, and its decree attempting to affect such custody is void. It is argued by defendant’s counsel that, if an adjudged dependent child should be taken to another county by his guardjan to be placed in a home, such ward might be imposed upon and suffer injury unless relief could immediately be granted by the Juvenile Court of the county in which the infant might be found. This argument is forceful, and if it were addressed to the legislative assembly an amendment of the statute, regulating the procedure in the Juvenile Courts, might possibly be secured. No power is lodged in the courts, in counties other than that in which the original jurisdiction was secured, to correct such supposed abuses, for the statute commands in general that in case of a decree in respect to the per — 399 — sonal or legal condition or relation of a particular person such order is conclusive upon that subject: Section 756, L. O. L. If Mr. and Mrs. Grant, who, from a transcript of the testimony before us, appear to be in every way worthy, competent and qualified for the trust, desire the custody of the little girl whom they have cared for and kept for more than two years, they must apply therefor to the Juvenile Court of Multnomah County, which has exclusive jurisdiction of the subject matter. The action of the Circuit Court in denying the petition, dismissing the proceedings, and awarding the custody of Marion Bowers to the defendant is erroneous, and in consequence thereof the judgment is reversed, and one will be entered here restoring the liberty of the ward and surrendering her to the petitioner, Mollie Bowers, until the further order of the Juvenile Court of Multnomah County in the matter. Reversed.