Opinion
No. 5526.
December 27, 1930.
APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. Hugh A. Baker, Judge.
Action for commitment of delinquent child. Judgment for plaintiff. Affirmed.
J.W. Porter and J.W. Taylor, for Appellants.
C. S., secs. 1014A and 1014B, appearing in chap. 167, 1927 Sess. Laws, attempt to give the parent his day in court by throwing the burden upon him, in the first instance, of showing cause why he should not be deprived of the custody of the child. But this cannot be done as the parent has the first and natural right to the custody of the child; and the burden is on the person or party attempting to deprive him thereof to plead and prove the unfitness or neglect of the parent before a valid judgment can be entered depriving the parent of the child's custody. (1927 Sess. Laws, pp. 222, 223, secs. 1014A, 1014B; C. S., sec. 7846; Andrino v. Yates, 12 Idaho 618, 87 P. 787; In re Martin, 29 Idaho 716, 161 P. 493; Jain v. Priest, 30 Idaho 273, 164 P. 364; McChesney v. Geiger, 35 Idaho 69, 204 Pac. 658; Martin v. Vincent, 34 Idaho 432, 201 P. 492; Mill v. Brown, 31 Utah, 473, 120 Am. St. 935, 88 P. 609; Ex parte, Guisti, 51 Nev. 105, 269 P. 600.)
E.V. Larson, Prosecuting Attorney, for Respondent.
The state, in its capacity of parens patriae, may, without a violation of the guaranty of due process of law, restrain delinquent, incorrigible and homeless children of their liberty, and for such purposes may take over their custody from the parents or other persons having them in charge, and especially is this true where the parent, or such other person having custody, is given notice and an opportunity to be heard. (12 C. J., pp. 1210, 1211, sec. 986.)
On an information charging that a minor was a juvenile delinquent, specifying instances of delinquency, and that his mother, the only parent, was neglecting the child and was not exercising sufficient or any control over him, after due notice, and a hearing at which the mother was present and represented by counsel, the court committed him to the state industrial school.
Appellant urges against the judgment of the district court, sustaining the probate court, that art. 20, chap. 41, C. S., prior to its amendment by Sess. Laws of 1927, chap. 167, did not afford the parent due process of law, which is correct. ( Martin v. Vincent, 34 Idaho 432, 201 P. 492.)
No doubt to remedy this situation, the legislature passed the amendments in 1927 Sess. Laws, chap. 167, which provide for notice to the parent, and the issue, and a complete hearing, as to the neglect, or unfitness of the parent to have the custody of the child, specifying findings of neglect or unfitness which the court must make before the child may be taken from the parent, thus affording the parent due process. ( In re Sharp, 15 Idaho 120, 96 P. 563, 18 L.R.A., N.S., 886; Allen v. Williams, 31 Idaho 309, 171 P. 493; In re Martin, 29 Idaho 716, 161 P. 573; Jain v. Priest, 30 Idaho 273, 164 P. 364; Martin v. Vincent, supra; 12 C. J., pp. 1210, 1211.)
Only the state introduced evidence, and thereby assumed and sustained the entire burden of proving the delinquency of the child and the unfitness of the parent, and one who is not injured by an act may not complain of it as unconstitutional ( Williams v. Baldridge, 48 Idaho 618, 284 P. 203), and this holding in no way conflicts with Boise Payette Lbr. Co. v. Challis Ind. School Dist., 46 Idaho 403, 268 P. 26, as will appear from an examination of 12 C. J. 760-762, and 12 C. J. 780, in addition to 12 C. J. 786, cited in Boise Payette Lbr. Co. v. Challis Ind. School Dist., supra. See, also, 6 R. C. L., p. 89, sec. 87, and 5 Cal. Jur., p. 622, sec. 52. The one rule is restrictive as to who may question a statute, the other is a rule of statutory construction. So we need not, and do not determine where sec. 1014A, 1927 Sess. Laws, p. 222, places the burden of proof as to the fitness of the parent, nor the effect thereof, since we will not pass upon the constitutionality of a statute unless it is necessary to a decision of the case. ( Logan v. Carter, 49 Idaho 393, 288 Pac. 424.)
The evidence, while perhaps meager, is sufficient to sustain the conclusion that the boy should have been committed.
Judgment is affirmed.
No costs awarded.
Lee, Varian and McNaughton, JJ., concur.
Budge, J., did not participate.