Opinion
No. 6911.
May 24, 1950.
APPEAL FROM CIRCUIT COURT, JASPER COUNTY, WOODSON OLDHAM, J.
Max A. Patten, Jr., Joplin, for appellants.
Dale Tourtelot, Pros. Atty., Joplin, Russell Mallett, Ass't Pros. Atty., Joplin, for respondent.
This appeal is from a judgment rendered in the Juvenile Division of the Circuit Court of Jasper County, Missouri, finding Charlie, Leroy, Gloria, Walter and Carlo to be neglected children within the meaning of the statutes, and making them wards of the court. The judgment restrained the parents from seeing or molesting them in the homes in which they were placed. This appeal is demanded and prosecuted by the parents of the children involved.
The record discloses that William Kelley, probation officer of Jasper County, filed a neglected child information in the Juvenile Division of the Circuit Court on the 19th day of November, 1948, charging Charlie, Leroy, Gloria, Walter and Carlo Hyman with being neglected children, under the age of seventeen years, because they lived with vicious persons and were suffering from the cruelty or depravity of their parents or other persons in whose care they were. This neglected information so filed was not verified by affidavit as required by Section 9675, R.S.Mo. 1939, Mo. R.S.A.
On November 23, 1948, after a hearing by the court, upon the information so filed, the court found said children to be neglected within the purview of the statutes and placed temporary custody with the parents under supervision of one, Mrs. Dora Smith.
On December 7, 1948, the court continued the same arrangement as made in its order of November 23rd.
On March 22, 1949, a neglected child information was filed in the Juvenile Court of Jasper County, Missouri. This information informed the court that Charlie, Leroy, Gloria, Walter, Carlo and Woodrow Hyman, Jr., were, on the 19th day of March, 1949, neglected children because they lived with a vicious person and suffered from the depravity of their parents or other persons in whose care they were. This information was verified by affidavit as required by law.
The information filed March 22, 1949, was, by the court, heard on March 22, 1949, and the court entered the following judgment (caption omitted):
"Now comes the Probation Officer and files information of neglect, adding the name of Woodrow Hyman, Jr., as an additional neglected child. After hearing further evidence it is ordered by the Court that the Probation Officer take immediate custody of all of these children and place them in suitable homes pending a further hearing of this matter on April 5, 1949.
"It is further ordered by the Court that Woodrow Hyman and Lucy Hyman, parents of the above named children, be and they are hereby restrained and prohibited from interfering with or molesting said children or the parties with whom they are placed by the Probation Officer; that said parents shall not visit or approach said homes nor cause any trouble thereat; and a violation of this order shall be deemed contempt of court and punished accordingly."
This cause was again taken up April 5, 1949, and the court made the following order (caption omitted):
"After hearing further evidence it is ordered by the Court that this matter remain in its present status under the order of March 22nd, and that the restraining order remain in full force and effect.
"It is further ordered that the father Woodrow Hyman pay to the Probation Officer the sum of $100.00 per month for the support and maintenance of these children, payable as follows, $50.00 to be paid on this date, and the sum of $50.00 to be paid on April 26th, 1949, and that this cause be set for further hearing on May 10, 1949."
The record shows that on May 17, 1949, being the 9th day of the April Term, the court entered the following order (caption omitted): "It is ordered by the court that this cause be continued under the same arrangement as per order of the 5th of April, 1949."
On August 15, 1949, the parents, Woodrow Hyman and Lucy Hyman, filed a motion for rehearing and modification, which motion (omitting the caption) is as follows: "Comes now Woodrow Hyman and Lucy Human, the father and mother respectively of the above named children, and move the court to modify the decree and grant to them the care and custody of said children, as their condition is now changed and they are in a position to school said children and support and maintain them."
September 13, 1949, this motion for rehearing and modification was, by the court, taken up. At this hearing the parents appeared in person and by attorney, Mr. Max Patten.
At the very beginning of this hearing Mr. Patten, in an opening statement to the court, informed the court that the first information filed by William Kelley, probation officer, was not verified by affidavit as required by statute and was of no legal force or effect and then he made the statement that the information filed on the 22nd day of March was evidently on the theory that the first information was of no legal effect and he stated to the court that the information now before the court had never been passed on or a judgment rendered; that there never had been a finding of neglect, only temporary orders made by the court.
In this opening statement appellants' attorney informed the court that there had been a reconciliation of appellants and that they had purchased property in the city of Joplin and now desired to reunite their family and send their children to school as they did when they were in Webb City.
Appellants assumed the lead in the case and offered their evidence first. Their evidence offered tended to disprove the charge of neglect as set out in the neglected information, and all through the appellants' side of the case the issue tried was whether or not these six children were neglected children. At the end of appellants' testimony the court stated that when he set this matter for hearing, he didn't understand the witnesses were to be brought in, therefore, the probation officer didn't bring in any testimony as to the circumstances surrounding the taking of the children, nor was he able to obtain any testimony of witnesses who would testify as to certain actions of the Hymans during July of this year. The court further stated that the case had been heard and no records made by the reporter of the testimony; that the parties had not been represented by attorney except at various intervals. At this point Mr. Patten, attorney for appellants, made this statement: "Of course, I think this, that it would be the burden of the State to go forward with this motion first, rather than myself, so far as that is concerned." Then the court stated that the first hearings were had on an information not sworn to and that, anyway, one of the children was not involved in the first information, not yet having been born. Then Mr. Patten stated: "I think the Court will agree with me there has never been any judgment entered in this case." He stated the orders made were only temporary. The case was then continued until September 20, 1949. At that time the cause was taken up and evidence introduced to sustain the issues set out in the neglected child petition. However, the court made this statement: "It is the matter of the custody on a motion for modification of the — ." He did not say what and then Mr. Patten stated: "This is not a modification. This is the trial on the meat of the case, which is a jurisdictional fact as to whether they were neglected children or not, and the State of Missouri is the party." The court then stated: "It is being heard upon your motion for a re-hearing." The attorney for appellants continued to state to the court that this was really a trial on the merits of the case.
The judgment of the court (omitting caption) is as follows:
"Now at this day this cause comes on for final determination, the parents Woodrow Hyman and Lucy Hyman appear in person and by their attorney Max Patten, the Court having heretofore heard all the evidence and being now well and fully advised in the premises, finds said children to be neglected within the meaning of the statutes, in that said parents have left children alone, that they have failed to keep children clean and properly fed and clothed, that they have not provided a proper home, that they have not properly cared for said children, and allowed them to contract skin diseases and not furnished medical attention, and that the parents have fought and beaten each other continuously for more than a year.
"Whereupon it is ordered and adjudged by the Court that Charley Hyman, Gloria Hyman, Walter Hyman, Leroy Hyman and Carlo Hyman are made wards of the court and placed in the care, custody and control of the Juvenile Officer.
"It is further ordered by the Court that all prior orders of the Court be and they are by the Court in all things affirmed.
"It is further ordered by the Court that the parents Woodrow Hyman and Lucy Hyman be and they are hereby restrained and enjoined from interfering with, molesting or visiting the said children in the homes where they are maintained."
It is somewhat confusing just what the trial court was attempting to do. Whether he actually attempted to try the motion for modification filed by appellants or whether or not the trial actually was upon the neglected child information filed by the Probation Officer March 22, 1949.
We hold that the parties tried this case upon the neglected child information filed March 22, 1949, and, while it is true appellants filed a motion for rehearing and modification August 15, 1949, and assumed the burden of proof and offered their testimony first, yet, in their testimony, they attempted to disprove the fact that the children were neglected as charged in the information.
We hold there had never been a final judgment rendered on said charge of neglect. The order of the court made after hearing on the neglected information March 22, 1949, in which he directed the probation officer to take immediate custody of the children and place them in suitable homes pending further hearing and the additional orders continuing said cause from time to time, did not constitute a final judgment.
Section 9676, R.S.Mo. 1939, Mo.R.S.A., provides: "* * * Pending the disposition of any case, the child may be retained in the custody of the person having charge of the same, or may be kept in some place of detention provided by the county, or by any association having for one of its objects the care of delinquent or neglected children, or in such other custody as the court may direct."
The judgment of the court rendered in this case clearly shows that he was passing upon the neglected child information and not the motion to modify.
Appellants, in their statement, brief and argument, complain of four separate assignments of error:
"I. Evidence must support information.
"II. Information is insufficient as it fails to designate who is the vicious person.
"III. Mere finding of neglect falls short of the requirements of the statute.
"IV. Court should not refuse custody to person having legal right, if a fit person."
In passing upon the assignments of error we will state, under each assignment, such facts and testimony as we deem necessary to support our findings.
Section 9673 R.S.Mo. 1939, Mo.R.S.A., reads as follows: "This article shall apply to children under the age of seventeen (17) years, not now or hereafter inmates of any state institution or any institution incorporated under the laws of the state for the care and correction of delinquent children: * * * For the purpose of this article, the words 'neglected child' shall mean any child under the age of seventeen (17) years, who is destitute or homeless, or abandoned, or dependent upon the public for support, or who habitually begs or receives alms, is found living in any house of ill-fame, or with any vicious or disreputable person, or who is suffering from the cruelty or depravity of its parents, or other person in whose care it may be; * * *."
The information in this case charges said children to be neglected for two reasons: first, because they associate with a vicious person, and second, because they are suffering from the depravity of their parents or other persons in whose care they may be. Certainly, the court had jurisdiction under this information.
The evidence in this case, on the part of appellants, shows that they were husband and wife, both deaf mutes; during the time the witnesses were acquainted with them, which covered a period of four or five years, they lived in Webb City, Jasper County, Missouri. The family doctor testified that he was personally acquainted with both of appellants, visited them in their home in Webb City and that, up until October or November, 1948, the family was well cared for, properly provided with food and clothing, the children sent to school, which were of school age, and that said children were well treated at all times. The testimony showed that Woodrow Hyman paid his medical and other bills promptly and he never mistreated his children; but appellants' testimony showed that around November, 1948 and thereafter, serious domestic difficulties arose in the family and that Hyman beat his wife. Appellants' doctor witness testified he treated Mrs. Hyman and that she certainly was bruised and beaten up; that such treatments were given for over a period of possibly a year and the doctor told the court that he thought the children should not be left with the family and he gave the reason that they were living apart and were divorced for a time. The doctor testified, for appellants, that he advised Mrs. Hyman to first provide a home for her children and get a job to provide for them before seeking to regain them. All of appellants' testimony was to the effect that up until September, October or November, 1948, appellants lived in Webb City, Missouri, owned a modern four room house and properly supported their children, both as to food and clothing and sent them to school. But appellants' testimony shows that Hyman and his wife had serious trouble. Some stated that Hyman broke his wife's leg with a stove poker, some said that he beat her with a milk bottle and all admit that Mrs. Hyman was seriously beaten and bruised; that she was forced to go to the Red Cross many times for advice; that she went to the police on different occasions for protection and they took her to the City Hall, called the deputy sheriff from Joplin, Missouri, who took the children to Joplin, to care for them. The testimony shows that Mrs. Hyman was sent to Kansas City to her people and that she was in the hospital in Kansas City for some time, being treated for her injuries.
Now the testimony shows on the part of the State that Mrs. Hyman was forced to leave her home because of the beatings her husband gave her and that she went to the Red Cross on many occasions and, at least, on one occasion, they gave her assistance, both food and clothing; that the welfare officer paid for her ticket to Kansas City, and that the State bought milk and cared for the baby. The testimony shows that the children were, by the court, placed under the protection of the probation officer and others and that, for probably a year or more, these children would be returned from time to time to their parents but, because of their marital difficulties, would have to be retaken. Now the evidence shows that after Mrs. Hyman was forced to leave her husband and while she was in Kansas City and with her parents, she wrote letters to the Juvenile Court officer stating that, because of the brutality of her husband, she couldn't live with him and never intended to live with him and asked that her children be kept for her and taken care of. Through her admissions, the court was justified in finding that both the mother and children were in danger from Mr. Hyman, for she stated that Hyman had threatened to kill her and to kill the baby and that her children were afraid of him; that she would have the boy watch to see whether her husband was coming upstairs to hurt her. The testimony shows that Mrs. Hyman would be out with these little children late at night; that one of the officers went to the house and found she had no food in the house for the children and the testimony shows that she did not keep them clean, they contracted impetigo; that she did not, nor did he, provide medical treatment for them and, when they were taken over by the court and temporarily placed in homes, they all were suffering from impetigo and the baby, at least, was in a serious condition, underweight and undernourished.
There was much testimony, of which we are not here reciting, to sustain the charges in the information filed by the probation officer, informing the court that these children were neglected.
We find there was evidence to support this information and against appellants on the first assignment of error.
To support this first assignment of error, appellants cite State v. Stewart et al., 228 Mo.App. 187, 63 S.W.2d 210. This case was decided by the Kansas City Court of Appeals. It was a criminal case in which the defendants were charged with playing a game of chance known as "rumme" with cards for money. The court held that where the information charged the crime to be a game of chance called "rumme", they must prove the allegations in the petition. The court held that where a person or a thing necessary to be charged in an information is described with particularity, although unnecessary, description must be proved as alleged, and any material variance is fatal. This has always been the law in this state but in no way supports appellants' first alleged error that the evidence does not support the information.
Appellants cite State v. Roussin, 354 Mo. 522, 189 S.W.2d 983. This is a criminal case where the court held that a conviction for grand larceny could not stand where the evidence establishes embezzlement only. There is no question but what that is the law and, likewise, there is no question that it is not applicable in the case at bar.
Appellants' second assignment of error complains that the information is insufficient in that it failed to designate who is the vicious person.
We first call attention to the fact that this neglected information states two grounds. The first one being that the children lived with a vicious person, and the second ground was that the children were suffering from the depravity of their parents or other persons in whose custody they were. Therefore, the court had jurisdiction regardless of whether the information failed to designate who the vicious person was.
Under this assignment of error appellants cite State v. Asher, Mo.App., 216 S.W. 1013, 1014. In this case the defendant was convicted in the Juvenile Court of the City of St. Louis on the charge of being a delinquent child and, in passing upon the pleadings, the court made the following declaration of law: "We are of the opinion that the information in the present case is wholly insufficient, in that it does not appear anywhere with whom the defendant associated. The defendant was entitled to this information, in order to be able to disprove same at the trial, and to show that the persons with whom she was accused of associating were not vicious or immoral."
The court held in this case that ordinarily in stating an offense, it is sufficient to state the charge in the language of the statute. But that is not true if the statute defining the offense and does not individuate the offense with particularity so as to notify the defendant of what he or she is to defend against.
We agree with the law laid down in the case cited by appellants, yet, we hold that, even though the information does not state the person or persons designated as the vicious person, yet the information does state a cause of action because it states that these children are suffering from the depravity of their parents, which is definite and certain and the Juvenile Court has jurisdiction to try the case.
The third assignment of error of which appellants complain is the mere finding of neglect falls short of the requirements of the statute and, to support this assignment of error, they call our attention to Ex parte Walbridge, 220 Mo.App. 29, 285 S.W. 167. In this case the probation officer filed an information charging Dorothy May and Charles Roy Walbridge of being neglected within the meaning of the statute, in that they are suffering from the cruelty of the mother and other charges. This information was verified. The court rendered a judgment that, on the evidence adduced, he doth find the defendants to be neglected children. The court held this judgment void and we quote from the opinion:
"Petitioner relies upon the decision of State ex rel. Dew v. Trimble, 306 Mo. 657, 269 S.W. 617, and under that case there seems to be no escape from the position that the judgment here is void. Considering the information in this case as regular and sufficient, yet the judgment is a nullity. In the Dew case, supra, the children had been awarded to one of the parties by a divorce decree. An award was then made by the juvenile court, and subsequently habeas corpus proceeding was instituted, just as here. The case reached the Supreme Court on certiorari to the Kansas City Court of Appeals. The judgment of the juvenile court in the Dew Case was as follows:
"'Now on this day comes the case of Margaret Marty, age five years, not in person, by probation officer and father, and it appearing to the court from the evidence that said Margaret Marty is neglected, it is ordered by the court that Margaret Marty be made a ward of the court and committed to her father, L. A. Marty.'
"The judgment in the instant case, as set out, is in effect the same. Judge Ragland in the Dew Case, speaking for the court en banc, said that a mere recital in the judgment of the juvenile court that it appears to the court from the evidence that a certain child 'is neglected', and she is therefore ordered to be committed to her father, does not constitute a valid judgment, for the reason that it does not meet the requirements of the statute (section 2594, R.S.Mo. 1919 [Mo.R.S.A. § 9676]), which is to the effect that the juvenile court 'shall determine that the child is a "neglected child" within the definition thereof contained in section 2591 [Mo.R. S.A. § 9673];' that 'in its definition of the words "neglected child" the Legislature has carefully, expressly and explicitly limited the jurisdiction which it has conferred on juvenile courts, and whenever such a court undertakes, on the score of neglect, to supervise the care and custody of a child who is not "destitute, or homeless or abandoned," etc., it is merely an intermeddler, and its judgment is a nullity.'"
The law is that nothing can be added by intendment and the court must find such facts as will make the child destitute or homeless or abandoned or dependent upon the public for support, the condition specified in the statute.
This law does not help appellants because the court, in the case at bar, not only found that the children named in the judgment were neglected but these are the words the court used in the judgment: "* * * the Court * * * being now well and fully advised in the premises, finds said children to be neglected within the meaning of the statutes, * * *."
In Ex parte Label, Mo.App., 156 S.W.2d 37, 39, the court passes directly upon this point and distinguishes it from the Dew case, wherein the Supreme Court held that the finding by the trial court that the child was a neglected child was insufficient because such a holding did not find any specific condition which would place the child within the statutory classification of a "neglected child." The court, passing upon the point, stated the law to be: "In the case before us the juvenile court did find generally that Charles Robert Label 'is neglected child within the meaning of the statute in such case made and provided.' We agree that whenever the juvenile court undertakes, on the score of neglect, to supervise the care and custody of a child who is not 'destitute, or homeless, or abandoned,' etc., it is merely an intermeddler and its order is a nullity. That is not what the juvenile court did in this instance; it found that this child's parents had failed to properly provide for him and it found that the child came within the meaning of the statute, which was equivalent to and was a finding that the child was destitute or homeless, i.e., not possessing the necessaries of life, and without a place of abode."
In Label v. Sullivan, 350 Mo. 286, 165 S.W.2d 639, 642, the Supreme Court held that where an allegation of petition, filed in juvenile court by probation officer, that minor child was "neglected by his parents who failed to provide properly for him", and the court's finding and judgment, using same words, were sufficient, so as to require denial of child's putative father's petition for writ of habeas corpus to recover child's custody on ground that such judgment and child's commitment thereby to charitable organization were void for want of jurisdiction.
In commenting upon the opinion of the Dew case, referred to before, this court made the following statement, 165 S.W.2d loc. cit. 642:
"In the instant case both the petition and the judgment recited the child was neglected 'within the meaning of the statutes in such case made and provided in this towit: that he is neglected by his parents who have failed to provide properly for him.' If the allegation in the petition in the Dew case was good certainly the same is true of the petition here. And if the petition was good so were the finding and judgment, which used the same words.
"Conceding that restrictive averments could not be supplied by intendment if the Juvenile Court's finding were broader than the statute ('Intendment,' 21 Words and Phrases, Perm. Ed., page 788) yet the language used is open to reasonable construction. We agree with the holding of the St. Louis Court of Appeals in the Label case, supra, when this record was before it, that the recitals in the finding meant the parents had failed to provide for this child of tender years in such manner and to such extent as made him a neglected child within the meaning of the statute — in other words, destitute or dependent on the public for support. This was enough to give the Juvenile Court jurisdiction of the cause."
We hold that the findings of the court in this case which are that the court finds "said children to be neglected within the meaning of the statutes, in that said parents have left children alone, that they have failed to keep children clean and properly fed and clothed, that they have not provided a proper home, that they have not properly cared for said children, and allowed them to contract skin diseases and not furnished medical attention, and that the parents have fought and beaten each other continuously for more than a year," are sufficient to comply with the restrictive definition of "neglected child" under the statute.
Under appellants' assignment of error No. IV, "Court should not refuse custody to person having legal right, if fit person," we find that the judgment of the court finding the children to be neglected within the meaning of the law and under the findings of fact therein he must have found the parents not to be fit persons to have custody of the children.
The facts in the case justify such a finding. The evidence shows the father beat his wife on numerous occasions. She suffered a broken leg and was caused to be placed in a hospital in Kansas City for months. He threatened to kill her and, as the wife stated, she was afraid of him and the children were afraid of him. Because of the domestic difficulties the mother was forced to leave the home and go on the streets. She sought help from the Red Cross, and from the police department and from the sheriff of the county. She kept the children up late at night, without proper food and clothing. She sought relief from the Red Cross and the welfare authorities. The Juvenile Court was forced to take charge of the children, supervise and care for them. The children became diseased with impetigo. The mother threatened to kill her husband, tried to hit him with a crutch while the trial was going on in the court room. She attempted to jump out the window, while the trial was going on, and commit suicide. This evidence would certainly justify the court in its judgment and show that the children were suffering from the depravity and the parents unfit to have custody of them.
The court was justified in finding that the alleged reconciliation in the last six months was not such as to warrant him in finding that they were fit persons to care for their children and the further fact that, during this very period, the mother was visiting the probation office and telling the probation officer that she could not live with her husband and seeking custody of the children herself; and their conduct in the court room, was ample proof that there was not a sufficient reconciliation to justify the court in placing the children in their hands.
Judgment affirmed.
VANDEVENTER, P. J., and BLAIR, J., concur.