In Re Tindell

1955 OK 312, 292 P.2d 1022, 1955 Okla. LEXIS 622

• Court: Supreme Court of Oklahoma
• Decided: November 1, 1955
• Docket: 36694
• Status: Published

Opinions

HALLEY, Justice.

Mandy Tindell, mother of the minor children involved, will be referred to as Petitioner, and the Child Welfare Division of the Department of Public Welfare of the State of Oklahoma will be referred to as Appellant.

Prior to 1953, the husband of Mandy Tin-dell and the father of these children had been unable to work and Mandy Tindell had been confined in the State Hospital at Talihina with tuberculosis. Mr. Tindell had been receiving old age assistance payments and the State Department of Public Welfare had been assisting in the support of the minor children. Mandy Tindell was released from the hospital in‘February, 1953, as an arrested case with orders to return for further examination.

In March, 1953, Mr. and Mrs. Tindell had domestic 1 trouble resulting in serious threats by Mr. Tindell to take the lives of his wife and the two children. Mrs. Tin-dell instituted divorce proceedings after taking the children to the home of a neighbor for their protection. She consulted the county attorney of Latimer County and informed him of existing conditions and her inability to care for the children.

As a result of this conference, the county attorney filed a petition in the Juvenile Court of Latimer County, being case No. 570, styled “In the Matter of Albert Tindell and Sue Tindell, Dependent Minors.” A hearing was set for April 4, 1953, at which both parents appeared and also a representative of the Department of Public Welfare. The parents waived a jury and after evidence was introduced, the court made an order finding the minors “dependents £tnd should be made wards of the court.’'' Since the validity or invalidity of the decree entered April 4, 1953, constitutes the principal issues in this appeal, it is quoted verbatim:

“It is therefore ordered, adjudged and decreed by the Court that the natural parents of the said James Albert and Frances Sue Tindell and all other persons are hereby judicially deprived of the care, custody control, nurture and education of said children and that they are further judicially deprived of any right, title or interest in, to and over said children.

“It is further ordered by this court that said children be given to the Division of Child Welfare of the Department of Public Welfare of the State of Oklahoma for the purpose of finding a suitable home, with or without indenture, or for adoption, and that they be given the further right by their legal' representative to sign written consent for adoption for said children into et suitable home, and that the natural parents and all other persons are hereby and forever restrained and enjoined from interfering in any manner with the Division of Child Welfare, in its care, custody, control, nurture and education of said children, and that it is the best interest of said children, and all parties concerned that said children be placed with the Division of Child Welfare of the Department of Public Welfare of the State of Oklahoma, for the purpose of finding a suitable home for adoption, with or without indenture, or for adoption. If these children are not found suitable for adoption, said children may be placed in an institution willing to receive said children.

“It is further ordered by this court that the Division of Child Welfare of the Department of Public Welfare of the State of Oklahoma, is hereby authorized to take permanent custody of the said James Albert Tindell and Frances Sue Tindell, by and through one of its representatives for placement of said children for adoption and giving their written consent thereto, or if said children are not suitable for adoption, it may place them in an institution willing to receive said children.”

“J. W. Callahan_

J. W. Callahan, County Judge.”

Under the foregoing decree the minors were turned over to the Department of Public Welfare and have since been under its care and custody.

June 22, 1954, Mandy Tindell filed in case No. 570 in the Juvenile Court of Latimer County an application to vacate the above quoted order of April 4, 1953. This application was based upon alleged changed conditions of the Petitioner, in that she had recovered from her illness, had divorced her husband, had a home of her own and was now alleged to be able to care for and train her children. She further alleged that it had never been her intention to give up her children permanently but that she was merely trying to protect them from the threats of their father. She prayed that the children be returned to her and alleged that the Department of Public Welfare had refused to reveal the whereabouts of her children.

The Appellant filed a response to the application to vacate and set up that the decree of April 4, 1953, had become final since no appeal had been taken. The Petitioner filed a motion to strike the response and the court sustained the motion, but permitted the Appellant to dictate an amended response into the record.

After hearing the evidence offered by Petitioner, the court vacated its order of April 4, 1953, and ordered the Child Welfare Division of the Department of Public Welfare to deliver the minor children to Petitioner, Mandy Tindell, instanter.

This order could not be complied with since Sue Tindell had been adopted into a home in Oklahoma and Albert Tindell had •been placed in a suitable foster home in the State of Missouri and was ready for adoption.

Appellant filed a motion for a new trial based largely upon the same grounds as the response filed and stricken by the court. The basic contention was the alleged error of the court in holding that it had continuing jurisdiction over the minors after the order of April 4, 1953, above quoted, giving the Division of Child Welfare full authority' over the minors, including the right of adoption, and expressly depriving the natural parents of any further authority over the dependent, neglected children.

October 9, 1954, while this appeal was being perfected, and without notice to Appellant, the County Court of Latimer County, sitting as a Juvenile Court, entered an order which is in part as follows:

“It is therefore ordered, adjudged and decreed by the Court that L. E. Rader, Director of the Division of Child Welfare of the Department of Public Welfare of the State of Oklahoma, be, and the said L. E. Rader as such Director is hereby ordered and directed forthwith and without delay to bring into this Court all files, records and correspondence concerning the custody of said minor children above named, all copies of adoption proceedings had relative to either or both of said minors, the County Court in which said adoption proceedings have been filed, the present addresses of said minors and the names and residences of the person or persons who have adopted said minor children.

“It is further ordered by the Court that a certified copy of this Order be served on the said L. E. Rader by the Sheriff of Oklahoma County, Oklahoma, and that the said L. E. Rader, as such Director comply with said Order within five (S) days from date of service upon him as such Director.

“And it is so ordered.

“J. W. Callahan,

“(Seal) County Judge.”

Appellant applied for a Writ of Prohibition to enjoin the judge of the Juvenile Court from enforcing the order of October 9, 1954, and action thereon was deferred until this appeal is finally determined.

It is not disputed by Appellant that the natural parents were not notified of any action by the Division of Child Welfare in regard to the care or custody of the minors after the April 4, 1953, decree awarding the minors to the Department of Public Welfare. It is not claimed that the parents gave their consent to or acquiesced in any actions relative to the children after their custody was given to the Division of Child Welfare, Department of Public Welfare April 4, 1953, when the parents were present and apparently gave approval to the order entered. Petitioner now contends that the order was void as a matter of law in that it expressly deprived the parents of further control over the children when the Juvenile Court in fact possessed a continuing jurisdiction over them.

Appellant presents as proposition 1 the following:

“The order of the juvenile court of Latimer County, entered on the 4th day of April, 1953, was a final order, not appealed from, and the court lost jurisdiction to proceed any further in Cause No. 570, as there was not continuing jurisdiction.”

Appeals from judgments of the County Court are covered by Section 274, 20 O.S. 1951, which provides:

“Appeals and proceedings in error shall be taken from the judgments of county courts direct to the Supreme Court and Criminal Court of Appeals, in all cases appealed from justices of the peace and in all cases appealed from the police judges, and in all criminal cases of which the county court is vested with jurisdiction, and in all civil cases originally brought in the county court, in the same manner and by like proceedings as appeals are taken to the Supreme Court from judgments of the district court. R.L.1910, § 1819.”

In the case of In re Morrison, 176 Okl. 55, 54 P.2d 198, this Court announced in the second paragraph of the syllabus:

“A proceeding instituted under the juvenile law is civil in its nature, and from a judgment rendered in such proceeding an appeal lies to the Supreme Court. Section 15, art. 7, Constitution of Oklahoma.”

After a judgment becomes final, it can only be set aside or modified by complying with sections 1031 and 1033, 12 O.S. 1951. Section 1031 enumerates the conditions, one or more of which must exist to authorize a court to set aside or modify its judgment after the expiration of the term at which rendered. None of the nine conditions there set out are shown to have existed in the case before us. This question was passed upon by this Court in W. T. Rawleigh Medical Co. v. Eggers, 74 Okl. 190, 178 P. 108, and announced in the first paragraph of the syllabus as follows:

“The county court is without jurisdiction, at a subsequent term, to take any steps toward vacating or modifying a judgment or order of the court, rendered at a preceding term, unless the provisions of sections 5267-5269, Rev.Laws 1910, relating to the vacation and modification of judgments and orders, have been substantially complied with. An order made by the court at a subsequent term, vacating a judgment rendered at a former term, without complying with the conditions of , the statute in regard thereto, is void.”

It is not denied that the order of April 4, 1953, was not appealed from and it is not claimed that it had not become final because the term at which it was rendered had expired. However, the court struck the response of Appellant and refused to follow Section 1034, 12 O.S.1951, which provides:

“The court may first try and decide upon the grounds to vacate or modify a judgment or order before trying or deciding upon the validity of the defense or cause of action. R.L.1910, § 5270.”

Petitioner relies upon the case of In re Greenback, 207 Okl. 30, 246 P.2d 733, 736, decided by this Court in 1952. In that case a citizen filed a petition in the county court, sitting as a Juvenile Court of Ottawa County, Oklahoma, alleging that she had personal knowledge of the neglected condition of two minor children who were residents of that county, and 5 and 3 years of age. It was alleged that the children were in the custody of their mother but that they were neglected within the meaning of our statutes. Trial was had and at the conclusion thereof the court deprived the mother of the two minors’ custody, and found them to be neglected children and committed them to the care of the petitioner. The order provided that they should not be removed from the city of Miami and that the party to whom they were assigned should not be the guardian of either the person or estate of such minors and that said minors should not be the wards of said petitioner within the meaning of the provisions of Title 10, Section 110, O.S.1951. At the conclusion of such order the court said:

“ ‘ * * * and that said children shall remain in the care of said Grace Dixon until the further orders of this Court.’ ”

Thereafter the mother of said children filed an application to vacate the above order. The Juvenile Court sustained a demurrer to the petition of the mother of the children and an appeal from such order was perfected to this Court. It was contended that the order of November 3, 1943, taking the children from the care and custody of their mother was a final order where no appeal was taken therefrom. This Court reversed the case and remanded it with directions to the Juvenile Court to’ overrule the demurrer and to set the matter down for further proceedings consistent with the views of the court. The .Greenback case, supra, is not in point in the matter under consideration. In that case we think the Juvenile Court retained jurisdiction because its order expressly so stated, and we think this Court properly reversed the Juvenile Court. In the case before us the care and custody of the minors was expressly taken from the mother and the father and placed with a State agency with power to adopt. We think that much that is said in the opinion in the Greenback case is simply dicta and in no manner applicable to the issue now before the Court.

Under proposition 2, Appellant contends that after natural parents have been judicially deprived of the care, control and custody of their children adjudged to be dependent and neglected, and who are placed with the Child Welfare Division of the Department of Public Welfare with the provision that such agency may consent to-the adoption of such children, no notice to, nor consent of the natural parents is necessary to legalize their adoption.

Section 44, 10 O.S.1951, provides:

“A legitimate child cannot be adopted without the consent of its parents, if living, nor an illegitimate child without the consent of its mother, if living, except that consent is not necessary from a father or mother deprived of civil rights or adjudged guilty of adultery, or of cruelty, and for either'cause divorced or adjudged to be ah habitual drunkard, or who has been judiciously deprived of the custody of the child, on account of cruelty or neglect. R.L. 1910, § 4388.”

The above statute provides that a legitimate child cannot be adopted without the consent of its parents, if living, but also> provides certain exceptions to that rule and among these exceptions it is provided that consent of the natural parent is not necessary where the child “ * * * has been judiciously (judicially) deprived of the custody of the child, on account of cruelty or neglect.”

Attention has been called to similar statutes in all of the other states from which it appears that a vast majority of the States have statutes similar to that of Oklahoma in that notice to or consent of the natural parents to adoption is not necessary where children have been taken from the care and custody of their parents by judicial decree.

Sections 101 to 114, 10 O.S.1951, set up Juvenile Courts of the State of Oklahoma. Section 109 is as follows:

“When any male child under the age of sixteen years and any female child under the age of eighteen years, shall be found to be dependent, or neglected, within the meaning of this article, the court may make an order committing the child to the care of a suitable orphan’s home or to the care of some reputable citizen of good moral character, or any State institution, department or agency authorized to provide protection or care for homeless dependent or neglected children, or to provide welfare service for such children, or to the care of some association willing to receive it, embracing in its objects the purpose of caring for or obtaining homes for neglected or dependent children, which association shall have been accredited as hereinafter provided. The court may, when health or condition of the child may require it, cause the child to be placed in a public hospital or institution for treatment or special care, or in a private hospital or institution which will receive it for like purpose without charge. R.L.1910, § 4421; Laws 1935, p. 8, § 2; Laws 1943, p. 21, § 1; Laws 1947, p. 39, § 1.”

Section 110 provides:

“In any case where the court shall award a child to the care of any association or individual in accordance with the provisions of this Article, the child shall, unless otherwise ordered, become a ward, and be subject to the guardianship of the association or individual to whose care it is committed. Such association or individual shall have authority to place such child in family home with or without indenture, and may be made party to any proceeding for the legal adoption of a child and may by its, or his attorney or agent, appear in any court where such proceedings are pending and assent to such adoption. And such assent shall be sufficient to authorize the court to enter the proper order or decrees of adoption. Such guardianship shall not include the guardianship of the estate of the child. R.L.1910, § 4422.”

The above quoted statutes expressly provide that where the Juvenile Court has awarded a child to the care of any association or individual, the child shall, unless otherwise ordered, become a ward and be subject to the guardianship of the association or individual, which shall have authority to place such child in a family home and may be made a party to any proceeding for legal adoption, and may, by attorney or agent, appear in any court where proceedings are pending and assent to such adoption. It will be noted that there is no provision for notice to, nor consent of the natural parents after they have been judicially deprived of the care and custody of a dependent or neglected child.

In Ex parte Parker, 195 Okl. 224, 156 P.2d 584, the facts are entirely different from those in the matter under consideration. There the parent of the child was at no time notified of the proposed adoption and never appeared or consented to any order of the court depriving her of the care and custody of her child. In the case before us the parents of the minor children instigated the proceedings and clearly made no objection to the order of the Juvenile Court on April 4, 1953, clearly depriving them of the care and custody of their children as dependent and neglected children. It should be kept in mind that the children here involved are dependent and neglected children and that provisions relating to delinquent and abandoned children are not applicable here.

It will be noted that Section 109, supra, deals with dependent and neglected children and that when the court finds a child to be dependent or neglected “ * * * the court may make an order committing the child to the care oí a suitable orphan’s home or to the care of some reputable citizen of good moral character, or any State institution, department or agency authorized to provide protection or care for homeless dependent or neglected children.”

In the early case of Ex parte Hughes, 88 Okl. 257, 213 P. 79, the rule is announced in the second paragraph of the syllabus as follows:

“An order of the county court permitting the adoption of an infant child is conclusive, so far as that court is concerned. Such court has no further jurisdiction in the matter.”

The ruling in the Hughes case, supra, was followed by this Court in the recent case of In re Adoption of Davis, 206 Okl. 403, 244 P.2d 554.

In the case of Ex parte Walters, 92 Okl.Cr. 1, 221 P.2d 659, 661, our Criminal Court of Appeals made the following statements in the eighth paragraph of the syllabus :

“A child is primarily a ward of the state. The sovereign has the inherent power to legislate for its welfare, and to place it with either parent at will, or take it from both parents and place it elsewhere, and by provision of Tit. 10 O.S.A. § 110, the juvenile court may. grant an association or individual with whom child is placed, authority to appear in adoption proceedings and assent to its legal adoption. This is true not only of illegitimate children, but also true of legitimate children.”

Section 110 and Section 109, 10 O.S.1951, have to do with dependent and neglected children and Section 109 only became effective March 14, 1947. Section 44 prohibiting the' adoption of a legitimate child without the consent of its parents was adopted in 1910. Under the well- established rule of statutory construction that the last enactment of the Legislature takes' precedence over prior enactments, in that it expresses the -latest intent of the Legislature, we must conclude that it was the intent of the Legislature to permit dependent and neglected children to be placed with the Child Welfare Division of the Department of Public Welfare with the power of adoption, as it is a department or agency authorized to provide protection or care for homeless dependent or neglected children.

Our attention is called to Section 823, 20 O.S.1951, which provides in part as follows :

“Any decree or order of the court may be modified at any time; except in the case, of a child who has been committed to a public institution or agency, unless committed on temporary order, in which latter case the judge shall set out in such temporary order his reasons therefor. * * * Laws 1949, p. 199, § 25, as amended Laws 1951, p. 55, § 1.” .

The order of April 4, 1953, certainly commits the children involved to a “public institution or agency”, and expressly makes it a permanent order with no reservation of further authority and no intimation that the court intended to retain any further jurisdiction. That order expressly deprives the natural parents, who were present and consented thereto, of all future care and control of the children involved.

Since we-conclude that Appellant is correct in his first and second propositions, we find it unnecessary to discuss the third question in regard to the court’s jurisdiction to make its order of October 9, 1954, seeking to enforce its earlier order of August 13, 1954. If its order of April 4, 1953, was valid, and allowed to become final so that the parents were not entitled to notice of an intention to adopt, it necessarily follows that the order of October 9, 1954, seeking to enforce the order of August 13, 1954, vacating the original order of April 4, 1953, was not authorized.

We agree that it is unfortunate that it should ever be necessary to deprive a natural parent of the care and custody of his or her child. However, it will be agreed that this is often necessary and for the best interest of the child, which is the paramount consideration. If the parents who have given up their children and consented to their adoption through the Department of Public Welfare, Child Welfare Division, were given the right to reclaim such children from their new homes to which they have become attached, a very serious condition of uncertainty would result and many of those able and willing to adopt children who have been found to be dependent and neglected would hesitate to assume a parenthood that might be ended at any time during the minority of the child by changed conditions and desires of natural parents.

The order of August 13, 1954, in cause No. 570, County Court of Latimer County, sitting as a Juvenile Court, and the order of October 9, 1954, vacating the order of April 4, 1953, are hereby reversed with instructions to enter judgment vacating the orders of August and October, 1954, and restoring its order of April 4, 1953, to full force and effect.

JOHNSON, C. J., and CORN, DAVI-SON and JACKSON, JJ., concur. WELCH, J., concurring specially. WILLIAMS, V. C. J., and BLACKBIRD, J., dissent.