Ax, J.
This action was brought under the authority of Burns’ Ind. Stat., §§9-3201 through 9-3210, [Acts 1945, ch. 356], governing- the actions of juvenile courts, and as an aid in the determination of this case, we [661]*661have noted particularly the purpose and basic principle of said act as set out in Burns’, §9-3201:
“Purpose and basic principle. — The purpose of this act [§§9-3201 — 9-3225] is to secure for each child within its provisions such care, guidance and control, preferably in his own home, as will serve the child’s welfare and the best interests of the state; and when such child is removed from his own family, to secure for him custody, care and discipline as nearly as possible equivalent to that .which should have been given by his parents.
The principle is hereby recognized that children under the jurisdiction of the court are subject to the discipline and entitled to the protection of the state, which may intervene to safeguard them from neglect or injury and to enforce the legal obligations due to them and from them. [Acts of 1945, ch. 356, §1, p. 1724.]”
Anna M. Davis, Director of Public Welfare for Harrison County, filed a petition in the Harrison Circuit Court, performing the function of Probation Officer pursuant to the provisions of the Acts of 1936 (spec, sess.), ch. 3, §21, as found in Burns’ Ind. Stat., §52-1120, and pursuant to the authorization of the Harrison Circuit Court. Said petition alleged that Vicki Gaile Watson, a four-year-old minor child, did not have proper parental care or guardianship, and prayed that the child be adjudged neglected. Trial was had and judgment was entered declaring said child a neglected child, and making said child a ward of the Department of Public Welfare of Harrison County.
The appellant, Clifford Watson, brings this appeal as father and next friend of Vicki Gaile Watson, and in his individual capacity; appellee, State of Indiana, contends that since Clifford Watson did not move for a new trial in the capacity of next friend, but that he filed said motion as father and [662]*662natural guardian, lie cannot perfect an appeal in such capacity. Appellee further states that it is unable to perceive of any authority by which Clifford Watson appears in this proceeding. Burns’ Ind. Stat., §9-3208, specifically provides that the parents shall be named in the petition to be filed by the county probation officer. Burns’ Ind. Stat., §9-3209 specifically provides that the parents shall be summoned. Without deciding whether the appellant is properly before this court as a next friend to his daughter, it appears sufficient to say that questions raised by this appeal may be brought by him as a parent. It is apparent that Clifford Watson is the father of Vicki Gaile Watson, and that whether he is in the action as “friend” or as father or as natural guardian is immaterial, since the ending after his name is merely descriptive personae. Weiland, Executrix v. Scheuch (1953), 123 Ind. App. 633, 105 N. E. 2d 829 and 109 N. E. 2d 610.
Although not presented in the briefs, a question concerning the right of the State of Indiana to be a party to this appeal was raised at the oral argument of this cause, and was discussed at great length. Because of this, we deemed it advisable to answer this question.
The county departments of public welfare were created in 1936, under the Public Welfare Act, Burns’ Ind. Stat., §52-1101 et seq. Under these statutes the state board of public welfare, state department of public welfare,1; and county boards and departments of public welfare were created. The state department is charged with the administration and supervision of welfare activities of the state under §52-1104,’Burns’ Ind. Stat. Included in this section under subsection (c) are all public child welfare services. The county boards are appointed by the circuit or juvenile court judges. The county director is selected by the county board from [663]*663lists of eligible persons established by the Indiana personnel board, §52-1119, Burns’ Ind. Stat. This latter section also provides for removal of the county director by the state board and for appointment of the county director by the state board if the county board fails to follow the statute. Burns’' Ind. Stat., §52-1120, as will be pointed out, provides for the performance of the functions of the probation officer by the county director. As can be seen by the statutes concerning public welfare, the state and county departments are rather closely interwoven and the state has a definite interest in the disposition of all cases handled by the county departments.
Burns’ Ind. Stat., §49-1902, provides for the general duties of the attorney general. These duties include the attendance to interests of the state in all suits, actions or claims which the state is or may become interested in the Supreme Court of the state.
It must be further observed that the appellant specifically named the State of Indiana as an appellee in his assignment of errors. The state made no objection then or later. It submitted a brief and appeared at the oral argument.
The state, however, appears to have a further prerogative to appear in an action involving a minor child. The case of State ex rel. Johnson v. White Circuit Ct. (1947), 225 Ind. 602, 608, 77 N. E. 2d 298, points out that the state has inherent power in such cases. In that case the court stated:
“The history of juvenile jurisdiction reveals that the state assumed this authority as parens patriae for the welfare of all infants. 11 C. J. 285.
“ ‘Under the ancient common law, the king, as parens patria, was deemed to have charge of all persons who, by reason of their youth and inexperi[664]*664ence, were unable to care for themselves, or protect their estates. In the exercise of this supervision, the chancellor, who was originally an ecclesiastic, and the keeper of the king’s conscience, was the guardian of all infants. 9 Enc. PI. & Prac. 890; Black, Law Diet. tit. Chancellor; 1 Chit. Bl. *462, note 8; 2 Story, Eq. Jur. §1332. Butterick v. Richardson (1901), 39 Ore. 246, 64 P. 390, 391.’
“The state of Indiana, acting by its General Assembly, has continued and extended this jurisdiction under the various juvenile acts.
“The power conferred upon the juvenile court under this is of the same character as the jurisdiction exercised by courts of chancery over the person and property of infants, and flows from the general power and duty of the state parens patriae to protect those who have no other lawful protector. Dinson v. Drosta (1907), 39 Ind. App. 432, 434, 80 N. E. 32, 33.”
For these various reasons, we are of the opinion that the State of Indiana, represented by the Attorney General, was a proper party appellee to this proceeding.
The assignment- of errors filed in this action stated:
(1) That the Court erred in overruling the appellants’ Motion for a New Trial.
,(2) That the trial court did not have jurisdiction over the subject matter of the action.
The motion for a new trial contained the following specified grounds: (1) Irregularities in the proceedings of the court by which said father and natural guardian was prevented from having a fair trial, to-wit:
Free access — add to your briefcase to read the full text and ask questions with AI
Ax, J.
This action was brought under the authority of Burns’ Ind. Stat., §§9-3201 through 9-3210, [Acts 1945, ch. 356], governing- the actions of juvenile courts, and as an aid in the determination of this case, we [661]*661have noted particularly the purpose and basic principle of said act as set out in Burns’, §9-3201:
“Purpose and basic principle. — The purpose of this act [§§9-3201 — 9-3225] is to secure for each child within its provisions such care, guidance and control, preferably in his own home, as will serve the child’s welfare and the best interests of the state; and when such child is removed from his own family, to secure for him custody, care and discipline as nearly as possible equivalent to that .which should have been given by his parents.
The principle is hereby recognized that children under the jurisdiction of the court are subject to the discipline and entitled to the protection of the state, which may intervene to safeguard them from neglect or injury and to enforce the legal obligations due to them and from them. [Acts of 1945, ch. 356, §1, p. 1724.]”
Anna M. Davis, Director of Public Welfare for Harrison County, filed a petition in the Harrison Circuit Court, performing the function of Probation Officer pursuant to the provisions of the Acts of 1936 (spec, sess.), ch. 3, §21, as found in Burns’ Ind. Stat., §52-1120, and pursuant to the authorization of the Harrison Circuit Court. Said petition alleged that Vicki Gaile Watson, a four-year-old minor child, did not have proper parental care or guardianship, and prayed that the child be adjudged neglected. Trial was had and judgment was entered declaring said child a neglected child, and making said child a ward of the Department of Public Welfare of Harrison County.
The appellant, Clifford Watson, brings this appeal as father and next friend of Vicki Gaile Watson, and in his individual capacity; appellee, State of Indiana, contends that since Clifford Watson did not move for a new trial in the capacity of next friend, but that he filed said motion as father and [662]*662natural guardian, lie cannot perfect an appeal in such capacity. Appellee further states that it is unable to perceive of any authority by which Clifford Watson appears in this proceeding. Burns’ Ind. Stat., §9-3208, specifically provides that the parents shall be named in the petition to be filed by the county probation officer. Burns’ Ind. Stat., §9-3209 specifically provides that the parents shall be summoned. Without deciding whether the appellant is properly before this court as a next friend to his daughter, it appears sufficient to say that questions raised by this appeal may be brought by him as a parent. It is apparent that Clifford Watson is the father of Vicki Gaile Watson, and that whether he is in the action as “friend” or as father or as natural guardian is immaterial, since the ending after his name is merely descriptive personae. Weiland, Executrix v. Scheuch (1953), 123 Ind. App. 633, 105 N. E. 2d 829 and 109 N. E. 2d 610.
Although not presented in the briefs, a question concerning the right of the State of Indiana to be a party to this appeal was raised at the oral argument of this cause, and was discussed at great length. Because of this, we deemed it advisable to answer this question.
The county departments of public welfare were created in 1936, under the Public Welfare Act, Burns’ Ind. Stat., §52-1101 et seq. Under these statutes the state board of public welfare, state department of public welfare,1; and county boards and departments of public welfare were created. The state department is charged with the administration and supervision of welfare activities of the state under §52-1104,’Burns’ Ind. Stat. Included in this section under subsection (c) are all public child welfare services. The county boards are appointed by the circuit or juvenile court judges. The county director is selected by the county board from [663]*663lists of eligible persons established by the Indiana personnel board, §52-1119, Burns’ Ind. Stat. This latter section also provides for removal of the county director by the state board and for appointment of the county director by the state board if the county board fails to follow the statute. Burns’' Ind. Stat., §52-1120, as will be pointed out, provides for the performance of the functions of the probation officer by the county director. As can be seen by the statutes concerning public welfare, the state and county departments are rather closely interwoven and the state has a definite interest in the disposition of all cases handled by the county departments.
Burns’ Ind. Stat., §49-1902, provides for the general duties of the attorney general. These duties include the attendance to interests of the state in all suits, actions or claims which the state is or may become interested in the Supreme Court of the state.
It must be further observed that the appellant specifically named the State of Indiana as an appellee in his assignment of errors. The state made no objection then or later. It submitted a brief and appeared at the oral argument.
The state, however, appears to have a further prerogative to appear in an action involving a minor child. The case of State ex rel. Johnson v. White Circuit Ct. (1947), 225 Ind. 602, 608, 77 N. E. 2d 298, points out that the state has inherent power in such cases. In that case the court stated:
“The history of juvenile jurisdiction reveals that the state assumed this authority as parens patriae for the welfare of all infants. 11 C. J. 285.
“ ‘Under the ancient common law, the king, as parens patria, was deemed to have charge of all persons who, by reason of their youth and inexperi[664]*664ence, were unable to care for themselves, or protect their estates. In the exercise of this supervision, the chancellor, who was originally an ecclesiastic, and the keeper of the king’s conscience, was the guardian of all infants. 9 Enc. PI. & Prac. 890; Black, Law Diet. tit. Chancellor; 1 Chit. Bl. *462, note 8; 2 Story, Eq. Jur. §1332. Butterick v. Richardson (1901), 39 Ore. 246, 64 P. 390, 391.’
“The state of Indiana, acting by its General Assembly, has continued and extended this jurisdiction under the various juvenile acts.
“The power conferred upon the juvenile court under this is of the same character as the jurisdiction exercised by courts of chancery over the person and property of infants, and flows from the general power and duty of the state parens patriae to protect those who have no other lawful protector. Dinson v. Drosta (1907), 39 Ind. App. 432, 434, 80 N. E. 32, 33.”
For these various reasons, we are of the opinion that the State of Indiana, represented by the Attorney General, was a proper party appellee to this proceeding.
The assignment- of errors filed in this action stated:
(1) That the Court erred in overruling the appellants’ Motion for a New Trial.
,(2) That the trial court did not have jurisdiction over the subject matter of the action.
The motion for a new trial contained the following specified grounds: (1) Irregularities in the proceedings of the court by which said father and natural guardian was prevented from having a fair trial, to-wit:
(a) the Court erred in commencing the hearing-on said petition the day following the filing of the petition,
(b) appellant was not given proper notice or time to prepare his defense,
[665]*665(c) the petition was filed on May 31, 1957, summons issued the same day and hearing began on June 1, 1957, at 9:30 A. M.;
(2) the decision of the court is not sustained by sufficient evidence; (3) The decision of the court is contrary to law.
The first question under this motion for new trial which we will determine is whether the alleged irregularities in the court below prevented appellant from having a fair trial. The record shows that Anna M. Davis, Director of Public Welfare of Harrison County, performing probation functions for the Harrison Circuit Court, there being no regular probation officer for the Harrison Circuit Court due to lack of appropriation therefor, filed a petition, as required by Burns’ Ind. Stat., §9-3208, in the Harrison Circuit Court, on May 31, 1957. On the same day a summons was issued, commanding Mr. and Mrs. William Housel, Mr. and Mrs. A. S. Deakins, Mr. and Mrs. Wayne Housel, Mrs. Marvin Cole, Cecil Snyder, Clifford D. Watson, and Mrs. Kelso Housel to appear and answer the complaint stated in the petition to declare the child delinquent. The return states that the summons was read to the above mentioned parties on May 31, 1957. The parties were ordered to appear on the following day which was June 1, 1957. The cause, “In the Matter of Vicki Gaile Watson, a Child Under the Age of Eighteen (18) Years,” was tried on the 1st day of June, 1957. The record states that the Court, after investigation, authorized the Director of Public Welfare to perform the function of probation officer because the county had no appropriation for such officer. The record then states, “Comes now the petitioner in person and together with Vicki Gaile Watson in person and comes also the father, Clifford Watson and together tvith his [666]*666attorney C. Bliss Eskew who enter his appearance for the father, Clifford Watson.” (Our emphasis.) The trial was recessed and later concluded on June 4, 1957. The court took the matter under advisement and judgment was entered on June 28, 1957.
Because of the procedural questions involved, we believe it to be pertinent to the opinion to set forth verbatim the orders of the court entered in this cause after issuance of summons which were as follows:
“AND AFTERWARDS, to-wit on the 1st day of June, 1957, being the 24th Judicial day of the May Term of said Court, before the Honorable S. Morris Wilson, sole Judge of said Court, the following proceedings were had in said cause, to-wit:
“In the Matter of ] Vicki Gaile Watson, a Child Under !- the Age of Eighteen (18) Years J
Cause No. 318 Delinquency
“Filing of verified petition to declare child neglected (H. I.) on May 31, 1957 is now confirmed by the Court, the Court, after investigation and under the provisions of the recent decision of the Appellate Court of The State of Indiana, having authorized the Director of Public Welfare of Harrison County, Indiana to file said verified petition, the said Department performing probation functions for the Harrison Circuit Court there being no regular probation officer for the Harrison Circuit Court due to the lack of appropriation therefor by the Harrison County Council of Harrison County, Indiana, the said probation function being performed by the said Department under the provisions of the Statute of the State of Indiana, authorizing said functions to be so performed. The Court also confirms the order of issuance of notices to the father of the child providing that he attend hearing and that the child be present for the hearing.
“Comes now the petitioner in person and together with Vicki Gaile Watson in person and comes also the father, Clifford Watson in person and together with his attorney C. Bliss Eskew who enter his appearance for the father, Clifford Watson. Hear[667]*667ing is now held by the Court. The Court, now, the evidence not being concluded herein, adjourns the hearing herein into the Vacation period of this Court with the evidence to be heard, this being a Juvenile proceedings, by the Judge of the Harrison Circuit Court in Vacation with the hour of the hearing to be 9:30 o’clock A.M., Tuesday, June 4, 1957, with the parties and the witnesses all being hereby notified to present themselves in Court again on Tuesday morning at 9:30 o’clock, June 4, 1957 with the temporary custody of said child to remain in the home of Mr. and Mrs. William Housel, with the father to be permitted to see and visit- the child while in the home of Mr. and Mrs. William Housel providing that the father shall visit the child not in any condition of excessive use of intoxicating liquor and with it being further provided that the child may be visited by her father here in the Court Room this morning prior to the child being returned to its home.
“AND AFTERWARDS, to-wit: on the 4th day of June, 1957, the Harrison Circuit Court being in Vacation, before the Honorable S. Morris Wilson, Judge of said Court in Vacation, the following proceedings were had in said cause:
In the Matter of j Vicki Gaile Watson, a Child Under f-the Age of Eighteen (18) Years J
Cause No. 318 Delinquency
“Comes again the parties in person as before, and represented by counsel as before and hearing on verified petition previously filed by the Director of the Department of Public Welfare of Harrison County, Indiana is continued pursuant to the terms of the adjournment of the hearing of this cause previously. The evidence, having been concluded, and the Court, by the Judge in Vacation, not being fully advised in the premises as to its decision herein, now takes the matter of its decision under advisement, but with it being provided that the temporary custody of the child Vicki Gaile Watson shall remain with Mr. and Mrs. William Housel pending the decision of the Court, or the Judge thereof in Vacation, as the case may be, but with the child to be permitted to visit in the home of its [668]*668father on Wednesday and Sunday afternoons between the hours of 1 o’clock P.M. and 5 o’clock P.M., effective immediately, with it being provided that the father may visit said child in the home of Mr. and Mrs. William Housel, at all reasonable hours pending aforesaid decision of the Court, or the Judge thereof in Vacation, as the case may be.”
“AND AFTERWARDS, to-wit, on the 28th day of June, 1957, the Harrison Circuit Court being in Vacation, before the Honorable S. Morris Wilson, Judge of said Court in Vacation, the following proceedings were had in said cause:
In the matter of j Vicki Gañe Watson, A Child Under }■ the Age of Eighteen (18) Years J
Cause No. 318 Delinquency
“The Court, by the Judge thereof in Vacation, being now fully advised in the premises as to the matter of its decision herein, finds for the Petitioner, and further finds that the child Vicki Gaile Watson comes within the provisions of Chapter 356, of the Acts of the General Assembly of the State of Indiana for the year 1945, and particularly within the provisions of Section 6 thereof in that the Court, by the Judge thereof in Vacation, finds that said child is a neglected child as alleged in ,said petition. The Court, by said Judge in Vacation, does now make said child a ward of the Department of Public Welfare of Harrison County, Indiana, but with it being provided that said Department shall permit the child to remain in the physical custody of Mr. and Mrs. William Housel, with the child being permitted to visit with its father, and the father to visit with his child in the home of Mr. and Mrs. William Housel as provided previously in the order of said Court entered on June 4, 1957 subject to the further order of the .Court, or the Court by the Judge thereof in Vacation. The Court, by said Judge in Vacation, further finds that the said Department of Public Welfare shall make a written report to the Court, or the Judge thereof in Vacation, each 30 days hereafter concerning the welfare and progress of said child subject to further order of the Court, or the Court by the Judge thereof in Vacation.”
[669]*669Appellant contends that the summons failed to state the substance of the petition and that the child’s name was not mentioned in the summons, which he alleges are requirements of Burns’ Ind. Stat., §9-3209. He further contends that twenty-four hours were not allowed between the time of summons and the time for hearing of the cause as required by Burns’ Ind. Stat., §9-3210.
Burns’ Ind. Stat., §§9-3208, 9-3209, and 9-3210, are hereby set out in full:
“§9-3208 — Information — Investigation — Petition. — Any person may and any peace officer shall give to the court information in his possession that there is within the county or residing within the county, a dependent, neglected or delinquent child. (Thereupon, the court shall, as far as possible, make preliminary inquiry to determine whether the interests of the public or of the child require that further action be taken. Whenever practicable such inquiry shall include a preliminary investigation of the home and environmental situation of the child, his previous- history and the circumstances of the condition alleged and if the court shall determine that formal jurisdiction should be acquired, shall authorize a petition to be filed by the probation officer. The proceeding shall be entitled “In the matter of_______________, a child under eighteen (18) years of age.” Such petition shall be verified and shall- contain a statement of the facts constituting such dependency, neglect or delinquency as defined in this act [§§9-3201 — 9-3225] and the name, age and residence of the child, so far as known to the person filing such petition; the names and residence of his parents, guardian or custodian, if known to the petitioner, and if not known, the petitioner should so state, of such dependent, neglected or delinquent child. [Acts 1945, ch. 356, §8, p. 1724.]”
“§9-3209 — Summons—Notice—Custody of child. —After a petition shall have been filed and after such further investigation as the court may direct, unless the parties hereinafter named shall voluntarily appear, the court shall issue a summons re[670]*670citing briefly the substance of the petition, and requiring the person or persons who have the custody or control of the child to appear personally and bring the child before the court at a time and place stated. If the person so summoned shall be other than the parent or guardian of the child, then the parent or guardian or both shall also be notified of the pendency of the case and of the time and place appointed, by personal service before the hearing, except as hereinafter provided. Summons may be issued requiring the appearance of any other person whose presence, in the opinion of the judge, is necessary.
“If it appears that the child is in such condition or surroundings that his welfare requires that his custody be immediately assumed by the court, the judge may cause to be endorsed upon the summons an order that the officer serving the same shall at once take the child into custody. [Acts 1945, ch. 356, §9, p. 1724.]” (Our emphasis.)
“§9-3210 — Service of summons. — Service of summons shall be made personally by the delivery of attested copies thereof to the persons summoned: •Provided, That if the judge is satisfied that it is impracticable to personally serve such summons or the notice provided for in the preceding section [§9-3209], he may order service by registered mail addressed to their last known addresses. It shall be sufficient to confer jurisdiction if service is effected at least twenty-four [24] hours before the time fixed in the summons for the return thereof. Service of summons, process or notice required by this act [§§9-3201 — 9-3225] shall be made by the sheriff or an officer of the court. The judge may authorize the payment of necessary traveling expenses incurred by any person summoned or otherwise required to appear at the hearing of any case coming within the provisions of this act, and such expenses when approved by the judge shall be a charge upon the county. [Acts 1945, ch. 356, §10, p. 1724.]”
The record clearly shows that the child in question and her father, who was the only parent living, ap[671]*671peared. The statute set out above does not require that a person be personally served if that person appears voluntarily. It is not contended by the appellant that the appearance of the child was other than voluntary. The appellant appeared on the day of the hearing with counsel. He made neither plea nor motion to contest the court’s jurisdiction over his person. Appellant cites. Ford v. State (1951), 122 Ind. App. 315, 104 N. E. 2d 406, as authority to the effect that the juvenile court cannot acquire jurisdiction unless summons is issued and served according to the statute. In that case, however, it must be observed that there was a complete absence of notice and the child’s parents did not appear at the hearing which the child was made a ward of the court. In Harris et ux v. Souder, Supt. etc. (1953), 233 Ind. 287, 119 N. E. 2d 8, the court stated:
“Under §§9-3209 and 9-3210, Burns’ 1942 Replacement (Supp.), appellants were entitled to have a summons served upon them. As parents, they had an interest in the custody and welfare of their .child, and in the absence of waiver or statutory exceptions, without summons the court acquired no jurisdiction over the juvenile or his parents.” (Our emphasis.)
The last mentioned case specifically mentions waiver of notice in actions under the statutes governing neglected children. Burns’ (1946 Repl.) §2-803, specifically provides that an appearance is the equivalent to service.
In Mendenhall v. Mendenhall (1945), 116 Ind. App. 545, 64 N. E. 2d 806, the court in construing a statute conferring jurisdiction in a divorce case declared:
“Having once acquired such jurisdiction in any manner recognized by law and the period of inhibition having expired, there seems to be no logical reason to render a court powerless to proceed [672]*672because such jurisdiction was acquired in some other manner than by service of summons. It is our opinion that any procedure amounting to the legal equivalent of service of summons satisfies the requirements of the statute. In the case before us the appellant, upon learning of this action, employed counsel and in his company voluntarily appeared and submitted herself to the jurisdiction of the court.” (Our emphasis.)
It must be concluded therefore that the summons was duly issued and that the appellant has waived his right to object to the service. He cannot appear at trial, proceed through two days of hearing of the cause without any objection to the alleged irregularities, and then expect to get a new trial concerning the same matter. In re Coyle (1951), 122 Ind. App. 217, 101 N. E. 2d 192; Stoll, Exr. v. Rich, Exr. (1928), 88 Ind. App. 639, 165 N. E. 67.
A brief review of the evidence most favorable to the appellee is necessary to determine the question of the sufficiency of the evidence to sustain the decision and whether the decision of the court is contrary to law.
Clifford Watson was married to the sister of Doris Housel, chief witness for the appellee. His wife was killed in an automobile accident in January of 1956. After the death of his wife, appellant entrusted the child, Vicki Gaile Watson, to the care of Doris Housel and her husband, William Housel. The child remained in their care until a short time prior to this action which commenced on June 1, 1957. Appellant testified on cross-examination that at the time of this hearing he was drawing $32.00 per week unemployment compensation. He further testified that he was drawing $72.00 per month Social Security for the care of his daughter, out of which he paid the Housels $8.00 per week for the child’s care. There is [673]*673substantial evidence to the effect that appellant engaged in excessive drinking during the time between his wife’s death and the commencement of this action. Uncontradicted testimony discloses that on numerous occasions he visited the Housels’ home while intoxicated and while the child was present. On one occasion appellant left the child at a filling station where beer was known to be consumed while he went fishing. There is considerable other testimony by other witnesses concerning other improper actions of Clifford Watson toward the child, much of which is contradictory. It is a well-known principle of this court that such oral testimony will not be weighed by this court. Flanagan, Wiltrout and Hamilton’s, Indiana Trial & Appellate Practice, §2786, p. 366, and the numerous cases cited therein. From all the evidence presented it cannot be said that the court was unwarranted in finding that the child lacked proper parental care and guardianship.
The case of Glass v. Bailey, et al. (1953), 233 Ind. 266, 118 N. E. 2d 800, well states the factors involved in matters concerning the custody of children:
“In cases of this kind the natural rights of the parent are entitled to due consideration, but the welfare and happiness of the child is the paramount consideration. Hard and fast rules of law do not prevail. The question rests upon the exercise of sound judicial discretion by the trial judge. It is seldom, indeed, that this court will reverse the decision of a trial judge who has seen the child, and has seen and heard the ■ tuitnesses and observed their appearance and demeanor, all of which facilities for reaching a just and safe conclusion are denied to us. The above principles are so firmly established that the citation of authorities would be superfluous.” (Our emphasis.)
The appellant cites Orr v. State (1919), 70 Ind. App. 242, 123 N. E. 470, for the principle that the court may [674]*674not recommit a child to the home where the child had resided immediately prior to a proceeding- such as the one in the present case. The Orr case made a detailed examination of the statute which is now covered in substance by Burns’ Ind. Stat., §9-3206, which is set out as follows:
“ ‘Neglected child’ defined — The words “neglected child” as used herein, or in any other statute concerning the care, custody or control of children shall mean any boy under the age of eighteen (18) years or any girl under the age of eighteen (18) years who :
(1) Has not proper parental care or guardianship;
,(2) Is destitute, homeless or abandoned;
(3) Habitually begs or receives alms;
(4) By reason of neglect, cruelty or disrepute on the part of the parents, guardians or other persons in whose care the child may be, is living in an improper place;
(5) Is in an environment dangerous to life, limb, or injurious to the health or morals of himself or others.
However, such a child receiving care from an authorized agency need not necessarily come to the attention of the court (Acts 1945, ch. 356, §6, p. 1724).”
The evidence in the present case, as in the Orr case, cannot sustain a finding under categories 2 through 5 of the statute. The case must rest, therefore, upon that part of the statute concerning proper parental care and guardianship. In order to better understand the court’s opinion in the Orr case as to clause 1 of the statute, so. much of the court’s opinion on that subject is hereby set out:
“With respect to clause 1 of this section of the statute, it might be contended that, since the father is insane and the mother away, the child is [675]*675without proper parental care. But that contention is excluded by the undisputed evidence and the facts found by the court. The child was left by the mother in the custody of the grandparents, who have so great affection for the little girl that they desire to keep her even to the exclusion of the mother, and the grandparents are suitable persons to be entrusted with the child’s care. It is not unusual for grandparents to take into their home grandchildren whose parents have been rendered unable through misfortune to provide for them. When a grandfather takes his grandchild into his home and treats it as a member of his own family, the relation between them becomes akin to that of parent and child. He is said to stand to the child in the relation of loco parentis, and the doctrine of loco parentis has long been known to the law. 20 R. C. L. 593. Under the circumstances of the case at bar, there can hardly be a difference of opinion on the proposition that the child does not come within clause 1 of the statute under consideration.”
It will be noted that in the above case the court stated that the grandparents had custody of the child and had excluded the mother from such custody. In defining the word “custody” we find that charge, control and possession appear as dominant factors, Black’s Law Dictionary, Fourth Edition, p. 461, 25 C. J. S., Custody, p. 69. Referring- again to the evidence in the present case, we find that appellant, Clifford Watson, never actually relinquished custody of the child to the Housels. The evidence shows that appellant was free to take the child from the Housels’ home and did so on numerous occasions. The Housels cannot be said to have had charge of, control of, or possession of Yicki Gaile Watson to the exclusion of the father. The court in this case merely placed the child legally in the home where she had previously resided at the will and pleasure of her father.
Appellant cites In re Coyle, supra, for the premise [676]*676that a child cannot be taken from its natural parents because the court believes it is in the best interest of the state. However, this argument is of no avail because there is no showing in the record that the child in the case at bar was taken solely because it was in the best interest of the state.
Appellant next argues that because the petition in question was not filed by a probation officer, as required by Burns’ Ind. Stat., §§9-3207 and 9-3208, the court acquired no jurisdiction over the subject matter of this action. He cites Shupe v. Bell, et al. (1956), 127 Ind. App. 292, 141 N. E. 351, as authority. In that case the appellee, who was a private party, filed the petition upon which the court acted. It was aptly pointed out in the Shwpe case that the procedure used by the court failed to follow the statute in both letter and spirit. The record clearly states in the present case that the Harrison Circuit Court appointed the Director of Public Welfare of Harrison County to perform the functions of probation officer. Burns’ Ind. Stat., §52-1120, (Acts 1936 [spec, sess.], ch. 3, §21), is hereby stated to show the authority of the court’s action:
“§52-1120. Duties of county departments.— Subject to the rules and regulations prescribed by the state department, the county department of public welfare is hereby charged with the administration of assistance to dependent children in their own homes, old-age assistance, services and assistance to persons otherwise handicapped, the care and treatment of dependent, neglected, and handicapped children, children in danger of becoming .delinquent, and such other welfare activities as .shall be delegated to it by the state department of public welfare, under the provisions of this act, including services connected with assistance to the blind. The director of public welfare and his assistants shall, under the supervision of any court .having jurisdiction of persons on probation and in compliance with the laws of this state relating to [677]*677probation, perform such of the functions of probation officer or agent of the court in any welfare matters which may be before it as the court may .direct. The county department shall report to the state department at such times and in such manner as the state department may, from time to time, direct. At the request of the county welfare board, the county commissioners shall provide necessary quarters for the county department, any expense of which shall be payable from the county welfare fund. [Acts 1936 (Spec. Sess.), ch. 3, §21, p. 12.]” (Our emphasis.)
The statute clearly states that probation functions may be performed by the Director of Public Welfare in any welfare matter which may be before it as the court may direct. Under this above statute, clearly the case and treatment of neglected children are defined as welfare matters. We are of the opinion that this statute is not in conflict with, nor is it superseded by, Burns’ Ind. Stat., §9-3208 (Acts 1945, ch. 356, §8, p. 1724). Both statutes in pari materia having to do with the welfare of children should be read in order that the clear legislative intent as expressed in the purpose of the latter Acts of 1915, supra, be fully complied with — ■ namely, “to secure for each child within its provisions such care, guidance and control ... as will serve the child’s welfare and the best interests of the state.”
This opinion herein being a case of first impression as to the right of the Department of Public Welfare to act in such juvenile matters as the case at bar in counties where there are no existing appointed probation officers, it is apparent that confusion might exist for the Bar of this state as to the proper method to institute proceedings involving the court’s jurisdiction over such cases as the instant case.
Apparently, subsequent to the date of the institution of this appeal, our General Assembly has recognized [678]*678the fact that confusion might result as to the filing of petitions in similar situations to the case at bar in counties where for economic reasons no probation officer has been appointed under our permissive but not mandatory applicable statutes, for in 1959, Burns’ §9-3208, supra, was amended by ch. 76, §1, p. 155, Acts 1959, by the addition of the following words:
“Provided, That the department of public welfare of any county may file a petition with the court concerning a dependent or neglected child and request that such dependent or neglected child be made a ward of the court or a ward of the county welfare department pursuant to the laws now in effect.”
We do not feel, however, that this is any recognition by our General Assembly that there was no method prior to the amendment of 1959, supra, by which petitions such as the one filed in the instant case could have been filed in counties where for economic reasons no probation officer had been appointed.
The applicable part of our opinion herein so holding that it was proper for the Department of Public Welfare to file said petition under existing laws at the time of the commencing of the original action of the case at bar, in so far as establishing a ruling case law, is now circumscribed by reason of the above referred to amendment. However, to have ruled to the contrary might have placed in jeopardy of both direct and collateral attack any other previous judgments in cases that may have been similarly decided to the case at bar.
It appears that both the letter and spirit of the statutes conferring jurisdiction upon the court in matters of this type have been complied with. We must keep in mind that the welfare of children is of prime impor[679]*679tance in situations of this type. Under the circumstances of this case, it appears that the welfare of Vicki Gaile Watson was properly considered in the court below in the light of applicable statutes.
Judgment affirmed.
Myers, C. J., concurs; Ryan, J., concurs in result; and Cooper, J., dissents with opinion to follow.