Summary
In State ex rel. Grimstead v. Mueller, 361 Mo. 92, 233 S.W.2d 700 (1950), the Juvenile Division of the Circuit Court of Bates County, Missouri had, on February 3, 1948, entered a decree finding Sandra Lee Grimstead a neglected and abandoned child within the meaning of Missouri statutory law and ordered that said child be transferred to the Missouri Department of Public Health and Welfare.
Summary of this case from Petition of BeggianiOpinion
No. 42150.
November 13, 1950.
The facts and holding of the opinion are adequately summarized in the headnote.
PROHIBITION: Adoption of Children: Jurisdiction of Juvenile Court of St. Louis County: Preliminary Rule Discharged. A petition was filed in the juvenile court of St. Louis County for the adoption of a child who had been placed in the care of the petitioners, who were residents of St. Louis County. The fact that the child had been found a neglected and abandoned child by the juvenile court of Bates County did not deprive the juvenile court of St. Louis County of jurisdiction over the adoption proceeding. The preliminary rule in prohibition against respondent circuit judge should be discharged.
PRELIMINARY RULE DISCHARGED.
Robert A. Roessel and Ruth Boxdorfer for relator.
(1) Adoption exists solely as a creature of statute and the juridical act of adoption to be effective must be the precise act required by the statute and must be effected by a decree of the proper juvenile court. Niehaus v. Madden, 155 S.W.2d 141; Fienup v. Stamer, 28 S.W.2d 437. (2) The Circuit Court of St. Louis County (Juvenile Division) is without jurisdiction in the instant matter because the child sought to be adopted is under the age of seventeen and under the statutes of Missouri jurisdiction having been acquired by the Circuit Court of Bates County (Juvenile Division), jurisdiction of said child remains with and now is in the said Circuit Court of Bates County (Juvenile Division). Secs. 9673, 9689, R.S. 1939; State ex rel. Dew v. Trimble, 269 S.W. 617, 306 Mo. 657. E. Miltenberger Cain for respondent.
(1) Respondent has jurisdiction in this adoption proceeding under the provisions of the Adoption Code of the State of Missouri. Sec. 9608, Laws 1947, Vol. II, p. 214. (2) Jurisdiction in this adoption proceeding does not lie with the Juvenile Court of Bates County. State ex rel. Menth v. Porterfield, 304 Mo. 476, 264 S.W. 387; Application of Graham, 339 Mo. App. 1036, 199 S.W.2d 68; Sypolt's Adoption, 230 S.W.2d 877. (3) The statutory provision requiring this proceeding to be filed in St. Louis County is mandatory. 2 C.J.S., Sec. 35 b, p. 416; In re Duren, 355 Mo. 1222, 200 S.W.2d 343.
James E. Crowe, City Counselor, and Frank A. Neun, Assistant City Counselor, for amicus curiae, Grace M. Gorman.
(1) When lawfully domiciled in Bates County, the mere presence of the infant in St. Louis County is insufficient to confer jurisdiction in a civil suit for adoption, and no valid judgment can be rendered by the Juvenile Court of St. Louis County in such proceedings. Sec. 871, R.S. 1939; In re McFarland, 223 Mo. App. 826, 12 S.W.2d 523; State ex rel. Delmar Jockey Club v. Zachritz, 166 Mo. 307, 65 S.W. 999; Krueger v. Wolters, 238 Mo. App. 340, 179 S.W.2d 615; Wente v. Shaver, 350 Mo. 1143, 169 S.W.2d 947, 145 A.L.R. 1176. (2) The domicile of an infant once chosen by its parent or fixed by court action continues, even though the parent or the infant may for some special purpose leave and remain outside the chosen county and may be in another county or another state. In re Duren, 355 Mo. 1222, 200 S.W.2d 343, 170 A.L.R. 391; Beckman v. Beckman, 358 Mo. 1029, 218 S.W.2d 566, 9 A.L.R.2d 428; Cox v. Boyce, 152 Mo. 576, 54 S.W. 467; Johnson v. Smith, 94 Ind. App. 619, noted in 170 A.L.R. 404; In re Susan, 22 N.J. Misc. 181, 37 A.2d 645. (3) The adoption proceeding should be heard by the Juvenile Court in Bates County in accordance with statute. Secs. 9673, 9689, R.S. 1939; Ex parte Naccarat, 328 Mo. 722, 41 S.W.2d 176; State ex rel. Frank v. Porterfield, 221 Mo. App. 847, 285 S.W. 786.
Clarence M. Barksdale for amicus curiae, Children's Aid Society of St. Louis.
(1) Jurisdiction of this adoption proceeding is vested in respondent by the express provisions of the Adoption Code of the State of Missouri. Sec. 9608, Laws 1947, Vol. II, p. 214; In re Sypolt's Adoption, 230 S.W.2d 877; In re Graham, 199 S.W.2d 68, 339 Mo. App. 1036; State ex rel. Menth v. Porterfield, 264 S.W. 386, 304 Mo. 476. (2) The provisions of Sections 9673 and 9689, Mo. R.S.A., have no application to adoption proceedings but apply only to the purposes of Art. 9, of which article such statutes are a part. State ex rel. Menth v. Porterfield, 264 S.W. 386, 304 Mo. 476. (3) Adoption of children was unknown to common law and exists only by statute. Menees v. Cowgill, 223 S.W.2d 412, 359 Mo. 697; In re Watson's Adoption, 195 S.W.2d 331, 238 Mo. App. 1104. (4) Two statutes relating to the same general subject matter should be read together and harmonized, if possible, with view to giving effect to consistent legislative policy; but to the extent that statutes are unnecessarily inconsistent, the later statute which deals with common subject matter in a particular way will prevail over the earlier statute of more general nature. State v. Mangiaracina, 125 S.W.2d 58, 344 Mo. 99; Eagleton v. Murphy, 156 S.W.2d 683, 348 Mo. 949; State ex rel. Armontrout v. Smith, 182 S.W.2d 571, 353 Mo. 486; State ex rel. Taylor v. American Ins. Co., 200 S.W.2d 1, 335 Mo. 1053; State ex rel. Lefholz v. McCraken, 95 S.W.2d 1239, 231 Mo. App. 870; Chap. 56, Art. 1, Adoption of Children, Secs. 9608-9616 (e), inc., as Amended Laws 1947, Vol. 2, p. 213, Sec. 1, enacted 1948; Sec. 9673, Mo. R.S.A., enacted 1911, Laws 1911, p. 177.
George E. Hencghan for amicus curiae, Catholic Charities of St. Louis.
(1) Jurisdiction to determine the issues is vested in respondent. Sec. 9608, R.S. 1939 as amended by Laws 1947, Vol. II, p. 214; In re Sypolt's Adoption, 230 S.W.2d 877; State ex rel. Menth v. Porterfield, 264 S.W. 386, 304 Mo. 476. (2) The provisions of Section 9698, R.S. 1939, as amended by Laws, 1945, page 627, have no application in this case but apply only to Article 10, Chapter 56, R.S. 1939. State ex rel. Menth v. Porterfield, 264 S.W. 386, 304 Mo. 476. (3) The adoption article constitutes a code in itself and all sections should be construed together and the manifest intent of the legislature declared to be the law. In re McAvoy's Adoption, 173 S.W.2d 108, 237 Mo. App. 1099; In re Graham, 199 S.W.2d 63, 239 Mo. App. 1036. (4) The welfare of the child is the chief concern in proceedings for adoption. In re Schoenfeld, 171 S.W.2d 764, opinion quashed on other grounds, 177 S.W.2d 474, 352 Mo. 384, mandate conformed to App., 178 S.W.2d 463. (5) Juvenile Division of Circuit Court has no jurisdiction over children who are not residents of, or are not in, county of court's jurisdiction. State ex rel. Emory v. Porterfield, 244 S.W. 966, 211 Mo. App. 499.
This is an original proceeding in prohibition wherein the relator contends that the respondent does not have jurisdiction to hear and determine an adoption proceeding now pending in the juvenile division of the circuit court of St. Louis County.
Respondent concedes that relator has correctly stated the facts in his brief. We will therefore adopt relator's statement of the facts.
"The facts are not in dispute, having been admitted by pleadings of the parties. On April 7, 1950, Edward E. Kricensky and Sabina F. Kricensky, his wife, filed their petition for the adoption of Sandra Lee Grimstead in the Juvenile Division of the Circuit Court of St. Louis County. Honorable Fred E. Mueller during all times herein mentioned was and at the present time is a duly elected, qualified and acting Judge of the Circuit Court of the County [701] of St. Louis, Missouri, and presides over the Juvenile Division thereof. The Petition for Adoption was in the usual form and alleged that said petitioners are residents of the County of St. Louis, Missouri; that Sandra Lee Grimstead is a female child of the age of twenty-seven months; that Della Mae Grimstead of the City of Rich Hill, Missouri, is the mother of said child; that said child was begotten and born out of lawful wedlock; and that the identity of the father of said child is unknown. Said petition further stated that on February 3, 1948, the Juvenile Division of the Circuit Court of Bates County, Missouri, entered its finding, order and decree that the said Sandra Lee Grimstead was a neglected and abandoned child within the meaning of the law of the State of Missouri pertaining to this matter and ordered that the custody of said child be transferred to the Missouri Department of Public Health and Welfare. Thereafter, on May 9, 1949, said Court found that Della Mae Grimstead had abandoned said child and had contributed nothing toward her support for more than one year, and ordered that said child be placed for adoption by the said Division of Welfare. On July 11, 1949, the child was placed in the home of Mr. and Mrs. Kricensky in St. Louis County for care by them, and the right to supervise the care of said child and the right to resume custody thereof was retained by the said Division of Welfare. The child has been in the (lawful and actual) custody of Mr. and Mrs. Kricensky in St. Louis County continuously since July 11, 1949. The aforesaid Petition for Adoption further alleged that the mother of the child, for a period of more than one year immediately prior to the date of the filing of the Petition for Adoption, wilfully abandoned said child and wilfully neglected to provide said child with proper care and maintenance. It was further alleged that the said Missouri Department of Public Health and Welfare had filed its consent to the adoption of Sandra Lee Grimstead by Mr. and Mrs. Kricensky. A copy of the said Petition for Adoption and Summons was duly served on Della Mae Grimstead."
It is relator's contention that because the juvenile division of the circuit court of Bates County on May 9, 1949, found the infant child, Sandra Lee Grimstead, to be a neglected and abandoned child, that that court has exclusive jurisdiction over the person of that child until she attains her majority. The relator seeks to sustain his position mainly upon Section 9673, R.S. Mo., 1939. The pertinent part of this section 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: Provided, that when jurisdiction has been acquired under the provisions hereof over the person of a child, such jurisdiction shall continue, for the purpose of this article, until the child shall have attained its majority; * * *." (Italics ours.)
Chapter 56 of R.S. Mo., 1939, is composed of eleven articles, and Section 9673, supra, is found in Article 9 of that chapter. The plain language of this section deals only with the subject matter of Article 9. This is so because this section says, " Provided, that when jurisdiction has been acquired under the provisions hereof over the person of a child, such jurisdiction shall continue, for the purpose of this article, * * *." This article deals only with a "neglected child" and a "delinquent child." Article 1 of Chapter 56, as amended by the Laws of Missouri, 1947, pages 213-219 inclusive, deals with the adoption of children. If the legislature had provided that such "jurisdiction shall continue, for the purpose of this chapter," then of course the jurisdiction of the child in question in an adoption proceeding would have been in the juvenile division of the circuit court of Bates County. But Section 9673, supra, refers to "this article" which, as we have just stated, deals only with neglected and delinquent children.
Section 9608 of Article 1 of Chapter 56, found at page 214 of the Laws of 1947 provides:
[702] "Any person desiring to adopt another person as his child may petition the Juvenile Division of the Circuit Court of the County in which the person seeking to adopt resides, or in which the person sought to be adopted may be, for permission to adopt such person as his child.
"If the petitioner has a spouse living and competent to join in the petition, such spouse may join therein, and in such case the adoption shall be by them jointly, provided, however, that if such a spouse does not join the petition the Court in its discretion may, after a hearing, order such joinder, and if such order is not complied with may dismiss the petition."
This section provides that the juvenile division of the circuit court of the county in which the person resides who seeks to adopt a child has jurisdiction of an adoption proceeding, and it also provides that that court in which the adoptee may be has jurisdiction in adoption proceedings. The facts in this case are that the petitioners are residents of the county in which the respondent is juvenile judge. This fact alone would give the respondent jurisdiction of the adoption proceeding in question. He would also have jurisdiction because the child sought to be adopted was in St. Louis County at the time of filing the adoption petition. So under these facts this child would come within the phrase, "or in which the person sought to be adopted may be."
The identical question was recently decided by the Springfield Court of Appeals in the case styled Sypolt's Adoption, 230 S.W.2d 877. The child involved in that case had been adjudged to be a neglected child by the juvenile court of Franklin County and was placed temporarily with the petitioners who lived in Greene County. These petitioners filed their petition in the juvenile court of the latter county. The trial court quashed the petition for adoption for the reason that the Franklin County juvenile court had exclusive jurisdiction of the adoption proceeding of that child. But the Springfield Court of Appeals held the juvenile division of the circuit court of Greene County was in error in quashing the petition for adoption and reversed the trial court.
Relator relies upon the case of State ex rel. Dew v. Trimble, 306 Mo. 657, 269 S.W. 617, l.c. 621, to sustain his contention but there is nothing in that case that lends any such support to relator's contention. On the contrary, it supports the ruling we have just made. In that case we said: "* * * when the juvenile court has in a given case assumed jurisdiction with respect to any such child, its jurisdiction supersedes that of any and all other courts touching the same subject-matter." (Italics ours.) The "same subject-matter" in that case was the neglected child.
The "same subject-matter" before the Bates County Court in the case at bar was the neglected child, while the "subject-matter" before the respondent is the adoption of the child.
It follows from what we have said that the preliminary rule in prohibition heretofore issued should be discharged. It is so ordered. All concur.