
    In re Konneker.
    (Decided February 1, 1929.)
    
      Mr. D. H. Schaffner, for Konneker.
    
      Messrs. Grant, Thomas & Buckingham, for Stanley.
   Pardee, J.

On tlie 21st day of January, 1928, an affidavit was filed by Grace L. Stanley in tbe juvenile court of Summit county, being tbe division of domestic relations of tbe court of common pleas, alleging that Wilfred Konneker, a minor six years of age, appeared to be a dependent child. In pursuance of this affidavit, jurisdiction over tbe person of said child and of Roy Konneker, bis father, was obtained, and said Roy Konneker appeared in open court with bis attorney, denied tbe truth of tbe affidavit, and contested the same.

The matter was tried to the court, numerous witnesses were called on each side, and, at the conclusion of the hearing, the court found that said minor is “now a dependent and neglected child, and that he comes into the custody of this court and is a ward thereof, and shall so continue until he shall have attained the age of twenty-one years * * * It is further the order of the court that after the discharge of said "Wilfred Konneker from the Springfield Sanatarium, that he be kept and supported by G-race Stanley, without any assistance from his father, Roy Konneker.”

The juvenile court, established by the General Assembly, and provided for in Sections 1639 to 1683-1, G-eneral Code, came into being through the exercise, by the legislative body, of its general police powers. The jurisdiction therein provided and conferred upon the court was unknown to the common law, and was not embraced in either the Civil or Criminal Codes of this state, and gives to said court powers which were not possessed by the courts of this state before. The methods provided in these sections are therefore known to the bench and bar as special statutory proceedings.

The Legislature, in conferring this power upon these courts, provided in detail the steps- necessary to be taken to acquire jurisdiction, and provided when, how, and under what circumstances the power may be exercised. In the juvenile court law, a delinquent child (Section 1644)., a' dependent child (Section 1645), and proper parental care (Section 1646), are defined.

This child was brought into the court as an alleged dependent child, who is a child under 18 years of age, who comes within one or more of the following designations, to wit: .

First, who is dependent upon the public for support;

Second, who is destitute, homeless, or abandoned;

Third (a) who has not proper parental care or guardianship, or (b) who begs or receives alms;

Fourth, who is given away or disposed of in any employment, service, exhibition, occupation, or vocation contrary to any law of the state;

Fifth (a) who is found living in a house of ill fame, or (b) with any vicious or disreputable persons, or (c) whose home, by reason of neglect, cruelty or depravity on the part of its parent, stepparent, guardian, or other person in whose care it may be, is an unfit place for such child ;

Sixth, who is prevented from receiving proper education or proper physical, mental, medical, or surgical examination and treatment because of the conduct, inability, or neglect of its parents, stepparent, guardian, or other person in'whose care it may be; or

Seventh, whose condition or environment is such as to warrant the state, in the interest of the child, in assuming its guardianship.

And “proper parental care” is defined in said law as follows:

First, whose parents, stepparents, or guardian permit it to use or become addicted to the use of (a) tobacco, or (b) intoxicating liquors as a beverage and not for medicinal purposes, or (c) any injurious or narcotic drug; or

Second, whose parents or guardian rear, keep or , permit it in (a) a gambling house or place where gambling is practiced or carried on, or (b) a house of ill fame or ill repute.

The pertinent part of the affidavit which was filed in this case reads as follows: “That he has not had proper parental care from his father, Roy Konneker, and further, that the home which said father offers said child is an unfit place for such child, for the reason of the neglect, cruelty and depravity of said Roy Konneker toward said child. Further, that the conditions and environment in which said Roy Konneker desires to rear his child are such that, in the interests of said child, Roy Konneker should be denied its custody.”

It will thus be seen that there are three reasons set forth therein why said child is a dependent one, to wit:

First, that he has not had proper parental care from his father, Roy Konneker.

Second, that the home which said father offers said child Is an unfit place for such child, for the reason of the neglect, cruelty, and depravity of said Roy Konneker toward said child.

Third, that the conditions and environment in which said Roy Konneker desires to rear his child are such that, in the interest of said child, Roy Konneker should be denied its custody.

At the very outset it should be remembered and kept in mind that cases arising under the juvenile law are not to be confused with cases in which the controversy arises between those seeking the custody of children in divorce or habeas corpus cases (Orr v. State, 70 Ind. App., 242, 123 N. E., 470), and also that this type of case is not the ordinary adversary proceeding in which there is a plaintiff and a defendant.

Upon the trial it was admitted by the father that he entered a plea of guilty to the crime of burglary and larceny in the common pleas court of Summit county, and was sentenced to the Ohio penitentiary as punishment for the same, and that, after serving approximately fourteen months, he was released upon parole about March 15, 1926, and was finally discharged from said institution at the termination of the period of his parole.

The evidence in the case shows that Opal Konneker, the mother of said child, died of tuberculosis on July 5, 1926; that on July 13, 1926, the grandmother, Grace L. Stanley, caused the arrest of the father for nonsupport of his children; that thereafter the families lived together until October 19, 1926; that from- that time until he was sent to the Springfield Sanatorium, in July, 1927, Wilfred and his sister lived with said grandmother, who is the mother of said Opal Konneker, deceased; that said father paid said grandmother for keeping said children; and that the grandmother testified there was not anything due her for said support.

The evidence further shows that from July, 1927, up to the time of the hearing of said complaint, said minor was an inmate of the Springfield Sanatorium in said county; that he was afflicted with tuberculosis ; that his sister, who is about 10 years of age, went with him to said sanatorium; and that she was released therefrom about December 24, 1927, and is' now living at Greenfield, Ohio, with and in the care of the mother and sister of said Roy Konneker, where he has placed her.

The evidence further shows that, from the time of the commitment of said children to said institution, the father paid for their care therein, as required by said institution; that he was never in arrears for said payments; and that, at the time of the hearing of this case in the juvenile court, he had paid in advance for the care of said Wilfred.

The evidence also shows that the father has been living in Summit county for the last twelve years and more; that he had been regularly employed prior to the time he was confined in the penitentiary; that he has worked continuously and steadily since his release; and that no claim has been made of any misconduct on his part since he was released from the penitentiary.

There was offered to sustain said affidavit testimony regarding many acts of misconduct on the part of the father, both of serious and minor nature, of which he was alleged to be guilty, but all before he was sent to the penitentiary — some of which acts had occurred many years before that date. Claim was also made that, after he returned from the penitentiary and resumed living with his wife and family, he was guilty of some misconduct around the home, and. was somewhat neglectful of his children.

It is not necessary to go into the details of all these charges and evidence offered thereon, as we have fully read the bill of exceptions and carefully considered and analyzed the same. From our examination of this record, we find that a great deal of incompetent testimony — largely of a secondhand nature — was admitted, some of which testimony tended to show that the mother of said child at her death desired her own mother to have his custody; all of which the record shows was considered by the trial judge, and which, of course, was prejudicial to the father.

After separating the competent from the incompetent testimony, and giving to the competent testimony its full value, we do not find any evidence in the record justifying the conclusion reached by the trial judge. There was no evidence offered to sustain any one of the various definitions of a dependent child, as set forth in the statute.

The evidence shows that both before said father was sent to the penitentiary and after his release therefrom he supported his children; that he either provided them a home of his own or paid for their support elsewhere; that he furnished his family the ordinary comforts of life, such as are usually furnished by one in his station; and that he has had and does have a great affection for his children. There is no evidence of any kind that he did not give said minor proper parental care, unless it be that he permitted the child to be in the custody of its grandmother, the complainant in this case.

The other complaints in the affidavit relate to the place where it is claimed and admitted that the father intends to place this child if he obtains its possession and custody.

That place is in the home of Roy Konneker’s mother in Greenfield, Ohio, which the evidence shows is a comfortable one, with proper environment and Christian influences, in a small city, with good schools and churches, which the boy’s sister, Winona Konneker, is attending. The evidence shows that this place is a proper and suitable one for the boy to be reared with his sister, who is now receiving proper care and attention therein.

There is no evidence that the father of. this child has been guilty of any cruelty, neglect, or depravity towards either of his children in the past, and no evidence which raises a presumption that this condition will arise if he is permitted to take this child and place it in the same home where the boy’s sister is now living, and therefore no justification of the state in assuming the guardianship of said child. As was well said by the Appellate Court of Indiana, in Orr v. State, supra:

“ ‘Environment’ is a word of broad significance. Just what the Legislature intended by this last clause we do not know. We assume, however, that it did not intend thereby to confer unlimited authority on the courts to determine arbitrarily and generally what sort of environment will justify the state in assuming control of infants. It is not the province of the courts to determine generally what conditions or exigencies will warrant the state in seizing the children of its citizens. To determine and declare the general policy of the state on this subject is a legislative function which cannot be delegated to the courts.”

One of the chief claims made against the father is that he had been guilty of a felony and had been confined in the penitentiary.

. This claim puts out of view the evidence which shows that, since the father returned from the penitentiary, he has not violated his parole, and has not done anything which would justify punishment of any kind, and denies him the privilege of reformation and the benefits which go with such reformation, and would continue to punish him for his misconduct in a way and with a severity' out of all proportion to the crime committed, and deprive him of all incentive to lead an upright and moral life.

The juvenile courts were created, and broad powers given them, because the people of our state found that the laws then existing were insufficient to cope with our fast-changing civilization. The laws governing said courts were passed to conserve and protect the child life of our state. They were passed to protect the home as well as the children. The home, the sacred institution of all times, handed down to us from time immemorial, recognized and established by uncivilized tribes in their crude manner, has progressed and improved until we have the home' of today, with all of its conveniences. The home is built upon the sacred institution of marriage —husband and wife; parents and children. The parental relationship was not created by' law, but laws are passed to protect this relationship, which grows out of natural law. This sacred tie which exists between parents and children should not be severed or terminated by outside influences unless sufficient evidence is offered to justify the same; and the fact that parents of a child live in humble circumstances, and there may be some one in more affluent circumstances who desires their child, does not warrant a court in interfering, or, through mere caprice, in transferring the custody from them to the other.

Parents have a right to the custody of their children, the same as they have a right to the possession of property which they may acquire; and the fact that some one may think that the children can be reared better by some one else is no justification for judicial interference, because, if this were the rule, there are thousands of children in this community, and in every other, whose parents upon this pretense would be deprived of their custody. As was well said by another.

“The Juvenile Court Law certainly does not contemplate the taking of children from their parents and breaking up family ties merely because, in the estimation of probation officers and courts, the children can be better provided for and more wisely trained as wards of the state. Probably from mere considerations of healthful and hygienic living and systematic education and training this would be true in the cases of thousands of families of wealth and respectability. We think it is only in instances where there is demonstrated incapacity or something akin to criminal neglect that the law is justified in interfering with the natural relations of parent and child.” People v. Gutierrez, 47 Cal. App., 128, 190 P., 200.

The final order in this case seems to have been made with the intention of giving it the force and effect of an adoption decree; it amounts to a total deprivation of the father of all right to see the child; it gives to the grandmother its sole custody, upon the condition that she support it; it is an attempt to relieve the father of the duty, cast upon him by law, to support his child; and it denies him the right to have his child again even if subsequent events should' justify the same.

Not finding any evidence to sustain the allegations of the affidavit, there was, in our opinion, no justification for taking this child from its father and depriving him of those natural rights which are more sacred to him than many others which are protected by the Constitution and laws of1 our state.

The judgment of the trial court is therefore reversed; and-now, making the order that the trial court ought to have made, we dismiss the proceedings and order the custody of the child restored to its father, where it was at the time of the institution of the suit in the court of common pleas.

Judgment reversed.

Washburn, P. J., and Funk, J., concur.  