This is not a contest between individuals involving the mere custody of a minor Rather, as indicated by the title of the cause, it is a proceeding in the Juvenile Court of Caddo Parish, quasi criminal in nature, in which the State is seeking to determine *Page 469 what is for the best interest of the child, Wilma Ann Sherrill, she having been charged in an affidavit filed in that court with being neglected.
A distinction between the two kinds of proceedings is clearly pointed out in the case of In re Owen et al., 170 La. 255,127 So. 619, 622, this court therein observing:
"The line of demarcation between the courts exercising general civil jurisdiction with respect to the care, custody, and control of minors and the juvenile courts is well defined. These courts, in dealing with the welfare and interest of minors under a given age, are entirely independent of each other. Where the contest is between the parents, or between a parent and a third person, as to who should have the control and care of the minor, the court exercising general civil jurisdiction is the proper and exclusive tribunal to decide the issue.
"But, where a child is neglected or delinquent, and where theparent contributes to, or is responsible for, such neglect ordelinquency, then the state has the paramount right in theinterest of the welfare of the child to say who shall have thecare, custody, and control of the child, and the juvenile courthas been made the special and exclusive tribunal for determiningsuch issue.
"There is no force in the contention that this is not a proceeding by the state. It is true that the proceeding was initiated by the affidavit of individuals, but the charge as stated is quasi criminal, and it was made on behalf and in the interest of the state *Page 470 in the proper exercise of its paramount right to determine the best interest and welfare of the children in the manner provided by law.
"Nor is there any merit in the contention that the juvenile court of Claiborne Parish has no personal jurisdiction over the defendant. The children were in Claiborne Parish." (Italics ours.)
The Juvenile Court of Caddo Parish, by Section 6 of Act 30 of 1924, is vested with jurisdiction of the trial of children under 17 years of age who are charged therein as neglected or delinquent.
The term "neglected child", according to Section 9 of that statute, means "any child under seventeen years of age, not now, or hereafter, an inmate of a state institution, found destitute, or dependent upon the public for support, or without proper guardianship, or whose home, by reason of the neglect, cruelty, depravity or indigence of its parents, guardians, or other persons, is an unfit place for such child, or having a single surviving parent undergoing punishment for crime, or when found wandering about the streets or roads or anywhere at night, or wandering anywhere alone without being on any lawful business, or who, in the opinion of the court, is entitled to support or care by its parent or parents, where it appears that the parent or parents are failing or refusing to support or care for said child, or who habitually begs or receives alms, or who is found living in any house of ill fame or with any vicious or disreputable person or persons, or whose home, by reason of neglect, immorality *Page 471 or depravity on the part of its parent or parents, guardian or other person in whose care it may be, is an unfit place for such child, or whose environment is such, or about whose custody a controversy may be such as to warrant the state, in the interest of the child, in assuming or determining its guardianship, or in determining what may be for the best interests of said child."
And Section 11 of the Act, in so far as pertinent, states: "All proceedings against `neglected' or `delinquent' children shall be by affidavit made before the clerk of the court or any committing magistrate, by any reputable person, charging the said child with being `neglected' or `delinquent,' and briefly setting forth in general terms the facts constituting said `neglect' or `delinquency.' * * * Pending the trial, the court may permit the child to remain in the custody of the person with whom it is at the time of the issuance of the summons or warrant, or may place it in the custody of a person, association or institution deemed proper by the Court."
Furthermore, it may be observed that strict rules of pleadings do not obtain in the Juvenile Court.
While the minor Wilma Ann Sherrill was, and had been for a long period of time, residing within Caddo Parish, her grandmother, Mrs. DeLaune, filed in the Juvenile Court of that parish an affidavit specifically charging, among other things, that the child has been abandoned by its parents; that such parents are failing and refusing to support or care for it; that a controversy exists about the custody of *Page 472 the child which warrants the court in assuming or determining what may be for its best interest; and that the home of the mother is an unfit place for the child to live in.
Acting upon that affidavit, as it was required to do, the court signed the following order:
"In this cause, by reason of a proceeding having been this day filed, supported by affidavit according to law setting forth allegations of neglect of the juvenile named of such nature, in the opinion of the court, to warrant the court in taking immediate steps to prevent said child from being removed from the jurisdiction of said court until a hearing can be had according to law:
"It is, therefore, ordered that said juvenile be taken in immediate custody of this court to be held pending a hearing according to law on the charge of neglect.
"Be it further ordered that the right of temporary custody and detention be hereby vested in Mrs. Wilma Frey DeLaune, and that she is hereby directed to hold said child in her custody as a ward of this court, in Caddo Parish, Louisiana, not to be removed from the jurisdiction of said court, subject to further orders.
"It is further ordered that all rights of the parents or other persons having an interest herein be reserved without prejudice."
After the Juvenile Court had thus taken custody of the child, but before a hearing could be had on the charge of neglect, the plea to the court's jurisdiction (that *Page 473 which is now before us) was tendered. The judge, following his giving consideration to the plea, overruled it. In my opinion, that ruling was correct.
Certainly the Juvenile Court of Caddo Parish had jurisdiction rationae personae, for the child resided within the limits of that parish. In re Owen et al., supra. Also, in my opinion, it was vested with jurisdiction rationae materiae, such having attached immediately upon the filing by Mrs. DeLaune of the affidavit in which she charged the child with being neglected and briefly alleged in general terms facts constituting the neglect. This affidavit substantially, if not almost literally, follows the terms of the statute.
It is true that the affidavit contains allegations to the effect that affiant is a reputable person; but this is as the statute requires.
We are confronted now only with the mentioned plea to the jurisdiction; the merits of the case have never been heard by the Juvenile Court. For that reason it is improper for us to consider, as the majority opinion indicates has been done, the evidence adduced in the custody contest, a civil proceeding between individuals, held in the Civil District Court of Orleans Parish. If admissible at all, that evidence would be appropriate on a hearing of the merits which will come in due time if the plea to the jurisdiction be overruled.
Pertinent to the cause as it is now presented is the following expression in State, in the Interest of Bolin v. Bruce,178 La. 1081, 152 So. 911: *Page 474
"This proceeding was initiated by an affidavit, charging that the minor was under the age of seventeen years, and that she was a neglected child within the meaning of the law. If the case had gone to trial upon the affidavit, the juvenile court's jurisdiction to determine whether or not the child was a neglected child, and, if found to be so, to award its custody, could not have been questioned, for the pertinent part of section 6 of Act No. 30 of 1924 is as follows:
"`The Juvenile Court for the Parish of Caddo shall have jurisdiction, except for capital crimes and assault with intent to commit rape, of the trial of all children under seventeen years of age who may be charged in said court as neglected or delinquent children.'"
For the above reasons I respectfully dissent.