In re Thompson, 228 N.C. 74 (1947)

Oct. 15, 1947 · Supreme Court of North Carolina

228 N.C. 74

In the Matter of ROBERT LEE THOMPSON, Minor.

(Filed 15 October, 1947.)

1. Habeas Corpus § 8—

No appeal lies from tbe order of tbe court in proceedings in habeas corpus to determine the custody of a minor child as between persons wbo bad obtained control of the child with a view to adoption and welfare officers 'Seeking control of tbe child to place him with members of his family, review being solely by certiorari.

2. Habeas Corpus § 3—

Proceedings to obtain control of a minor child between persons with whom the child had been placed for adoption and welfare officers seeking to place the child with his family is not a proceeding under G-. S., 17-3, to set the infant free but is a proceeding to fix and determine the right of custody. .

3. Same: Clerks of Superior Courts § 7—

Jurisdiction to determine the right of custody of an infant as between persons with whom the infant had been placed with a view to adoption and welfare officers seeking to place the infant with Ms family, is within the exclusive jurisdiction of the juvenile court, G. S., 110-21 (3), and writ of habeas corpus is inadvisedly issued by the Superior Court,' but pending determination of the juvenile court, respondent should not surrender custody to a nonresident and no order should be entered until petitioners have had notice and an opportunity to be heard.

ApplicatioN for writ of habeas corpus beard by Sink, J-.,- at tbe June Term, 1947, Wilkes, bere under writ of certiorari issued on petition of tbe respondent.

Robert Thompson is an infant 5 years of age. Llis father is dead. His mother, a resident of West Yirginia, on or about 3 January 1946, left him with J. A. Nelson and wife, Stella Faye Nelson, tbe petitioners, and executed written consent to tbe adoption of said infant by said petitioners. No further proceedings have been bad looking to bis adoption. Tbe child was placed in tbe home of T. N. Royal, grandfather of feme petitioner, where it remained until 9 August 1946. On that date respondent Charles C. McNeill, welfare officer of Wilkes County, at tbe request of tbe welfare officers of West Yirginia, took custody of tbe infant for tbe purpose of delivering him to tbe said authorities to be placed with members of bis family.

Tbe court below awarded custody of said infant to petitioners and respondent appealed.

Ralph Davis and W. H. McElwee for petitioner appellees.

F. J. McDuffie for respondent appellant.

Rabnhill, J.

Tbe petitioners filed in this Court written motion to dismiss tbe appeal for the reasons therein stated. Tbe motion was allowed and tbe appeal dismissed for that in such cases no appeal lies. In re Holley, 154 N. C., 163, 69 S. E., 872; In re Croom, 175 N. C., 455, 95 S. E., 903; S. v. Burnette, 173 N. C., 734, 91 S. E., 364.

Tbe respondent petitioned for writ of certiorari to bring tbe proceeding and tbe judgment below before this Court for review. Tbe petition was allowed and tbe cause is bere under said writ.

Tbe petitioners insist that this proceeding was instituted under G. S., 17-3. This contention is not supported by tbe record. They allege in their petition that they “have a claim to tbe custody of tbe child” and “are entitled to its custody” and pray that tbe Court “inquire into tbe right to tbe custody of said minor child and that . . . such custody be awarded to them.” On tbe bearing in tbe court below tbe court adjudged “that tbe petitioners are lawfully entitled to retain custody of said Robert Lee Thompson pending tbe further orders of this Court . . .” and so ordered. Clearly then it is not a proceeding to set tbe infant free but to take tbe child from one restraint and place him under another. It is a proceeding to fix and determine tbe right of custody of an infant.

Tbe State, with a fixed purpose to protect with jealous care tbe general welfare of infants of tender age, has decreed that, except in certain specific instances, matters, either civil or criminal, affecting tbe welfare or custody of children under 16 shall be beard and determined in a special branch of the Superior Court created and maintained for that purpose. To that end the General Assembly created the juvenile courts of North Carolina and vested them with exclusive original jurisdiction of any case, within the classifications therein specified, of a child less than 16 years of age residing in or being at the time within their respective districts. Oh. 97, P. L. 1919, as amended, now G. S. Oh. 110, Art. 2. This exclusive original jurisdiction includes cases in which the custody of an infant is the subject of controversy. G. S. 110-21 (3).

The writ of habeas corpus was inadvisedly issued. In re McGraw, arde, p. 46. The controversy is one for the juvenile court of Wilkes County to decide. To that end the court below should remand the cause to that court for further proceedings.

Pending a hearing in the juvenile court the respondent should not surrender custody of said infant to a nonresident, and no order should be entered until petitioners have had notice and an opportunity to be heard.

The judgment below is

Reversed.