# Griffith v. Roy > Supreme Court of Louisiana · November 6, 1972 · 263 La. 712 URL: https://www.frixlaw.com/law-library/cases/9685904 ## Case - **Full name:** Eileen Reed GRIFFITH v. Joseph Folse ROY, Sr.; J. Folse ROY v. Eileen REED, Wife of Joseph Folse Roy, Jr. - **Court:** Supreme Court of Louisiana - **Decided:** November 6, 1972 - **Citations:** 263 La. 712; 269 So. 2d 217; 1972 La. LEXIS 5424 - **Precedential status:** Published - **Opinion:** Dissent by Dixon - **Judges:** Barham, McCaleb, Hamlin, Appeal, Dixon - **Cited by:** 30 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9685904 ## Opinion text DIXON, Justice (dissenting). I respectfully dissent. As I understand the majority opinion, it has categorized this grandfather’s petition *736 for custody of his grandchildren as a “neglect” complaint and proceeds to hold that the district court, “lacking jurisdiction, was incompetent to act in the proceedings filed by the grandfather.” This cannot be correct. First, the jurisdiction of. the district courts in civil matters is unlimited, and is fixed by the Constitution. Second, plaintiff’s petition is not a neglect proceeding. It is an effort to obtain legal custody of grandchildren already in his actual custody. The district courts in Louisiana are courts of unlimited jurisdiction. Article 7, Section 35 of the Louisiana Constitution of 1921 provides: “The District Courts . . . shall have original jurisdiction in all civil matters . . . and in all cases where . . . civil or political rights are involved, and in all cases where no specific amount is in contest, except as may be otherwise provided in this Constitution . . . ” (Emphasis added). Unless another provision of the Constitution limits the jurisdiction of the district courts, possibly by granting exchisive jurisdiction to another court, that jurisdiction cannot be restricted by statute. Article 7, Section 52 of the Louisiana Constitution of 1921 establishes juvenile courts. That article provides that judges of district courts in most of the State are ex-officio juvenile court judges. Certain city courts were given jurisdictions concurrent with the district courts, and as such, the judges of the city courts were ex-officio judges of juvenile courts. There is no indication in the jurisdiction section of Article 7, Section 52 that the jurisdiction granted to juvenile courts was to be exclusive. 1 R.S. 13:1563 does make the effort to grant exclusive jurisdiction to juvenile courts, as does R.S. 13:1570. Certain exceptions are noted in R.S. 13 :1570. 2 *738 ■ It is -elemental that statutes cannot limit the constitutional grant of jurisdiction given to the district courts. Finally, this court has reached the rather surprising conclusion that the petition filed by this plaintiff was a proceeding under R.S. 13:1569 et seq. to have a juvenile court declare the grandchildren “neglected” children, apparently contrary to our holding in In re Sherrill, 206 La. 457 , 19 So.2d 203 . There we held the juvenile court to be without jurisdiction in a grandparent’s “neglect” petition, when the grandparent alleged that actual custody was in the good home of the grandparents, and the mother’s home was unfit. In this case, plaintiff prayed for a judgment awarding him “the permanent care, custody and control of his two grandchildren . . . ” The petition contained over fifty articulated paragraphs, describing conduct of the mother which the petition alleged rendered her morally unfit to keep the children. The petition was filed in the district court. It was heard by the district judge, sitting as a district judge, who rendered written reasons for judgment after consolidating the case with the mother’s habeas corpus act. The district court found, based on State v. Stokes, La. App., 222 So.2d 573 and State v. Bannister, La.App., 198 So.2d 196 , such unusual circumstances had been presented, showing that the welfare of young children was in jeopardy, that the grandparent could seek the legal custody from the natural parent. The district court granted the legal custody to the grandparent, in whose actual custody the children had been for more than four months. In one respect, I agree with the majority; this court should pay little attention to the label attached to pleadings. However, I disagree with the majority when it labels this petition a "neglect” action, and because of that label finds that the district court did not have jurisdiction to decide the custody of these children. “Neglected child” is defined by R.S. 13:1569(8) as follows: “A ‘neglected child’ means a child who has been adjudged to be within the conditions set forth in R.S. 13:1570, Subsection 1, paragraphs (1) and (2).” The relevant portions of R.S. 13:1570 provide that: “Except as otherwise provided herein, the court shall have exclusive original jurisdiction in proceedings: “A. Concerning any child whose domicile is within the parish or who is found within the parish: “(1) Whose parent or other person legally responsible for the care and support of such child neglects or refuses, when able to do so, to provide proper or necessary support, education as required by law, or medical, surgical or other care *740 necessary for his well-being; or who is abandoned by his parent or other custodian; or who is otherwise without proper care, custody, or support. “(2) Whose occupation, behavior, environment or associations are injurious to his welfare.” Although the requirements of a “neglect complaint” are not clearly delineated, R.S. 13:1574 sets out the requirements of a petition which shows that a “child is within the purview of R.S. 13:1561 through 13:1592.” This phrase encompasses both •neglected and delinquent children. R.S. .13:1574 provides: “Whenever any person informs the court that a child is within the purview of R. S. 13:1561 through 13:1592, the court shall make a preliminary inquiry to determine whether the interests of the public or of the child require that further action be taken. Thereupon the court •may make such informal adjustment as 'is practicable without a petition, or may authorize a petition to be filed by any person. The proceeding shall be entitled ‘The State of Louisiana in the interest of --, a child under seventeen years of age.’ “The petition shall be verified and, if ■made by a probation officer or the district attorney, may be upon information and belief. It shall set forth plainly (1) .the facts which bring the child in the purview of R.S. 13:1561 through 13:1592; (2) the name, age, and residence of the child; (3) the names and residences of his parents; (4) of the person or persons having custody or care of the child and (5) of the nearest known relative if no parent, custodian or other person having the care of the child can be found. If any of the facts herein required are not known by the petitioner the petitioner shall so state. “In the trial of a child under R.S. 13:1561 through R.S. 13:1592 it shall be the duty of the district attorney to conduct the prosecution.” The Roy petition varies from the requirements of a “neglect complaint” in that: (1) The petition is not entitled “The State of Louisiana in the interest of Eileen Kaye Roy and Joseph Folse Roy, III, children under the age of seventeen.” (2) Roy’s petition is not verified. (3) The name of the father is included, but his residence is not included. (4) The district attorney did not conduct the “prosecution.” A reading of R.S. 13:1561 through 13:1592 indicates that this is not and was not intended to be a “neglect complaint” for the additional reason that the State is not involved in this matter in any way. Apparently, a “neglect complaint” is one to *742 which the State is either the mover or a party. In State v. Graham, 173 La. 469 , 137 So. 855 , this court held that: “ . . . cases involving the neglect or delinquency of children are quasi criminal in their nature, in which cases the state is a party. In cases of neglect, the state acts for and on behalf of the child against either or both parents who may have it in custody, and this creates an issue between the state and the parent, of which issue the juvenile courts have jurisdiction under the express provisions of the Constitution and the statute. Brana v. Brana, 139 La. 305 , 71 So. 519 .” It should be noted that there is no contest in this case between district courts and juvenile courts for jurisdiction over the persons involved or over the subject matter. It seems to me that the majority makes it impossible for the district court to adjudicate the question presented to it. We seem to hold that the district court lacks jurisdiction to decide whether the mother is an unfit person: yet we reverse and remand the habeas corpus suit, and order the trial court to proceed in that matter “in accordance with this opinion.” Have we decided that under no circumstances is the grandfather to obtain a decree granting him the legal custody of these children? Are we saying, by inference, that the district court must eithcrgrant or deny the mother’s demands in the habeas corpus action ? Are we saying-that the district court could find that the-mother, by immoral conduct, had forfeited her right to these children, but the court was without “jurisdiction” to render a. judgment granting the grandfather legal, custody ? Nor should some of the other broad conclusions in the majority opinion be allowed' to rest unchallenged. Such statements in the majority opinion as: “No other person can institute a civil proceeding for child, custody while that (marriage) contract exists,” are not supported by authority, nor by reason. We granted writs in this case to consider what the Court of Appeal said and did about the so-called “double burden rule.”' Such questions, we do not reach. We-should, in my view, touch upon this matter. The application by the Court of Appeal of' this “rule” was perhaps unfortunate. Nevertheless, an examination of the record demonstrates the probable correctness of' the conclusion of the Court of Appeal and the district court that the evidence adduced' on the trial of this matter was sufficient to-demonstrate the moral unfitness of the mother. In my opinion, this court should examine-the record and determine whether the welfare of these children requires that their grandfather be granted legal custody. . “Jurisdiction. The said Courts shall have jurisdiction, except for capital crimes and crimes defined by any law defining attempted aggravated rapé if committed by children fifteen years of age or older, of cases of the State of Louisiana in the interest of children under seventeen years of age, as may be provided by the Legislature, brought before said Courts as delinquent or neglected children and of the trial of all persons charged with the violation of any law now in existence or hereafter enacted for the protection of the physical, moral or mental well-being of children under seventeen years of age, not punishable by death or hard labor. Said Court shall also have jurisdiction of all cases of desertion or nonsupport of children under seventeen years of age, by either parent, or nonsupport of a wife by her husband, and also of the adoption of children under seventeen years of age.” . “Nothing contained in R.S. 13:1561 through 13:1592 shall deprive other courts of the right to determine the custody of children upon writs of habeas corpus, or to determine the custody of children when such custody is incidental to the determination of cases pending in such other courts.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9685904. Public record. Not legal advice.