Chidester v. Ellett

¶1(concurring).

¶2I concur. In doing so, nonetheless, I personally believe there are two other basic reasons for concluding that the District Court in this case had jurisdiction to determine the issue of “desertion.”

¶3In the first place, the juvenile court jurisdiction stems from Title 55-10-5, Utah Code Annotated 1953, Replacement Volume 6, which confers on that court jurisdiction in all cases “relating to the neglect, dependency and delinquency of children.” It says nothing as to “desertion” or “abandonment,” the subject matter of this case. This distinction well may be dispositive of this case. Many parents “neglect” children, perhaps for some legitimate and uncontrollable reason, but this does not mean they “desert” them. Some, because of economics or some other good reason, cannot satisfy social and legal requirements of “dependency,” but this justifies no conclusion that they have “deserted” their children. Many children are “delinquent,” but *191this is no synonym for “desertion.” As a matter of fact, the delinquent child is seldom deserted, but has devoted, loving’, tender and impassioned parents who rush to the rescue of their little darling.

¶4I would conclude, therefore, that the juvenile court act, saying nothing about “desertion” hardly could claim jurisdiction to determine that fact before an adoption matter involving that issue could proceed, where the sum total of parental rights is permanently sought to be substituted by those of adopting parents,- — not simply the disciplining or aiding of children. The very purpose of the latter should be to preserve the relationship of natural parents with respect to their own flesh and blood, — not to divest them of it. If a natural parent has relinquished in toto any claim he has to his child, that is one thing. If his child simply is delinquent, but the natural parent stubbornly refuses to relinquish such claim, that is another thing.

¶5If the argument be advanced that Title 55-10-5, in granting the juvenile court “exclusive original jurisdiction” in cases of “neglect, dependency and delinquency” takes from the district court its authority to determine the issue of “desertion” in a matter controlled by the mutually exclusive adoption statutes,1 my answer would be that such argument is fallacious, twofold: 1) From the plain wording of the two statutes there is no warrant in concluding that there is a jurisdictional clash, overlapping or anything else between the two in this case either in grammar or logic;2 and 2) assuming, arguendo that such conclusion could be reached, the Utah constitutional sanctions in Art. VIII, sec. 7, stating in clear language that “The District Court shall have original jurisdiction in all matters, civil and criminal, not excepted in this Constitution, and not prohibited by law,” is pre-emptive and superior to any abortive legislative attempt to create a court invasive of that provision, without a constitutional amendment. Such conclusion is basic and fundamental.

¶6In my opinion the directive of the main opinion to have the fact issue involved resolved by the District Court is correct.