Page:Schenck v. Knight.pdf/6

Rh child in the state Welfare Department is not actually before us on this appeal. No appeal was taken from that order but it would appear from the record before us, that the order was certainly open to attack. Even though Donna Marie was herself in apparent legal custody of the Welfare Department at the time the order was entered, she or her legal guardian was entitled to notice of hearing; she had no legal guardian and the juvenile court had no authority to appoint one for her. Cude v. State, 237 Ark. 927, 377 S.W. 2d 816. We hasten to point out that this is not an adoption case in any sense of the word and is not a proceeding for the appointment of a guardian. This is simply a habeas corpus case and we think the chancellor was correct in giving primary consideration to the best interest of the infant child.

The issues before the Garland County Chancery Court and the issues to which we address this opinion were clearly framed by the chancellor and agreed to by the appellants' counsel in language from the record as follows:

"THE COURT: All right. The Court is of the opinion in the first place that it has jurisdiction, not only to look into the validity of the Pulaski County proceeding on the habeas corpus but also to go beyond that and look into what is of the best interest of the child and I think that this is a different situation not one of the ordinary causes of habeas corpus where a man is imprisoned and in this issue there is more at stake than whether or not the Pulaski County Juvenile Court took proper action in what it did.

MR. DONOVAN: That's right.

THE COURT: So the Court is prepared to go into the whole matter. I'd like for all those who are to testify to please stand and be sworn."

At the hearing in chancery court Mrs. Brown testified that she herself was an adopted child of Julian and Marie Nabholz, having been adopted in 1937. She testified that she was 34 years of age; that she first married Tyrone Presley from whom she was divorced after two